Mаng Hau Khup, a native and citizen of Burma (now known as Myanmar), has petitioned for review of a decision of the Board of Immigration Appeals (“BIA”) denying his applications for asylum, withholding of removal, and protection under Article 3 of the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found Khup to be a credible witness, but denied relief on the grounds that he had not suffered past persecution and did not have a well-founded fear of futurе persecution. Khup contends that the record compels a finding that he suffered past persecution and that he more likely than not will be tortured if he is returned to Burma. We agree, and grant his petition for review.
BACKGROUND
Khup alleges that he was persecuted by the Burmese military on account of his religious activities and an imputed political opinion. As the IJ found Khup to be a credible witness, the following facts are drawn from Khup’s testimony at his hearing before the IJ and from Khup’s asylum declaration.
Khup is a Seventh Day Adventist (“Adventist”) who until 1995 lived in Chin State in Burma. Although a majority of the population of Chin State is Christian, the majority religion of Burma is Buddhism and the highly repressive military government oppresses Christians. Khup trained to be an Adventist minister and was assigned to a ministry in Lezang village.
Khup’s first run-in with the Burmese military occurred in November 1990, while he was worshiping at a church in Tung-zang village. Soldiers stopped the service and forced Khup and the other worshipers at gunpoint to carry heavy military provisions for 20 miles over hilly terrain. The soldiers did not give Khup or the other porters any food during the forced march and treated them roughly. When they arrived at their destination that night, the soldiers released Khup and the others.
Khup later joined an Adventist evangelist minister named U Myint, who was trying to convert the Naga people in Kaсhhr state to Christianity. The military warned U Myint and Khup not to promote Christianity, but they preached the gospel anyway. In June 1995, the military arrested U Myint in Mang Kring village. Villagers told Khup that the military had beaten and tortured U Myint throughout the night and had then killed him and dragged his body through the streets as a warning to others. The villagers told Khup that the military was looking for him too, so he fled and returned to Lezang village.
Upon Khup’s return to Lezang village, he learned that the military was searching for him there also, so he went into hiding on a farm. He went from Lezang to Tungzang, but it was not safe there either. He then traveled to Rangoon (now known as Yangon) and used a passport broker to *902 buy a . passport. He could not go to the passport office himself, because he was on the run and would have been arrested.
Once Khup obtained his passport, he fled through Thailand to Malaysia and stayed therе for five years. He did not apply for asylum while in Malaysia, because the Malaysian government did not offer asylum and in fact sent illegal immigrants back to Burma. He did not go to the United States embassy or any other foreign embassy in Kuala Lumpur to see if he was eligible for asylum, because he did not know that it was possible to do so.
A friend of Khup named U Thawng Lang, who was an Adventist pastor and an associate of U Myint, also fled to Malaysia, but later decided to return to Burma. Khup received a letter from U Thawng Lang, who reported that upon his return to Burma he had been arrested by the military at the airport. In the letter, U Thawng Lang stated that the military had put him into a forced labor camp, had beaten and tortured him, and had fed him only one small bowl of rice a day. The military had also forced him to carry military supplies in the Karen rebel area, and he had beеn able to escape during fighting with the rebels.
After receiving this letter from U Thawng Lang, Khup knew he could not return to Burma when his Malaysian work permit expired. He believed that he would have been subject to heightened scrutiny at the airport because of his Chin ethnicity, and the government officials would soon have found out about his connection to U Myint. When Khup heard about the Guam visa waiver pilot program, he emigrated to Guam.
Khuр entered Guam on January 9, 2001, and applied for asylum on March 6, 2001. The INS placed Khup in removal proceedings in June 2001 on the . ground that he had overstayed the visa waiver pilot program. At Khup’s merits hearing on his applications for relief from removal, the IJ found that Khup was a credible witness, but that he had not suffered past persecution and that he did not have a well-founded fear of future persecution. The BIA affirmed without opinion the IJ’s decision pursuant to 8 C.F.R. § 3.1(e)(4) (2002).
JURISDICTION
The BIA had jurisdiction over Khup’s appeal of the IJ’s decision pursuant to 8 C.F.R. § 3.1(b)(3) (2002). Khup’s removal proceedings began after April 1, 1997, and we therefore have jurisdiction over his petition for review pursuant to 8 U.S.C. § 1252(a)(1).
See Gormley v. Ashcroft,
STANDARD OF REVIEW
Where the BIA affirms an IJ’s order without opinion, we review the IJ’s order as the final agency action.
Kebede v. Ashcroft,
*903 ANALYSIS
I. Asylum
Congress has given the Attorney General discretion to grant asylum to refugees.
See
8 U.S.C. § 1158(b). To be eligible for asylum, Khup needed to show that he was unable or unwilling to return to Burma “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Melkonian v. Ashcroft,
A. Past Persecution
The IJ found that Khup had not suffered from past persecution, because he had only one serious run-in with the Burmese military (the forced porterage). The IJ concluded that although this “certainly constitutes harassment and discrimination against [Khup] by virtue of his ethnicity and his religious background,” it did not rise to the level of persecution. Khup argues that the IJ ignored the anguish he suffered when his fellow preacher was arrested, tortured, and killed and when he was forced to flee the country.
Absent a statutory definition, the Ninth Circuit has defined persecution as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.”
Fisher v. INS,
past persecution), as
amended by
Also, “persecution” is not limited to physical suffering.
Kovac v. INS,
Here, the IJ’s finding that Khup’s day of forced porterage did not rise to the level of persecution is supported by substantial evidence. The IJ reasoned that Khup did not suffer any ill effects from the episode, and his main reaction was a feeling of injustice at having been made to work on the Sabbath. Although Khup was made to perform hard labor in unpleasant circumstances, the ordeal lasted for less than a day and he gave no indication that he had been seriously abused. Because reasonable minds could differ on whether this single incident constitutes persecution,
*904
the record does not compel a finding that it does.
Cf. Prasad v. INS,
The IJ did not address, however, whether the arrest, torture, and killing of Khup’s fellow preacher, and the terror these acts would have aroused in Khup, constitute past persecution. He and U Myint were together warned by the military not to preach. Khup and U Myint preached together in disregard of the military’s warnings. The military subsequently arrested, tortured, and killed U Myint, and dragged his dead body through the streets as an example to others. In addition, the military was looking for Khup as well, and he was forced to go into hiding and flee from village to village before escaping the country. In the absence of an explicit adverse credibility finding, we must accept this testimony as true.
See Shoafera v. INS,
Once an alien establishes that he has suffered past persecution, he is presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1) (2002). The burden of proof then shifts to the government to rebut this presumption by showing a fundamental change in circumstances in the country of nationality or that the applicant could avoid future persecution by relocating tо another part of the country.
Id.
Normally, we would remand the case to the BIA for a determination of whether the government had met this burden.
See INS v. Ventura,
B. Well-Founded Fear of Future Persecution
To establish a well-founded fear of future persecution, Khup needed to demonstrate that he subjectively fears persecution and that his fear is objectively reasonable.
See Gormley,
Here, the IJ concluded that Khup did not have a subjective fear of persecution, because he obtained a Burmese passport in his own name, renewed it twice while in Malaysia, and never sought asylum at any foreign embassy while he lived in Kuala Lumpur. The IJ also concluded that Khup failed to show that any subjective *905 fear would be reasonable, as there is no evidence that Khup’s family has ever been harassed or even questioned by the military about Khup’s whereabouts.
The IJ’s finding is not supported by substantial evidence. Regarding Khup’s ability to obtain a passport in his own name, he explained that he had paid a very large sum to a passport broker to buy the passport.
See Garcia-Ramos v. INS,
With regard to his failure to apply for asylum, Khup explained that (1) Malaysia did not offer asylum and in fact sent illegal immigrants back to Burma and (2) he did not know that he could apply for asylum at foreign embassies. Finally, although he testified that his family had not had any problems with the military, he explained that it was because, unlike him, they “didn’t do anything against the gоvernment.”
See Jahed v. INS,
In light of Khup’s credible and consistent explanations of how he obtained his passport and why his family has not been persecuted, and in the absence of any testimony regarding how he renewed his passport, a reasonable fact-finder would be compelled to conclude that Khup has a well-founded fear of future persecution. He testified that the Burmese military had arrested, tortured, and killed his close associate U Myint, had actively sought to arrest Khup as well, and had arrested, imprisoned, and tortured U Thawng Lang upon his return to Burma. We therefore hold that Khup is eligible for asylum and remand for the Attorney General to make a discrеtionary decision regarding whether to grant asylum.
II. Withholding of Removal
“To qualify for withholding of removal, an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds.”
Al-Harbi,
The IJ’s determination on Khup’s eligibility for withholding of removal is not supported by substantial evidence. As we discuss in greater detail in Part III, infra, no reasonable fact finder could conclude that Khup did not face at least a 51% chance of religious and political persecution were he to return to Burma. The torture and killing of U Myint by government forces, the government’s pursuit of Khup, the torture of Khup’s preacher asso *906 ciate who returned to Burma, and the long and well-documented history of human rights abuses by the Burmese government as set forth in the administrative record simply do not permit any other conclusion.
We note that this - case differs from one in which the agency has made an adverse credibility finding that is not supported by substantial evidence. There, the reviewing court-' must in most instаnces remand the case to the BIA to allow it the first opportunity to assess the applicant’s statutory eligibility for relief.
See Ventura,
Nevertheless, in two of our recent decisions, we have remanded cases for the BIA to reconsider withholding of removal claims even after the agency had explicitly or implicitly determined the applicant to be ineligible for relief.
See Lopez v. Ashcroft,
In
Jahed,
the panel decided to remand the withholding claim after concluding that the petitioner had established past persecution
and
a well-founded fear of future persecution.
III. Convention Against Torture
The IJ also denied Khup’s application for withholding under Article 3 of the CAT on the grounds that Khup failed to show that it is more likely than not that the Burmese government would torture him should he be returned to Burma. See 8 C.F.R. § 208.16(c) (2002).
The CAT standard is narrower than the asylum standard, because an applicant must show that it is “more likely than not” that he will be tortured.
Kamalthas v. INS,
establishing substantial grounds for believing that he ... would be in danger of being subjected to torture in the country of removal, including (but not limited to) evidence of past torture inflicted upon the applicant; gross, flagrant or mass violations of human rights within the country of removal; and other relevant information regarding conditions in the country of removal.
Id. at 1284 (internаl quotation marks and citations omitted). Thus, in addition to claims of past persecution, an IJ must consider evidence of current country conditions. Id.
Here, in addition to Khup’s testimony regarding his own past persecution, the IJ noted that Khup had submitted “a plethora of documents which confirm the harassment and persecution, and at times torture and killing of individuals in the Chin and Kachin province [sic.] by the Burmese government as a result of the religious beliefs and activities of the primarily Christian people living in these areas.” Included in this documentation are, for example, an Amnesty International press release from December 2000 that states “[t]orture has become an institution in [Burma], used throughout the country on a regular basis ...,” and a 1999 State Department report on religious freedom in Burma that states “[g]overnment security forces continued efforts to ... prevеnt Christian Chin from proselytizing by highly coercive means, including ... by arresting, detaining, interrogating, and physically abusing Christian clergy.” The same report describes various incidents of government abuse of Christian clergy, including beatings, killings, and a mutilation.
For its part, the government submitted a 2000 State Department country conditions report on Burma. The report confirms the Burmese government’s use of torture against prisoners and detainees and states that the аuthorities reportedly beat Christian clergy who refuse to stop preaching. The government also submitted a September 1998 State Department report on Burma entitled “Profile of Asylum Claims and Country Conditions.” This report states that “assertions that [Christians] have been tortured or imprisoned purely on the basis of religion should be viewed with care.” Although Khup testified that he was never a member of the pro-democracy movement, his asylum application states that the Burmese government imputed this political opinion to him: “The government believed that our evangelism was connected to the pro-democracy movement” and “I cannot return to [Burma] because I am on the [Military Intelligence]^ list of political dissidents” (emphasis added). Finally, the government submitted a 2001 State Department report on religious freedom in Burma. The report describes arrests and beatings of Christian clergy in Chin State.
The record compels a conclusion that Khup faces at least a 51% chance of being tortured should he be removed to Burma. He testified that U Myint was arrested and tortured, that the military sought to arrest Khup too, and that his preacher friend was arrested and tortured upon his return to Burma. In addition, the country conditions reports submitted by both parties indicate that the Burmese government regularly tortures detainees and that Christian preachers have been subject to arrest and detention. We therefore hold that Khup is entitled to withholding of removal under Article 8 of the CAT.
*908 IV. Streamlining
Finally, Khup argues that the BIA violated his due process rights by deciding to streamline his appeal because (1) the BIA did not consider all of his arguments and (2) the BIA failed to follow its own streamlining regulations. Khup’s first argument is precluded by
Falcon Carriche v. Ashcroft,
CONCLUSION
We grant Khup’s petition for review and remand to the BIA for further proceedings consistent with our opinion.
PETITION FOR REVIEW GRANTED.