                       MODIFIED OPINION
                          PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


SIMMON Y. MENGHESHA,                     
                           Petitioner,
                 v.
                                                 No. 04-1716
ALBERTO R. GONZALES, Attorney
General,
                      Respondent.
                                         
                On Petition for Review of an Order
               of the Board of Immigration Appeals.
                          (A79-235-494)

                      Argued: November 29, 2005

                       Decided: March 13, 2006

              Modified Opinion Filed: June 14, 2006

   Before WILLIAMS, KING, and GREGORY, Circuit Judges.



Petition for review granted; vacated and remanded by published opin-
ion. Judge Gregory wrote the majority opinion, in which Judge King
joined. Judge Williams wrote a separate dissenting opinion.


                             COUNSEL

ARGUED: David Allen Garfield, Washington, D.C., for Petitioner.
Theodore Charles Hirt, Trial Attorney, U. S. DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Civil Division, Washing-
2                      MENGHESHA v. GONZALES
ton, D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant
Attorney General, Civil Division, Margaret Perry, Senior Litigation
Counsel, U. S. DEPARTMENT OF JUSTICE, Office of Immigration
Litigation, Civil Division, Washington, D.C., for Respondent.


                              OPINION

GREGORY, Circuit Judge:

   Simmon Y. Menghesha fled his native country of Ethiopia on July
8, 2001, the day he learned that government officials had discovered
his role in thwarting the arrest of anti-government protestors. The fol-
lowing day, Menghesha arrived in the United States and sought asy-
lum under Section 208(a) of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1158(a). Menghesha maintained that if returned
to Ethiopia, he would suffer arrest, imprisonment, and torture on
account of the political opinion he expressed through verbal critiques
of the government and by his actions to frustrate the arrest of nonvio-
lent protestors. The Immigration Judge ("IJ") denied Menghesha’s
asylum request based on a belief that the Ethiopian government
desired to prosecute Menghesha for obstruction of justice. The IJ
failed, however, to consider whether the government possessed coex-
isting illicit motives for taking action against Menghesha. The Board
of Immigration Appeals ("BIA") affirmed the IJ’s determination, ren-
dering Menghesha removable to Ethiopia. Because we find that the
IJ misapplied the law in denying Menghesha’s request for asylum, we
grant Menghesha’s petition for review, vacate the BIA’s decision, and
remand for further proceedings.

                                   I.

   Following is a recitation of undisputed facts adduced in
Menghesha’s asylum application and hearing testimony. In the
absence of contrary evidence or an adverse credibility determination,
we accept Menghesha’s uncontested account as true. Menghesha was
born in Addis Ababa, Ethiopia on May 15, 1976. After graduating
from high school, he became actively involved in the Ethiopian Peo-
ple’s Revolutionary Democratic Front and Tigray People’s Liberation
                       MENGHESHA v. GONZALES                          3
Front ("EPRDF/TPLF"), the political party presently in power. In
November 1997, having been identified as a committed
EPRDF/TPLF member, Menghesha was offered a position with the
government’s security services. After six months of training,
Menghesha was assigned to a government security detail.

   As a member of the security detail, Menghesha was directed to spy
on meetings of groups opposed to the government. Menghesha first
carried out this task in September 1999, when, undercover, he
attended a meeting of the All Amhara People’s Organization on the
occasion of the death of that organization’s leader. During the meet-
ing, the leader of the undercover team summoned the riot police to
suppress the allegedly unruly crowd. On their arrival, the riot police
began to beat and arrest attendees who refused to disperse. Those who
were arrested were detained for two days without bathroom access.
Menghesha expressed his discontent about how the attendees were
treated in a subsequent security meeting. At that time, his superiors
warned him not to criticize the government and told him that such
conduct "would harm [him]." J.A. 184.

   In April 2001, Menghesha was assigned to a six-member under-
cover team to identify anti-government behavior at a meeting orga-
nized by the head of the Ethiopian Human Rights Council. Because
Menghesha did not observe any illegal conduct, he did not furnish any
information leading to arrests. Consequently, government officials
accused him and his colleague Yohannes Assefa of being "in sympa-
thy" with the opposition, threatened them with arrest, and told them
they would be watched closely. J.A. 69, 185.

   About a week later, Menghesha’s undercover team attended a
meeting of disgruntled Addis Ababa University students. While a
high-ranking security officer negotiated with students regarding their
demands for increased freedom, Menghesha and his colleagues inter-
acted with other students and collected information on student lead-
ers. When negotiations failed, the security team received orders to
arrest five students identified as opposition leaders. The team was
directed to use "any means necessary" to effectuate the arrests, includ-
ing deadly force. J.A. 185. Menghesha was "disturbed" by the order
to use deadly force. Id. at 71. He felt "the students were asking the
4                      MENGHESHA v. GONZALES
right questions" and could not comprehend "why the government
[was] behaving this way." Id.

   Menghesha discussed the arrest orders with Assefa. Disgusted by
what was transpiring, they resolved to warn the five students in ques-
tion. Having seen others beaten and killed upon arrest, Menghesha
feared that the students would meet the same fate unless he inter-
vened. J.A. 74. Further, he sympathized with the students because
their request was "right and peaceful." Id. at 77. When the security
officers arrived on campus to make arrests, the five students were
gone, although other security teams arrested those students they were
assigned to locate. Word of the arrests spread, and students mobilized
to resist and protest. Troops moved in to control the students and a
deadly riot ensued.

   Thereafter, the security department began to investigate who had
warned the five students. Menghesha and Assefa came under suspi-
cion when security department officials learned that they had been at
the university on the afternoon before the arrests, a fact they had
failed to report. As there was no proof of wrongdoing, the security
department modified the men’s duties pending further investigation,
but took no other action.

   On July 8, 2001, Menghesha and Assefa learned that their role in
thwarting the arrests had been discovered by government officials.
That same day, Menghesha and Assefa boarded a plane bound for the
United States. With that, Menghesha fled the country, without saying
goodbye or retrieving any belongings, and despite his apparent plans
to marry. On arrival the next day, the two surrendered to immigration
authorities and told their story.

   At his asylum hearing, Menghesha introduced documentary evi-
dence, including the State Department’s Country Report on Ethiopia,
to substantiate his testimony. Although Assefa was available to tes-
tify, the parties simply stipulated to his corroborative testimony. The
Immigration and Naturalization Service ("INS") did not introduce evi-
dence at the hearing, offering only opening and closing remarks.1
    1
  On March 1, 2003, the INS’s responsibilities were transferred to the
Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, §§ 451, 471, 116 Stat. 2135, 2195, 2205 (2002).
                        MENGHESHA v. GONZALES                           5
   After reviewing the evidence, the IJ denied Menghesha’s requests
for asylum and withholding of removal. The IJ expressed the view
that as "a sworn law enforcement official . . . it was not for
[Menghesha] to pick and choose among which of the persons he was
directed to arrest." J.A. 225. He stated, "if [Menghesha] took excep-
tion to any action that the government might engage, including the
arrest of students who were expressing their opposition to the govern-
ment of Ethiopia, [Menghesha] had it within his ability to resign from
his position as a law enforcement official." Id. at 225-26. The IJ con-
cluded that "[Menghesha] fears prosecution for his criminal act of
obstruction of justice," and that this "may not form the rational basis
upon which the Court can conclude that he would be persecuted on
account of his political opinion or any of the four remaining bases
upon which asylum may be granted." Id. at 226. The IJ thus denied
Menghesha’s asylum request without making additional factual find-
ings that might undermine Menghesha’s entitlement to asylum.

   On May 11, 2004, the BIA affirmed the IJ’s decision without opin-
ion. Menghesha timely appealed the BIA’s order, challenging only
the denial of his petition for asylum.

                                   II.

   Section 208(b)(1) of the INA, 8 U.S.C. § 1158(b)(1), gives the
Attorney General authority to grant asylum to an alien meeting the
statutory definition of a refugee. Under the INA, a refugee is someone
who is unable or unwilling to return to his home country due to a
well-founded fear of persecution on account of race, religion, nation-
ality, membership in a particular social group, or political opinion. 8
U.S.C. § 1101(a)(42)(A). To satisfy this test, an asylum applicant
"must demonstrate the presence of a protected ground and he must
link the feared persecution, at least in part, to it." Saldarriaga v. Gon-
zales, 402 F.3d 461, 466 (4th Cir. 2005), petition for cert. filed, 74
U.S.L.W. 3130 (U.S. Aug. 25, 2005) (No. 05-266).

   Where, as here, the BIA engages in the streamlined review process
set forth in 8 C.F.R. § 1003.1(e)(4) by simply adopting the IJ’s con-
clusion without opinion, the IJ’s decision becomes the final agency
decision subject to our review. See Camara v. Ashcroft, 378 F.3d 361,
366 (4th Cir. 2004); see also 64 Fed. Reg. 56,138 (Oct. 18, 1999)
6                      MENGHESHA v. GONZALES
(When the BIA summarily affirms the IJ’s decision, "the Immigration
Judge’s decision becomes the decision reviewed."). Accordingly, the
IJ’s findings of fact "are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B). We review the IJ’s legal conclusions de novo, giving
appropriate deference to its interpretations of the INA. Nwolise v.
INS, 4 F.3d 306, 309 (4th Cir. 1993) (citing Chevron, U.S.A., Inc. v.
NRDC, 467 U.S. 837, 842-45 (1984)). The IJ’s ultimate decision with
regard to Menghesha’s eligibility for asylum must be upheld unless
it is "manifestly contrary to the law and an abuse of discretion." 8
U.S.C. § 1252(b)(4)(D) (2000); see also Li v. Gonzales, 405 F.3d 171,
175 (4th Cir. 2005); Saldarriaga, 402 F.3d at 465; Ngarurih v. Ash-
croft, 371 F.3d 182, 188 (4th Cir. 2004); Blanco de Belbruno v. Ash-
croft, 362 F.3d 272, 284 (4th Cir. 2004). An IJ abuses its discretion
in making an error of law. See United States v. Pearce, 191 F.3d 488
(4th Cir. 1999) (citing Koon v. United States, 518 U.S. 81, 100
(1996)).

   Thus, where, as here, the IJ misapplies the law in evaluating a
request for asylum, the appropriate remedy is to remand so that the
agency may apply the correct legal standard in the first instance. See
INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (stating that
remand is required where the agency has yet to address a legal ques-
tion pertinent to the asylum determination). See also Phommasoukha
v. Gonzales, 408 F.3d 1011, 1015 (8th Cir. 2005) ("When the BIA
applies an incorrect legal standard, the proper remedy typically is to
remand the case to the agency for further consideration in light of the
correct standard."); accord Qiu v. Ashcroft, 329 F.3d 140, 157 (2d
Cir. 2003); Griffiths v. INS, 243 F.3d 45, 55 (1st Cir. 2001); Asani v.
INS, 154 F.3d 719, 723 (7th Cir. 1998); Martinez-Sanchez v. INS, 794
F.2d 1396, 1399 (9th Cir. 1986).

                                  III.

   In denying Menghesha’s request for asylum, the IJ committed
legal, if not factual, error. In this respect, this case must be distin-
guished from the many instances in which we have considered
whether the BIA’s factual findings justified a denial of asylum. See,
e.g., Saldarriaga, 402 F.3d at 465-67; Ngarurih, 371 F.3d at 188-89;
Blanco de Belbruno, 362 F.3d at 284-85. We resolved those cases
                         MENGHESHA v. GONZALES                             7
under the extremely deferential standard of review applicable to fac-
tual determinations. In this instance, however, we are concerned with
the IJ’s legal conclusions, not factual findings. We find that the IJ
erred as a matter of law in holding Menghesha to an overly stringent
legal standard: proving that political persecution was the govern-
ment’s sole motive.

   Specifically, the IJ erred in discontinuing his inquiry after identify-
ing the Ethiopian government’s arguably legitimate motive to prose-
cute Menghesha.2 Under the INA’s "mixed-motive" standard, an
  2
   In using the term "prosecution," the IJ seized upon the principle,
found in In re Nagy, 11 I. & N. Dec. 888 (BIA 1966) and its progeny,
that prosecution for a criminal violation does not alone constitute perse-
cution. This important principle respects a government’s freedom to
devise its own laws and penalties for criminal conduct. In stating that
"[o]bstruction of justice may not form the rational basis upon which the
Court can conclude that [Menghesha] would be persecuted on account of
his political opinion . . . [,]" the IJ, however, broadened the rule of In re
Nagy, by suggesting that prosecution never amounts to persecution. In
fact, where the motive underlying a purported prosecution is illegitimate,
such prosecution is more aptly called persecution. See, e.g., Abdel-
Masieh v. INS, 73 F.3d 579, 584 (5th Cir. 1996) ("While punishment of
criminal conduct in itself is not persecution, where that punishment . . .
is motivated by one of the specified grounds, such punishment would
constitute persecution under the [INA]."); accord Lin v. INS, 238 F.3d
239, 244 (3d Cir. 2001); Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996);
Sadeghi v. INS, 40 F.3d 1139, 1142 (10th Cir. 1994).
   Moreover, the IJ’s conclusion that Menghesha fears prosecution is
troubling, because typically "[f]oreign law is a matter to be proven by the
party seeking to rely on it . . . ." In re Soleimani, 20 I. & N. Dec. 99, 106
(BIA 1989); see also Abdille v. Ashcroft, 242 F.3d 477, 490 (3d Cir.
2001). Although "[o]rdinarily, it is the asylum applicant who seeks the
benefit of foreign law, and thus carries the burden of demonstrating its
content," Abdille, 242 F.3d at 490, in this instance, the INS relied on for-
eign law by claiming that Menghesha feared prosecution under Ethiopian
law. Thus, after Menghesha produced evidence to show that the Ethio-
pian government had an illegitimate motive to persecute him, the INS
bore the burden of offering evidence of the Ethiopian law that it contends
Menghesha violated in thwarting the warrantless arrest of nonviolent
protestors. But see Sadeghi v. INS, 40 F.3d 1139, 1142-43 (10th Cir.
1994) (declining to place the burden of proving foreign law on the INS
where the petitioner failed to produce evidence sufficient to show that
the Iranian government had any illegitimate motive for persecuting him).
8                       MENGHESHA v. GONZALES
asylum applicant need only show that the alleged persecutor is moti-
vated in part to persecute him on account of a protected trait.3 Recog-
nizing that persecutors often have multiple motives for punishing an
asylum applicant, the INA requires only that an applicant prove that
one of those motives is prohibited under the INA. See, e.g., Mohideen
v. Gonzales, 416 F.3d 567, 570 (7th Cir. 2005) ("the [INA’s] refer-
ence to persecution ‘on account of’ one of the specified grounds does
not mean persecution solely on account of one of those grounds.");
accord Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003) (citing
Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997)); Girma v. INS,
283 F.3d 664, 667 (5th Cir. 2002); Borja v. INS, 175 F.3d 732, 735
(9th Cir. 1999) (en banc); Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.
1994); In re S-P-, 21 I. & N. Dec. 486, 490 (BIA 1996). Thus, even
assuming that the Ethiopian government had a lawful non-political
motive for prosecuting Menghesha, the IJ had an obligation to con-
sider the evidence of political motive. In other words, an IJ may not
"treat[ ] the presence of a nonpolitical motive as evidence of the
absence of a political motive." Tarubac v. INS, 182 F.3d 1114, 1118
(9th Cir. 1999). Indeed, in In re Nagy, the BIA did not dismiss the
possibility of an impermissible motive purely because there was a
valid basis for prosecuting the applicant, namely her violation of the
time limits placed on her travel abroad. 11 I. & N. Dec. at 891-92.
Rather, the BIA searched the record for evidence of an unlawful per-
secutory motive. Id. at 889. Finding no evidence of impermissible
motive, the BIA denied the relief sought. Id. at 891-92.

  Unlike the BIA in In re Nagy, the IJ here did not consider the
uncontested evidence of political motive. For instance, the IJ did not
address the fact that: (1) Menghesha was threatened with "harm" if he
    3
   The Attorney General argues at great length that we do not have juris-
diction to review Menghesha’s claim of mixed-motive persecution
because he did not advance an argument of mixed-motive persecution
before the IJ. Br. for Resp’t at 41-44. We disagree. In asking us to assess
his claim under a mixed-motive standard, Menghesha is not alleging a
distinct legal claim. Rather, he is merely elucidating the proper legal
standard, that the impermissible basis for persecution need not be the
sole basis for persecution. Thus, we will (and we must) apply the proper
legal standard regardless of whether Menghesha argued it affirmatively
before the IJ.
                        MENGHESHA v. GONZALES                           9
continued to criticize the government’s handling of dissidents; (2) he
was accused of being "in sympathy" with the student protestors; and
(3) he was subjected to close scrutiny and threatened with arrest for
sympathizing with the students. In this respect, the IJ failed to comply
with In re Nagy, and effectively held Menghesha to a more onerous
standard than is required under the INA. We conclude that the IJ’s
analysis of Menghesha’s asylum claim was incomplete. Accordingly,
we set aside the IJ’s determination, which was manifestly contrary to
law and an abuse of discretion, and remand so that the agency may
evaluate Menghesha’s entitlement to asylum according to the correct
legal standard.4

                                   IV.

  For the reasons stated above, we grant the petition for review and
vacate the BIA’s denial of asylum. We, however, do not decide
whether, applying the correct mixed-motive standard, Menghesha is
entitled to asylum. Instead, we remand that such a determination may
be made in the first instance.

                                            PETITION FOR REVIEW
                                          GRANTED; VACATED AND
                                                      REMANDED

WILLIAMS, Circuit Judge, dissenting:

 I would deny Menghesha’s petition for review and affirm the BIA.
While I agree with the majority that the INA contains a "mixed-
  4
    Finally, we address the suggestion implicit in the IJ’s opinion that
Menghesha’s status as a law enforcement official undermines his entitle-
ment to asylum. This belief may stem from a series of cases, which stand
for the proposition that "dangers faced by policemen as a result of that
status alone are not ones faced on account of race, religion, nationality,
membership in a particular social group, or political opinion." In re
Fuentes, 19 I. & N. Dec. 658, 661 (BIA 1988); accord Estrada-Escobar
v. Ashcroft, 376 F.3d 1042, 1044 (10th Cir. 2004); Chanco v. INS, 82
F.3d 298, 302 (9th Cir. 1996). Those cases are inapposite. Menghesha
fears reprisal from the government he served, which cannot seriously be
characterized as one of the "dangers faced by policemen."
10                     MENGHESHA v. GONZALES
motive" standard and that we must remand the case if "the IJ misap-
plied the law," ante at 2, I believe the IJ properly applied the INA in
determining that Menghesha failed to qualify for asylum. I view this
as a typical fact-driven asylum case, where the IJ’s factual determina-
tions should be given great deference. For the reasons explained
herein, I would respect Congress’s will, follow Supreme Court prece-
dent, and deny the petition for review. See 8 U.S.C.A.
§ 1158(b)(1)(A) (West 2005) (placing asylum decisions within the
purview of the Secretary of Homeland Security and the Attorney Gen-
eral); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (recognizing
"that judicial deference to the Executive Branch is especially appro-
priate in the immigration context").

                                   I.

   My colleagues’ decision is based on their conclusion that the IJ
failed to apply "the correct mixed-motive standard." Ante at 9.
Respectfully, I disagree. In order to qualify as a refugee, Menghesha
must show "a well founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or polit-
ical opinion." 8 U.S.C.A. § 1101(a)(42) (West 2005) (emphasis
added). In this case, Menghesha argues that he fears persecution on
account of his political opinion. The phrase "on account of" requires
that Menghesha show that persecution because of his political opinion
was a motivating force on the Ethiopian government, although not
necessarily the sole motivating force. Thus, my colleagues are correct
that Menghesha need only show that the Ethiopian government was
motivated to persecute him in part because of his political opinion.

   Where I part ways with the majority, however, is with its unsup-
ported statement that the IJ required Menghesha to show that the gov-
ernment planned to persecute Menghesha based solely on his political
opinion. Ante at 8. The IJ’s oral opinion never stated that Menghesha
must show that he fears persecution based solely on his political opin-
ion. The IJ never stated that he was rejecting Menghesha’s mixed
motive argument as a matter of law. Menghesha, in fact, did not spe-
cifically make a "mixed motive" argument below.

  As the majority properly recognizes, however, a petitioner need not
make a "mixed motive" argument because the legal standard articu-
                        MENGHESHA v. GONZALES                           11
lated in the statute itself allows for the possibility of multiple motives.
Thus, as was pointed out at oral argument, there is "no other kind of
case" than a mixed motive case. Accordingly, Menghesha only
needed to argue that he fell within the ambit of the statute, which is
understood to mean that he was required to show, inter alia, that the
government sought to persecute him at least in part because of a pro-
tected ground. Of course, in recognizing that Menghesha did not have
to argue this point below because it is "merely" the "proper legal stan-
dard," ante at 8 n.3, it seems odd to require more of the IJ who eluci-
dated the proper legal standard but simply did not expressly use the
term "mixed motive;" if Menghesha need only argue that he falls
within the INA’s ambit, we should not require the IJ to say anymore
than that Menghesha falls outside of that ambit. Indeed, the IJ cor-
rectly stated the applicable law. (See J.A. at 222-23 ("[Menghesha]
must meet the definition of a refugee which requires him to show . . .
that a reasonable person in his circumstances would fear persecution
on account of one or more of the five protected enumerated
grounds.").)

   Moreover, the IJ found that Menghesha failed to show that it was
more likely than not that he would be subject to persecution on
account of his political opinion. “The IJ made a specific finding of
fact that Menghesha "failed to sustain his burden of proof and persua-
sion . . . that there is a reasonable possibility of his persecution in the
future . . . on account of one or more of the five protected enumerated
grounds." (J.A. at 223 (emphasis added).) See, e.g., INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002) ("Whether an asylum applicant has demonstrated
past persecution or a well-founded fear of future persecution is a fac-
tual determination reviewed under the substantial evidence stan-
dard."); Jahed v. INS, 356 F.3d 991, 1003 (9th Cir. 2004) (Kozinski,
J., dissenting) ("Whether persecution is ‘on account of’ a petitioner’s
political opinion is a question of fact; it turns on evidence about the
persecutor’s motives."). In other words, in direct response to
Menghesha’s claimed fear of persecution based on his political
beliefs, the IJ made an explicit finding of fact that Menghesha failed
to show a fear of persecution based on his political beliefs. See, e.g.,
Bakhtriger v. Elwood, 360 F.3d 414, 425 (3d Cir. 2004) ("The fact
that there are legal principles that govern these matters . . . does not
convert every question of fact or discretion into a question of law.").
12                       MENGHESHA v. GONZALES
We are thus left with a situation where the IJ found that Menghesha
did not suffer a fear of persecution based on an enumerated ground
and a majority opinion that disagrees with that factual finding.

   To be sure, while applying the applicable law, the IJ made a further
finding that Menghesha only "fears prosecution for his criminal act of
obstruction of justice." (J.A. at 226.) That fear-of-criminal-
prosecution finding, combined with the IJ’s finding that Menghesha
failed to show a reasonable possibility of future political persecution,
leads ineluctably to the conclusion that the IJ found that Menghesha
had a fear of prosecution for obstruction of justice rather than perse-
cution for his political beliefs — not prosecution for obstruction of
justice in addition to persecution for his political beliefs. Under such
an understanding, there is no explicit "mixed-motive" analysis to
undertake because the IJ found as a matter of fact that a mixed motive
did not exist.1 Despite my good colleagues’ analysis, this case boils
down to their underlying dissatisfaction with the IJ’s factual determina-
tions.2 Cf. Sebastian Sebastian v. INS, 195 F.3d 504, 513 (9th Cir.
  1
     Contrary to the majority’s claim, the IJ did not "suggest[ ] that prose-
cution never amounts to persecution." Ante at 7 n.2. Rather, the IJ found
that Menghesha had a "duty under the law and his badge of office." (J.A.
at 225.) And as the majority points out, a court should recognize prosecu-
tion as persecution only when the "motive underlying [the] purported
prosecution is illegitimate." Ante at 7 n.2. In this case, however, the IJ
found that the government had a legitimate motive to prosecute
Menghesha for failing to undertake his duty. This finding of a legitimate,
non-political motive underlies the IJ’s ultimate finding that the Ethiopian
government was not motivated to persecute Menghesha at least in part
because of his political opinion.
   2
     What the majority does say is that the IJ erred in not considering the
"uncontested evidence of political motive." Ante at 8. The evidence the
majority cites, however, is not uncontested evidence of political motive
any more than it is uncontested evidence of an obstruction of justice pro-
secutorial motive. For example, a government’s motives are not normally
thought of as political when it rightfully investigates one of its law
enforcement officers suspected of aiding persons under criminal investi-
gation. See Menghesha’s Affidavit in Support of Political Asylum (J.A.
at 185 (stating that he and two colleagues were "accused of not doing our
jobs properly because we were in sympathy with the opposition")
(emphasis added).) By claiming that the evidence in this case is evidence
of a "political motive," when the IJ found that no such motive exists, the
majority attempts to substitute its own findings of fact for those of the
IJ.
                       MENGHESHA v. GONZALES                          13
1999) (Wigging, J., concurring) ("Because the administrative authori-
ties determined that the . . . persecution was [based] solely [on non-
political grounds], in the absence of evidence that compels a contrary
conclusion I must consider this to be a case involving solely non-
politically motivated persecution, rather than [a] mixed-motive perse-
cution [case.]" (emphasis added)).

   In sum, the IJ was not required to undertake a specific mixed-
motive analysis. Rather, the IJ was required to examine the totality of
the evidence in order to determine if Menghesha showed that the gov-
ernment was motivated to persecute him at least in part because of his
political beliefs. This much the IJ did. If, as here, the IJ finds that a
petitioner failed to meet his burden of persuasion that he fears perse-
cution on account of a protected ground, then the petitioner is not
entitled to asylum, regardless of how many alternative non-protected
grounds the IJ might find motivating the government. In other words,
an IJ commits a "mixed motive" legal error if he finds that a peti-
tioner put forth sufficient evidence to show that the government is
partially motivated to persecute the petitioner based on a protected
ground, but nonetheless concludes that the petitioner is not entitled to
asylum because the government is also motivated by legitimate
grounds. The key facets of prototypical mixed motive legal error,
then, are findings of both illegitimate and legitimate motives followed
by a conclusion that the illegitimate motive is legally insufficient
because of the existence of a legitimate motive. As I have shown, the
IJ here committed no such error.

                                   II.

   Because the IJ correctly applied the INA, the question becomes
whether the IJ’s conclusion was "manifestly contrary to law," and
whether the evidence in the record "compels" the conclusion that
Menghesha had a well-founded fear that his government would perse-
cute him because of his political opinion. See 8 U.S.C.A. § 1252(b)(4)
(West 2005); Elias-Zacarias, 502 U.S. at 483-84 (holding that a peti-
tioner "must show that the evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear of
persecution"). The IJ’s determinations regarding Menghesha’s refu-
gee status are conclusive "if supported by reasonable, substantial, and
probative evidence on the record considered as a whole." Elias-
14                     MENGHESHA v. GONZALES
Zacarias, 502 U.S. at 481 (internal quotation marks omitted). "The
possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding from being sup-
ported by substantial evidence." Consolo v. Fed. Maritime Comm’n,
383 U.S. 607, 620 (1966); Gonahasa v. INS, 181 F.3d 538, 541 (4th
Cir. 1999).

   Thus, our review is most narrow, exceedingly deferential, and "rec-
ognizes the respect we must accord both the BIA’s expertise in immi-
gration matters and its status as the Attorney General’s designee in
deportation decisions." Huaman-Cornelio v. BIA, 979 F.2d 995, 999
(4th Cir. 1992). We apply such broad deference in asylum cases
because Congress mandates that we do. See INS v. Orlando Ventura,
537 U.S. 12, 16 (2002) ("Within broad limits the law entrusts the
agency to make the basic asylum eligibility decision here in ques-
tion.").

   To grant the petition for review, Menghesha’s evidence must com-
pel us to find a causal relationship between the Ethiopian govern-
ment’s motive in this case and his political opinion. Because
Menghesha’s evidence fails this standard, I conclude that the IJ’s
decision was supported by reasonable, substantial evidence. In fact,
this case is similar to Elias-Zacarias, where the Supreme Court out-
lined the proper understanding of what it means to be persecuted on
account of political opinion.

   In Elias-Zacarias, the Supreme Court considered an applicant who
claimed he feared being kidnaped or killed by a Guatemalan guerrilla
organization because he refused to join the organization. 502 U.S. at
483. The Court, however, found that Elias-Zacarias put forth no evi-
dence that would "compel the conclusion" that he had a well-founded
fear of persecution "because of [his] political opinion." Id. at 483. The
Court realized that even if Elias-Zacarias showed that he would be
taken and killed by the guerrillas because of his refusal to join their
group, it was "quite plausible, indeed likely, that the taking would be
engaged in by the guerrillas in order to augment their troops rather
than show their displeasure; and the killing he feared might well be
a killing in the course of resisting being taken." Id. at 483 n.2. In
short, his evidence failed to compel the Court that he would be perse-
cuted because of his political beliefs.
                        MENGHESHA v. GONZALES                            15
   Menghesha presented no evidence whatsoever showing direct cau-
sation, and little correlating evidence tending to show that govern-
ment authorities in Ethiopia wished to persecute him on account of
his political belief. It is "quite plausible, indeed likely," then, that any
action against Menghesha will take place in order to prosecute him
because he deliberately impeded the government’s criminal investiga-
tion and not because the government disagrees with any political
opinion expressed by Menghesha via his actions. Id. Although he has
put forth evidence that the government has investigated his conduct
and flight from Ethiopia, that evidence does not show that the govern-
ment’s interest in him was based on his political opinions rather than
his dereliction of duty.3 "[T]he mere existence of a generalized ‘politi-
cal’ motive [or context] underlying [the supposed persecutor’s
actions] is inadequate to establish (and, indeed, goes far to refute) the
proposition that [an applicant] fears persecution on account of politi-
cal opinion." Id. at 482 (emphasis in original).

   I do not question that a reasonable finder of fact could infer that
the government may have wished to persecute Menghesha at least in
part on account of his political opinion. But Menghesha put forth no
evidence compelling such a conclusion. And while Menghesha does
not have to "provide direct proof of his persecutors’ motives, . . . the
statute makes motive critical, [so] he must provide some evidence of
[motive], direct or circumstantial. And [because] he seeks to obtain
  3
   This point is made more clear when reviewing Menghesha’s actions
while in Ethiopia. According to Menghesha’s written statement, he first
voiced his displeasure with the government’s actions in September of
1999. It was then that he was warned not to criticize his employer or the
government might "harm" him. (J.A. at 184.) A year and a half later, in
April of 2001, he was again given verbal warnings. Later that month he
warned the students at the university and had his duties "modified" while
the government investigated the leak. (J.A. at 187.) At no time while he
was under investigation did the government use coercive means to ques-
tion or interrogate him or take any steps against him that might establish
a reasonable fear of persecution. Moreover, it was not until July 8, 2001,
that he fled the country because he learned of his "impending arrest."
(J.A. at 188.) Thus, the fear causing him to flee did not arise upon the
government learning that he sympathized with other political groups
years beforehand. Instead, he did not leave until the day he learned he
was to be arrested for warning the students of their impending arrest.
16                     MENGHESHA v. GONZALES
judicial reversal of the BIA’s determination, he must show that the
evidence he presented was so compelling that no reasonable fact-
finder could fail to find the requisite fear of persecution. That he has
not done." Id. at 483-484.

                                  III.

   Accordingly, because I believe no legal error occurred in this case
and the IJ’s determination was supported by substantial evidence, I
respectfully dissent.
