dissenting:
The facts of this ease, as recounted in the majority’s opinion, arouse considerable sympathy for petitioner Feng Chu Chang. There is, however, no basis for upsetting the decision of the Board of Immigration Appeals.
The immigration judge and the BIA found that Chang failed to prove that he had a well-founded fear of persecution on account of political opinion. We are required to uphold that decision unless no reasonable factfinder could have so found. See INS v. EliasZacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). In Fatin v. INS, 12 F.3d 1233 (3d Cir.1993), we held that:
In order to prevail on a withholding-of-deportation or asylum claim based on political opinion, an alien must (1) specify the political opinion on which he or she relies, (2) show that he or she holds that opinion, and (3) show that he or she would be persecuted or has a well-founded fear of persecution based on that opinion.
Id. at 1242.
In this ease, Chang argues that if he is returned to China he will be prosecuted for *1069violating that country’s state security law. Even if one assumes that the prosecution that Chang fears qualifies as “persecution,” and even if one assumes that Chang’s fear is “well-founded,” the immigration judge and the BIA had reasonable grounds for finding that such prosecution would not be “on account of’ Chang’s “political opinion.” See 8 U.S.C. § 1101(42)(A). This is so for the simple reason that Chang has never specified any political opinion that he holds and that is at odds with the Chinese government.
The relevant evidence is easily summarized. Chang, who had no desire to defect, became suspicious that one or more members of his delegation intended to do so, but his suspicion was just that; Chang was uncertain of his colleagues’ true intentions. A R. 112— 13, 115-16, 122. Chang was thus forced to choose between fulfilling his duty under Chinese law by reporting his suspicions to the Chinese Embassy, thus causing possibly undeserved problems for his colleagues, and respecting his loyalty to his colleagues by keeping quiet until and unless he became sure of their plans.
Chang testified that he decided not to inform on his colleagues without better information. A.R. 113,115-16 (Chang’s testimony that “[he wouldn’t] like to do this” before he obtained “new evidence” to “make sure” of their intentions). This was certainly a humane and understandable decision. But, contrary to the majority’s conclusion, there is no evidence that it was a political decision. According to the majority, a reasonable fact-finder would be compelled to find that “Chang failed to report his fellow delegates based solely on his disagreement with the punishment that they were likely to face at the hands of the Chinese government.” Maj. Op. at 1063. The majority holds that Chang “manifested opposition to the Chinese government” by “defying the orders of the Chinese government because he disagreed with how they would treat those suspected of trying to defect.” Maj. Op. at 1063. These conclusions are belied by Chang’s own testimony.
At no time has Chang said that he opposes the Chinese law prohibiting defection; at no time has Chang said that he opposes the punishment that his colleagues would have faced if he had reported them; and at no time has Chang said that he opposes the Chinese government’s requirement that a delegation leader surveil his fellow delegatees. Indeed, so far as the record reflects, Chang has never articulated any political opinion at odds with the Chinese government.
Rather, his testimony makes it clear that his unwillingness to report his colleagues was based solely on his uncertainty regarding their true intentions. As Chang explains in his brief, he
made a conscious choice not to contact the Embassy. He reasoned that he did not want to report the individual unless he was absolutely sure of his intentions. In the event that he chose to report an[ ] individual to the government, that individual would suffer severe repercussions. He did not want to cause any problems for individuals who may be otherwise innocent.
Petitioner’s Br. at 7 (emphasis added). See also A.R. 12 (same; Chang’s brief before the BIA); A.R. 115-17 (Chang’s testimony that “[he wouldn’t] like to — to report them to the Chinese embassy” “before [he could] make clear” their true intentions); A.R. 122 (Chang’s testimony that it was “hard ... to make a decision” because there was “no way to make — make sure” of his colleagues’ plans); A.R. 113.
Rather than representing political opposition to China’s state security law, Chang’s conduct simply reflects a concern for accuracy in its enforcement. See Chang Br. at 31 (Chang’s conduct was intended “to avoid false accusations of an otherwise innocent individual”). Such a concern is honorable, but I fail to see how it compels the factual conclusion that Chang “defied” the Chinese government because he held a political opinion contrary to the state security law.10 Accordingly, I dissent.
. The majority holds that, for a variety of reasons, the evidence compels the conclusion that *1070China’s motive in prosecuting Chang for violating the state security law is, in part, political. Maj. Op. at 1064. Because of its conclusion that Chang’s conduct was based "on political grounds,” the majority does not need to reach the question whether an asylum applicant can show the requisite fear of persecution "on account of ... political opinion” where he in fact has manifested no political opinion but his home country’s government erroneously imputes to him a disfavored political opinion. See Maj. Op. at 1064 n. 7.1 am not aware of any case in which an asylum applicant prevailed on a claim of "persecution" on account of "political opinion” where he did not hold any political opinion at odds with his home country’s government and did not present any evidence that his home country's government had attributed a specific political opinion to him.
In Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir.1996), the court held that in order to show that prosecution for unlawful departure constitutes "persecution,” the applicant "must prove that he is one of the persons at whom the illegal departure statute was directed — persons who flee their homeland for political reasons.” Id. at 430 (citations omitted). See also id. at 426. The majority endorses the proposition that "if the asylum seeker's motives in leaving his or her country were ‘related’ to 'political opinion’ ... prosecution under [unlawful departure laws] can constitute persecution.” Maj. Op. at 1061.
However, the majority errs in applying it to this case, because, as I have explained in the text, there is no evidence that Chang’s conduct was based on any political opinion.
Moreover, courts accepting the "imputed opinion” theory have not merely presumed that a foreign government has attributed a political opinion to the applicant; rather, they have required that the applicant actually "produce! 1 evidence of such a mistaken imputation.” Chen v. INS, 95 F.3d 801, 806 (9th Cir.1996). See Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir.1995) (relying on evidence that "the police imputed to Singh the beliefs of the Sikh separatists and harmed him on that basis”); Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir.1995) (relying on evidence that the applicant was tortured because he was suspected of being a Sikh separatist); Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988) (relying on evidence that the Ton Ton Macoutes "attributed subversive views” to Desir). Under Elias-Zacarias the fact that the Chinese government may have a political motive in prosecuting Chang does not show that the prosecution would be "on account of” Chang's "political opinion.” See 502 U.S. at 482, 112 S.Ct. at 815. And Chang did not present evidence sufficient to compel the conclusion that the Chinese government has imputed a political opinion to him. See id. (“Nor is there any indication (assuming, arguendo, it would suffice) that the guerrillas erroneously believed that Elias-Zacarias’ refusal was politically based”).