Zhou v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LING ZHOU, 
Petitioner, No. 03-74712
v.
 Agency No.
A79-602-200
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
December 5, 2005—San Francisco, California

Filed February 7, 2006

Before: Betty B. Fletcher, David R. Thompson, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Thompson

1379
1382 ZHOU v. GONZALES

COUNSEL

Drew Sieminski, Oakland, California, for the petitioner.
 ZHOU v. GONZALES 1383
Joan E. Smiley, Department of Justice, Washington, D.C., for
the respondent.

OPINION

THOMPSON, Senior Circuit Judge:

Ling Zhou, a native and citizen of the People’s Republic of
China, petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) affirming an immigration
judge’s (“IJ”) denial of her application for asylum, withhold-
ing of removal, and protection under Article 3 of the United
Nations Convention Against Torture (“CAT”).

Zhou brought newspaper articles pertaining to the Falun
Gong1 into China when she returned from a trip to Singapore.
Zhou is not a member of the Falun Gong; she brought the arti-
cles to a friend in China who was a Falun Gong member.
Shortly thereafter, Zhou came to the United States and, after
learning that the police in China had arrested her friend and
were looking for her, sought asylum, withholding of removal,
and CAT protection. She contends she has a genuine, objec-
tive fear that if she is returned to China, she will be perse-
cuted by the government on account of an imputed anti-
governmental political opinion involving the Falun Gong.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and
grant Zhou’s petition for review. The record establishes that
1
In Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004), we stated that
“Falun Gong” is the name attributed to a particular blend of meditation
and beliefs, as well as the group that practices it. See id. at 715-16. We
also described, and the instant record again explains, that the Chinese gov-
ernment perceives the Falun Gong as a political threat and has officially
banned the group. In addition, the government has engaged in an ongoing
“severe political, propaganda, and police campaign against the Falun
Gong.” Id. at 716.
1384 ZHOU v. GONZALES
she is entitled to withholding of removal, and we grant that
claim. We also conclude that she is eligible for asylum, and
we remand that claim to the BIA for the Attorney General to
exercise his discretion as to whether to grant it. We deny
Zhou’s claim for protection under the CAT.

I. Background

Zhou entered the United States on May 30, 2001, as a non-
immigrant visitor for business, with authorization to remain
until June 29, 2001. Having never left the United States, Zhou
applied for asylum, withholding of removal, and CAT protec-
tion on September 12, 2001. On January 2, 2002, the INS
brought removal proceedings against her.

In her removal hearing before the IJ, Zhou testified that
prior to entering the U.S. she held a supervisory position at a
private software company in China. This position required her
to make repeated trips to Singapore during 2000 and 2001.
Shortly after returning from one such trip in May, 2000, Zhou
attended a party at which she spoke with an acquaintance,
Yung Su, about the Falun Gong.

Zhou and Su had attended the same college from 1991 to
1994, but were not close friends. Su told Zhou that she was
an active Falun Gong practitioner and organizer. Knowing
that Zhou had recently returned from Singapore, and curious
about how the foreign press portrayed the Falun Gong and the
Chinese government’s actions against it, Su asked Zhou to
bring her newspaper articles about the Falun Gong from Sin-
gapore.

In May of 2001, Zhou returned to China from a trip to Sin-
gapore and brought Su approximately twenty articles from
Singapore newspapers which were critical of the Chinese gov-
ernment’s treatment of the Falun Gong. Although Zhou knew
that bringing articles about the Falun Gong into China was
illegal, she did not “give a thought about [the] risk of the
 ZHOU v. GONZALES 1385
whole situation” because she had never been searched by Chi-
nese authorities while crossing the border. Zhou is not a Falun
Gong member. She testified that she brought the articles into
China pursuant to the traditional Chinese custom of helping
one’s friends.

Later that month, Zhou left China for a previously planned
trip to the United States. Weeks later, when Zhou was still in
the United States, her brother telephoned her from China and
explained that the police had searched her residence in
Guangzhou in an attempt to locate and arrest her. Zhou then
called a friend in China, who told her that Su had been
arrested. In mid-August, Zhou’s brother telephoned again,
telling Zhou that the Chinese police had searched their par-
ents’ home in Loyang looking for Zhou. Sometime around
January 1, 2002, Zhou’s brother was summoned to the local
police station in China and questioned about Zhou. In Febru-
ary, 2002, the Chinese police searched Zhou’s parents’ home
a second time. According to Zhou’s brother, the police
accused Zhou of bringing “counterrevolutionary materials”
into China from overseas.

In support of her asylum application, Zhou submitted pho-
tocopies, faxed by her brother, of three search warrants and
one warrant for her arrest. Rather than indicating why the
Chinese government sought to search the listed addresses, or
why Zhou was sought for arrest, the faxed documents refer-
enced a general warrant provision. Zhou explained that she
did not have the original warrants because she feared for her
family’s safety if they mailed government documents to her.
Jacques de Lisle, a professor of Chinese law at the University
of Pennsylvania, testified for Zhou and confirmed that the
Chinese government reads the mail of some people it investi-
gates and that mailing the warrants could be considered ille-
gal. Professor de Lisle also testified that he agreed with the
State Department’s reports that there is a “massive” market
for fraudulent documents, including arrest warrants, in China.
1386 ZHOU v. GONZALES
The IJ denied Zhou’s application for asylum, withholding
of removal, and CAT protection. The IJ based the denial of
Zhou’s application for asylum and withholding of removal on
an adverse credibility finding. In the alternative, the IJ deter-
mined that even if Zhou were credible, these claims would
still fail because she did not establish that the Chinese govern-
ment would impute a political opinion to her and, because of
that opinion, target her for persecution. The IJ also stated that
there was no evidence, or allegation, that prosecution in China
for violation of the law against the importation of Falun Gong
literature is limited to Falun Gong practitioners or supporters
(of which Zhou is neither) and that prosecution for violation
of a law of general applicability that is not based on a pro-
tected ground does not constitute persecution within the
meaning of immigration law. The IJ denied Zhou’s CAT pro-
tection claim on the ground that her punishment for violation
of the applicable Chinese importation law would not rise to
the level of torture.

The BIA adopted the IJ’s reasoning and affirmed. In addi-
tion, the BIA stated a third reason for denying Zhou’s asylum
application. It stated that, even if Zhou had been able to dem-
onstrate that Chinese authorities were pursuing her on account
of an imputed political opinion, she had failed to demonstrate
that she feared punishment sufficient to rise to the level of
persecution. The BIA stated that Zhou had “failed to demon-
strate that the criminal penalty for a first offense of smuggling
newspaper articles would rise to the level of persecution such
that she would be eligible for asylum,” and dismissed her
appeal. Zhou then petitioned this court for review.

II. Discussion

“Where, as here, the BIA adopts the immigration judge’s
decision and also adds its own reasons, we review both deci-
sions.” Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.
2005). Factual findings underlying the determination that
Zhou was ineligible for asylum, withholding of removal, and
 ZHOU v. GONZALES 1387
CAT protection are reviewed under the substantial evidence
standard. See id. Under this standard, the eligibility determi-
nations must be upheld if they are “supported by reasonable,
substantial, and probative evidence on the record considered
as a whole.” See Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.
2004) (quoting Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th
Cir. 2004)). To reverse, the evidence “must have been such
that a reasonable fact-finder would have been compelled to
conclude that [the petitioner] was eligible for relief.” See id.
(citing Gormley, 364 F.3d at 1176).

A. Credibility Determination

[1] Adverse credibility findings are reviewed under the sub-
stantial evidence standard. Gui v. INS, 280 F.3d 1217, 1225
(9th Cir. 2002). “Although [the substantial evidence] standard
is deferential, the [IJ] must have a legitimate articulable basis
to question the petitioner’s credibility, and must offer a spe-
cific, cogent reason for any stated disbelief.” Shah v. INS, 220
F.3d 1062, 1067 (9th Cir. 2000) (internal quotation marks
omitted). The reasons given by the IJ must also “be substan-
tial and bear a legitimate nexus to the finding that the peti-
tioner is not credible.” Id. (quoting Osario, 99 F.3d at 931)
(internal quotation marks omitted).

1. Plausibility

[2] Underpinning the IJ’s finding that Zhou was incredible
was his opinion that it was “implausible” that Zhou “would
risk her privileged position in Chinese society, her excellent
job as director of administration, her opportunity to work
abroad in Singapore and her freedom, all just to provide a
mere acquaintance with the favor of illegal material.” This
was insufficient for the IJ’s incredibility finding.

[3] The IJ did not identify any specific, cogent reason to
support his incredibility finding. His disbelief of Zhou’s testi-
mony was instead based on speculation and conjecture about
1388 ZHOU v. GONZALES
Zhou’s position in Chinese society and what someone in that
position would or would not do. We have repeatedly
explained that such an analysis “cannot serve as a reason for
an adverse credibility finding.” Shah, 220 F.3d at 1071; see
also, e.g., Karouni v. Gonzales, 399 F.3d 1163, 1177 (9th Cir.
2005); Bandari v. INS, 227 F.3d 1160, 1167-68 (9th Cir.
2000); Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996).

2. Inconsistencies

The IJ also noted discrepancies in the residential addresses
listed on Zhou’s housing permit, her asylum application, and
the Chinese search warrants. When Zhou applied for asylum
she listed her rental residential address in Guangzhou, which
was inconsistent with the Louyang address listed on her Chi-
nese housing permit. The search warrant for Zhou’s home
lists the address of her rental unit in Guangzhou. Zhou
explained that the Chinese government does not allow people
to get a household registration for units that they rent.

Professor de Lisle testified that privately employed individ-
uals may or may not be able to obtain a new household regis-
try when they change addresses, depending on “local
circumstances and what the local authorities wish to do, what
the housing market is like, [and] the whims of the bureau-
crats.” The IJ, however, rejected de Lisle’s testimony because
his explanation purportedly focused on registration difficulties
faced by China’s migrant laborers, rather than professionals
like Zhou. In fact, Professor de Lisle described the likelihood
of receiving a new registration as a “spectrum,” with “illegal
migrant” laborers (who are almost never awarded new regis-
trations) at one end, state employees (who are almost always
awarded new registrations) at the other, and private employ-
ees “in between.”

[4] As we have previously stated:

[W]e will not uphold an adverse credibility finding
unless the IJ or BIA specifically explains the signifi-
 ZHOU v. GONZALES 1389
cance of the discrepancy or points to the petitioner’s
obvious evasiveness when asked about it. If discrep-
ancies “cannot be viewed as attempts by the appli-
cant to enhance his claims of persecution, [they]
have no bearing on credibility.”

Shah, 220 F.3d at 1068 (quoting Damaize-Job v. INS, 787
F.2d 1332, 1337 (9th Cir. 1986)). Nowhere in the record does
the IJ explain any significance between the discrepancies in
Zhou’s addresses and her asserted claims, nor does he identify
any “obvious evasiveness.” Accordingly, the discrepancies in
Zhou’s addresses flagged by the IJ may not form the basis for
an adverse credibility finding.

3. Corroboration

The IJ gave “diminished weight” to letters, urging Zhou not
to return to China, written by a friend of hers and by her
father because “none of these individuals were available for
cross-examination.” The IJ treated this unavailability for
cross-examination as a lack of corroboration, which caused
him to doubt the credibility of Zhou and of the letters them-
selves.

[5] Regarding Zhou’s credibility, “it is inappropriate to
base an adverse credibility determination on an applicant’s
inability to obtain corroborating affidavits from relatives or
acquaintances living outside of the United States—such cor-
roboration is almost never easily available.” Sidhu v. INS, 220
F.3d 1085, 1091-92 (9th Cir. 2000) (citing Lopez-Reyes, 79
F.3d at 912. It was even more inappropriate in the present
case for the IJ to support his adverse credibility determination
with Zhou’s inability to obtain live testimony from persons
living abroad.

[6] As for the reliability of the letters themselves, failing to
authenticate them may not serve as a basis for an adverse
credibility determination without some evidence of forgery or
1390 ZHOU v. GONZALES
other unreliability. See Shah, 220 F.3d at 1071 (holding that
“[t]he BIA impermissibly grounded its adverse credibility
finding on its observation that none of the[ ] letters [the Shahs
submitted] ha[d] been authenticated” where there was “no
evidence in the record to support the BIA’s apparent belief
that the letters are unreliable or forged” (third alteration in
original)). Here, there was no evidence of forgery or unreli-
ability, and it was inappropriate for the IJ to give the letters
“diminished weight.”

Nor was it appropriate for the IJ to give “diminished
weight” to the faxed warrants; Zhou explained that she feared
for her family’s safety if they sent the originals, and Professor
de Lisle supported that testimony.

[7] In sum, we reverse the IJ’s adverse credibility findings
because they rest on impermissible grounds. We deem Zhou’s
testimony and her supporting documentary evidence credible.
See id. at 1072.

B. Asylum

[8] To be eligible for asylum, Zhou must show that she is
unwilling or unable to return to China “because of persecution
or a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A). A political
opinion rightly or wrongly imputed to the victim by her perse-
cutors constitutes a “political opinion” for the purposes of
asylum. Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997).
Zhou conceded during her removal hearing (and the record
makes clear) that her asylum claim sounds solely in imputed,
rather than actual, political opinion.

We analyze Zhou’s asylum claim by considering the fol-
lowing three factors: (1) Does Zhou have a “well-founded
fear” of adverse treatment by the Chinese government if she
returns to China? (2) If so, does that adverse treatment rise to
 ZHOU v. GONZALES 1391
the level of “persecution”? (3) If it does, would that persecu-
tion be “on account of” a political opinion imputed to Zhou
by the Chinese government?

1. Well-Founded Fear

[9] Zhou fears that she will be arrested and punished if she
returns to China.2 Zhou must prove that this fear is well-
founded. To do so, she “must show that her fear is both sub-
jectively genuine and objectively reasonable.” Abedini v. INS,
971 F.2d 188, 191 (9th Cir. 1992). Because Zhou credibly tes-
tified that she fears arrest and incarceration should she return
to China, we conclude that she has established the subjective
part of the well-founded fear requirement. We next consider
the objective reasonableness of that fear.

[10] The record shows that the Chinese government has
arrested Su, the friend to whom Zhou gave the Falun Gong
articles, and that the government has targeted Zhou for arrest
as well. According to friends and family, the police repeatedly
searched residences associated with Zhou in attempts to arrest
her. The record also contains copies of the search and arrest
warrants. Zhou testified that, according to her brother, the
police explained to her family that she had brought “counter-
revolutionary materials” into China from overseas. The police
also told Zhou’s brother that the family should convince Zhou
to return to China.

In Zhang, which involved a Falun Gong practitioner, we
stated:

The police accused Zhang of participating in illegal
activities in the United States, blamed him for dis-
2
The BIA argued that any arrest and punishment of Zhou by the Chinese
government for her importation of Falun Gong materials would not be
inappropriate treatment but simply arrest and punishment for the violation
of a general law of China. We discuss this argument infra.
1392 ZHOU v. GONZALES
tributing anti-government materials, and warned
Zhang’s parents that he must immediately report to
the police upon return to China. This evidence of
government interest in Zhang increases his likeli-
hood of future persecution. See, e.g., Hoxha v. Ash-
croft, 319 F.3d 1179, 1184 (9th Cir. 2003) (holding
that police summons demonstrated an individualized
risk of persecution for purposes of asylum eligibil-
ity) . . . .

Zhang, 388 F.3d at 718-19. As in Zhang, the Chinese govern-
ment has demonstrated an individualized interest in Zhou that
increases the objective reasonableness of her fear of being
arrested and punished.

In addition, Professor de Lisle testified to the treatment
Zhou likely would face upon returning to China given the
government’s sustained interest in finding and arresting her
for importing and distributing the Falun Gong articles. In the
least, Zhou can expect a period of detention by a “local public
security authority,” which has “a documented and widely-
reported practice of physical mistreatment of people, many
people[,] who are detained for Falun Gong activities.” Zhou
would also be subject to formal incarceration, either through
formal criminal proceedings and sentencing, or, more likely,
through the “formal administrative . . . sanction of reeducation
through labor, which can include sentences of one to three
years in prison.”

[11] We are satisfied that the evidence in this case compels
the conclusion that Zhou’s fear of arrest and punishment
should she return to China is subjectively genuine and objec-
tively reasonable.

2. Rising to the Level of “Persecution”

Zhou must also establish that the arrest and punishment she
fears rises to the level of “persecution,” which is “an extreme
 ZHOU v. GONZALES 1393
concept, marked by the infliction of suffering or harm . . . in
a way regarded as offensive.” Li v. Ashcroft, 356 F.3d 1153,
1158 (9th Cir. 2004) (en banc) (internal quotation marks and
citations omitted). In Zhang, we considered the case of a
Falun Gong practitioner who faced treatment similar to that
which Zhou now faces, including possible detention by local
authorities, reeducation through labor, and formal criminal
incarceration. See Zhang, 388 F.3d at 719. We quoted lan-
guage from a State Department Country Report on China for
2000 describing “abuse of Falun Gong practitioners by the
police and other security personnel, including police involve-
ment in beatings, detention under extremely harsh conditions,
and torture.” Id. We concluded that, “[g]iven the widespread
and serious abuses of Falun Gong practitioners, as docu-
mented in the Country Report, any reasonable fact finder
would be compelled to conclude that Zhang faces . . . persecu-
tion upon return to China.” Id.

The instant record contains similar accounts. For example,
an Amnesty International report for 2000 discusses the police
detention of tens of thousands of Falun Gong practitioners,
“[m]any of [whom] are reported to have been tortured or ill-
treated in detention.” The State Department Country Report
on China for 2001 describes the Chinese government’s con-
tinued crackdown, and states that “[v]arious sources reported
that over 200 Falun Gong practitioners died in detention as a
result of torture or mistreatment.”

Professor de Lisle testified that, although the “vast majori-
ty” of people subjected to “reeducation through labor or the
other kinds of harassment we’re talking about” are Falun
Gong practitioners, it was not the ordinary practice of Falun
Gong that attracted such “special” governmental attention.
Ordinary practitioners are generally allowed to “repent and
mend their ways.” By contrast, people who are perceived as
“threatening the regime” by, for example, holding a leader-
ship role in the Falun Gong or disseminating foreign informa-
1394 ZHOU v. GONZALES
tion about the crackdown, are subjected to “harsher
sanctions.”

[12] By bringing into China foreign news clippings critical
of the Chinese government’s crackdown on the Falun Gong,
and giving those articles to her friend whom she knew to be
a Falun Gong practitioner and organizer, Zhou engaged in
precisely the type of behavior that engenders the “harsher
sanctions” of abusive detention, reeducation through labor, or
criminal proceedings. Although there is no indication that the
Chinese government believes that Zhou actually practices
Falun Gong, there is no reason to believe that this will miti-
gate the harshness of her sanctions or detention for importing
and distributing Falun Gong articles. Consistent with our rea-
soning in Zhang, we conclude that the evidence in the present
case compels a finding that the treatment Zhou faces if
returned to China rises to the level of “persecution.”

3. On Account of Imputed Political Opinion

As the final step in establishing her asylum claim, Zhou
must prove that her persecution would be on account of an
imputed political opinion. “[O]ur analysis focuses on how the
persecutor perceive[s] the applicant’s actions and allegiances,
and what [will] motivate[ ] their abuse.” Agbuya v. INS, 241
F.3d 1224, 1229 (9th Cir. 2001).

[13] The evidence shows that the Chinese government per-
ceives Zhou’s actions as a threat to its political power—a
threat that motivates the government to locate and arrest her.
We have previously identified the political nature of the Chi-
nese crackdown on the Falun Gong. In Zhang, we stated that
“the government’s crackdown on Falun Gong practitioners is
motivated by a perceived anti-government political opinion,”
explaining in part that “the Chinese President announced that
the anti-Falun Gong campaign was a major political struggle.”
Zhang, 338 F.3d at 720. The current record contains similar
indications. Amnesty International explains that the official
 ZHOU v. GONZALES 1395
crackdown on the Falun Gong was precipitated by a 10,000-
person, passive protest outside the Communist Party leader-
ship compound in Beijing:

The demonstrators’ purpose was to demand official
status for Falun Gong and to request dialogue with
the government. The authorities, however, are
reported to have been mainly concerned by the
capacity of the group to mobilize large numbers of
followers, unnoticed, for a public demonstration.
Subsequently, after some conflicting signals, they
branded the Falun Gong a “threat to social and polit-
ical stability.”

Amnesty International, People’s Republic of China: The
Crackdown on Falun Gong and other so-called “heretical
organizations”, March 2000, available at . The
Chinese military’s official publication, Liberation Army
Daily, ran a front-page essay associating the “political ambi-
tions” of Falun Gong’s founder with “Western anti-Chinese
forces [who] have spared no effort to engage in ideological
infiltration to achieve their goal of overturning our socialist
system and subverting our state.”

In Zhang, we acknowledged that the Chinese government
imputes anti-governmental political opinions based on Falun
Gong-related activities other than practice itself. In ultimately
concluding that the petitioner in Zhang faced persecution
based partially on an imputed anti-governmental political
opinion, we repeatedly highlighted the fact that he mailed
Falun Gong materials from the United States to relatives in
China. See, e.g., Zhang, 388 F.3d at 718 (“The police . . .
blamed [Zhang] for distributing anti-government materials
. . . .”); id. at 719 (“Zhang would be arrested, imprisoned, and
abused based on his practice of Falun Gong, and his distribu-
tion of Falun Gong materials to family and friends in China.”
(emphasis added)). This is consistent with Professor de
1396 ZHOU v. GONZALES
Lisle’s expert testimony in the present case that China per-
ceives Falun Gong-related activities, such as leadership or
distributing critical information, to constitute a greater politi-
cal threat than individual practice, and punishes the different
behaviors accordingly.

[14] Zhou fears arrest and punishment pursuant to prohibi-
tions that exist to punish those affiliated with the Falun Gong,
whether through practice, leadership, or distribution of infor-
mation. She stands accused not of practice, but of an importa-
tion and distribution activity the Chinese government views as
a greater political threat. Police in China have attempted to
locate and arrest Zhou for bringing into China “counterrevolu-
tionary” (i.e., anti-governmental) materials—foreign news
articles critical of the Chinese crackdown on the Falun Gong
—which she gave to Su, an active Falun Gong practitioner.
Consistent with our analysis in Zhang, we conclude that the
arrest and punishment Zhou fears is on account of an anti-
governmental political opinion imputed to her by the Chinese
government.

It is useful to contrast this situation with two we faced in
prior cases: Abedini v. INS, 971 F.2d 188 (9th Cir. 1992), and
Chanco v. INS, 82 F.3d 298 (9th Cir. 1996). In Abedini, we
considered the Iranian government’s motive for prosecuting
the petitioner for having distributed Western films. Although
we acknowledged that the ban on propagating Western culture
might have political undertones, we concluded that the peti-
tioner failed to show “that the Iranian government’s potential
act of persecution stemmed from its desire to single him out
for unique punishment because of his actually-held or
perceived-to-be-held political or religious beliefs.” Abedini,
971 F.2d at 192 n.1. We also noted: “Nor did [Abedini] testify
that his movies were contrary to Islamic principles or even
espoused Western beliefs, only that they were made in the
West. There is no reason, therefore, for the Iranian govern-
ment to attribute a special belief or opinion to Abedini.” Id.
at 192.
 ZHOU v. GONZALES 1397
In the present case, the record shows that the Chinese gov-
ernment will likely arrest and imprison Zhou for importing
and distributing material that criticizes the Chinese govern-
ment and supports a perceived anti-governmental movement.
Such activity is illegal in China precisely because the Chinese
government views it as a direct political threat. There is ample
reason, therefore, for the Chinese government to attribute a
specific anti-governmental belief or opinion to Zhou.

In Chanco, we analyzed the Filipino government’s motive
for prosecuting a participant who sought asylum following a
failed coup. See Chanco, 82 F.3d at 302. We cited Abedini for
the proposition that “[p]ersons avoiding lawful prosecution
for common crimes are not ordinarily deemed refugees.” We
explained: “Participation in a coup may be distinguished from
common crimes, however, in that it is usually a politically
motivated act. Consequently, we must look beyond Abedini
for an appropriate rule.” Id. at 301. Here, the prohibitions that
exist in China for the sole purpose of stamping out the Falun
Gong as a specific political opponent are not common crimes,
in that their violation is perceived as a politically motivated
act. We must again, therefore, look beyond Abedini for an
appropriate rule.

We ultimately concluded in Chanco that, because the Phil-
ippines tolerates diverse political views and peaceful protest,
it did not aim to punish the petitioner’s anti-governmental
political opinion, but, rather, the violent manner in which he
chose to express that opinion. See id. at 302. China, by con-
trast, is so intolerant of criticism regarding its treatment of the
Falun Gong that it has outlawed the importation of foreign
news articles on the subject. As we recognized in Zhang, such
prohibitions are politically motivated.

[15] We conclude that the evidence compels a finding that
if Zhou returns to China she faces persecution on account of
an imputed anti-governmental political opinion. She has,
1398 ZHOU v. GONZALES
therefore, produced compelling evidence of the final factor of
her claim for asylum.

C. Withholding of Removal

“To qualify for withholding of removal, an alien must dem-
onstrate that ‘it is more likely than not that [she] would be
subject to persecution on one of the specified grounds.’ ” Al-
Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (quoting INS
v. Stevic, 467 U.S. 407, 429-30 (1984)). “This ‘clear probabil-
ity’ standard for withholding of removal is more stringent
than the well-founded fear standard governing asylum.” Id.
(internal citations omitted).

[16] For the reasons discussed in detail in foregoing parts
II(B)(1), (2), and (3), we find compelling evidence that it is
more likely than not that the Chinese government will arrest
and punish Zhou if she returns to China, that such treatment
rises to the level of persecution, and that such persecution is
on account of an imputed political opinion. The “clear proba-
bility” of these consequences compels the conclusion that
Zhou is entitled to withholding of removal.

D. Protection under CAT

In order to qualify for CAT protection, Zhou must demon-
strate that it is more likely than not that she would be tortured
if returned to China. Zhang, 388 F.3d at 721 (citing Khup, 376
F.3d at 906). Torture is an “extreme form” of cruel and inhu-
man treatment. See id. (quoting Al-Saher v. INS, 268 F.3d
1143, 1147 (9th Cir. 2001)).

[17] In Zhang, we considered the future treatment a Falun
Gong practitioner and information disseminator might face,
and stated:

Although the evidence in the record compels a find-
ing that it is more likely than not that Zhang will be
 ZHOU v. GONZALES 1399
persecuted upon return to China, the liklihood of
future harm amounting to torture is less pronounced.
We cannot say on this record that the evidence com-
pels us to find that Zhang meets the clear probability
standard.

Zhang, 388 F.3d at 721-22 (emphasis in original). Zhou fears
similar treatment for her behavior should she return to China.
We reach the parallel conclusion that the record does not
compel a finding that Zhou’s likely future treatment rises to
the level of torture. Substantial evidence therefore supports
the IJ and BIA’s determination that Zhou is not eligible for
CAT protection.

III. Conclusion

Compelling evidence establishes the following: (1) the IJ
erred by making an adverse credibility determination; (2)
Zhou has a well-founded fear that, if she returns to China, she
will be persecuted by the Chinese government, as, indeed, she
more likely than not will be; and (3) the likely persecution
Zhou faces is on account of an anti-governmental political
opinion imputed to her by the Chinese government due to her
Falun Gong-related activities. Substantial evidence supports
the finding, however, that the persecution she fears does not
rise to the level of torture.

Because the IJ and BIA have already considered all the evi-
dence in this case on the alternative assumption that Zhou was
credible, and because we have determined not only that she
was indeed credible, but also that the evidence renders her eli-
gible for asylum and entitles her to withholding of removal,
we remand this case to the BIA for the Attorney General to
exercise his discretion under 8 U.S.C. § 1158(b) as to whether
to grant asylum, and we direct the BIA to prepare an appropri-
ate order for withholding of removal. See Baballah v. Ash-
croft, 367 F.3d 1067, 1079 (9th Cir. 2004). We affirm the
BIA’s denial of Zhou’s application for CAT protection.
1400 ZHOU v. GONZALES
PETITION FOR REVIEW GRANTED; APPLICA-
TION FOR WITHHOLDING OF REMOVAL
GRANTED; ASYLUM CLAIM REMANDED TO THE
BIA FOR THE ATTORNEY GENERAL’S DISCRE-
TIONARY DECISION WHETHER TO GRANT ASY-
LUM; DENIAL OF CAT PROTECTION CLAIM
AFFIRMED.