                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAR 1 2005
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    YUAN HONG YANG,

                Petitioner,

    v.                                                   No. 04-9538
                                                      (No. A77-957-850)
    ALBERTO R. GONZALES, Attorney                    (Petition for Review)
    General *,

                Respondent.


                              ORDER AND JUDGMENT         **




Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

*
      On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Yuan Hong Yang is a citizen of the People’s Republic of China who

appeals the denial of his petition for asylum, restriction on removal, and relief

under the United Nations Convention Against Torture (CAT). We remand for

clarification of the basis for the decision to deny relief.

                                           I.

      Mr. Yang asserts that he started practicing Falun Gong   1
                                                                   in January 1999.

In July 1999, the Chinese government banned Falun Gong and began persecuting

Falun Gong followers. According to Mr. Yang, in November 2000, the police

searched his house, discovering and seizing Falun Gong books and videotapes.

He was not arrested because he was not home at the time, but a friend with whom

he practiced Falun Gong, and whose picture was among the materials seized from

him, was arrested shortly thereafter. The police directed Mr. Yang’s mother to

have him report to them when he returned home.

      Mr. Yang went into hiding, staying with various relatives, until he was

smuggled out of China to the Netherlands in May 2001. He arrived in the United

States in early June 2001 and petitioned for asylum, restriction on removal, and




1
      According to the record, “Falun Gong blends aspects of Taoism, Buddhism,
and the meditation techniques and physical exercises of qigong (a traditional
Chinese exercise discipline) with the teachings of Falun Gong leader Li
Hongzhi.” Admin. R. at 135.

                                           -2-
relief under the CAT, all of which were denied. The Bureau of Immigration

Appeals (BIA) affirmed without opinion, and Mr. Yang appeals.

                                               II.

       Because the BIA summarily affirmed the Immigration Judge’s (IJ) decision,

we review the IJ’s decision as if it were the decision of the BIA.         Wiransane v.

Ashcroft , 366 F.3d 889, 897 (10th Cir. 2004). In immigration proceedings, it is

the province of the BIA and the IJ to make factual findings, including credibility

determinations. Consequently, we do not disturb an IJ’s factual findings, so long

as “they are substantially reasonable and supported by specific, cogent reasons.”

Sviridov v. Ashcroft , 358 F.3d 722, 729 (10th Cir. 2004). But “our review is

confined to the reasoning given by the IJ, and we will not independently search

the record for alternative bases to affirm.”         Elzour v. Ashcroft , 378 F.3d 1143,

1150 (10th Cir. 2004).

       Applying these principles, our review of the proceedings in this case leaves

us somewhat at a loss, as the IJ failed to make any explicit findings regarding

Mr. Yang’s credibility   2
                             and to set forth an exact reason for his decision to deny

relief. The IJ apparently found Mr. Yang credible in at least some respects.               See

Admin. R. at 38 (“The respondent’s testimony, although not             completely



2
      The government concedes this point in its response brief.            See Aplee. Br. at
14 n.6.

                                               -3-
convincing to this court, is sufficient to raise some ambiguity as to the manner of

the respondent’s entry . . .”) (emphasis added);       id. at 42 (“In this case, the Court

is not convinced that the respondent is a     completely credible witness.”) (emphasis

added). By the same token, though, these statements indicate at least partial

disbelief in Mr. Yang’s story.     See also id. (“The fact that the case does have the

clandestine supervision of a smuggler involved causes the Court to have           some

concern about accepting the respondent’s statements at face value.”). In

concluding, the IJ seems to find that Mr. Yang is not a Falun Gong practitioner.

Id. at 93 (“The Court is not convinced that the respondent has provided adequate

evidence to show that he is a Falun Gong practitioner.”). But rather than rely on

this finding, he then seems to accept Mr. Yang’s claim to being a Falun Gong

follower, stating, “[i]t is absolutely clear that the respondent was      not a prominent

member of the Falun Gong movement in China, and on this record, the Court

finds the respondent has not shown that there is any reason why he would be

targeted in the future by the authorities in China.”      Id. at 43 (emphasis added). It

is not clear whether this is an alternative holding, or the actual basis for denying

relief.

          “We cannot perform a meaningful review where the Board does not

sufficiently articulate its reasoning.”     Mickeviciute v. INS , 327 F.3d 1159, 1162

(10th Cir. 2003). We have stated that “[w]here doubts have been raised as to the


                                              -4-
credibility of the applicant by either the Immigration Judge or the BIA, but the

BIA makes no finding with regard to credibility, courts have held that the proper

procedure is to remand to the BIA for a credibility determination.”   Krastev v.

INS , 292 F.3d 1268, 1279 (10th Cir. 2002). And as recently articulated by

another circuit court:

      The decision is so riddled with doubts regarding the veracity of
      [petitioner’s] claim, that we cannot ascertain whether the
      immigration judge simply disbelieved all or some of [petitioner’s]
      assertions or whether he actually assumed the truth of the testimony
      but nevertheless concluded that [petitioner’s contentions] did not
      amount to persecution.
             This type of confusion over the immigration judge’s credibility
      determination does not necessarily compel a conclusion that
      [petitioner] is entitled to asylum, but nevertheless warrants a remand
      to untangle the basis for the immigration judge’s decision.

Diallo v. Ashcroft , 381 F.3d 687, 699 (7th Cir. 2004). In light of our difficulty in

determining the IJ’s exact findings and reasoning, we must remand for

clarification.

      The lack of specific findings is especially troublesome given the IJ’s

apparent belief that Mr. Yang would not face persecution in China if he were not

a leader or “prominent member” of Falun Gong. Admin. R. at 43. Our review

has not found any record support for this statement. To the contrary, the October

26, 2001 U.S. Department of State International Religious Freedom Report for

China indicates that “[t]here were many thousands of cases throughout the year of

individuals receiving criminal, administrative, and extrajudicial punishment for

                                            -5-
practicing Falun Gong, admitting that they believed in Falun Gong, or simply

refusing to denounce the organization or its founder.” Admin. R. at 136;      see also

id. at 140 (indicating that Falun Gong practitioners have been subject to arrest

and detention in reeducation-through-labor camps and psychiatric facilities, as

well as other punishments). Similarly, the March 4, 2002 U.S. Department of

State Country Report on Human Rights Practices for China states:

      Since the Government banned [Falun Gong] in 1999, the mere belief
      in the discipline (and since January, even without any public
      manifestation of its tenets) has been sufficient grounds for
      practitioners to receive punishments ranging from loss of
      employment to imprisonment. . . . [T]he great majority of
      practitioners have been punished without a trial.

Id. at 166; see also id. at 171 (“During the year, there were numerous credible

reports of abuse and even killings of [Falun Gong] practitioners by the police and

other security personnel . . . .”). Thus, to the extent that the IJ’s decision rests on

an erroneous belief that ordinary Falun Gong practitioners are not subject to

persecution in China, it is not supported by substantial evidence in the record.

      Because we have not been able to determine the exact basis for the IJ’s

decision to deny relief, and because the IJ’s decision may have been based, at

least in part, on a belief unsupported by the record evidence, we must remand “to

untangle the basis for the immigration judge’s decision.”     Diallo , 381 F.3d at 699.




                                           -6-
      The BIA’s order is REVERSED and REMANDED for additional

proceedings.

                                            Entered for the Court



                                            Michael W. McConnell
                                            Circuit Judge




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