                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2008

Ou v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3118




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                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  NO. 07-3118
                                  ___________

                                MIN HANG OU,
                                   Petitioner

                                        v.

                          ATTORNEY GENERAL OF
                            THE UNITED STATES,
                                 Respondent
                    ____________________________________

                    On Petition for Review of an Order of the
                        Board of Immigration Appeals
                          (Agency No. A78-928-156)
                 Immigration Judge: Honorable Alberto Riefkohl
                 _______________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  June 2, 2008

          Before:    MCKEE, NYGAARD AND ROTH, Circuit Judges




                         (Opinion Filed: July 11, 2008)
                                  _________

                                    OPINION
                                   _________

PER CURIAM

     Min Hang Ou petitions for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) order of

removal. For the following reasons, we will grant the petition.

                                              I.

       Ou, a native and citizen of China, entered the United States in 2004 without having

been admitted or paroled. He concedes removability, but seeks asylum, withholding of

removal and relief under the Convention Against Torture (“CAT”) on the grounds that he

fears being persecuted and tortured for his practice of Falun Gong.

       Ou testified before the IJ that his father began to practice Falun Gong in 2000, and

that he and his mother began to practice in 2001. According to Ou, Chinese authorities

arrested his father in March 2001 and detained him for approximately two months. Ou

testified that his father was tortured during that time, but did not specify how. He

submitted a letter from his father describing the Chinese government’s “crack-down” on

Falun Gong practitioners and his arrest, and stating that he had been “severely”

interrogated. Ou also testified that he continued practicing Falun Gong regularly until

finally leaving China in July 2003. He testified that neither he nor his mother were ever

arrested, but that he was discriminated against at school after his father’s arrest. He also

testified that, after authorities learned that he practices Falun Gong, he was denied job

opportunities.

       The IJ denied Ou’s claims on the sole basis that his testimony was not credible.

On appeal, the BIA assumed that Ou’s testimony had been credible, but dismissed his



                                              2
appeal on the basis that he had failed to carry his burden of proof. Ou petitions for review

of the BIA’s order.1

                                              II.

       Ou raised claims for asylum, withholding of removal and relief under CAT before

the Agency. On his petition for review, however, he limits his challenge to the Agency’s

ruling to its denial of his claim for asylum. Accordingly, we address only that claim. See

Alaka v. Att’y Gen., 456 F.3d 88, 94 (3d Cir. 2006).

       An applicant may demonstrate eligibility for asylum by showing either past

persecution (thus shifting the burden to the government to show changed country

conditions), or a well-founded fear of future persecution, on account of a statutorily-

protected ground. See Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006);

Chavarria, 446 F.3d 508, 516 (3d Cir. 2006). To establish a well-founded fear of future

persecution, an applicant must show both a “subjectively genuine fear of persecution and

an objectively reasonable possibility of persecution.” Ghebrehiwot, 467 F.3d at 351. An

applicant can show an objectively reasonable possibility of future persecution by showing

either that “‘he or she would be individually singled out for persecution or that there is a

pattern or practice in his or her country . . . of persecution of a group of persons similarly


  1
    We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where, as here, the BIA issues
its own ruling on the merits, we review only the decision of the BIA. See Chavarria v.
Gonzales, 446 F.3d 508, 515 (3d Cir. 2006). We review the BIA’s factual findings for
substantial evidence, and must affirm them unless “a reasonable factfinder would be
compelled to conclude otherwise.” Id.

                                               3
situated to the applicant[.]’” Id. (citations omitted).

       In this case, Ou attempted to demonstrate eligibility for asylum by showing both

past persecution and a well-founded fear of future persecution. The BIA ruled that Ou

had not shown past persecution, and that ruling is supported by substantial evidence. The

only evidence of mistreatment that Ou presented was his testimony that he had been

discriminated against at school and denied job opportunities as a result of his father’s

arrest and his practice of Falun Gong. Ou did not otherwise elaborate on these events.

Thus, substantial evidence supports the BIA’s conclusion that Ou failed to show that

these events rose to the level of past persecution. See Li v. Att’y Gen., 400 F.3d 157, 168

(3d Cir. 2005) (discussing circumstances under which economic deprivation rises to the

level of persecution).

       Ou argues, however, that the BIA failed to address whether he had a well-founded

fear of future persecution. That argument is well-taken.2 Ou testified that he practiced

Falun Gong in China and continues to practice it here, and we have recognized that the

practice of Falun Gong is a statutorily-protected ground. See Gao v. Ashcroft, 299 F.3d

266, 267-68 (3d Cir. 2002), superseded on other grounds by statute as stated in Kaita v.

Att’y Gen., – F.3d –, No. 06-3288, 2008 WL 879052, at *6 (3d Cir. Apr. 3, 2008). Ou

further testified that Chinese authorities have “cracked down” on Falun Gong, that his


  2
   The government argues that “the entirety” of Ou’s brief contains arguments
unexhausted before the BIA. Ou, however, specifically raised this argument in his brief
before the BIA. (A.11-12.)

                                               4
father was arrested, detained for two months and tortured for practicing Falun Gong, and

that he “knows” he too will be arrested if returned to China. (A.64, 66-68, 74.) He also

submitted a letter from his father and his own asylum application statement, both of

which state that the Chinese government has “cracked down” on Falun Gong and

persecuted its practitioners. The BIA assumed that Ou’s testimony was credible. It did

not discuss the other evidence Ou submitted or fault him for failing to offer additional

evidence. Instead, it merely limited its discussion to the issue of past persecution without

addressing whether Ou’s testimony and evidence carried his burden of demonstrating a

well-founded fear of persecution if returned to China. Accordingly, we will vacate the

BIA’s ruling and remand with an instruction to consider that aspect of Ou’s asylum claim.

See Ghebrehiwot, 467 F.3d at 355 (remanding where IJ considered only past persecution

and not evidence relevant to a well-founded fear of persecution). See also Sukwanputra

v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006) (remanding for consideration of a pattern

or practice of persecution).3


  3
    In his brief, Ou relies on a 2006 Country Report on Human Rights Practices as support
for the objective reasonableness of his fear of persecution, and appears to fault the BIA
for not having considered this report. As Ou concedes, however, neither this nor any
other country report is contained in the administrative record. Accordingly, the BIA was
not required to consider this report sua sponte, see Meghani v. INS, 236 F.3d 843, 848
(7th Cir. 2001), but on remand it may take official notice of the report, see Zubeda v.
Ashcroft, 333 F.3d 463, 479 (3d Cir. 2003). The government argues that neither this
report nor the record demonstrates a well-founded fear of persecution. Because the BIA
did not address that issue, however, we cannot do so and must remand for the BIA to
address it in the first instance. See Li, 400 F.3d at 163. We express no opinion on
                                                                               (continued...)

                                             5
  3
   (...continued)
whether the record contains substantial evidence supporting a conclusion that Ou either
has or does not have a well-founded fear of persecution.

                                            6
