Jaswant Lal Shakuntla Lal Rikesh Lal v. Immigration and Naturalization Service

third sentence compares McKee, AT & T’s “new Charles Senior Attorney, Sprint (i.e., technologies” 2001) (internal its network architec- (May PCS citations omit- ture) to U.S. ted). West’s tandem switch and

requires the arbitrator to consider the V. CONCLUSION function of AT & T’s network architecture in determining whether U.S. West should The Commission erred when it conclud- pay AT & T the tandem rate for some or ed that compensate U.S. West should AT all of its calls on AT terminated & T’s & T at the end-office rate for origi- traffic network. The fourth sentence declares nating on U.S. West’s network and termi- the tandem rate is the appropriate nating on AT Therefore, & T’s network. interconnection rate if AT & T’s MSCs we REVERSE direct the district comparable serve a geographic area as court to appropriate enter an judgment served U.S. West’s tandem consistent with opinion. AT switches. & T’s compa- MSCs serve a geographic rable area as that served Therefore,

U.S. West’s tandem switches.

under regulations, the FCC’s AT & T is

entitled to the tandem rate because its

MSCs a comparable serve geographic area

to U.S. West’s tandem switches. A recent supports FCC letter our con- LAL; Lal; Jaswant Shakuntla clusion. In a May letter dated Petitioners, Rikesh Lal

FCC determined the following: respect

With to when a carrier is enti- tled to the rate, tandem interconnection IMMIGRATION AND the Commission stated that section SERVICE, NATURALIZATION 51.711(a)(3) of requires only its rules Respondent. the comparable geographic area No. 98-71087. test be met before carrier is entitled to the tandem interconnection rate for local United Appeals, States Court of call termination. It although noted that Ninth Circuit. there has been some confusion stem- ming from additional language Argued and Submitted Dec. text of the Competition Local Order re- Filed July garding equivalency, functional section 51.711(a)(3) requires only a geographic Therefore,

area test. a carrier demon-

strating that geo- its switch “a serves

graphic area comparable to that served

by the incumbent LEC’s tandem switch”

is entitled to the tandem interconnection

rate to terminate local telecommunica-

tions traffic on its network.

Letter Sugrue, Chief, Thomas J.

Wireless Telecommunications Bureau of FCC, Dorothy Attwood, Chief, T. FCC,

Common Carrier Bureau of the

William Roman Gardner and D. Miguel Gadda, Francisco, California, San for the petitioners. Ogden, Acting Attorney

David W. Gen- eral, Division; Giuffreda, Civil Kristen A. Counsel; Litigation Senior and John P. Moran, Attorney, Immigration Office of Litigation, respondent. for the FLETCHER*, Before: B. O’SCANNLAIN, and MICHAEL DALY HAWKINS, Judges. Circuit Opinion by Judge BETTY B. by FLETCHER: Judge Dissent O’SCANNLAIN FLETCHER, BETTY B. Judge: Circuit family, Jaswant Lai and his citizens of Fiji Indo-Fijian ethnic origin, petition this court for review of a decision of the (“BIA”). Board of Immigration Appeals (“IJ”) 1994, In May an Immigration Judge granted asylum to family, finding per- secution religion political based on opinion. appealed The INS reversed, ordering petitioners deport- Fiji. grant ed to timely We petition review, eligibility asylum, find order withholding of deportation, and remand to the BIA for exercise of discretion as to the grant asylum.

I. The BIA’s factual determinations are reviewed under the substantial evi dence standard. v. See INS Elias-Zacari as, 478, 481, 812, 502 U.S. 112 117 S.Ct. (1992). L.Ed.2d 38 We owe deference to legal decisions rendered the BIA under * Following Judge Wiggins, Judge the death of tape argument has listened to the and read B. replace Fletcher was drawn to him. She the briefs and the administrative record.

1001 those who & army out to terrorize Rock then set Bowles v. Seminole rubric of victory 1215, the electoral Co., 410, 89 had worked to secure S.Ct. 65 Sand v. Guern (1945). Party. See Shalala Labor L.Ed. 1700 87, 115 Hospital, 514 U.S. sey Memorial coup, Mr. the aftermath (1995); Thom 131 L.Ed.2d S.Ct. soldiers, dragged from his home was Shalala, University v. as Jefferson placed guns held to his head. He who 129 L.Ed.2d 114 S.Ct. U.S. days by three in detention and held for INS, 170 F.3d v. Singh-Bhathal (1994); him, and tortured army. captors His beat (9th Cir.1999); Santamaria-Ames in retali- explaining that his treatment was Cir.1996). work behalf of the Labor ation for his on such if the may evidence We reverse stripped of Party. Mr. Lai his was would be com factfinder a reasonable that mouth, clothes, forced into his urine was a well-founded fear conclude that pelled to singed cut with knives and and he was See has been established. days, three burning cigarettes. For with Elias-Zacarias, 481, at 112 S.Ct. and water. When deprived he was of food INS, 962, Singh v. 812; drink, army something to he asked for Chand, When, Cir.1998); op. at 9392. slip meat, offering mocked him officiáls here, an inde BIA has conducted not eat because they which knew he could record, review its we review pendent beliefs. While Mr. religious of his Hindu Ghaly v. rather than the IJ’s. decision jail, Fijian appeared in soldiers Lai was (9th Cir.1996). F.3d home, money jewelry, and Lai stole couple’s Lai and the and threatened Mrs. II. son. family1 suffered Lai and his Jaswant after he was released Sometime in Fiji on account very serious detention, Lais’ returned to the soldiers religious political opinion Mr. and Lai’s Mrs. Lai. Mr. sexually and assaulted home in the late problems began Their beliefs. watch the assault Lai was forced to 1980s, prominent Mr. Lai was a when left, they the soldiers Before gunpoint. Party, legiti- a Fijian Labor member of them were “people Lais that like” told the mate, consisting organization non-violent Fiji in and would be shot not welcome Fijians Indian descent. mostly Hindu Lais understood in the streets. The down secretary for a branch Mr. Lai served as Fijians this comment referred During Party. the Labor local division of Indian descent. elections, LaiMr. to the 1987 run-up Party, post- distributed recruited for the years, four Mr. was During the next in ers, region. events and coordinated three again least detained times — —at provided transporta- he day, election On time Each soldiers government. tion services. at gunpoint. him from his home forced by the twice His house was set ablaze Party in its Labor was successful

The damage resulted. government; extensive bid, majority winning 1987 electoral placed under constant The Lai home Fijian military, in Parliament. The seats occasion, Lai’s Mr. On one surveillance. by members of the was controlled which by soldiers temple Hindu was ransacked re- Fijian opposed the population, native holding political accused him of in The who staged coup May sults and claim, application Lal’s .we focus on Mr. will application for is based on Mr. 1. The applications of experience; since the opinion. Lals' in this are of his wife and child derivative both'his meeting temple. inside the Soldiers forced such an extent that the applicant longer no meat, Mr. Lai to eat told him and his has a well-founded being persecut- fear of they worshippers fellow must become ed if he or she were to return.” Id. Christian, they and said were not welcome In this Immigration Judge country. burning their own After found Mr. Lai credible and determined temple’s denigrating sacred text and Hin- he had suffered persecution in religious figures, du the soldiers warned Fiji on the basis of his political opinion and worshippers they Fiji should leave religious beliefs. Determining that no rec or face death. The Lais’ son was mocked ord evidence rebutted Mr. Lai’s reasonable taunted, and place was denied a persecution, fear of future judge grant well-known school because of his race and asylum. ed The appealed INS to the BIA. religion. Board, relying solely on the State Fiji The Lais escape tried to Department’s Asylum Claims Profile of they but each time were and Country Fiji (1994), de Conditions — at, gunpoint turned back at airport termined that even though it would not checkpoint family because the had been disturb the finding statutory IJ’s eligi blacklisted. Mr. Lai was detained bility, country in Fiji conditions had for During the final time. his 24-hour changed to a degree such as to render detention, he was tortured and beaten petitioner’s fear of persecution future no Searching soldiers. for a means escape, of longer well-founded. The BIA then con advantage the Lais took of an opening: Mr. sidered Lai’s case under the humani airport checkpoint that had held the tarian exception to changed country many Lais back so gone. times was With conditions developed rule pub its own visa, a U.S. Mr. and Lai Mrs. traveled to Chen, opinion, lished Matter and later of son, country this with their hoping to es- regulations codified in relating asylum. cape persecutors from their forever. See Matter 20 I. & N. Dec. of (BIA 1989); 208.13(b)(1)(ii) § 8 C.F.R. III. (1999) (“An application asylum for shall be asylum An applicant must dem denied if the applicant past establishes onstrate that he “unwilling or unable” to persecution paragraph under this but return country to his home “because of also determined that he or she does not aor well-founded fear per of have a well-founded fear of persecu future race, secution on account of religion, na tion ... unless it is demonstrated that the tionality, membership in particular social applicant has compelling demonstrated group, political opinion.” 8 U.S.C. reasons for being unwilling to return to his (a)(42)(A) (1994) § 1101 (defining “refu or her ... arising out of the sever gee”). To establish a well-founded fear of ity of past persecution.”). The Matter persecution, must demon Chen “general based on a strate that his fear objectively is both rea principle,” humanitarian and it waives the subjectively sonable and genuine. See that an individual who has Fisher v. Cir. past persecution suffered 1996) must also dem (en banc). Establishing past perse onstrate a well-founded fear per of future cution triggers a presumption rebuttable Instead, secution. See id. at 19. of a those well-founded fear of persecu future subjected who 208.13(b)(1)(i)(1999). tion. were severe forms of 8 C.F.R. past only INS can need presumption by rebut this demonstrate showing by a preponderance severity of their past of the evi abuse. In this dence case, that conditions “have changed to the BIA considered the Matter of They the horror of gious beliefs. suffered that Mr. exception, but concluded Chen finding way their attempting escape that he suffered but did not show Lai basis, BIA disability. lasting On by government barred blacklists. Based did not that Mr. Lai’s case determined the Lai severity on the treatment. The Matter Chen for qualify Fiji, correct family the Board was faced and de- reversed IJ Board therefore this case under the Matter to consider asylum. for application Mr. Lai’s nied rule. Chen However, is not due the Board’s decision Reqiárement Neto 1. BIA’s would de- that it otherwise

the deference Ongoing Disability interprets because serve plain inconsistent with its in a manner erred, however, in its treat- The Board are further and clear intent. We language under the application ment of Mr. Lai’s construction of that the Board’s convinced exception. its brief Matter exception strayed imper- humanitarian application, consideration interpreting case law missibly from its own following regarding statement makes the reverse on that exception, and we not exception: humanitarian “there are Further, we are bound to as well. ground being unwilling compelling reasons un- qualifies hold that Mr. Fiji arising out of the return to construing Ninth law past Circuit der respon- of the lead past persecution exception. Finally, after humanitarian regard dent. In this we observe record in this careful review of the claim to suf- respondent does not principal changed coun- that the BIA’s we conclude physical or emotional dis- lasting fer from supported decision was try conditions ability mistreatment.” result that reversal evidence and by substantial omitted) (citations No other factors are ground as well. is called for on regard. Board in this It by considered the Exception2 therefore, Humanitarian A. that the Board re- is apparent, ongoing quired that Mr. Lai demonstrate family of his Mr. arid members asylum un- disability in order to warrant detentions, arbitrary repeated endured exception. the Matter Chen Such der torture, as humiliating sexual painful of interpretation an untenable requirement is threats, sault, intimidation on and severe exception. opinion and reli- of the political of their the basis agree Government, appears to argument and in The Board’s statement at 2. The oral proven past was brief, petitioner argued that had regarded it panel Board as record. Yet the the issue of the Matter Chen human- waived of that, persecution, so a mild form of brief, opening exception. itarian Petitioner’s mitigated against continued passage of time however, sufficiently when it the issue raised what the view that fear. If the Board's panel "substan- to review whether asked persecution, family only mild suffered is found in the record which tial evidence record. re evaluate the factual it should opposite finding compel an than would gun- up, jailed, beaten held at Mr. Lai was "the by the Board” and whether reached times, burning many tortured with point apply law to the facts of failed to Board addition, cigarettes. Lai was in sexu- Mrs. its discretion- case and whether it abused ally victimized. presentation of the ary power.” While this than to raise the is no reason—other There terribly graceful, it is issues for review is not excep- Matter Chen's humanitarian issue of of sufficient, coupled with this additional when severity petitioner to address tion—for brief, place the Gov- paragraph from the brief, past persecution since the BIA in his the Matter Chen on notice as to ernment finding Lai had accepted the that Mr. IJ’s issue: Fiji. persecuted been 1004 (9th Interpretation Cir.1999) to the Apfel, a. BIA’s 191 F.3d 1148 Deference (“There justification-for is no adding limit The Matter ing language to a clear and unambiguous by the INS at

been codified 8 C.F.R. regulation.”). statute and One who has (1999). 208.13(b)(1)(ii) agency § We owe persecuted been and seeks falls interpretations regulations of their own regulatory exception within the if they pos substantial deference. Thomas Jefferson “compelling being sess reasons for unwill Shalala, 504, 512, University v. 512 U.S. ing to return to his or her ... (1994).3 114 129 L.Ed.2d S.Ct. 405 arising out of past of the meaning regulatory language When 208.13(b)(l)(ii). persecution.” 8 C.F.R. ambiguous, agency’s interpretation Although we regulation long ordinarily controls “so owe the BIA some ‘reasonable,! is, long so as the inter type deference decide what per sensibly pretation purpose conforms to the secution is severe enough, we need not wording regulations.” of the Martin if they defer the line arbitrary draw is or Safety v. & Review Occupational Health otherwise unreasonable. Santamaria- Comm’n, 144, 150-51, 499 111 U.S. S.Ct. INS, (9th Ames v. 1132 n. 7 (1991).(internal 1171, 113 L.Ed.2d 117 cita- Cir.1996) (“[D]eference is not afforded if omitted). quotations tions and clearly administrative construction is contrary to plain and sensible meaning However, we need not defer to the regulation.”); Pacific, Crown 197 reading of an if an INS (“[I]n examining regulation, F.3d 1040 reading compelled by “alternative sense, we take into account common regulation’s plain language other regulatory purpose practical and the con [agency’s] indications of the intent at the sequences suggested interpreta time the regulation’s promulgation.” tions.”). The ongoing disability require University, Thomas U.S. Jefferson ment is unreasonable because treats two 512, 114 (quoting Gardebring S.Ct. 2381 v. applicants who are tortured alike different Jenkins, 415, 430, S.Ct. ly if one has good fully fortune (1988)); Singh- L.Ed.2d 515 see also injuries recover from his and the other F.3d Bhathal Cir.1999); regulation does not. “Sound should not be Occupational Crown Pacific Comm’n, founded on Safety & Health Review 197 F.3d shot of accident dart of [or] (9th 1036,1038 Cir.1999). Pacific, chance.” Crown 197 F.3d at 1040 (internal omitted) (altera quotation marks

(1) Language Plain burned, tion in original). Lai was tortured knives; and cut with require It is difficult to reconcile a his wife and child disability” ment “ongoing plain of with the were harassed and assaulted his wife language the regulation. sexually of Vincent v. was assaulted while he was forced Cf. 3. interpretation Congressional this involves the legislation, including Because case of Chev- (and by regulation the BIA of its own Council, ron v. Natural Resources Defense statute) language of a we look to Inc., the line of 837, 2778, 467 U.S. 104 S.Ct. 81 L.Ed.2d including Guernsey cases Shalala v. Memorial (1984). generally Manning, 694 See John F. 87, 1232, Hospital, 514 U.S. 115 S.Ct. 131 Constitutional Structure and Judicial Defer- (1995), L.Ed.2d 106 Thomas Univer- Jefferson Rules, AgencyInterpretations Agency ence to of Shalala, 504, 2381, sity v. 512 U.S. 114 S.Ct. (1996). 96 Colum. L.Rev. 612 Insofar as (1994), 129 L.Ed.2d 405 and Bowles v. Semi- helpful analogs, cases from the latter line are Co., 410, nole Rock & Sand S.Ct. 65 persuasive we will consider them as authori- 1215, (1945), L.Ed. 89 1700 and not the line ty- involving interpretations agencies of cases by

1005 BIA, indica policy strong to the this Matter Chen are According to watch. of enough quali tors of the intent behind the rule.5 This was not severe treatment he does exception suggests exception him for the because that the codified in fy case not, 208.13(b)(1)(ii) permanent limp have a example, § for cannot 8 C.F.R. be read plain lan hearing. of suffer loss narrowly as as the BIA does here. not allow for does guage exception Matter identifies the of Chen interpretation.4

this a general principle as humanitarian which applies person to a who has himself or (2) Intent Clear family whose has suffered under atrocious language from plain Even aside persecution. forms of 20 I. & N. Dec. at defer to regulation, we still need not Chen, 19. the BIA Matter recited of interpretation because it contra the BIA’s horrible agency intent venes the clear of during had suffered the Cultural China involving regu rule. creating the cases of religious Revolution as result his be- codify written to a rule originally lations liefs. The BIA never refers to the fact law, long agency case as as the created permanent injuries that Chen suffered particular the rule of the meant to endorse dispositive, qualifies and notes that he modification, canwe refer to case without family exception because suffered into the intent and insight that case “more than the amount of ill-treat- usual Here, history behind the rule. regulatory during period.” ment that turbulent Id. at unquestioned pro is the Matter Chen of N-M-A-, Interim See also Matter of and it serves as a genitor regulation, of (BIA 3368, Decision 744095 1998 WL useful, dispositive, guide if not to deter 1998); H-, Matter Interim Decision of Fed.Reg. intent. 63 mining agency (BIA 3276, 1996); 1996 WL 291910 Matter (June 1998) 11, (calling Mat 31947 B-, Decision 1995 WL Interim of existing “which the ter Chen the case of (BIA 1995). co regulatory provisions were intended to reading It is clear from Matter INS, dify”); 204 F.3d Kumar v. of Cir.2000) except that the BIA intended to from the (construing proving per- of fear future closely examining the facts Matter of Chen); applicants secution those who suffered se- Vongsakdy v. (9th Cir.1999) (same). verely past persecution. under These Statements exception, regulation requires proof applied, ele until 4. The of one been without ment, arising Id.; “compelling reasons ... case. Matter 20 I. & N. Dec. at past persecution.” 19; H-, C.F.R. Matter Interim Decision 208.13(b)(1)(iii). confusingly The dissent B-, (BIA 1996); WL 291910 Matter Interim suggests a that this is list of two elements: (BIA 1995). Decision 1995 WL 326740 BIA, severity. compelling and The reasons suggestion The related that we failed dissent’s reasons, required proof the dissent of an on reason,” single compelling to “mention[ ] compel going physical disability satisfy the grant Chen infra at Lai the Matter of ling “prong.” interpretation This reasons preposterous given our recitation plain language regula at war with the persecution he suffered. of the severe that "Compelling tion. reasons” denote a conclu evaluating -severity past the of sion drawn construing regard, 5. In this BIA cases Matter persecution, independent requirement. not an suggest regula persuasively Chen can also of tory N-M-A, Matter Interim Decision at of See, III(A)(1)(a)(3) infra, Part intent. (BIA 1998). appli 1998 WL An support a discussion of other BIA cases which persecution cant’s has to be "so severe that holding and the BIA’s decision our contradict 'compelling the reasons’ standard has been in this case. way always met.” Id. This is the the rule has because, a factor —the existence as the case as excepted people are though may there have explains, ongoing physical “[e]ven an or emotional dis- of country, in his change regime of Instead, ability. been Id. 16-17. noted always produce complete may not this “compelling, consider IJ should past experiences, his ... in view of change humanitarian considerations” when deter- refugee.” 20 I. & N. in mind of the un- mining applicant qualified whether an focus, there is no Dec. at 19. With Citing at 17. exception. der the Id. exception to those who to limit the reason applies Board concluded that the rule disability. The focus is permanent suffer have applicants to those who “suffered people other caused suffering that on the persecution [they] should such severe past, in not on whether applicant expected Id. repatriate.” be maladies that arose from the medical N-M-A-, Finally, in Matter the BIA of years. extend over the treatment determined that an individual who was de- (3) month, beaten, deprived and BIA Case Law tained for one Inconsistent days by Afghan of food for three authori- has, adjudications, through suspected being ties because he was of an policies” con- of “established created set anti-communist, had not demonstrated that Matter meaning cerning the of of enough his was severe B-, Interim In Matter Deci- exception. of (BIA 1995), eligibility establish for the humanitarian sion 1995WL 326740 N-M-A-, exception. an Matter Interim asylum to individual granted Board interroga- (BIA who had been Afghanistan from Decision 1998 WL abused, thir- ted, detained for physically 1998). The Board examined Ninth Circuit months, and forced to serve teen practice, case law and its own and conclud- his assistance to the army on basis of applicant] ed that “to demonstrate that [an The Board mujahidin. Id. at 9. noted eligible on the basis of his changes Afghanistan despite alone, past persecution applicant must occurred, applicant abuse had since the belongs also show that he to the smaller granted asylum be because “the should group perse- victims whose past persecution suffered aftermath) (including cution is so se- “phys- so insofar as involved severe” ‘compelling vere that the reasons’ standard abuse, psychological ical torture and inade- 208.13(b)(l)(ii) has been [of ] C.F.R. care, and the inte- quate diet and medical met.” Id. at 16-17. While the Board does political prisoners with criminal gration of indicate that it considers the “aftermath” mentally prisoners.” ill Id. part of its evaluation find, much Nowhere does the Board less abuse, it also cites to on, rely ongoing physi- the existence of B- in both Matter Chen and Matter disability. cal or emotional support govern- of its construction of the H-, the BIA remanded to In Matter of ing regulations. at 17. Id. As discussed discretion when it for exercise of IJ above, B- to an Matter did not refer detained, that an individual who was found ongoing physical disability. or mental beaten, family separated then, sum, BIA case law demon- of his clan member- Somalia on the basis lasting strates that while the existence of asylum. ship, eligible was for Matter of physical disability may or emotional some- H-, 3276, 1996 Interim Decision WL determining times be a factor in the sever- (BIA 1996). In page-length 291910 its dis- ity applicant’s past persecution, an of exception, Matter cussion of the Chen of means, again requirement. the Board did not mention —as a has not been a This

1007 requirement and add this change Matter ex- course necessity, that the Chen by of the Board and interpreted by arbitrary impermissi now is an act that is ception, as regulations, and, in the does giving now codified even the BIA the ble deference ongoing of an the demonstration require due, overturned. Dept. should be Cf. disability. or emotional physical Representa Commerce v. U.S. House of of tives, 316, 339-40, 765, 525 119 S.Ct. U.S. practice with By changing its settled (1999) 142 (refusing give L.Ed.2d 797 to rule, imper- BIA respect to this acted Chevron deference to the Census Bureau’s arbitrary an missibly and committed 706(2)(A) interpretation of a regarding statute statis act. 5 capricious U.S.C. (2000). sampling tical the Bureau had tak because agency’s discretion is “Though outset, if opposite position at the it announces en the on the issue for unfettered by by years). rule or settled course and follows— general by which adjudication policy —a accordingly We find the Board’s be governed,

its exercise of discretion will arbitrary physical use of the or emotional (as departure policy an irrational disability factor as a in Mr. it) to an avowed alteration opposed contrary regula Lai’s case was to own over could constitute action must be rejection tions and case law. Its of Mr. ” Yang, v. turned .... INS Yueh-Shaio application Lai’s was therefore irration 26, 32, 350, 117 136 L.Ed.2d 519 U.S. S.Ct. departure policy, al from its which must be (1996). Supreme The Court has fur Cardoza-Fonseca, overturned. 480 U.S. ther held: 30,107 at 447 n. S.Ct. 1207. rejecting An reason for additional request heightened deference INS’s (4) Ninth Circuit Case Law position inconsistency to its is the supported by our holding Our own BIA positions through has taken concerning humanitarian ex case law years. agency interpretation An of a ception. While we owe deference which with provision relevant conflicts immigration interpretation Board’s agency’s interpretation earlier laws, “explicitly apply princi we do not considerably less deference” “entitled questions already con ples deference consistently agency than held view. precedent, pan trolled circuit because Cardoza-Fonseca, 421, INS v. 480 U.S. of an may el not reconsider the correctness 30, 1207, n. 107 S.Ct. 94 L.Ed.2d 434 INS, panel’s earlier decisions.” Ladha v. (1987) Alaska, (quoting v. Watt Cir.2000). 215 F.3d 259, 273, 68 L.Ed.2d 80 S.Ct. that a required petition We have never (1981)). Shalala, Syncor Corp. Int’l Cf. ongoing disability quali er demonstrate (D.C.Cir.1997) (noting, 94-95 F.3d fy exception. for the Matter Chen dictum, agency’s past interpreta that an Vongsakdy v. 1206-07 binding tions of a are more on (9th Cir.1999), petitioner we found the eli agency past statutory than its inter “[o]therwise, agen current pretations gible regardless because cy could evade its notice and comment he had country conditions because suffered obligation by ‘modifying’a substantive rule abuse, “reeducation,” physical and verbal com promulgated that was notice and camp. a Laotian deprivation of food in rulemaking”). ment Although so severe “permanent impair that he did suffer consistently interpreted ment,” this fact was included without re- id. Matter appli quiring ongoing disability. suddenly To a discussion of

100 8 (5) abuse, Summary cited as a and was not cant’s of Deference Instead, Vong- in we held requirement. plain language approach to the proper sakdy well as the intent behind the rule cannot exception was to determine humanitarian requirement read to include a of ongo- be persecution was petitioner’s Further, disability.7 whether the the BIA ing changed in policies ignored to Chen’s Matter course from its settled and comparable roughly of Thus, precedent. Ninth Circuit we need a mechanical “min applying without ” attempt require not defer to the BIA’s ‘atrocity.’ Vongsakdy, showing imum of ongoing disability in case. this Thomas and Ka (quoting citing at 1207 University, 512 U.S. (9th Jefferson INS, F.3d v. zlauskas Accordingly, we hold that the S.Ct. 2381. Cir.1995)). regulatory exception cannot be read as Similarly, Lopez-Galarza ongoing limited to applicants who suffer (9th Cir.1996), we held that the F.3d 954 interpreta- disabilities. Because the BIA’s asylum on eligible was based petitioner holding, tion is inconsistent with this it is past persecution, her which reversed. of rape physical and abuse at the included Aguirre-Aguirre b. military. We did hands of Sandinista Supreme We are mindful of the Court’s any physi- ongoing not or comment on find analysis Aguirre- holding INS v. disability petition- to the cal or emotional Aguirre, 526 U.S. 119 S.Ct. er.6 (1999). L.Ed.2d 590 apply We the reason- that it past case law demonstrates Our ing of that find it to be but distin- ongoing to consider disabili- permissible guishable. See 526 U.S. at 119 S.Ct. applying the humanitarian ty as a factor Supreme 1439.8 The reviewed our Court not, however, require- It is exception. court’s reversal of the BIA’s conclusion impairment ment that such an exist. The that an ineligible ongoing disability of is withholding deportation because he had under the Matter Chen unwarranted “committed a crime.” nonpolitical serious reason, (9th Cir.1997). rule. For we humanitarian 121 F.3d 521 In particular, we held that the BIA reverse. failed to consider however, note, petitioner “compelling 6. We that as a of em- matter to demonstrate rea- fact, pirical many medical women who sur- “severity” sons” to fear return based on the long-term psycho- vive suffer sexual assault past treatment. Matter Chen talked about logical Lopez-Galarza, effects. 99 F.3d at suffering of ill- "more than usual amount 962-63, finding, 10 & nn. 11. This which Although treatment.” 20 I. & N. Dec. at 21. any regard- was not based on individual facts we and the BIA have sometimes found the ing Lopez-Galarza, equally applicable apply Matter Chen because of Lai, Mrs. who endured sexual assault atrocities, precedent such does not read Fijian soldiers. regulation, that term less make into much starting appropriate point it the for deferen- Throughout opinion, 7. the dissent discuss- tial review. ongoing disability requirement es whether an harmony interpreta- is in with a deferential 8.Aguirre-Aguirre interpre involves the BIA's However, “atrocity.” tion the term such, legislation regulations. tation of As “atrocity” and "atrocious” are never words cases, only in the 208.13(b)(l)(ii) falls Chevron line of and is actually in 8 C.F.R. used persuasive authority supra in this case. See only once in the Matter used Rather, opinion. requires note section 208.13 immigration nation’s rules. spirit in doc- of our two United Nations rules embodied was a to which the United States are faced with such an inconsistent and uments We gave immigra- rise to the and which party, decision now. unreasonable question, in as well as United tion statute The Matter Chen ex- of at 524. The handbook. 121 F.3d Nations humanitarian pression of considerations “failed to held that we Supreme Court hor- that sometimes is so deference” required accord the level of march of time and the rific that the ebb interpreting BIA was due in that the political and flow of tides cannot efface the Aguirre- which administers. statute persecuted. Long- fear in the mind of the at 1439. Aguirre, 526 U.S. S.Ct. upon fear can be visited lasting, genuine However, Supreme did not Court somebody they crip- even if do not have a interpretation. to the BIA’s blindly defer arm of what pled leg to remind them carefully examined the statute and de- It suffered, any other inter- they have approach that the “BIA’s con- [was] cided language of the of the pretation plain language. Id. at sistent” with its clearly and the intent behind rule is so 430,119 1439; at see also id. S.Ct. be un- inconsistent and unreasonable as to analy- 1439. undertake the same S.Ct. We deserving of our deference. in this case and reverse because the sis approach is not consistent with 2. Application Matter of plain regulation’s language. BIA suggests The dissent we erred and were Aguirre-Aguirre weighed ongo have Lai’s lack of an might we own reversed because substituted our factor, ing disability require not consistent, interpretation for the BIA’s ment, deny in support of its conclusion interpretation reasonable statute asylum under Matter Chen. See infra interpret. BIA to In this was for the suggestion plain II. This belies the Part interpretation replace we do not the BIA’s decision, which focus reading of the BIA’s Instead, we interpretation. with own our ongoing disability and does primarily es on Supreme taken approach follow the for its not list other factors as basis in- and examine whether the BIA’s Court Furthermore, legal be reasoning. would lan- terpretation contrary plain to the error, test, any applicable to con under regulation.9 and intent of the As we guage clude that the mistreatment suffered shown, have the BIA’s new the level of severi the Lais did rise to and in- ongoing disability is unreasonable ty by Matter Chen. The required regulation, with the of the consistent text family atrociously. Mr. Lai was suffered agency the intent of the as embodied under force of dragged from his home past practices and the arms, detained, and tortured with beaten were and this Court. We admonished hu forced to drink cigarettes, knives and to the Aguirre-Aguirre give deference urine, water, deprived man of food and laws, interpreting immigration BIA in but religious politically-based subjected Aguirre-Aguirre acknowl- the Court threats, home and deference, taunts and and had his giving may that while we edged He forced place worship burned. identify still and reverse decisions the additional hor- gunpoint undergo text and BIA that are odds with the language plain and intent as the we consideralion of Inasmuch deferential standard regulatory language regulatory is analo- apply BIA's of the relevant in this case to the step analysis analogized gous one under- interpretations can be to the to the Chevron cases, Aguirre-Aguirre and line our taken in those cases. Chevron subjected specific his wife be on the that watching ror of facts record differenti- Lai, herself, Mrs. sexual assault. was Indo-Fijians ate Mr. Lai’s case from those harassed, threatened, sexually and assault- may “leading ‘tranquil who have been and harassed, mocked, ed. The Lais’ child productive lives’” the time of the De- away from school because of and turned partment’s recently Profile. As we ex- religion. persecution his race and Such is plained, the fact that upheld we have simi- comparable to that faced others to findings by lar BIA concerning applied whom we have the Matter changed Fiji in country conditions does not INS, See, Vongsakdy v. analysis. e.g., mean that adopted general we have “a (9th Cir.1999); Lopez-Galarza F.3d 1203 proposition Fijian any that no Indian can (9th Cir.1996). INS, Thus, 99 F.3d 954 longer have reasonable fear of future even were we to assume that the BIA’s persecution Fiji because conditions in had represent change in decision did not INS, improved.” Chand v. F.3d hu- policy, its denial of under the (9th Cir.2000) (discussing and distin- supported by manitarian was not guishing Kumar v. 204 F.3d 931 substantial evidence. Cir.2000)). Instead, long “we have held that the determination of whether or not a Changed Country B. Conditions particular applicant’s fear is rebutted rejecting asy- After Mr. Lai’s claim to general country conditions information re- past persecution, lum on the BIA based quires analysis an individualized that fo- rejected also the IJ’s conclusion that he specific cuses on the harm suffered and had demonstrated a well-founded fear of relationship particular informa- changed on coun- future based tion contained in the relevant re- try circumstances. The Board found that: ports.” Id. [T]he evidence of record includes the rule, Applying this we first note Department Asylum Profile of State’s that did not undertake the re Country Fiji Claims and Conditions— quired analysis. individualized Using such (Profile), dated March 1994. This approach, we find that no reasonable support principal document does not factfinder could conclude that the changed respondent’s that he faces a contention country conditions in information the rec well-founded fear of on ac- presumption ord is sufficient to rebut the statutorily protected ground. count of a of fear of future that arose Profile, acknowledging while “racial once Mr. Lai past per had demonstrated tensions,” that confirms neither the Am- secution. The Department’s State nesty report International 1992 annual Profile included in the gener record states Department nor the of State’s annual ally that there is no evidence of “wide country report Fiji on found evi- spread rights Fiji.” human violations in It widespread rights dence of human abuse states, however, also Fiji. It harassment and [in is noted Profile] continues, Indo-Fijians Fijians Indo-Fijians both native and intimidation of and are leading “tranquil productive explains police now that “[t]he are sometimes Fiji; throughout lives” and that Indo- either unable or unwilling prevent such Moslem, Hindu, Fijians of Sikh and Furthermore, report harassment.” Christian economically faiths are active Department admits while the State engage professional business and pattern did not observe “a sustained activities. police rights,” violation of basic human (citations omitted). BIA Opinion Department at 2 had confirmed that official This conclusion does not take into account the depart- “abuse has occurred.” Thus the Indo-Fiji- Perhaps importantly, most these events that some acknowledges ment Fiji persecuted to be ans in continued spanned year period. a four Like the fact that such abuses late as 1994. The Chand, then, Mr. Lai “has widespread may may not have been signifi- that he has continued to face shown a clear does not mean pattern have formed years coup, cant in the after the problems been particular individuals who have general improved even after the conditions are safe.10 targeted short, substantially.” Id. In the record situation, ask In must such compels contrary a result to that of the rec- through has shown whether INS BIA, and we must reverse.11 who suf- evidence that the individual ord Because we reverse the well- past persecution among gener- is fered decision, founded fear we must consider suffering from a population al eligibil whether Mr. Lai has demonstrated rights of human viola- pattern” “sustained ity withholding deportation. for To tions, among applicant or whether the relief, for he must qualify “demon are vulnerable unlucky few who most more, likely that it than not that strate take to Such an assessment must abuse. subject in the would be to [he] specific account of the attributes of country to which he would be returned.” Chand, on record. See past persecution Cardoza-Fonseca, (quoting Id. v. 480 INS case, 222 at 1079. In this there is F.3d 421, 423, 107 94 L.Ed.2d U.S. S.Ct. well- evidence that Mr. was abundant (1987) (citation omitted)). Because we organizer for known as leader placed have found that Mr. Lai would be or- Party prominent Labor because of his were he extremely position an vulnerable during work the 1987 elections. ganizing Fiji, returned to we conclude that Mr. Lai addition, we know from the record withholding deportation. is entitled to Indo-Fijians among Mr. Lai is not those in the after- who were attacked random Instead, specifi- he was coup.

math of the IV. by cally sought government at his home conclusion, eligible Mr. Lai is detention, and representatives, taken into asylum past persecution on the basis family of his were at- tortured. Members exception, and he under the humanitarian Nor did the abuse tacked harassed. persecu- fear future has a well-founded In- during Fiji’s peaceful periods. cease Further, tion. he is entitled withhold- stead, and detained sought Mr. Lai was deportation. ing times, though long- even he was no several accordingly peti- Mr. Lai’s We GRANT organizer. His renown working er review, withholding of tion for GRANT placed name on a was such the BIA and REMAND to government deportation, blacklist. Indeed, Fiji unrest in because the crisis it is axiomatic that individuals are the increased rights targeted for human abuses out- troubling, publicized, often well and so is "so so rights pattern” side a "sustained of human coups to the that we would be similar earlier abuse, living in a and that individuals ig- abdicating responsibility were we to our systematic rights are where human abuses However, the situation.” Id. at 656-57. nore occurring may targeted. not themselves be although recent events have called into these question analysis "changed BIA's coun- recently progress 11. We have held that "all circumstances,” try because we have found Fiji eliminating made in racial conflict toward independent eligible asylum that Lai is on undone” recent months. has been Gafoor grounds, to the BIA to we need not remand INS, Cir.2000). (9th this new evidence. consider judicial we can take notice of held that Gafoor present presumption by demonstrating, “by this matter to this with instructions evidence, Attorney for the exercise of preponderance General that condi- under 8 U.S.C. his discretion as changed tions ‘have to such an extent 1158(b). § longer no has well-founded being persecuted fear of if he or she were ” O’SCANNLAIN, Judge, Circuit Marcu v. return.’ F.3d dissenting: Cir.1998) (quoting 8 C.F.R. join respect, With I cannot the court’s 208.13(b)(l)(i)). In Lai’s the BIA court Regrettably, ignores opinion. successfully found that the INS rebutted teaching Supreme Court presumption that his fear of future permissible to the BIA’s failing to defer was well-founded demon- asylum regulation. of its own construction strating Fiji that conditions in have im- Further, simply the court misconstrues the proved significantly since the tumultuous arriving record in at its conclusion that the coup.1 1987 Unless could benefit from deny asylum sup- BIA’s decision to is not rule, applicable some other the BIA had no ported by Finally, substantial evidence. asylum. choice but to affirm denial of misapplies precedents the court our in re- Department’s opinion, jecting the State A it, reliance on that circum- But the BIA a developed has humanitar- Fiji changed. in For stances have these general ian to the rule. See reasons, I must dissent. (BIA Chen, Matter 20 I. & N. Dec. 16 of 1989). Where he cannot a demonstrate I well-founded fear of future Congress Attorney has authorized the (because, example, country for conditions asylum to grant “refugees.” General to 8 changed), asylum have if granted shall be 1158(b)(1). § To be considered a U.S.C. “it is determined that “refugee” eligible asylum, and thus be for compelling being demonstrated reasons for that applicant must demonstrate he is unwilling to return to his or her of unwilling unable or to return to his coun- ... nationality arising of severity out try nationality “because past persecution.” 8 C.F.R. or a well-founded fear of on 208.13(b)(l)(ii). § This grows race, religion, nationality, account mem- Chen, out of which remains the touchstone bership particular group, in a social determining applicability of this political opinion.” 8 U.S.C. INS, exception. Kumar 1101(a)(42)(A). See v. 204 F.3d § applicant’s credible (9th 931, Cir.2000); INS, Vongsakdy 935 v. past persecution pre- account of raises (9th 1203, Cir.1999). 171 F.3d sumption persecu- that his fear of future explained tion the BIA is well-founded. See 8 C.F.R. where 208.13(b)(l)(i). can petitioner The INS then rebut has suffered from “atrocious” applied asylum claiming past persecution, 1. Jaswant Lai even if Lai had established persecuted Fiji that he had been because he changed country supported conditions denial supported was a Hindu Indian who Lab- remand, therefore, asylum. On the INS Party. Immigration Judge our As the found opportunity should have the to raise the credi credible, credibility. him I too assume his bility agree I issue. with BIA and the (9th Singh past persecution court that Lai suffered on Cir.1996). challenged The INS Lai's credibil race, religion, political account of his IJ, ity appeal on from the but the BIA did not opinion. decide the issue because it concluded that respect, majority errs because country conditions With changed persecution, complete permissible the BIA’s always produce it does not defer to “may not ..., past experi- in view of his change regulation. own In so construction of its I. ences, refugee.” 20 & in the mind of we made in doing repeats the error at 20. N. Dec. INS, 121 Aguirre-Aguirre v. F.3d 521 Cir.1997) ”), reversed, (“Aguirre I appears to have In Lai’s (1999) 143 L.Ed.2d 590 S.Ct. excep- humanitarian considered Chen’s II”). (“Aguirre “In the course of its anal and, concluding it did not tion2 stated, of the evi- to accord preponderance ysis, [the Circuit] fail[s] “a Ninth apply, ... there are not establishes deference to the in required dence level of unwilling to being reasons for compelling ... terpretation of the [BIA] should Fiji arising out of return have of deference applied principles respon- of the lead past persecution Inc. v. Natu described Chevron U.S.A. regard [Lai] In this we observe dent. Council, Inc., 467 ral Resources Defense lasting physi- does not claim suffer 837, 842, 104 S.Ct. 81 L.Ed.2d U.S. disability as result cal or emotional (1984).” II, Aguirre 526 U.S. at majority takes mistreatment.” The majority Although 119 S.Ct. 1439. conclusion, interpreting with this issue correctly states that substantial deference appli- requiring latter sentence as BIA, legal is owed to the decisions on-going an disabil- cant must demonstrate misapplies this broad standard substi The qualify under Chen. ity for that of the judgments tutes its own majority reverses the BIA’s determination us agency. Supreme The Court corrected requirement it concludes that because years making ago similar errors two (sometimes disability” ... re- “lasting repeat er Aguirre I. We should not such “ongoing disability”) is incon- ferred to as now. rors intent language with the plain sistent and because neither 1 our own nor other BIA cases nor reg- of its own interpretation The BIA’s humanitarian applying cases deference.” ulation is owed “substantial lasting to establish require applicant Shalala, University v. Thomas disability.3 Jefferson notes, petitioner asserted that the BIA agree majority I with the that 2. While appeal, magnitude matter on I can- petitioner raised this erred when it underestimated following pas- endorse its reliance on the issue can I concur that the of his sages petitioner's brief: whether “substan- requirement an raised. The has been in the record which tial evidence is found grounded particularity is be raised with issue compel finding opposite than that would oppos- of notice and fairness to in notions "the the Board’’ and whether reached lightly ing party not be set aside. and should apply the law to the facts Board failed whether it abused its discretion- the case and here, I assume 3. For the sake of discussion Concluding litigant ary power.” that a raises in- majority correct that the BIA (even specific part) because he issue requirement. It is tended establish such a statements, saying broad is like makes such likely opinion equally that the BIA's noted appealed, petitioner he because the consideration, lasting disability as a lack of all issues. This would eviscerate raised view, my requirement. consider- not a litigant specific that a raise would be well within of such a factor ation he wants us to address. There is issues that vague give meaning to authority to the BIA’s appeal and a between a notice of difference following analysis provisions of the statute Compare R.App. Fed. P. 3 with Fed brief. because, of Part I of this dissent. Only majority in the remainder R.App. P. 1014 2381, 114 ‘compelling S.Ct. 129 severe that the

512 U.S. reasons’ stan (1994). L.Ed.2d 405 This broad deference N-M-A-, dard has been met.” Matter of because especially warranted the BIA’s Interim Decision at 35 1998 WL expertise significant makes well suited (BIA 1998). 744095 In N-M-A- the BIA interpret regulations in this own concluded that applicant quali did not id; complex regulatory scheme. See De fy for the “humanitarian exception” be partment & Human Servs. v. Health applicant cause the had not demonstrated Chater, Cir.1998). 163 F.3d 1129 The harm “the severe and the long-lasting ef interpretation given “must be ‘con added). (emphasis fects of harm.” Id. weight trolling plainly unless it is errone words, other had not ” or inconsistent regulation.’ ous with the shown severe and com Jefferson, Thomas U.S. pelling reasons arising persecu from that Tallman, (quoting S.Ct. 2381 Udall v. Here, regardless tion. of whether Lai has 1, 16, U.S. S.Ct. 13 L.Ed.2d 616 past persecution, demonstrated severe he (1965)). Supreme The Court has cau clearly not demonstrated compelling agency’s tioned we must defer to the reasons based on for not interpretation “unless an ‘alternative read being willing country. to return to his The ing compelled by regulation’s plain majority erroneously concludes that Lai language or other indications of the has satisfied requirements of 8 C.F.R. Secretary’s regu intent the time of the 208.13(b)(1)(ii) mentioning without even promulgation.” lation’s Id. Gar (quoting single compelling reason. Jenkins, 415, 430, debring v. (1988)). 1306, 99 S.Ct. L.Ed.2d 515 “compelling Because reasons” is not de- however, majority, concludes that a statute, in regulation fined give we must requirement of on-going disability is con- substantial deference to the BIA’s inter- trary to both plain language the and the pretation long plainly so as it is not erro- intent of agency promulgating the the neous or with regulation. inconsistent the Yet, regulation. it fails to demonstrate the'majority Even agree would that an on- plain how the language regulation of the or going physical impairment and an on-going compels intent an interpretation impairment mental past caused the per- imposition does not allow for the anof on- secution are compelling reasons for an ap- going disability requirement. plicant’s unwillingness to return to his country. Certainly, requiring such an on- going impairment satisfy to the compelling regulations, Under BIA’s applicant an is contrary reasons standard is not to the eligible asylum if he or she “has dem plain language regulation. Absent onstrated compelling being reasons for un definition, express interpreta- the BIA’s willing to return to his or her tion to restrict “compelling reasons” to on- nationality arising ... out of going impairments is reasonable and is the past persecution.” 8 C.F.R. thus owed substantial deference. Thomas 208.13(b)(1)(ii) added). (emphasis I re Jefferson, 512 at U.S. 114 S.Ct. 2381 spectfully disagree majority’s with the as (Court must agency’s interpreta- defer to sertion that demonstrating past severe interpretation tion unless alternative com- supra is sufficient. See 1006- intent). pelled by plain language or At the 07. The BIA has stated: “the applicant least, very plain language does not must belongs also show that he to the requirement. smaller foreclose such a group An alterna- victims whose aftermath) not, therefore, (including reading is so tive compelled by nor, experi- past of his population, in view plain majority erred language and ences, refugee.” Id. in the mind holding. so appli- reference to the 18-19. The board’s past light mind-set in present cant’s directly speak persecution appears the intent of the Nor does “emotionally dis- whether reject- compel interpretation an alternative agency pro- The intent of abled.” ing requirement' on-going disability. regulation, amplified by mulgating notes, majority Chen is the case As requirement ap- supports codify regulation was intended to and is physi- an emotional or plicant demonstrate guide determining agency useful intent. unwilling him cal ailment makes way supra no does Chen country.4 return to his requiring on-going foreclose the INS’s dis- Indeed, ability. specifically that case de- B un- clines “to delineate the circumstances majority interpre- The attacks the BIA’s past persecution may may der which tation own of its humanitarian rule on for a successful be basis fronts, several each which fails to sur- (BIA 1989). I. & claim.” 20 Dec. N. scrutiny. vive careful Moreover, actually supports a re- on-going disability. of an quirement There, only focused not on the majority repeatedly states that a past persecution but also on how such on-going disability is un- persecution currently affected Chen. The reasonable “because it two appli- treats BIA made careful note that Chen was differently cants who are tortured alike if debilitated, “physically must wear a hear- good fully one has the fortune to recover ..., fearful, ing always aid anxious and injuries not.” the other does and is often suicidal.” Id. at 20. The Supra high- 1004. But such observation Board also noted Chen had vowed lights majority’s fundamental miscom- if he were forced to return suicide to Chi- prehension exception. of the humanitarian na. Board findings See id. These solely Based on the fact of their tor- physically demonstrate that Chen was both ture, hypothetical applicants the two have emotionally explaining disabled. only they have suffered demonstrated exception, rationale the the the behind Nevertheless, persecution. regu- the past the exam- highlights importance Board of applicant lation also dem- requires ining past per- the connection between the out of compelling arising onstrate reasons day: “It is fre- present secution and the past persecution being willing for not quently recognized person that a who—or country. to to return his family whose suffered under atro- —has persecution Treating similarly appli- cious forms of not be two tortured should differently amply supported by the expected repatriate. though Even cants is asylum policies regulation a this and of may change regime there have been of in of Virtually persecu- all of country, may always produce generally. victims this not the memories of their complete change carry in the attitude of the tion with them course, interpretation is 4. deference vail an alternative Of under our substantial unless review, regula- Jefferson, of intent of the compelled. standard 512 U.S. at Thomas "support” requirement of on- tion need not 512, 114 S.Ct. 2381. going disability, agency’s pre- choice will law, however, persecution. asylum Our cannot, only seeks help those who majority The further contends repatriation, get a fresh start their less deference interpretation owed country, whether objective it be from an arbitrary capricious it is and because fear of persecution future compel- for represents departure an irrational from a ling past persecu- reasons based on severe adjudication. settled course of Supra “Asylum

tion. is a prophylactic protection application at 1006-07. The BIA’s ... designed remedy [and] is not to however, exception, Chen demonstrates N-M-A-, past.” Interim Decision that a of an on-going disabili- 29 (citing Marquez v. 105 F.3d 374 ty logical extension of a consistent (7th Cir.1997)) (internal omitted). citations policy. Indeed, virtually ap- all decisions The regulation helping is aimed at those plying the Chen have discussed who, Chen, long- Mr. like suffer from the presence or long-term absence of the lasting of to the extent effects past persecution. effects of the debilitated, being physically always anx- itself, carefully In the BIA Chen detailed fearful, pros- ious and suicidal at the physical past emotional and scars from his pect returning to the his persecution granting asylum. him Chen, persecution. 20 I. & N. Dec. expressly referring “lasting Without ... disability,” specifically declined to majority would restrict the applica- prescribe requirements asylum un- tion of the treating all simi- exception. der this 20 I. & N. Dec. larly applicants tortured regardless alike 16, 22. Applying disability require- such changed conditions. But oversteps ment here fully consistent with Chen. judicial may, role. While N-M-A-, In the BIA noted to meet discretion, the exercise of its interpret “compelling reasons” standard of the regulation in simply such manner it is regulation the appropriately focus is on the compelled plain to do so either “aftermath” of the and “the language majori- or intent. Based on the long-lasting effects of harm.” N-M- [the] ty’s interpretation regula- confined A, Interim Decision at 35. find- tion, applicants two who have suffered ing qualify asylum, that he did not past persecution identical would be treated board noted that applicant had not regardless the same one appli- whether any “long-lasting testified to effects” from memory cant no physical nor reminder and that there was a lack past persecution. of his applicant, To such psychological “evidence severe trau- asylum only remedy would be a for a stemming ma from the harm.” Id. remember; persecution he does not even would serve no prophylactic function in of H-, grant Matter where the Board having applicant repatriation avoid to ed to the based on the relive the of exception, horrors his memories amidst Chen the Board noted that the persecutors his surroundings applicant “badly and the of had been on his beaten Yes, head, back, persecution. the applicant who and forearm with a rifle butt good recovering has had the fortune of bayonet, resulting and a in scars to his from his physical body and emotional which to present.” wounds remain the Matter right, regulation, asy- H-, has no under the of 14 Interim Decision 1996 (BIA 1996). country lum from a in which the conditions 291910 WL Board clear which wrought longer ly the no found that the had an applicant on-going exist. physical disability. Requiring such a dis-

1017 worst, “lasting disability” depar- not irrational At the ... re there was an ability is a narrow of what consti quirement view ture from Chen. compelling reasons. In INS. v. tutes B-, majority’s contrary to the Matter of 26, 32, Yang, 519 Yueh-Shaio U.S. assertion, awith re- is not inconsistent (1996), L.Ed.2d S.Ct. the Su disability. While on-going of quirement preme “entry reasoned Court that since finding not a specific Board did make “a of fraud” was rule the INS’s own inven disabili- physical or emotional on-going of tion, reason, entitled, the INS is within applicant Board did note that the ty, the exception it Id. pleases.” define as thirteen “electric and had suffered shocks” n Similarly, “compelling a narrow of view prison receiving and months detention is not a disregard reasons” of the BIA’s physical psy- of torture and “various forms of general policy considering long-last B-, Interim chological abuse.” Matter of all, persecution. ing effects of the After 3251, at Decision 6 1995 WL Chen created 1995). (BIA that the highly probable It is BIA, and, such, by the as it is entitled to and permanent physical suffered applicant pleases. it define perse- scars from atrocious emotional A electric person cution. who suffers likely permanently will be scarred. shocks majority probable person Sadly, repeats is that a who the errors of

Equally I, Aguirre forms Aguirre 13 months of various of which reversed receives II, emotionally Supreme psychological abuse will be which Court admon- likely it is that Bhad ei- this court for failed to accord having scarred. Where ished physical scarring, a re- interpretations ther emotional the BIA’s the deference be and disability they simply imposing of such cannot are owed our quirement to be inconsistent with this decision. own construction of the statute. said on-going if an Even Bdid suffer from II Aguirre involved the definition of asy- BIA disability, granting one decision crime,” nonpolitical provision “serious disability requiring lum without such a prevents applicant, law that an oth- the general requirement would not render deporta- eligible withholding erwise departure policy. irrational an from BIA tion, remaining in the United States disability A of crimes in his on-going because committed clearly past ap- origin. with the See 526 U.S. at 119 S.Ct. consistent 1253(h)(2)(C). 1439; Applying In N-M- plication exception. of the Chen 8 U.S.C. finding nonpolitical made definition of a explicit A- the Board an “serious in one applicant adopted had not crime” of its earlier deci- testified sions, long-lasting effects the BIA had persecution. concluded B-, nonpolitical noted committed specifically applicant Board serious II, at 422- physical applicants. Aguirre scars crimes. See H-, reversed, likely 1439. We conclud- highly 119 S.Ct. interpret- physical ing incorrectly both emotional dis- that the BIA had suffered I, provision. Aguirre from his shock torture and abilities electric ed many erred psychological months abuse. at 524. We held had explicit disability require on-going To it failed consider the United because contrary Refugees, BIA previous High now is not these Nations Commissioner for for heavily pres- that relied on the Handbook on Procedures and Criteria decisions (“UN Hand- disability. Determining Refugee and absence of such a Status ence book”) precedent not heed our and did 119 S.Ct. 1439. in Nowhere the when it the applied nonpolitical regulation serious is meaning scope the or provision. crime See id. We held that “compelling reasons” defined. It is not at cases, following the UN Handbook and our all “compelling obvious that reasons” BIA perse- the should have considered the should on anything be more than based might cution the if petitioner suffer he physical and emotional disabilities. Al- returned, grossly whether his crimes were though majority’s the interpretation may objec- disproportionate alleged to their reasonable, well be BIA the is not com- tives, and whether his actions were “atro- pelled to follow it. Because of the BIA’s cious” as defined our cases. See id. expertise, we defer to it to among choose Judge Kleinfeld dissented. See id. at 524- all of the competing interpreta- reasonable turn, In Supreme 25. the Court reversed interpretation tions the one which it be- appropriately held we had not lieves comports policy best with its goals. deferred to BIA agency charged the as the By and, deferring instead, to the BIA administering with the statute. substituting judgment, majori- its own the II, Aguirre 526 U.S. at 119 S.Ct. 1439. ty repeated our Aguirre errors from I. analyzing case, In present majority principles fails to follow the and path laid in Aguirre

out II. Finally, majority faults In Lai’s the BIA interpreted failing previous to follow our apply- cases (Chen) own decision ing codified exception, particular Vong- (8 208.13(b)(1)(ii)). regulations C.F.R. sakdy Lopez-Galarza. None of our interpretation Such an given must be “con cases forecloses the requirement that a trolling weight plainly unless it is errone petitioner claim an on-going disability in ous or with regulation.” inconsistent order to qualify asylum under Tallman, 1, 16, Udall 380 U.S. 85 S.Ct. and the facts of those cases indicate that (1965). Thus, 13 L.Ed.2d 616 the existence a continuing disability us, course, issue before is whether the important Vongsak- consideration. BIA’s that an show dy, compared we suffered “lasting disability” ... in order to avoid by petitioner to that suffered Chen. the well-founded fear of future “[bjoth specifically We noted suffered element of eligibility “permissi is a physical injuries serious and were denied construction” of regulation. ble Id. care, medical resulting permanent im- question becomes whether an alterna pairment.” (emphasis F.3d at 1207 interpretation tive compelled by added). In Lopez-Galarza, pe- where the plain language or the abused, raped, deprived titioner was- intent in promulgating it. Thomas Jeffer imprisoned, food and there is no indication son, 512 U.S. at 114 S.Ct. of whether she an on-going suffered dis- decision, rejecting majority BIA’s ability. But we did not hold in that case plain language never states how the require- satisfied the intent regulation compels an alter asylum; instead, ments of humanitarian interpretation native disallows re we remanded the case to the BIA so that it quirement on-going disability. could possibility. consider the See here,

Applying the II 963. Thus the best that can be Aguirre lessons of said for majority’s interpretation majority’s position the Chen none of our exception, “is explicitly on-going “[a]s not obvious” a matter cases state that disabili- II, plain language.” Aguirre ty requirement. is a But the impo- certainly cipal respondent does does claim to suffer such a not sition of According to lasting physical our case law.5 dis- not contradict from or emotional analysis, fore- majority’s agency an is the a ability as result mistreatment. altering of a interpretation its closed establishing legal Rather than a new re interpre- unless that statute may BIA quirement, simply the have been acknowledged specifically has been tation conclusion supporting totality that the by our case law. This stan- approved of this case support the facts does not embod- not accord the deference dard does by under that Lai did asylum noting necessary ied Chevron ongoing disability. not claim If this inter statutory agency “give[ ambiguous ] pretation of the BIA’s opinion is correct meaning through process terms ‘concrete then, majority the should have reviewed ” case-by-case adjudication.’ Aguirre decision the BIA’s under the substantial II, at (citing 526 U.S. 119 S.Ct. 1439 standard. See evidence INS v. Elias-Za Cardoza-Fonseca, INS v. 480 U.S. carias, 478, 483-84, 112 S.Ct. 448-49, L.Ed.2d 434 S.Ct. (1992); Kumar, 117 L.Ed.2d 38 (1987)). (applying 934-35 the substantial evi dence standard to our of the BIA’s review C petitioner that the did qualify decision exception, Neither the humanitarian nor Chen). asylum under On the facts of it, majority’s can reinterpretation this the BIA’s that the se decision Aguirre II re- overcome deference verity of the suffered did not quires give disposi- us to to the BIA in the “atrocity” clearly to the level of rise regulations. foregoing of its tion For by supported substantial evidence and reasons, deny the BIA’s decision majority errs in concluding otherwise. asylum permissible based on construc- have held that in considering We statute, asylum of the tion is consistent exception, humanitarian BIA should cases, with Chen and our and should be severity compare upheld.

endured with that suf- petitioner II fered in Chen. See Lo- pez-Galarza, 99 F.3d 963. As the ma- Notwithstanding in Part the discussion just jority recognizes, BIA here did I, entirely possible majority it is describing extensively per- After that. decision; over-interpreted the BIA’s suffered, that Lai con- secution is, may BIA have intended never clusion, citing was sufficient disability” ... “lasting to establish new sup- does not lack substantial evidence to requirement as a After matter of law. Marcu, it. See 147 F.3d at 1082-83. port laying out the facts persecution, of Lai’s Marcu, we stated: the BIA concluded: claim regard to for humanitar- [the With preponderance the evidence estab- asylum], ian on “[B]ased held: compelling lishes ... that there are not hand, evidence on we do not find being reasons for to return to unwilling grounds grant sufficient humanitarian Fiji arising out of the matter of respondent as a past persecution respondent. the lead we regard prin- observe that the discretion. actions were not so se- impairment. permanenl BIA does not 5. The contradict its own case petitioner law either as the in Chen suffered There, water, atrocious nature to warrant deprived vere or he was of food and humanitarian Al- asylum tortured, reasons.” beaten and fingers had his bro- than though require we more a mere ken, care, compelled denied medical to wit- BIA, the all that comment from is neces- friend, killing ness the of his and had his a decision that out sary is sets terms by thumb severed a rifle blow. See to enable us a reviewing sufficient as F.3d at 1205-06. Lai’s experience, though heard, court that the Board to see brutal, simply was not as serious. Lai was considered and decided. deprived beaten and tortured and of ade- case, Marcu, at in Lai’s Id. 1082. As quate days, food and water for three not opinion BIA set forth in “[t]he an ex- years. two His temple home and were description tensive of the harassment and robbed. He was forced to watch as sol- petitioner] abuse [the endured.... the diers fondled his wife. He was detained however, judgment, BIA’s that harassment an additional three pre- times. He was and did not necessaiy abuse rise to the vented from leaving country. the One severity level of or atrociousness to war- in any way should not minimize the severi- grounds. rant on humanitarian ty brutality by suffered the Lai opinion The BIA’s that demonstrates standard, family, but the by established claim, evidence, heard the considered and our own cases one of “atro- and against petitioner].” decided [the Id. ciousness.” This standard kept must be precisely 1083. That is what occurred high prevent the exception from de- Marcu, here. As we concluded in “No stroying carefully statutory calibrated required.” more was Id.See also Kazlaus- and regulatory scheme. kas, 46 (holding F.3d 906-07 that the IJ remember, Let us our standard re- did not abuse his discretion where he con- evidence; is, view is substantial severity petitioner’s sidered the and evidence in the compel record must family’s persecution, the likelihood of opposite by conclusion reached the BIA persecution, future the circumstances sur- before we liberty are at to overturn its rounding petitioner’s departure and judgment. Vongsakdy, F.3d at States). entry into the United 1206. Given the of “atrocity” definition The two cases the majority— cited Court, Supreme endorsed ap- Lopez-Galarza Vongsakdy —do review, propriate standard of and the need teach Lopez-Galaraza, otherwise. to take care does not BIA “simply erred because it failed to rule, say swallow the I cannot consider atrocity past perse- the level of conclusion case, cution.” 99 F.3d at 963. In that enough not serious supported by is not “provide did not an explanation suffi- substantial evidence. cient to enable us as a reviewing court heard, considered, see that the Board has Finally, majority’s conclusion cannot omitted). (quotations decided.” Id. be reconciled with our recent decision in Here, the BIA made clear that it had Kumar. In that petitioner, like considered the past perse- Lai, a Fijian of Indian sup- descent and cution, but did not consider it to rise to the porter Party, of the Labour suffered from level “atrocity.” It fulfilled all the re- persecution. extensive The soldiers en- quirements of Marcu. home, tered the Kumar’s beat and up tied In Vongsakdy, parents Kumar’s and then petitioner suffered forced them to permanent impairment resulting they stripped from his watch as Kumar of her two-year ordeal at a camp. sexually forced labor clothes and assaulted her. See threat- reasons” standard at 932-33. The soldiers C.F.R. defer, 208.13(b)(l)(ii), her father into § ened Kumar’s life and took we should to its him custody they where beat for two permissible decision as a construction of year, id. Later that same weeks. See regulation. destroyed temple where Ku-

soldiers by out worshiping, dragged mar her was III and kicked her until punched her hair and light of the discussion in Parts I and from Hinduism. See agreed she to convert II, question one must reach the whether They her mother id. at 933. also knocked supports substantial evidence also when tried to intervene. unconscious she changed country BIA’s conclusion that later, caught up group Still a of soldiers conditions have obviated Lai’s well-found- Kumar while she was at school and with persecution. ed fear of future beat her until she unconscious. See Despite ferocity persecution id. suffered,

Kumar we held that the record A that the BIA compel did not us to conclude BIA preponderance The found severity erred when it decided that the coup, the evidence that since the 1987 rise the level persecution did not to “country Fiji changed conditions have to asylum. required for humanitarian See id. longer [Lai] such extent no at 935. ” being persecuted.... well-founded fear of majority attempt does not even Department The BIA noted that the State cases, I it can- reconcile these and believe report, stated that there issued facts, not. On the Kumar and Lai suffered widespread human was no evidence of very experiences persecu- similar Fiji rights against violations in ethnic Indi- improbable tion. I find it that the facts of Indo-Fijians engage ans and that busi- compel Lai could us to conclude that no It professional ness and activities. noted person reasonable could fail to find that Fijians that both ethnic and ethnic Indians of Lai’s rose “ productive lives’ ‘tranquil lead “atrocity” required for humani- the level throughout Fiji.”6 Thus the ordered asylum, Kumar do tarian while those of they depart if did not deported the Lais not. voluntarily days. within 30 supports evidence the BIA’s Substantial regard review the BIA’s conclusion We eligible asy- Lai conclusion that is not changed country conditions for sub ing lum because he failed to demonstrate com- Marcu, 147 at stantial evidence. See F.3d pelling arising reasons out of severe establishes a past persecution 1081. Lai’s being willing for not to return a well-founded fear of fu presumption of country. require to his If the BIA did 8 C.F.R. persecution. ture showing permanent impairment before 208.13(b)(1)(i). “compelling § The INS then rebutted granting asylum based on the ” TIMES, 7, 2000, ‘EDEN,’ N.Y. June REVIEW LIMITED TO THE EVI- SEAS OUR IS period hostage Al. The crisis comes after DENCE CONTAINED IN THE ADMINIS- NEVERTHELESS, during tranquility I which an ethnic Indian RECORD. TRATIVE prime any A BLIND EYE TO THE RE- was elected minister. CANNOT TURN any pertinent proper to address OF RENEWED CONFLICT avenue CENT REPORTS changes country subsequent in the IN FIJI BETWEEN THE INDIGENOUS FIJI- See, reopen to file a motion to e.g., INDIANS. BIA's decision is ANS AND ETHNIC VERHOVEK, proceedings with the BIA. See 8 C.F.R. "BURST OF ETH- SAM HOWE IN FIJI THREATENS SOUTH 3.2. NIC TENSION arias, 483-84, 112 S.Ct. 812 demonstrating, “by a presumption added). evidence, (emphasis that condi preponderance of to such an extent changed tions have targeted protracted na- Despite has a well-founded longer no suffered, the ture of the if he or she were being persecuted fear provides substantial evidence record Marcu, (quo 147 F.3d at 1081 to return.” conclusion. Lai was support the BIA’s omitted). Department The State tations political persecuted on account of country reports appropriate are “the most views, The ethnicity religion. his and his for the best resource informa perhaps and country report pre- indicates foreign in na political on situations tion (both taking place after vious two elections Kazlauskas, (quota tions.” persecution) were fair Lai’s last instance omitted). tions free; Indo-Fijian parties partici- and the alleges Lai took The events which part on the pated without interference from 1987 to place primarily government. In the 1992 elections with one isolat year following coups, Indo-Fiji- parties of the twelve were four Despite in 1991. Lai’s credi ed incident by the Constitu- Although prevented an. past persecution, ble accounts severe govern- control of the gaining tion from support Report provides substantial ment, the that the non-ethnic record shows the BIA’s conclusion that the situation for (in Fijian parties controlled 33 contrast Fiji changed significantly in so that 37) Fijians’ the seats in the the ethnic of future may Lai return without fear of Parliament. Thus the Re- lower house Marcu, 147 F.3d at persecution, cf. for the port provides support substantial Marcu, In who 1081-83. that if Lai to re- BIA’s conclusion were more than twen persecuted had been turn, persecution would on he not face in account of ty-five years Romania on political participation. account of his asy views was denied pro-American persecution to the respect With that occurred changes lum because ethnicity and on account of his suffered the Ceau country in that after the fall of report religion, Department the State despite was so regime. sescu This and Fijians concludes that of all faiths in fact that Marcu had been beaten tranquil and active busi- ethnicities lead year following change leadership. in personal The Indian com- ness and lives. Marcu, 147 F.3d at 1081. As in See munity dominates the business and the Marcu, Lai al almost all of the incidents well-represented in professions, and is in leges here occurred that “chaotic” first report public service. It is true that the peti year following coup. Unlike the in newspaper and articles the rec- several Marcu, in here Lai one tioner suffered some continued ethnic ten- ord indicate after additional instance of sion, police are at times slow and that in Mindful of the time 1991. Su Indo-Fijians. harassment of prevent admonishment that we are preme Court’s concludes, however, over- report BIA the decision of the not to overturn ” Fijians leading ethnicities “are all of both us do “compels unless the evidence tranquil productive throughout lives so, say this one later we cannot Fiji,” no violation and there is widespread “that no compels event us to conclude Indo-Fijians on rights against of human could fail to find the reasonable factfinder military police.7 part requisite persecution.” fear of Elias-Zac widespread of ethnic Indians instance of 7. Lai suffered his last Department Report had ended The State states in 1991. Cir.1998). Marcu, Garrovillas, we court As the court held need not held dispute over cur- resolve the factual country the BIA’s analysis changed con- Fiji. id. rent at 1082. conditions insufficiently specific. ditions be But “Our task is to determine whether there the context that determination differed support evidence to substantial significantly the case at hand. from analy- finding, not to substitute an Garrovillas, the BIA had found that the factual dispute sis of which side we petitioner past persecu- did not establish Id. Our persuasive.” find more case law and it did tion not afford him the presump- well “that the country report establishes tion of persecu- well-founded fear of future Department of State is the our tion. analyze See id. at 1017. Nor did it ‘perhaps ‘most appropriate’ best re- the facts to assess whether the presump- ” source,’ determining country condi- tion had been changed rebutted Id.; Kazlauskas, tions. at 906. F.3d All conditions. did was such, Department report As the State quote two paragraphs Depart- of the State “provide[s] evidence the substantial report ment mentioning appli- without the BIA’s determination INS suc- cability to the case. See id. “Thus it cessfully presumption the fu- rebutted quotation clear whether this [was] Marcu, 147 prosecution.” ture F.3d at intended to serve as a means of rebutting simply 1082.8 does The record not com- presumption of a well-founded fear of pel a factfinder to reach reasonable persecution.” future Id. opposite conclusion. . contrast, In the BIA here afforded Lai B presumption of a well-founded fear of majority assert and the persecution, future and then found that the are Department reports State insufficient- country report “establishes that since that

ly helpful to be is assessing individualized occurred, country conditions in fear of Lai’s of future reasonableness Fiji changed have to such an extent that above, however, persecution. As noted respondent longer the lead has a no well- reports are Department State the best ” being persecuted.... founded fear of regarding country source information politi- Lai claims on account conditions, and we have held that the BIA opinion, religion, origin; cal ethnic and may rely on them to determine whether an portions report by a well-founded fear cited the BIA of future See, Kazlauskus, persecution. e.g., specifically polit- referred the decreased F.3d at 906. ical and ethnic Fiji- ethnic tension between “tranquil ans and and the Indians and

Nor the BIA’s conclusion that Lai all productive Fijians lives” of faiths. need longer no fear based on Garrovillas, BIA here Unlike made an insufficiently individualized assessment appropriate it clear it considered applies to his Report as case. See rebutted, presumption, Garrovillas v. 156 F.3d. 1010 found it and dis- distinguish firmly by support. any 8. In Petitioner cannot Marcu ar- es- Kazlauskas guing finding sup- Depart- that the BIA’s there found proposition tablishes that State port Department report the State both report enough In ment can be itself. Ka- a letter from Director the Office of zlauskas, changed we affirmed the BIA’s Asylum petition- Affairs individualized finding only based on the condition er's case. See infra at 8423-24. It does not Department report. State See id. 46 F.3d at letter, follow that absent the Director's finding BIA's have lacked would substantial report cussed those sections of the America, UNITED STATES

dealt the reasons specifically with Plaintiff-Appellee, sum, persecuted. which Lai was changed country con- analysis ditions be individualized to the BARRIOS-GUTIERREZ, Fabian petitioner met in this case.9 Defendant-Appellant. No. 99-10148. IV Appeals, United States Court of majority rejects inter- reasonable Ninth Circuit. pretation of its own Argued and Submitted March misinterprets adding as new re- En Banc Opinion July Filed quirement. It compounds then its error by failing apply the correct standard of Finally

review. it misconstrues the on law

“changed country my conditions.”

view, the BIA’s construction of the statute permissible sympathetic one. As is, application nothing

the Lais’ in the rec- legally compels

ord a result different from

that reached the BIA.

Accordingly, petition Lai’s for review of I, and, decision should be denied

therefore, respectfully dissent. petitioner appears

9. The mistake re- formation contained therein relevant to the quirement that the IJ and BIA undertake an application. individual seeker’s Re- analysis changed individualized of how the quiring Department more of the State when particular peti- conditions affect the asylum applications thousands of are filed with a tioner’s case law, year regula- each would be unfounded in Department report provide State individual- precedent. any tion or we have analysis. Department ized The State issues explicitly rejected Report the notion that the reports describing political situation Ghaly itself must be individualized. See country. The IJ and the BIA then ana- (9th Cir.1995). F.3d lyze reports to determine whether the in-

Case Details

Case Name: Jaswant Lal Shakuntla Lal Rikesh Lal v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 3, 2001

Citation: 255 F.3d 998

Docket Number: 98-71087

Court Abbreviation: 9th Cir.