                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1620



RAPHAEL TENE,

                                                         Petitioner,

          versus


ALBERTO R. GONZALES, Attorney General,

                                                         Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-622-062)


Submitted: May 30, 2007                       Decided:   July 6, 2007


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Petition granted by unpublished per curiam opinion.


Ana T. Jacobs, ANA T. JACOBS & ASSOCIATES, P.C., Washington, D.C.,
for Petitioner.   Peter D. Keisler, Assistant Attorney General,
Carol Federighi, Senior Litigation Counsel, Robert L. Gulley,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Raphael Tene, a native and citizen of Cameroon, petitions

for review of the Board of Immigration Appeals’ (“Board”) order

affirming     the   immigration   judge’s    decision   denying    Tene’s

application for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”).

            Tene’s claims for relief are predicated on his assertion

that Cameroonian government officials persecuted him on account of

his involvement with political groups that oppose the ruling party

in Cameroon.    In an affidavit submitted in support of his asylum

application, Tene averred that he had been arrested, detained, and

tortured in 1992, 1993, and 2002 because of his political opinion.

Tene   presented    both   corroborating    documentation   and   witness

testimony to establish that he had in fact been arrested, beaten,

and persecuted as he claimed.

            The immigration judge (“IJ”) denied Tene’s claims for

relief.     In doing so, the IJ explained that, to the extent that

Tene’s prior arrests “constituted past persecution on account of

the respondent’s political opinion, at this time [respondent]

clearly has no well-founded fear of persecution based on those

events and that is because in June 2002 the respondent was issued

a Cameroonian passport by the government.”       The IJ concluded that

Tene’s “fear based on events in 1992 and 1993 cannot be said to be

objectively reasonable, nor is [that] fear . . . subjectively


                                  - 2 -
genuine.”    Although the IJ found Tene had produced “some credible

corroboration” regarding his prior arrests, the IJ nonetheless

declined to grant asylum in the exercise of her discretion.

            On appeal to the Board, Tene argued, among other issues,

that the IJ erred in failing to consider whether Tene established

past persecution such that he would be entitled to a rebuttable

presumption of a well-founded fear of future persecution.      Tene

maintained that his prior arrests and detentions constituted past

persecution on account of his political opinion, and that the

Government had not shown a fundamental change in circumstances or

that relocation within Cameroon was possible so to overcome the

presumption.

            In denying Tene’s appeal, the Board found that Tene

“failed to prove that his arrests in 1992 and 1993 constituted a

basis for relief.”    Although Tene had testified regarding the 1992

and 1993 arrests and “provided corroborative evidence” to establish

the arrests, the Board nonetheless concluded that, because the

Cameroonian government issued Tene a passport after these arrests,

Tene was not a “refugee” within the meaning of the Immigration and

Nationality Act, “because he left his country and was able to and

willing to return.”    The Board further noted that, even assuming

Tene had established past persecution, he was not entitled to

relief because he did not demonstrate “a well-founded fear of




                                - 3 -
future persecution because he left Cameroon without any problems

and returned without fear or problems.”

          Although Tene raises several issues in his petition for

review, Tene’s argument regarding his past persecution claim is

dispositive.1   Tene argues that his application and corroborating

evidence demonstrated that he suffered past persecution, thus

entitling him to a rebuttable presumption of a well-founded fear of

future persecution.    Because the Government did not rebut this

presumption, Tene contends, the IJ and the Board erred in denying

him relief.   For the reasons outlined below, we remand this case to

the Board for further examination of this issue.

          The Immigration and Nationality Act (“INA”) authorizes

the Attorney General to confer asylum on any refugee.      8 U.S.C.

§ 1158(a) (2000).   A “refugee” is defined as a person unwilling or

unable to return to his native country “because of persecution or

a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000). “Persecution involves

the infliction or threat of death, torture, or injury to one’s

person or freedom, on account of one of the enumerated grounds.”

Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal

quotation marks and citations omitted).


     1
      Tene also challenges the IJ’s conclusion that he does not
have a well-founded fear of future persecution.    We express no
opinion on the merit of this issue at this juncture.

                                - 4 -
             “Applicants bear the burden of proving eligibility for

asylum.”     Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006);

see 8 C.F.R. § 1208.13(a) (2006).          An applicant can establish

refugee status based on past persecution in his native country on

account of a protected ground.       8 C.F.R. § 1208.13(b)(1) (2006).

“[A]n applicant who demonstrates that [he] was the victim of past

persecution on the basis of a protected ground is presumed to have

a well-founded fear of future persecution.”        Essohou v. Gonzales,

471   F.3d     518,   520   (4th    Cir.   2006)    (citing   8    C.F.R.

§ 1208.13(b)(1)). This presumption can be rebutted on a finding of

a fundamental change of circumstances so that the alien no longer

has a well-founded fear, or a finding that the alien could avoid

persecution by relocating within the country of removal.           Id.; 8

C.F.R. § 1208.13(b)(1)(i)(A), (B) (2006).        “The Service bears the

burden of proof for rebutting the presumption.”         Naizgi, 455 F.3d

at 486.

             The central issue in this case is whether Tene met his

burden of proof to establish past persecution, thus entitling him

to a presumption — albeit a rebuttable presumption — of a well-

founded fear of future persecution.          The IJ did not squarely

address this issue in her oral decision, instead simply noting

that, “to the extent that . . . the arrests and detentions of 1992

and   1993    constituted   past   persecution     on   account   of   the

respondent’s political opinion, at this time [Tene] clearly has no


                                   - 5 -
well-founded fear of persecution . . . because respondent was

issued a Cameroonian passport.” The Board did not clarify the IJ’s

ruling; instead, the Board adopted the IJ’s line of reasoning,

agreeing that, even assuming Tene suffered past persecution, “he

did not have a well-founded fear of future persecution because he

left Cameroon without any problems and returned without fear or

problems.”

              This case presents facts similar to those we considered

in Naizgi.          There, the IJ specifically found that Naizgi had

established past persecution; however, because the IJ granted

Naizgi asylum on discretionary grounds, the IJ did not consider

whether      the    Government    had       presented   sufficient       evidence   to

overcome      the    presumption       of    a   well-founded     fear    of   future

persecution that arose because of that finding.                   Naizgi, 455 F.3d

at 486-87.          On appeal, the Board reversed the IJ’s grant of

discretionary asylum.          Though it did not reverse the IJ’s finding

that   Naizgi       suffered    past    persecution,       the   Board   nonetheless

rejected Naizgi’s asylum claim, concluding that Naizgi did not have

a well-founded fear of future persecution.                 Id. at 487.     The Board

did    not   consider     whether      changed      circumstances    rebutted       the

presumption of a well-founded fear of future persecution.                      Id. at

487-88. Although we affirmed the Board’s reversal of discretionary

asylum, we concluded that neither the IJ nor the Board adequately

addressed      whether    the    presumption        that    arose   upon    Naizgi’s


                                            - 6 -
establishment of past persecution had been rebutted.           Id. at 488-

89. Accordingly, we vacated the Board’s removal order and remanded

for further proceedings.

           Naizgi dictates the disposition of the instant petition.

Here,    unlike   in   Naizgi,   the   IJ   did   not   make   an       express

determination that the 1992 and 1993 arrests constituted past

persecution; however, she did state that, “even if” the 1992 and

1993 arrests constituted past persecution, Tene did not have a

well-founded fear of future persecution.          Thus, it appears the IJ

assumed, at least for the sake of argument, that the 1992 and 1993

arrests constituted past persecution. In light of this assumption,

the IJ erred as a matter of law in failing to afford Tene the

benefit of the rebuttable presumption of a well-founded fear of

future persecution that arises upon such a determination. Essohou,

471 F.3d at 520.       This presumption can only be rebutted if the

Government proves, by preponderance of the evidence, that there has

been a fundamental change in circumstances or that relocation

within   the   designated   country    is   possible.     Id.;      8    C.F.R.

§ 1208.13(b)(1)(i)(A), (B). Although the IJ’s discussion of Tene’s

receipt of a Cameroonian passport and Tene’s use of the passport to

travel safely to and from the Ivory Coast at least marginally

relates to the “change in circumstances,” because no express

finding of changed circumstances was made, the IJ’s opinion is




                                  - 7 -
insufficient.   Naizgi, 455 F.3d at 488-89.   In affirming the IJ’s

decision based on this reasoning, the Board similarly erred.

          Neither the Board nor the IJ fully considered whether

Tene carried his burden of proof to establish past persecution and,

if so, whether the Government rebutted the presumption that arose

as a result.    Accordingly, we remand this case to the Board for

further consideration of these issues.    See INS v. Ventura, 537

U.S. 12, 16 (2002); see also Gonzales v. Thomas, 547 U.S. 183, 126

S. Ct. 1613, 1615 (2006) (per curiam); cf. Hussain v. Gonzales, 477

F.3d 153, 157-58 (4th Cir. 2007) (holding that “rare circumstances”

exception to Ventura’s agency remand rule applies when the issue to

be addressed is legal rather than factual, and the denial of relief

is a foregone conclusion, such that remand to the agency would be

“a mere formality”).   Because the issues relevant to the gaps in

the IJ’s and the Board’s fact-finding regarding the significance of

Tene’s prior arrests are equally dispositive of Tene’s withholding

of removal claim, we remand this claim for further consideration as

well.2

          As a final matter, we turn to Tene’s claim that the IJ

improperly admitted documentary evidence from his asylum hearing,

namely the asylum officer’s notes from his asylum interview,

assessment to refer, and record of oaths.     We address this issue


     2
      Because he did not challenge the Board’s denial of CAT
relief, Tene has waived review of that issue. See Edwards v. City
of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).

                               - 8 -
because, if the IJ did err in admitting these documents, they would

have to be excluded from the body of evidence evaluated by the

Board on remand.

            Whether   evidence    is    admissible   at   an   administrative

hearing on a petition for removal is governed by due process

considerations, not the Federal Rules of Evidence.                 Hassan v.

Gonzales, 403 F.3d 429, 435 (6th Cir. 2005).               Admissibility of

evidence is governed by “whether the evidence is probative and

whether its use is fundamentally fair.” Ezeagwuna v. Ashcroft, 325

F.3d 396, 405 (3d Cir. 2003) (internal quotations and citations

omitted).     Fairness is determined by whether the evidence is

trustworthy and reliable.        Id.

            We have reviewed the documents and conclude that the IJ

correctly determined they bore sufficient indicia of reliability to

support admission.    Most significantly, the asylum officer’s notes

on Tene’s hearing testimony are entirely consistent with Tene’s

version of events as set forth in his first asylum application.

Because these documents were properly admitted, the Board may

consider them when evaluating the body of evidence relevant to the

issues on remand.

            For the foregoing reasons, we grant the petition for

review and remand for an agency determination on Tene’s asylum and

withholding of removal claims with regard to the past persecution




                                       - 9 -
issue.3   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                   PETITION GRANTED




     3
      By this disposition, we indicate no view of the merits of the
issues to be considered on remand.

                               - 10 -
