UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-1526
SHENG DA DONG,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: May 9, 2018 Decided: July 20, 2018
Before THACKER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Petition for review granted and remanded for further proceedings by unpublished opinion. Judge Harris wrote the opinion, in which Judge Thacker and Judge Shedd joined.
ARGUED: Henry Zhang, ZHANG & ASSOCIATES, P.C., New York, New York, for Petitioner. Sergio F. Sarkany, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit.
2 PAMELA HARRIS, Circuit Judge:
Sheng Da Dong, a native and citizen of China, seeks asylum and withholding of
removal from the United States. If repatriated, Dong fears persecution by Chinese
authorities, who already once have detained, interrogated, and beaten him unconscious
for his association with Falun Gong, an outlawed spiritual practice.
Because Dong has suffered past persecution, he is entitled to a presumption that
his fear of future persecution is “well-founded,” as required to qualify for relief. The
Board of Immigration Appeals found that the presumption was rebutted by a showing of
fundamentally changed circumstances – specifically, that Chinese authorities no longer
perceive Dong as a dissident deserving of punishment. Alternatively, the Board
concluded, the presumption was rebutted because the Immigration Judge properly found
that Dong could avoid future persecution by relocating within China. On both these
grounds, the Board denied asylum and withholding of removal.
We conclude that the Board erred in holding that the government rebutted the
presumption of a well-founded fear of persecution. The burden in this case fell squarely
on the government, and there is not substantial record evidence to support a finding that
the government established, by a preponderance of the evidence, the requisite “changed
circumstances.” As for whether future persecution could be avoided through relocation,
the government concedes that the burden improperly was shifted to Dong on that issue.
Accordingly, we vacate the Board’s denial of asylum and withholding of removal, and
remand for further proceedings consistent with this opinion.
3 I.
We begin with the statutory and regulatory background relevant to Dong’s
petition. The Immigration and Nationality Act (“INA”) gives the Attorney General the
discretion to “grant asylum to applicants who qualify as ‘refugees.’” Ilunga v. Holder,
777 F.3d 199, 206 (4th Cir. 2015). A “refugee” is an applicant who, among other things,
is “unable or unwilling to return” to his home country “because of persecution or a well-
founded fear of persecution.” See 8 U.S.C. § 1101(a)(42)(A). This appeal turns on
whether Dong qualifies as a refugee under the “well-founded fear of persecution”
standard.
Ordinarily, an applicant for relief bears the burden of showing a well-founded fear
of persecution. See Tassi v. Holder, 660 F.3d 710, 720 (4th Cir. 2011). But – critically
for this case – if an applicant shows that he has suffered “past persecution,” then he “is
presumed to have the required well-founded fear of persecution.” Li Fang Lin v.
Mukasey, 517 F.3d 685, 692–93 (4th Cir. 2008) (emphasis added); see 8 C.F.R.
§ 1208.13(b)(1). The burden then shifts to the government to rebut that presumption,
which it can do by establishing, by a preponderance of the evidence, one of two things:
either that there has been a “fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution,” 8 C.F.R. § 1208.13(b)(1)(i)(A), (ii), or
that the applicant “could avoid future persecution by relocating to another part” of his
country, 8 C.F.R. § 1208.13(b)(1)(i)(B), (ii). See Li Fang Lin, 517 F.3d at 693. If the
government cannot meet this burden, then the applicant has established the requisite well-
founded fear.
4 The standard for withholding of removal, another form of relief sought by Dong,
is more stringent than the standard for asylum. Entitlement to withholding of removal
requires not only that the applicant qualify as a “refugee” eligible for asylum, but also a
“clear probability” that his “life or freedom would be threatened” if he were sent back to
his home country. Anim v. Mukasey, 535 F.3d 243, 252–53 (4th Cir. 2008); see 8 U.S.C.
§ 1231(b)(3)(A). Accordingly, if Dong cannot satisfy the well-founded fear of
persecution standard for asylum eligibility, then it follows that he is not entitled to
withholding of removal. See Anim, 535 F.3d at 253.
II.
In July 2009, Sheng Da Dong was taken into custody for entering the United
States without authorization. After an asylum officer made an initial determination that
Dong credibly feared persecution if returned to China, the Department of Homeland
Security charged Dong with removability and issued a notice to appear for a hearing to
consider whether he qualified for relief. See 8 U.S.C. § 1225(b)(1)(B)(ii). Dong
conceded removability and applied for asylum and withholding of removal. 1
In May 2011, Dong testified before the Immigration Judge (“IJ”) and submitted
evidence supporting his application. We start by summarizing the testimony and
evidence, and then describe the ensuing agency proceedings.
1 Dong also sought relief under the Convention Against Torture, or “CAT.” The Immigration Judge rejected that claim on the ground that Dong had presented no evidence of the likelihood of “torture” as defined by the CAT, and Dong waived his appeal of that finding. Accordingly, we do not address the issue further.
5 A.
In early 2009, Chinese police arrested Dong for passing out pamphlets on the
streets of his hometown in Fuzhou City, the capital of China’s Fujian province. Dong
was unaware at the time that the pamphlets promoted Falun Gong, a spiritual practice
banned by the Chinese government as an “evil cult.” A.R. 163. At a local police station,
officers handcuffed Dong to a pole and interrogated him for two days about his
connections to Falun Gong. During Dong’s interrogation, police repeatedly struck him
with batons, chairs, and their fists until he lost consciousness and had to be hospitalized.
When Dong awoke the next day, he observed police guarding his hospital room. Afraid
for his safety, Dong escaped through a first floor window and took shelter at a friend’s
house. After Dong’s parents told him that police were searching for him at his home,
Dong remained in hiding.
Two months later, using documents provided by a “snakehead” – a professional
smuggler of Chinese migrants – Dong flew from China to Venezuela. From there, Dong
traveled to Cuba and then to Mexico, where he began a journey on foot toward the United
States. In July 2009, the United States Border Patrol apprehended Dong near Hidalgo,
Texas.
At his removal hearing, Dong expressed fear that if he returns to China he again
“will be arrested, . . . beaten, and . . . tortured.” A.R. 381. When asked why he feared
that outcome, Dong explained that in September 2009, six months after he was arrested in
China, his parents informed him that police still were searching for him at his home.
6 When asked whether the police had been to his house since then, Dong responded that he
and his parents “didn’t talk about that anymore.” Id.
Dong also testified that after being released from custody, he obtained a passport
from the Consulate General of the People’s Republic of China in New York (hereinafter
“New York consulate”). The consulate issued him the passport, Dong said, without
mentioning his arrest in China or his association with Falun Gong. The parties agree that
the passport was issued at some point in September 2009, the same month during which
Chinese police were searching for Dong at his parents’ house.
In addition to his testimony, Dong submitted an affidavit from his father, Qi Feng
Dong, corroborating Dong’s account and averring that, even after Dong fled, Chinese
authorities “came to [the family’s] home to look for [Dong] many times and asked . . .
Dong to surrender himself as soon as possible or they would punish him severely.” A.R.
553. Both Dong and the government also submitted background information on China’s
efforts to persecute individuals associated with Falun Gong. A State Department report
submitted by the government, for instance, explained that Chinese authorities have
“launched a massive anti-Falun Gong propaganda campaign, initiated a comprehensive
effort to round up practitioners not already in custody, and sanctioned high pressure
indoctrination tactics in order to force practitioners to renounce Falun Gong,” including
“beatings,” “torture,” and “reeducation-through-labor.” A.R. 499.
B.
This case has a long procedural history, beginning with the first of the IJ’s three
decisions on Dong’s application, issued in 2011. After reviewing the evidence and
7 Dong’s testimony, the IJ concluded that Dong was credible, observing that his account
was consistent with notes taken by the asylum officer during his initial interview and with
other record evidence. Nevertheless, the IJ denied Dong’s application, on the ground that
Dong had failed to establish a well-founded fear of future persecution.
In considering that question, the IJ did not give Dong the benefit of the
presumption of a well-founded fear that arises from past persecution. That was because,
in the IJ’s view, the prior detention and beating suffered by Dong were not severe enough
to constitute “past persecution,” triggering the presumption. Instead, the burden
remained on Dong, who could not establish, according to the IJ, that his fear of future
persecution in China was “well-founded.” In reaching that conclusion, the IJ noted that
Dong had not shown why he could not relocate to a different part of China to avoid any
risk of persecution. He also suggested that the issuance of a passport to Dong “would
seem to undercut” the prospect that Chinese officials were prepared to persecute him
upon his return. A.R. 427. Because Dong had not met his burden of showing a well-
founded fear of persecution, the IJ concluded, he was not eligible for asylum, which
meant that he also was not entitled to withholding of removal.
Dong appealed the IJ’s decision, and a one-member panel of the Board of
Immigration Appeals (“Board” or “BIA”) sustained the appeal. The IJ erred, the Board
concluded, in failing to apply the presumption of well-founded fear to Dong’s case,
because the beating sustained by Dong – accompanied by a loss of consciousness and
hospitalization – was indeed sufficiently severe to constitute “past persecution.” The
Board thus remanded to the IJ to consider whether the government could rebut the
8 presumption that Dong had a well-founded fear of further persecution upon return to
China.
Although it now bore the burden of proof, the government waived the opportunity
for an additional hearing and submitted no additional evidence. The IJ again ruled
against Dong. The presumption of a well-founded fear of persecution was rebutted, the IJ
held, primarily because Dong had testified that he actually was not an adherent of Falun
Gong, while country reports indicated only that China was intent on persecuting those
who are Falun Gong practitioners. “By his own testimony [Dong] does not belong to this
targeted group of individuals, and the [court] is not convinced from the evidence that the
Chinese government would continue to impute a belief in Falun Gong to [Dong] and
subject him to the mistreatment described in the country reports.” A.R. 107–08. Also,
the IJ reasoned, that Dong “was able to renew his passport without incident” suggested
that he would not be persecuted on return to China. A.R. 108. Accordingly, the IJ held,
the “preponderance of the evidence shows that [Dong] does not have a well-founded fear
of future persecution.” Id.
The BIA again sustained Dong’s appeal. The IJ, the Board found, had not
addressed whether the government met its burden of establishing fundamentally
“changed circumstances” so as to rebut the presumption of a well-founded fear. That
Dong in fact does not practice Falun Gong, the Board explained, is not in itself a
“changed circumstance”: Dong also had not been a Falun Gong practitioner the first time
he was persecuted, and that had not stopped the Chinese government from imputing to
him pro-Falun Gong beliefs. Nor was it clear that the IJ had determined that Dong’s
9 ability to obtain a passport amounted to a “fundamental change in circumstances”
sufficient to rebut the presumption – as an indication, for instance, that the Chinese
government no longer was interested in punishing Dong. Accordingly, the Board
remanded once again, so that the IJ could “consider whether there are changed
circumstances and, if so, explain why there are changed circumstances.” A.R. 75. The
BIA also suggested that the IJ might address the second means of rebutting the
presumption of a well-founded fear, and whether “harm to [Dong] could be avoided by
his relocating within China.” Id.
For the third time, the IJ ruled against Dong. The government again declined to
offer supplemental evidence to meet its burden of proof. The IJ determined, however,
that the record evidence satisfied the “fundamental change in circumstances” standard for
rebuttal. Specifically, the IJ determined that the Chinese government’s willingness to
issue Dong’s passport “evinces its acceptance of his past behavior” and that it “is no
longer interested” in Dong. A.R. 47. That is enough, the IJ concluded, to constitute a
fundamental change in personal circumstances for purposes of rebutting the presumption.
In a footnote, the IJ also noted that Dong “testified the last time his parents told him
police looked for him was September 2009,” which he took as support for his
determination that the “Chinese government quickly lost interest” in Dong after his initial
persecution. A.R. 47 n.2.
The IJ then turned to the alternate means of rebutting the presumption, making a
separate finding that Dong could “not meet his burden to show it would be unreasonable
for him to relocate within China to avoid persecution in the future.” A.R. 48. That was
10 so, the IJ reasoned, because neither the record evidence nor country conditions suggested
that “Chinese authorities communicate with one another,” and would track Dong from
one province to another if he relocated; instead, the issuance of Dong’s passport
“suggests there is no national system in place that alerts local officials in a new place as
to [Dong’s] past activities.” A.R. 49. For this reason, too, the IJ held that the
presumption of a well-founded fear of persecution had been rebutted. 2
Dong appealed, and this time the BIA affirmed the IJ’s ruling. The Board upheld
the IJ’s determination that “there has been a fundamental change in circumstances such
that [Dong] no longer has a well-founded fear of persecution,” in that the Chinese
government no longer imputes to Dong pro-Falun Gong political views or has an interest
2 The IJ also took the view that the risk of future persecution is mitigated in this case because Chinese authorities focus primarily on persecuting “high-profile” Falun Gong activists, and not “lay persons” whose conduct, like Dong’s, is “limited to handing out pamphlets.” A.R. 48. The IJ did not treat this factor as evidence of a “change in circumstances” under 8 C.F.R. § 1208.13(b)(1)(i)(A), and properly so; there is nothing to suggest that there has been any “change” in Chinese policy on this matter since Dong initially was persecuted precisely for handing out pamphlets and despite the absence of any “high-profile” activity. Under the governing regulation, there are two and only two means of rebutting the presumption of a well-founded fear of future persecution – changed circumstances and reasonableness of relocation – and evidence that goes to neither of those factors but only to a general likelihood of future persecution cannot suffice to meet the government’s rebuttal burden. Id. § 1208.13(b)(1)(i)(A)–(B). Indeed, in adopting its current regulation, the agency rejected a proposal that would have allowed for more generalized consideration of any evidence bearing on the likelihood of future persecution. Compare New Rules Regarding Procedures for Asylum and Withholding of Removal, 63 Fed. Reg. 31,945, 31,947, 31,949 (proposed June 11, 1998) (proposing that government may rebut presumption based on “any evidence, or lack thereof, bearing on future persecution”), with Asylum Procedures, 65 Fed. Reg. 76,121, 76,127, 76,133 (Dec. 6, 2000) (final rule explaining that regulatory language “is changed to state that the [government] must show a ‘fundamental change in circumstances’ in order to overcome the presumption”).
11 in harming him. A.R. 4. And it found “no clear error” in the IJ’s determination that the
presumption also was rebutted because Dong can “safely relocate” within China. Id.
Dong timely petitioned this court for review.
III.
When the Board affirms an IJ’s order with an opinion of its own, as here, we
review both decisions. Salgado-Sosa v. Sessions, 882 F.3d 451, 456 (4th Cir. 2018). The
issue presented in this appeal is whether the agency erred when it found that the
presumption of a well-founded fear of persecution, triggered by Dong’s past persecution,
had been rebutted. We review that determination, which we have recognized as a factual
finding, under a substantial evidence standard, affirming so long as a reasonable
factfinder could agree with the agency’s conclusions. See Essohou v. Gonzales, 471 F.3d
518, 520 (4th Cir. 2006).
In the ordinary case, the applicant bears the burden of proof as to refugee status
and asylum eligibility, and a denial of asylum is based on the agency’s conclusion that
the applicant failed to meet his evidentiary burden. In such cases, we ask whether the
record evidence so clearly supports the applicant’s position that “no reasonable factfinder
could fail to find eligibility.” Dankam v. Gonzales, 495 F.3d 113, 119 (4th Cir. 2007).
Here, our inquiry is slightly but critically different. The question in this case is whether
the government sustained its burden of proof, establishing by a preponderance of the
evidence one of the two conditions that will rebut the presumption: that there has been a
“fundamental change in [Dong’s] circumstances” since he last was persecuted, so that he
12 no longer has a well-founded fear that he will be persecuted again; or that Dong can
avoid persecution by safely relocating to a different area of China. See 8 C.F.R.
§ 1208.13(b)(1)(i), (ii). So under the substantial evidence standard, we must defer to the
agency’s findings unless a reasonable factfinder would be “compelled to conclude” that
the government had not met its burden of showing changed circumstances or the
possibility of relocation by a preponderance of the evidence. See Essohou, 471 F.3d at
520, 522.
A.
We begin with the agency’s determination that a “fundamental change in
circumstances” rebutted the presumption that Dong’s fear of future persecution was
“well-founded” in light of his past experience. The government established a
fundamental change, the agency held, by proving that the Chinese government no longer
views Dong as a Falun Gong adherent and thus no longer wishes to mistreat him. To
reach that conclusion, the agency relied on two facts: first, that the Chinese consulate in
New York issued Dong a passport; and second, that Dong’s parents last informed him
that Chinese authorities searched for him at their home in September of 2009. After
careful consideration of the record as a whole, we are compelled to conclude that neither
of those facts, taken separately or together, reasonably could be seen as sufficient to
establish by a preponderance of the evidence that the Chinese government “lost interest”
in Dong, A.R. 47 n.2, after his initial detention and beating.
The agency placed primary reliance on issuance of the passport, a fact noted in
each of the IJ’s decisions rejecting Dong’s application. The agency’s theory is as
13 follows: A State Department report says that the Chinese government refuses reentry to
citizens who are “considered dissidents, Falun Gong activists, or ‘troublemakers.’” A.R.
47. So, the agency reasons, if the Chinese government perceived Dong to be a pro-Falun
Gong activist deserving of punishment, then the New York consulate would have refused
to issue him a passport. By instead issuing a passport, the New York consulate signaled
the Chinese government’s willingness to “accept[] Dong’s past behavior” and its decision
no longer to impute to him pro-Falun Gong sympathies. Id.
That finding is flawed in two principal respects. First, it is contradicted by other
record evidence. The agency credited and specifically relied upon Dong’s testimony that
in the same month during which his passport was issued in New York – September of
2009 – Chinese police were searching for Dong at his parents’ house, in connection with
his initial distribution of Falun Gong pamphlets. See A.R. 47 n.2. But as Dong argues,
issuance of a passport in New York cannot mean that Chinese authorities had “lost
interest” in him if local police simultaneously were pursuing him at home. The
government has offered no explanation for this significant contradiction, and the agency
at no point addressed it. As a result, we are left with an agency inference that cannot be
“square[d] . . . with the undisputed facts of the case.” Temu v. Holder, 740 F.3d 887, 891
(4th Cir. 2014) (vacating under substantial evidence standard because agency conclusion
is logically inconsistent with record evidence).
There is, however, a different inference that could be drawn from Dong’s passport,
one which is consistent with the timeline adopted by the agency. It is possible, as Dong
argues, that the reason he was issued a passport is not because Chinese authorities had
14 ceased imputing to him pro-Falun Gong sympathies, but because “there is no national
system in place,” A.R. 49, that would have alerted the New York consulate to Dong’s
original arrest and persecution, or to any future plans local police might have for him.
And indeed, in another part of his opinion, the IJ himself adopted precisely that view,
explaining that Dong had not shown that safe relocation within China was infeasible
because “it is unlikely local authorities among the provinces communicate with one
another or with the national authorities.” A.R. 48–49. The passport itself, the IJ
concluded, was suggestive not of a change in heart on the part of Chinese authorities, but
of a simple communications gap: Dong’s “ability to receive a valid Chinese passport
suggests there is no national system” for tracking the past activities of Chinese citizens
like Dong. A.R. 49; cf. Temu, 740 F.3d at 892 (vacating under substantial evidence
standard where agency makes “internally contradictory” findings). And this alternative
inference, of course, has the virtue of explaining why the New York consulate might
issue a passport to Dong even as local police continued to hunt for him at his parents’
house in China.
That brings us to the second problem with the agency’s finding. Citing Niang v.
Gonzales, 492 F.3d 505 (4th Cir. 2007), the government insists that where the record
“plausibly could support two results” – the one chosen by the agency, and a competing
one advanced by the applicant – “reversal is only appropriate where the court finds that
the evidence not only supports the opposite conclusion but compels it.” Id. at 511
(internal quotation marks and emphasis omitted). But that is the standard that applies, as
the court was careful to explain in Niang, when the “applicant . . . bears the burden” of
15 establishing the result in question, id. at 510 (emphasis added), and so we need not decide
in this case whether the evidence not only supports but also “compels” the inference
advanced by Dong. Here, the burden is on the government, and the government must
prove that the inference the agency drew from the passport is “more probable” than
Dong’s alternative explanation. See Concrete Pipe & Prods. of Cal., Inc. v. Constr.
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (emphasis added) (defining
“preponderance of the evidence” standard). The agency nevertheless cited no evidence
and offered no “reasoned explanation,” Tassi, 660 F.3d at 719, for why its inference,
even if plausible – notwithstanding, that is, its inconsistency with other record evidence
and a key part of the IJ’s own analysis – is more convincing than plausible inferences
pointing in the other direction. See Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137
n.9 (1997) (defining preponderance of the evidence standard as met when the evidence in
favor of a proposition is “more convincing” than the evidence against). 3 Under these
circumstances, and in light of all of the record evidence, we conclude that no reasonable
factfinder could determine that the government had met its burden of proving that it is
“more probable than [not],” Concrete Pipe, 508 U.S. at 622, that issuance of Dong’s
passport reflects a decision by Chinese authorities to forgo further persecution of Dong.
3 Indeed, neither the IJ nor the BIA ever referred expressly to the government’s burden of proof on this issue, nor linked that burden to the preponderance of the evidence standard to which the government is held. On the one occasion the IJ did mention the burden of proof, he incorrectly assigned to Dong the burden of showing that he could not avoid the risk of persecution by relocating within China, A.R. 48, as we discuss below.
16 Although the IJ relied primarily on the issuance of Dong’s passport for its
“changed circumstances” determination, he also noted testimony by Dong purportedly
establishing that Chinese authorities “ceased pursuing him” after September 2009, and
have not searched for him since. A.R. 47 n.2. From this “concession,” Gov’t Br. 17, the
agency concluded that the “Chinese government quickly lost interest in [Dong] after his
two-day detention.” A.R. 47 n.2.
As an initial matter, the agency’s premise – that Dong testified that authorities
stopped searching for him after September 2009 – is not supported by the record. Dong
testified only that September 2009 was the last time he spoke to his parents about
Chinese police searching his family’s home. When asked, “Have the police been to your
house looking for you since September of 2009?,” Dong answered, “Well, we didn’t talk
about that anymore.” A.R. 381. That is not a concession that the police never again
visited Dong’s home, let alone that they “ceased pursuing him” altogether. Indeed, when
later asked whether he believes “the government is actively looking for [him],” Dong
responded, “Yes,” A.R. 383 – consistent with the fact, acknowledged by the agency, that
Chinese authorities “continue to detain and harm Falun Gong practitioners in China.”
A.R. 48 n.3. The agency’s reliance on Dong’s testimony to show that Chinese authorities
have stopped searching for him rests on an “inaccurate perception[] of the record or . . .
speculation and assumption,” neither of which is sufficient to sustain its finding under the
substantial evidence standard. See Tassi, 660 F.3d at 725.
And again, even if we were to assume the validity of the agency’s finding that
police stopped searching for Dong after September 2009, the burden would be on the
17 government to prove that this makes it more probable than not that Chinese authorities no
longer impute pro-Falun Gong sympathies to Dong and have “lost interest” in persecuting
him. As with issuance of the passport, however, there are other equally or more plausible
inferences that could be drawn. For instance, authorities may have stopped searching for
Dong at his home after September 2009 because they learned that Dong had fled the
country – likely the case if, as the agency assumes for its ultimate conclusion regarding
Dong’s passport, the New York consulate and local Chinese authorities are in
communication about citizens like Dong. Or perhaps the police simply exhausted their
leads but remained interested in reopening the case should Dong return home. When
asked at oral argument which of these scenarios might be true, the government answered
candidly that “[w]e simply do not know.” Oral Argument at 28:59–29:25. Were this the
ordinary case, with the burden of proof on the applicant, that might be enough; we could
not reverse the agency’s determination unless the record “compel[led]” selection of a
plausible inference different than the one adopted by the agency. Niang, 492 F.3d at 511.
But it is not enough here, where it is up to the government to prove that its inference is
the more likely one: that if in fact local police stopped searching for Dong after
September 2009, the more probable explanation is that Chinese authorities have decided
no longer to target Dong for persecution should he return.
For all of these reasons, we are compelled to conclude that the agency erred in
finding that the presumption of a well-founded fear of persecution to which Dong is
entitled was rebutted by an adequate showing of a “fundamental change in
circumstances.” No reasonable adjudicator could find that either of the facts on which
18 the agency relied, alone or together, establish by a preponderance of the evidence that
Chinese authorities have changed their minds about Dong and no longer impute to him a
pro-Falun Gong opinion or have an interest in punishing him. We accordingly vacate the
agency’s ruling that the presumption was rebutted on this ground.
There is, as we describe above, an additional ground on which the presumption of
a well-founded fear of persecution may be rebutted: Even if there has been no
fundamental change in circumstances, the government may rebut the presumption by
proving, by a preponderance of the evidence, that the applicant “could avoid future
persecution by relocating to another part” of his country. 8 C.F.R. § 1208.13(b)(1)(i)(B),
(ii). The agency denied Dong’s application on this separate ground, as well. But as the
government concedes, this alternative holding is not a basis on which we may affirm the
agency’s decision. In considering the relocation issue, the IJ expressly failed to hold the
government to its burden of proof, instead shifting that burden to Dong and holding that
Dong had “not met his burden to show it would be unreasonable for him to relocate
within China to avoid persecution.” A.R. 48 (emphasis added). And although Dong
raised that error on appeal to the BIA, the Board did not correct it, concluding instead that
there was “no clear error” in the IJ’s determination. A.R. 4. Accordingly, we vacate this
portion of the agency’s ruling as well, and remand for further consideration with the
burden of proof properly placed on the government.
19 IV.
For the foregoing reasons, we grant the petition for review, vacate the denial of the
asylum and withholding claims, and remand for further proceedings consistent with this
opinion.
PETITION FOR REVIEW GRANTED AND REMANDED FOR FURTHER PROCEEDINGS