FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHOUFU ZHAO; ZHENYING DUAN, No. 07-75041
Petitioners,
Agency Nos.
v.
A95-303-066
MICHAEL B. MUKASEY, Attorney A95-303-067
General,
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 4, 2008—Pasadena, California
Filed August 26, 2008
Before: Stephen Reinhardt, Roger J. Miner,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Reinhardt
*The Honorable Roger J. Miner, Senior United States Circuit Judge for
the Second Circuit, sitting by designation.
11751
ZHAO v. MUKASEY 11753
COUNSEL
Kevin Long, Esq., Monterey Park, California, for the petition-
ers.
Gregory G. Katsas, Esq., Susan K. Houser, Esq., Timothy Bo
Stanton, Esq., Office of Immigration Litigation, U.S. Depart-
ment of Justice, Washington D.C., for the respondent.
OPINION
REINHARDT, Circuit Judge:
Petitioners, Shoufu Zhao and Zhenying Duan, petition for
review of the BIA’s denial of their asylum claims. Zhao and
Duan are a married couple from the People’s Republic of
China and practitioners of Falun Gong, a spiritual practice
banned by the Chinese government. We hold that the petition-
ers are eligible for asylum because the evidence, especially
when viewed in light of our recent decisions in Zhou v. Gon-
zales, 437 F.3d 860 (9th Cir. 2006), and Zhang v. Ashcroft,
388 F.3d 713 (9th Cir. 2004), compels the conclusion that
11754 ZHAO v. MUKASEY
they have established a well-founded fear of future persecu-
tion.
I. BACKGROUND
Zhao and Duan began their practice of Falun Gong some-
time before 1999, after deciding that it could improve their
health.1 In July 1999, the Chinese government declared Falun
Gong to be an illegal religious cult and launched a campaign
of arrest and abuse against its practitioners. The couple then
stopped practicing Falun Gong in public, but continued their
practice in private.
On the evening of July 17, 2001, four police officers
entered Zhao and Duan’s home while they were practicing
Falun Gong with two other practitioners. The police arrested
them and took them to a police station, where they were
detained for four days.2
The police interrogated Zhao and Duan twice during their
detention, each time separately. During the first interrogation,
Zhao and Duan both refused to answer some questions and
were forced to stand up straight and still for about thirty min-
utes. During Zhao’s second interrogation, the police told Zhao
to “beat” himself. When he refused to do so, a police officer
slapped him in the face twice and punched him on the chest.
The punch made him fall and hit his head against the wall,
causing him “severe pain” and dizziness for which he later
received medical attention. The officer also told him that he
can make Falun Gong practitioners like Zhao “disappear” and
“lose [their] li[ves] without having a chance to file a claim.”
During Duan’s second interrogation, a police officer hit her
1
We have stated in the past that Falun Gong is a spiritual movement
based on a blend of meditation and beliefs. See Zhang, 388 F.3d at 715.
2
The other two practitioners were also arrested and released after three
days. They have continued to live in China.
ZHAO v. MUKASEY 11755
twice in the face, pulled out “quite a lot” of her hair, and
kicked her.
Zhao and Duan were released after paying a fine, signing
a confession and a promise to abandon Falun Gong, and
agreeing to report to the police station on a weekly basis and
to seek approval before traveling out of the city. Their former
employers reduced the couple’s pensions on the basis of their
arrests. They complied with the weekly reporting requirement
but continued to practice Falun Gong secretly.
A few months after their detention, in September, Zhao
paid about ten thousand dollars to an acquaintance to obtain
passports for himself and his wife. The couple also secured a
visa for the United States in December, after traveling to Bei-
jing for an interview on a day that they did not have to report
to the police station.
Zhao and Duan entered the United States on December 29,
2001, and filed an affirmative application for asylum within
one year of arrival. The case was referred to the immigration
court, where they requested asylum, withholding of removal,
and CAT relief. The immigration judge (IJ) denied all three
forms of relief on June 26, 2006, and granted voluntary depar-
ture. The BIA dismissed the appeal on December 13, 2007,
finding that neither Zhao nor Duan had shown past persecu-
tion or a well-founded fear of future persecution to be eligible
for asylum. It also denied withholding of removal and CAT
relief.
II. ANALYSIS
We have jurisdiction to review a final order of the Board
of Immigration Appeals (“BIA”) under 8 U.S.C. § 1252(a)(1).
Because the BIA affirmed the IJ’s decision pursuant to Matter
of Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994), and did not
express any disagreement with it, we review the IJ’s decision
as if it were that of the Board. Abebe v. Gonzales, 432 F.3d
11756 ZHAO v. MUKASEY
1037, 1039-40 (9th Cir. 2005) (en banc). We review findings
of fact for substantial evidence and uphold the denial of asy-
lum if the decision is “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.”
Id. (internal quotation marks omitted). Reversal is warranted,
however, if the evidence in the record compels a reasonable
factfinder to conclude that the IJ’s decision is incorrect. Zhou,
437 F.3d at 865.
In this petition for review, Zhao and Duan raise only their
asylum claims. They are eligible for asylum if they show that
they are “unable or unwilling to return to . . . [their] country
because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a par-
ticular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); see also Duarte de Guinac v. INS, 179 F.3d
1156, 1158-59 (9th Cir. 1999). A finding of a “well-founded
fear of persecution” requires both a showing of “subjectively
genuine” and “objectively reasonable” fear. Ladha v. INS, 215
F.3d 889, 897 (9th Cir. 2000) (internal quotation marks omit-
ted). The subjective component is satisfied by credible testi-
mony that the applicant genuinely fears persecution. See id.
The objective prong is satisfied either by a rebuttable pre-
sumption arising from a showing of past persecution, or by a
showing of “a good reason to fear future persecution” based
on “credible, direct, and specific evidence in the record of
facts that would support a reasonable fear of persecution.” Id.
(internal quotation marks omitted). Even a ten percent chance
of future persecution may establish a well-founded fear. Al-
Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001).
In this case, Zhao and Duan satisfied the standard for sub-
jectively genuine fear of persecution by credibly testifying to
such fear. See Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.
2000). The IJ found, however, that the abuse during the cou-
ple’s detention did not amount to past persecution. She also
found that they failed to show an objectively reasonable fear
of future persecution.
ZHAO v. MUKASEY 11757
[1] We conclude that, even if the past harm during the 2001
detention did not rise to the level of persecution, substantial
evidence does not support the IJ’s rejection of the couple’s
claim of well-founded fear of persecution.3 This result is dic-
tated by two recent cases: Zhang v. Ashcroft, 388 F.3d 713
(9th Cir. 2004) and Zhou v. Gonzales, 437 F.3d 860 (9th Cir.
2006). In Zhang, members of the petitioner’s family had been
arrested in China for their participation in Falun Gong demon-
strations. Id. at 716. Although Zhang himself had never been
arrested, the Chinese authorities had discovered his involve-
ment with Falun Gong and had placed the family on surveil-
lance, warning them to report his return to China. Id. at 716-
17. On this testimony and the record of the Chinese govern-
ment’s crackdown on Falun Gong, we found compelling evi-
dence of a clear probability of persecution and hence
eligibility for withholding of removal. See id. at 718-21. Simi-
larly, in Zhou, we relied on Zhang and found compelling evi-
dence of a well-founded fear and a clear probability of
persecution because the record established that the police had
been searching for Zhou and seeking to arrest her for bringing
in illegal Falun Gong materials from abroad. 437 F.3d at 867-
868.
[2] If the facts in Zhang and Zhou compelled a finding of
a clear probability of persecution for withholding of removal,
the facts in the instant case certainly meet the lower standard
of a finding of a well-founded fear of persecution with respect
to an asylum claim.4 Much like in the two previous cases, the
Chinese authorities have already identified Zhao and Duan as
Falun Gong adherents and have shown an interest in monitor-
3
Duan has waived her past persecution claim in the brief before this
court, instead presenting only her claim for a well-founded fear of future
persecution. As we explain, we need not consider Zhao’s claim of past
persecution.
4
See Al-Harbi, 242 F.3d at 888-89 (“[The] ‘clear probability’ standard
for withholding of removal is more stringent than the well-founded fear
standard governing asylum.” (internal citations omitted)).
11758 ZHAO v. MUKASEY
ing their movements. In fact, unlike Zhang and Zhou, Zhao
and Duan have already been arrested, detained for four days,
physically abused, coerced into signing a promise to refrain
from their practice, and ordered to report to the police once
a week. Zhao was abused to the point that he sought medical
attention and was threatened with death or disappearance.
[3] Zhao and Duan have also submitted documents showing
that the “widespread and serious abuses of Falun Gong practi-
tioners” that we previously relied on in Zhang and Zhou con-
tinue unabated. Zhang, 388 F.3d at 719; Zhou, 437 F.3d at
868. The 2005 State Department Country Reports in the
record state that the Chinese government has carried on its
“severe campaign against the Falun Gong movement,” target-
ing practitioners for torture, mandatory psychiatric therapy,
surveillance, repeated arrests, imprisonment, loss of employ-
ment, abuse, confinement in reeducation-through-labor
camps, and detention. The report also reveals that several
hundred to a few thousand practitioners have died in custody
since 1999 due to torture, abuse, and neglect. This evidence
of the government-sponsored campaign against Falun Gong,
coupled with past harm and evidence of the government’s
individual interest in Zhao and Duan, compels the conclusion
that the couple has a well-founded fear of future persecution.
See Himri v. Ashcroft, 378 F.3d 932, 936-37 (9th Cir. 2004);
Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir. 2003);
Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994).
[4] None of the IJ’s reasons for rejecting Zhao and Duan’s
well-founded fear claim belie our conclusion. First, the IJ
found it significant that the couple could acquire a passport
and travel to Beijing for a visa interview despite their travel
restriction. We have held, however, that a “petitioner’s ability
to escape her persecutors does not undermine her claim of a
well-founded fear of future persecution,” Mamouzian v. Ash-
croft, 390 F.3d 1129, 1137 (9th Cir. 2004), particularly when
there is evidence that the petitioner avoided official channels
in order to plan an escape. Thus, the fact that the couple
ZHAO v. MUKASEY 11759
obtained their passports by paying a large sum of money to
an acquaintance and the fact that they risked violating their
travel restriction in order to obtain a visa to the United States
have no relevance to their risk of future harm. See Khup v.
Ashcroft, 376 F.3d 898, 905 (9th Cir. 2004) (paying a large
sum to a broker to obtain a passport does not weaken a well-
founded fear of future persecution). Second, the IJ focused on
the safety of the two practitioners who were arrested with the
couple but continued their lives in China. But the well-being
of others who have stayed behind in a country is only relevant
when those others are similarly situated to the petitioners. See
id. There is no evidence here that the other two practitioners
continued to practice Falun Gong. By contrast, Zhao and
Duan have continued to do so. Accordingly, Zhao and Duan
have shown an objectively reasonable fear of future persecu-
tion were they to return to China.
III. CONCLUSION
Because the evidence compels the conclusion that Zhao and
Duan demonstrated a well-founded fear of persecution, we
grant their petitions, hold them eligible for asylum, and
remand for the exercise of the Attorney General’s discretion.
In view of these conclusions, we find it unnecessary to deter-
mine whether Zhao experienced past persecution or whether
members of the Falun Gong movement are eligible for asylum
under a theory of pattern or practice of persecution.
PETITION FOR REVIEW GRANTED AND
REMANDED.