Harmless error in asylum adjudication

Japarkulova v. Holder, http://www.ca6.uscourts.gov/opinions.pdf/10a0195p-06.pdf

The BIA erred in finding that the alien did not suffer past persecution.  A threat, from a high-placed government official, can constitute past persecution. 

The court would have remanded to allow the agency to determine when a stand-alone threat constitutes persecution but the error was harmless.  Conditions have changed and so the alien did not possess a well-founded fear of future persecution.

The concurrence noted recent events in the Kyrgyz Republic.  Noting the counterintuitiveness of the result, the opinion noted that the alien had to file a motion to reopen so the agency could consider the new evidence, even though the more efficient result would be for the court to remand the case.