Tan

MEMORANDUM *

Jen Djuan Tan, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ denial of his application for asylum and withholding *539 of removal, and denial of his motion to reopen. We deny his petitions.

The BIA’s determination that an alien is not eligible for asylum must be upheld if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” INS v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812, 815 , 117 L.Ed.2d 38 (1992) (citation omitted). “It can be reversed only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id. When an alien seeks to overturn the BIA’s adverse determination, “he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. at 483-84 , 112 S.Ct. at 817 ; see also Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). Where an asylum claim is involved, an alien must show either past persecution or a well-founded fear of future persecution that is “both subjectively genuine and objectively…

concurring and dissenting.

I concur in the disposition of Tan’s original application for relief in Case No. 02-73212. I respectfully dissent, however, from the disposition of Tan’s motion to reopen in Case No. 03-71195. Jen Djuan Tan has presented a compelling case for reopening the immigration proceedings in this case — that he was provided ineffective assistance of counsel at his removal hearing. In my view, the Board of Immigration Appeals abused its discretion in denying Tan’s motion to reopen. Accordingly, I would grant the petition for review with regard to his motion to reopen (Case No. 03-71195) and remand for further proceedings.

Tan, a gay Chinese citizen of Indonesia, was raped by three Muslim natives in a public bathroom in 1989. Although he discussed the incident with his counsel, Tan did not disclose (1) that he had been raped or (2) that the three men targeted him on account of his sexual orientation. In his motion to reopen, Tan explains that his initial reluctance to volunteer these details stemmed from his lingering trauma from the rape and his internalized shame about his sexual orientation. When counsel later acknowledged that he knew that Tan was gay, Tan…