UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60675 Summary Calender

JAGTAR SINGH,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals (A73-728-423)

October 4, 1999 Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

Jagtar Singh petitions for review of an order of the Board of

Immigration Appeals (“BIA” or “Board”) dismissing his appeal of the

immigration judge’s (“IJ”) order denying his application for asylum

and withholding of deportation. He argues that he is entitled to

asylum because he was persecuted while living in India and that he

has well-founded fear that he will be persecuted if he returns

there. He avers that the BIA’s decision denying him refugee status

for past persecution is not supported by substantial evidence and

that the BIA did not give meaningful consideration to his evidence

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-60675 -2-

that his fear of return is well-founded.

BACKGROUND

Petitioner, a native of Punjab, India, entered the United

States without inspection in 1994 and applied for political asylum.

In March 1995, Petitioner was served with an order to show cause as

to why he should not be deported. Petitioner conceded

deportability and applied for political asylum. An evidentiary

hearing was held before an IJ at which Petitioner was the sole

witness.

Petitioner contends that he is a member of the All India Sikh

Student Federation (“AISSF”), an organization that supports the

creation of an independent Sikh nation. In his testimony,

petitioner described five incidents of arrest and torture based on

his Sikh religion and membership in AISSF. During each incident of

arrest, Petitioner was detained for several days at a time, hung

upside down, beaten with bamboo sticks and provided minimal food

and water. Petitioner was told during each detention that he was

being arrested due to his Sikh faith and affiliation with AISSF.

Petitioner was released from detention during each arrest only

after payment of a bribe. Petitioner’s release after the fifth and

final arrest was made to look like an escape, at which time a

warrant was issued for Petitioner’s arrest for escape from prison.

During his testimony before the IJ, Petitioner was asked about

factual issues with respect to AISSF. Specifically, he was asked

about which faction of the AISSF he belonged to, whether the No. 98-60675 -3-

faction he belonged to engaged in terrorism and about certain

Punjab elections boycotted by AISSF. Petitioner could not recall

specific facts in response. In addition, Petitioner no longer

observed the Sikh requirement of wearing a beard and a turban.

However, Petitioner did testify to examples of torture and beatings

in Punjab, the outstanding warrant for his arrest and the danger of

further torture upon his return to India.

The IJ denied asylum, stating that he did not find the

Petitioner an entirely credible witness. Upon review by the Board,

the decision of the IJ was upheld. The Board noted that the IJ had

not rendered a specific adverse credibility finding, but

subsequently recited the inconsistencies and failure of memory of

the Petitioner in his testimony before the IJ. The Board also

dismissed Petitioner’s claim that he faced persecution in India due

to the arrest warrant because the arrest warrant was not due to

Petitioner’s religion or political beliefs, but rather on the fact

that he was an escaped detainee.

STANDARD OF REVIEW

It is well-settled that this court may only review the

findings of the Board and not those of the IJ, except to the extent

the findings of the IJ influenced the findings of the Board or the

Board explicitly adopted the findings of the IJ. See Abdel-Masieh

v. INS,

(5th Cir. 1996). We review legal conclusions

of the Board de novo. Rivas-Martinez v. INS,

(5th

Cir. 1993). We review findings of fact to determine if they are No. 98-60675 -4-

based on substantial evidence in the record. INS v. Elias-

Zacarias,

(1992).

ANALYSIS

An applicant is eligible for asylum in the United States if he

either (1) has been subject to past persecution or (2) has a well-

founded fear of future persecution on account of race, religion,

nationality, membership in a particular group or political opinion.

(a), 1101(a)(42)(A). An applicant for asylum

establishes a well-founded fear of persecution if a reasonable

person under the circumstances would fear persecution. See Guevara

Flores v. INS,

(5th Cir. 1986). However, a

reasonable person can fear persecution even if he cannot prove that

persecution will necessarily occur in the future. See INS v.

Cardoza-Fonseca,

(1987) (“one can certainly have

a well-founded fear . . . when there is less than a 50% chance of

the occurrence taking place”).

In the present case, the Board ruled that Petitioner had

neither suffered past persecution or had a well-founded fear of

future persecution, and accordingly denied asylum. Petitioner

contends that the Board’s decision is not supported by substantial

evidence and that the Board failed to consider portions of the

evidence before it. In making such a claim, the Petitioner has the

burden to “show that the evidence he presented is so compelling

that no reasonable factfinder could fail to find the requisite fear

of persecution.” Jukic v. INS,

(5th Cir. 1994) No. 98-60675 -5-

(citing Elias-Zacarias,

).

Respondent contends that this court should review the decision

of the Board in the same manner as a judgment as a matter of law

under Fed. R. Civ. P. 50(a), i.e., that the Board should be

affirmed if, in light of the entire record, Petitioner is not

eligible for asylum. Respondent misstates the law. This court may

only review the decision of the Board and may not review the

decision of the IJ unless it is adopted by the Board or it clearly

influenced the Board. Abdel-Masieh,

; Mikhael v.

INS,

(5th Cir. 1997). In such review, it is clear

that we must limit ourselves to the stated findings of the Board

solely to determine if they are supported by substantial evidence.

Elias-Zacarias,

. Accordingly, we reject the

Respondent’s contention that we may review the entire record to

determine if it supports a denial of asylum, and review solely the

findings of the Board to determine if they are supported by

substantial evidence in the record.

In reviewing decisions of the Board, this court does not

substitute its judgment for that of the Board or the IJ and will

not under any circumstances review decisions turning solely on

determinations of credibility. Zhu Yu Chun v. INS,

(5th Cir. 1994). However, where the Board has failed to meet its

responsibility in reviewing the entire record and basing its

findings on substantial evidence contained in the record, then this

court must insist on such compliance. Abdel-Masieh,

(citing Sanon v. INS,

(7th Cir. 1995)). We do not No. 98-60675 -6-

require that the Board address every minute issue of fact, but the

decision of the Board must “reflect a meaningful consideration of

the relevant substantial evidence supporting the alien’s claims.”

Abdel-Masieh,

; Opie v. INS,

(5th

Cir. 1995) (“the BIA’s opinion must reflect that it has heard and

thought and not merely reacted”).

In the present case, the Board’s decision does not provide an

adequate basis for review and does not reflect that the Board gave

meaningful consideration to all relevant evidence presented by the

Petitioner. It is unclear whether or not the Board relied on the

IJ’s adverse credibility finding in concluding that the Petitioner

had not met his burden of proving a well-founded fear of

persecution -- noting that the IJ did not make such a determination

but further dedicating the majority of its decision to the

Petitioner’s credibility. Because it is unclear if the Board is

adopting the IJ’s credibility finding, it is impossible for this

court to properly review the Board’s holding. In addition, the

Board makes no reference to key portions of the Petitioner’s

testimony with respect to his presence on a police “black list”,

the murder of several of his colleagues on the “black list” and a

letter from the Petitioner’s father claiming he was beaten by the

police, raising a question as to whether the findings were based on

substantial evidence in the record above and beyond a finding of

credibility. Accordingly, we hold that the decision of the Board

is not based solely on a determination of credibility and that the

decision of the Board does not reflect meaningful consideration of No. 98-60675 -7-

the relevant evidence.

In such a situation, this court must insist on compliance by

the Board, but may not supplement its efforts. Mikhael,

; Abdel-Masieh,

. A holding of the Board may

only be reversed if “the evidence not only supports [reversal], but

compels it.” Elias-Zacarias,

. Where, as in

the present case, the Board has failed to address much of the

Petitioner’s key evidence, including his own testimony, and has

failed to sufficiently state its reasoning for its findings, we

must remand to the Board so that it may properly do so. See

Mikhael,

(holding that where the BIA has erred,

remand is the proper remedy). Although upon review of the record,

it appears that the evidence is strong enough to grant asylum based

on a well-founded fear of future persecution, the record does not

necessarily compel such conclusion sufficiently to justify reversal

at this time. Thus, remand is the proper recourse so that the

Board may meet its obligations to perform a meaningful review of

the relevant evidence.

CONCLUSION

For the reasons assigned, the petition for review is GRANTED

and the order of the Board is VACATED and REMANDED for further

proceedings consistent with this opinion.