concurring.
I agree with the result reached in the majority opinion, as well as with the analysis adopted to arrive at that result. I concur separately because I do not subscribe to the majority’s critique of the opinion issued by the Board of Immigration Appeals (“BIA”).
I think we can assume, based upon the numerous opinions issued by the BIA on this subject, that the BIA understands the principle, set forth in the agency’s own regulations, that is determinative in this case: for the purpose of obtaining refugee status, “persecution” is demonstrated by showing either past “persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42) (emphasis added).
The majority opinion reads the BIA’s analysis as bearing upon the threat of future prosecution without giving distinct consideration to whether petitioner was subjected to persecution in the past. The BIA opinion summarizes as follows the history of past persecution claimed by petitioner, and recounts instances of harassment or annoyance that do not rise to persecution:
We find that the applicant has not established that he falls within the new definition of refugee on the basis of his having been fined because his son applied for a marriage license while underage and for harboring his cousin who had fled from birth control officials believing that he might be sterilized, having his house sealed after the family had left, and having been ordered to report for a study class on birth control policies.
*74That said, and without beginning a new paragraph that would better reflect a new prong of the analysis, the BIA added:
The applicant has not shown that these actions constitute ‘such resistance’ to the government’s family planning policies that he would be subject to persecution upon his return to China.
According to the majority, this last sentence raises an ambiguity because the BIA “impliedly defined resistance in such a way that an asylum applicant would be required to show that he ‘would be subject to persecution upon his return to China,”’ Maj. Op. at 68 whereas under current law, an applicant alternatively can show that he was subjected to persecution in the past.
In my view, it is evident from the BIA’s findings that the BIA reviewed the issues of past persecution, and discounted them:
[Petitioner] has not established [that he was a] refugee on the basis of his having been fined ..., harboring his cousin ...,. having his house sealed ..., and having been ordered to report for a study class ....
(Emphasis added.) The penultimate sentence of the BIA’s decision brings into focus any blurring of the distinction between past persecution and the danger of persecution in the future:
We find that the evidence of record, considered cumulatively, does not show that the applicant has met his burden of demonstrating that he has suffered past persecution or has a well-founded fear of persecution on account of one of the five grounds for which asylum may be granted.
(Emphasis added.)
Like many opinions of many courts, the text of the BIA’s opinion in this case is sub-optimal. A grammarian would recommend that the first and second sentences block-quoted above be separate paragraphs, or that the second sentence begin with a transitional word or phrase. But it is plain enough to me that the BIA considered and deemed insufficient the claim of past persecution (as does every member of this panel), on the basis of the same circumstances that render insufficient the claim of future persecution.