Gu v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAOGUANG GU, 
Petitioner, No. 02-74417
v.
 Agency No.
A75-653-110
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 2, 2004—Pasadena, California
Filed December 1, 2005
Before: Harry Pregerson, Robert R. Beezer, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Beezer;
Dissent by Judge Pregerson
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
15585
15588 GU v. GONZALES
COUNSEL
Joseph S. Porta, Law Offices of Cohen & Kim, Los Angeles,
California, for the petitioner.
Daniel D. McClain, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
the respondent.
OPINION
BEEZER, Circuit Judge:
Xiaoguang Gu, a native and citizen of China, petitions for
review of a decision of the Board of Immigration Appeals
(“BIA”) affirming the Immigration Judge’s denial of Gu’s
application for asylum.
We have jurisdiction pursuant to 8 U.S.C. § 1252. In view
of our highly deferential review of the decisions of the Board
of Immigration Appeals, we deny the petition.
I
Xiaoguang Gu entered the United States on May 9, 1998 on
a business visa. His purported reason for entering the United
States, and the reason American consular officials granted
him a visa, was “to go on a business trip.” According to Gu,
a friend completed Gu’s visa application and answered ques-
tions before American consular officials. Gu allowed his
friend to fraudulently indicate that Gu wished to travel to the
United States for a business purpose. Gu has since confessed
that he actually never had any business to conduct in the
United States, nor did he actually conduct any business in the
United States. At his asylum hearing, Gu admitted that his
true reason for coming to the United States was to more freely
GU v. GONZALES 15589
practice his religion. On March 23, 1999, only after overstay-
ing his visa did Gu apply for asylum and reveal his true pur-
pose for entering the United States.
Gu claims that he was persecuted by the Chinese govern-
ment because he distributed Christian religious materials and
attended an unofficial “house church” while living in China.
At his asylum hearing, Gu testified that, in October 1997, he
was arrested by Chinese authorities and detained at a police
station for three days. He claimed that he was interrogated for
two hours, asked where he obtained the religious materials
and to whom he had distributed them. After arguing that the
religious materials would not disturb the society and refusing
to disclose where he distributed the materials, Gu asserted that
the police hit his back with a rod approximately ten times. Gu
testified that he was in pain at the time and that the strikes left
temporary red marks, but required no medical treatment. Gu
testified that no scars, bruises, welts, or injuries of any kind
remain. Gu was not interrogated further, nor does Gu assert
that he was subject to further physical mistreatment.
Gu testified that he was released after three days, upon
signing a letter admitting that he had “done wrong.” Gu testi-
fied that he decided not to return to his home church because
of fear of further police action, instead choosing to read his
Bible at home. After his release, the police asked him to
report to the police station once a week, but after four or five
visits, the police lost interest and no longer required him to
report. He was warned by his government employer that if he
engaged in any additional illegal activities he would be fired,
but he was allowed to return to his job as a manager for the
government without any negative consequences. Gu suffered
no additional problems from the government while in the
country, and the Chinese government allowed him to obtain
a passport to leave China.
Gu speculates that if he were to return to China, “the Chi-
nese government will arrest me again.” He states that during
15590 GU v. GONZALES
a phone call home in March of 1999, a friend told him not to
call his family any longer because “the public security peo-
ple” came to his house to look for him. Gu believes that Chi-
nese authorities looked for him because he had sent religious
materials from the United Sates to China.
After the hearing, the Immigration Judge acknowledged
that Gu “has had some difficulties practicing his religion,” but
that he did “not believe the facts . . . rise to the level of perse-
cution as intended by the immigration laws.”1 The BIA
affirmed the Immigration Judge, concluding that “among the
other issues cited in the Immigration Judge’s decision, [Gu]
testified that he did not experience further problems, was able
to return to his government job, and obtained a valid passport
to leave China.”
II
A
Our review of the BIA’s determination that an applicant
has not established eligibility for asylum is highly deferential.
We review the decision of the Board of Immigration Appeals
for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). We will affirm the BIA’s decision if it is “sup-
ported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Id. (citation omitted). We
may reverse the decision of the Board only if the applicant
shows that the evidence compels the conclusion that the asy-
lum decision was incorrect. Kataria v. INS, 232 F.3d 1107,
1112 (9th Cir. 2000); see also Prasad v. INS, 47 F.3d 336,
340 (9th Cir. 1995) (“Although a reasonable factfinder could
have found this incident sufficient to establish past persecu-
tion, we do not believe that a factfinder would be compelled
1
The Immigration Judge also denied Gu’s request for withholding of
removal and protection under the Convention Against Torture. Gu did not
appeal the denial of these claims to the BIA, and they are not before us.
GU v. GONZALES 15591
to do so.”). This “strict standard” precludes us from “indepen-
dently weighing the evidence and holding that the petitioner
is eligible for asylum, except in cases where compelling evi-
dence is shown.” Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.
1994).
Because the BIA’s opinion denying Gu’s asylum petition
attributed significant weight to the Immigration Judge’s find-
ings, we “look to the IJ’s oral decision as a guide to what lay
behind the BIA’s conclusion.” Avetova-Elisseva v. INS, 213
F.3d 1192, 1197 (9th Cir. 2000).
B
[1] To prevail on his asylum claim, pursuant to the Immi-
gration and Nationality Act (“Act”), Gu must establish that he
is a refugee. A “refugee” is defined as an alien who is unable
or unwilling to return to his home country “because of perse-
cution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Refu-
gee status is available if the applicant demonstrates either past
persecution or a well-founded fear of persecution. Cordon-
Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000).
A well-founded fear of future persecution must be both
“subjectively genuine” and “objectively reasonable.”
Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003). A peti-
tioner’s credible testimony that he or she genuinely fears per-
secution on account of a protected ground satisfies the
subjective component. See id. The objective component is sat-
isfied if the applicant demonstrates past persecution, automat-
ically giving rise to a rebuttable presumption of a well-
founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). In
the alternative, the objective component can be satisfied by
“ ‘adducing credible, direct, and specific evidence in the
record of facts that would support a reasonable fear of perse-
cution.’ ” Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000)
15592 GU v. GONZALES
(quoting Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th
Cir. 1999).
III
We turn to analyze whether Gu has established by compel-
ling evidence either past persecution or a well-founded fear of
persecution. We answer in the negative and conclude that the
BIA’s decision to deny Gu’s asylum claim is supported by
substantial evidence.
A
[2] Persecution is an “extreme concept,” Ghaly v. INS, 58
F.3d 1425, 1431 (9th Cir. 1995), and has been defined as “the
infliction of suffering or harm upon those who differ (in race,
religion or political opinion) in a way regarded as offensive.”
Singh v. INS, 134 F.3d 962, 967 (1998) (quoting Ghaly, 58
F.3d at 1431) (internal citation and quotation marks omitted).
Because persecution is an “extreme concept,” it “does not
include every sort of treatment our society regards as offen-
sive.” Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001)
(quoting Ghaly, 58 F.3d at 1431).
We have recognized that, in some circumstances, deten-
tions combined with physical attacks which occur on account
of a protected ground can establish persecution. In Guo v.
Ashcroft, 361 F.3d 1194 (9th Cir. 2004), the asylum applicant
was arrested while he was in church. During his day-and-a-
half-long detention, Guo (not to be confused with Xiaoguang
Gu, the petitioner in the instant case), was struck in the face,
kicked in the stomach, required to perform repeated pushups
and forced to sign a document saying that he promised not to
believe in Christianity. Id. at 1197.
Less than two weeks later, Guo tried to stop a police officer
from removing a cross from a tomb. The police officer used
an electrically-charged baton to subdue Guo, then two police
GU v. GONZALES 15593
officers held his arms and kicked his legs, causing him to fall.
Guo was then taken to the police station, where he was hit in
the face seven or eight times and tied to a chair and beaten
with a plastic pole. Guo was released after being detained for
15 days. Shortly thereafter, Guo was fired from his job
because his employer claimed that he had committed a crime.
Id. at 1197-98. We concluded that Guo presented substantial
evidence of past persecution.
We arrived at a different conclusion in Prasad. Prasad was
taken to a police station, placed in jail, where he was hit in the
stomach and kicked from behind. 47 F.3d at 339. Prasad was
detained for four to six hours and interrogated about his politi-
cal allegiances. Prasad did not require any medical treatment
and was not charged with any crime. Id. Once he was
released, Prasad assumed that unless he suppressed his politi-
cal activities, he would again be arrested and beaten. The gov-
ernment, however, did not further harass Prasad, nor did the
evidence indicate that it had any continuing interest in Prasad.
Id. The Board of Immigration Appeals concluded that the
conduct did not rise to the level of persecution, and we held
that “[w]e are not permitted to substitute our view of the mat-
ter for that of the Board.” Id. at 340 (citation omitted). We
held that “[a]lthough a reasonable factfinder could have found
this incident sufficient to establish past persecution, we do not
believe that a factfinder would be compelled to do so.” Id.
(second emphasis added). The government’s conduct in Pra-
sad was not “so overwhelming so as to necessarily constitute
persecution.” 47 F.3d at 339.
The crucial difference between Guo and Prasad is whether
the asylum applicant was able to demonstrate that the evi-
dence compelled the conclusion that the BIA decision was
incorrect. In Guo, the petitioner was able to show repeated,
lengthy and severe harassment. In contrast, the BIA’s finding
in Prasad was supported by substantial evidence because Pra-
sad was unable to show more than a single, isolated encounter
with the authorities.
15594 GU v. GONZALES
[3] The abuse that Gu encountered most closely mirrors the
circumstances discussed in Prasad. Like Prasad, Gu was
detained and beaten on only one occasion, Gu’s interrogation
lasted only two hours, Gu did not require medical treatment
and Gu did not have any adverse employment consequences.
[4] The record also does not demonstrate that Gu was
objectively unable to attend his household church.2 Although
Gu testified that he “did not dare” attend his household church
after his arrest, he also testified that the authorities did not
prevent him from attending the household church. While this
somewhat conflicting testimony may demonstrate that he was
subjectively unwilling to attend the household church after his
arrest, the record does not demonstrate that he was unable to
do so. Indeed, there is no suggestion in the record that Gu was
disallowed from meeting with and discussing his religion with
others or disallowed from praying or worshiping outside his
home. Other than ongoing prohibition on distribution of con-
traband religious tracts, there is no evidence in the record
regarding any state-imposed limitation on his right to practice
his religion.
[5] On these facts, we conclude that the evidence does not
compel a result contrary to the BIA’s finding that Gu fails to
demonstrate past persecution.
2
The Immigration Judge erroneously stated in his decision that Gu con-
tinued to attend his house church, which is at odds with Gu’s testimony
to the contrary. This isolated error of the Immigration Judge proves to be
of little significance, however, because we are required to look at the “re-
cord considered as a whole” in assessing whether a petitioner established
eligibility for asylum. Elias-Zacarias, 502 U.S. at 481. Because our
inquiry is based on the record as a whole, pointing out isolated errors in
either the decision of the Immigration Judge or of the Board of Immigra-
tion Appeals is insufficient to show that a reasonable factfinder would be
compelled to conclude that the applicant is eligible for asylum. In addi-
tion, this isolated error of the Immigration Judge is of particular insignifi-
cance given that the BIA neither explicitly adopted this portion of the
Immigration Judge’s decision nor mentioned this reason as a factor in sup-
port of its denial of Gu’s petition.
GU v. GONZALES 15595
B
Since Gu failed to establish that the record compels the
conclusion that Gu was subject to past persecution, we turn to
consider whether Gu has independently established a well-
founded fear of persecution. We conclude that the BIA’s
determination that Gu did not establish a well-founded fear of
persecution is supported by substantial evidence.
Gu’s primary support for his argument that he has estab-
lished a well-founded fear of persecution is his speculation
that if he returns to China, the authorities will arrest him
again. As evidence supporting this theory, Gu testified that
after he returned to the United States, “the local police went
to [his] home and asked [his] wife to ask [him] to go back to
be questioned.” Apparently, Gu learned of this incident
because a friend “told [him] not to call [his] family anymore
because the security people came to [his] house to look for
[him].” Gu testified that he believed that the “security people”
would come to look for him because he sent religious material
from the United States to some of his friends and fellow
church members in China, although it does not appear that Gu
was informed directly by either his friends or family members
why the authorities came to his former home in China.
[6] As a general rule, because the Immigration Judge did
not render an adverse credibility finding, we must accept Gu’s
factual testimony as true. Kataria, 232 F.3d at 1114. We are
presented with a unique circumstance, however, because the
record does not contain testimony from any witness who per-
sonally observed the public security individuals visit Gu’s res-
idence. We have only hearsay evidence from an anonymous
friend, who Gu says told him that public security visited Gu’s
residence. In the immigration context, hearsay is admissible
if it is probative and its admission is fundamentally fair, see
Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983), and hear-
say evidence may not be rejected out-of-hand, see Dia v. Ash-
croft, 353 F.3d 228, 254 (3d Cir. 2003) (en banc) (holding
15596 GU v. GONZALES
that while hearsay evidence may be accorded less weight in
immigration proceedings, “seemingly reliable hearsay evi-
dence should not be rejected in [ ] a perfunctory manner”).
[7] The general principle requiring the factfinder and a
court of appeals to accept a petitioner’s factual contentions as
true in the absence of an adverse credibility finding is neces-
sarily relaxed when assessing the underlying truth of what is
not the product of petitioner’s direct observations, but rather,
mere hearsay evidence. In Murphy v. INS, we held in the
deportation context that a signed statement containing hear-
say, without cross-examination was “hardly worthy of full
evidentiary weight.” 54 F.3d 605, 611 (9th Cir. 1995) (citing
Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974).
We also recognized the important limits on hearsay evidence
in endorsing the proposition that “ ‘[t]he hearsay nature of a
given item of evidence may well have a substantial effect on
the probative value of that evidence.’ ” 54 F.3d at 611 (quot-
ing Matter of Ponco, 15 I. & N. Dec. 120, 123 (BIA 1974)).
[8] We hold that where an asylum applicant’s testimony
consists of hearsay evidence which is not susceptible to cross-
examination, the statements by the out-of-court declarant need
not be automatically taken as true and, compared to non-
hearsay evidence, may be accorded less weight by the trier of
fact.
Pursuant to these principles, we do not question the verac-
ity of Gu’s understanding that his friend told him that mem-
bers of China’s public security team came to question him. By
the same token, we hold that we, and the BIA, are not
required to accept the out-of-court hearsay statement of Gu’s
friend, which lacked foundation and was not subject to cross-
examination, as true.
[9] We conclude that the record does not compel the con-
clusion that Gu has established a well-founded fear of perse-
cution were he to return to China. Even after he was detained
GU v. GONZALES 15597
and harassed in October 1997, after several follow-up visits
to the police station, Gu did not suffer further problems with
the government while he was in China. Gu was not prevented
from attending religious services, he was allowed to retain his
government job, and he traveled freely without interference
from the Chinese authorities. Because the report that Chinese
authorities visited him after he left is the product of mere
hearsay evidence, we are not required to accept the underlying
truth of that report. Even if it is true that the authorities looked
for Gu at his former home in China, Gu did not testify that the
authorities either threatened him or his family in any way.
The authorities simply came to interview him. Other than this
alleged visit by the authorities to interview Gu, the record is
devoid of any evidence that the Chinese authorities have
shown any interest or concern in Gu’s activities since shortly
after his brief detention in 1997.
[10] Gu’s testimony may be sufficient to satisfy the subjec-
tive component required to establish a well-founded fear of
persecution. Gu has failed, however, to present compelling,
objective evidence demonstrating a well-founded fear of per-
secution.
IV
[11] A reasonable factfinder would not be compelled to
conclude that Gu either suffered past persecution or has a
well-founded fear of persecution.
REVIEW is DENIED.
PREGERSON, Circuit Judge, dissenting:
I believe that Gu has established past persecution on
account of his Christian religious practices and is eligible for
15598 GU v. GONZALES
asylum under 8 U.S.C. § 1101(a)(42)(A). Accordingly, I dis-
sent.
I. Factual Background
Gu testified that Chinese authorities persecuted him for
expressing his Christian religious beliefs by attending an
unregistered Christian church and by distributing Christian
religious materials. According to his testimony, Gu first
became interested in Christianity in October 1996, after his
older sister, who resided in the United States, spoke to him
about her conversion. A month later, Gu’s sister began send-
ing religious materials to him in China. She sent him addi-
tional materials in January 1997 and February 1997.
As his interest in Christianity developed, Gu began attend-
ing a government-controlled Christian church in January 1997
and was baptized there on March 16, 1997. Gu became disen-
chanted with the government-controlled church because it
presented political opinions and did not adhere to the Chris-
tian gospel. Gu then began to attend a small unregistered
Christian church that held services in a member’s home. Gu
attended services at this house church once a week and dis-
tributed copies of his sister’s Christian religious materials to
his fellow church members. He also distributed these materi-
als to his co-workers at his government job.
In October 1997, Gu was arrested by public security offi-
cers and taken to the Shen Yang City Police Branch. At the
police station, Gu was placed in a small interrogation room.
On its walls, whips and other “things police use” were dis-
played. The officers interrogated Gu for two hours about the
Christian religious materials he distributed. They character-
ized these materials as Western democracy propaganda. The
officers wanted to know how Gu got the religious materials
and to whom the materials were distributed. Gu argued with
the officers and refused to give them the names of the persons
to whom he had given the materials. As a result, the officers
GU v. GONZALES 15599
beat Gu with a rod more than ten times, leaving marks on his
back.
Gu was imprisoned for three days. He was conditionally
released after his family posted bail. As a condition of release,
Gu was required to report to the local police once a week for
questioning regarding his religious activities.1 Gu was also
required to write a letter to the officers confessing that he had
“done wrong” and that he agreed not to participate in any fur-
ther illegal Christian religious activities. Gu agreed to write
the confession letter only because he feared that his refusal
would result in further detainment and additional beatings.
After he was released from prison, Gu stopped attending
his house church and ceased distributing religious materials
because he feared that he would be arrested, detained, and
beaten. He felt that the only way he could safely practice his
religion was to read his Bible alone at home. During Gu’s
weekly visits to the local public security police, he was ques-
tioned on whether he had distributed Christian religious mate-
rials or knew anyone who had. Gu made three such visits
before the police told him that he no longer needed to comply
with this condition of his release. Gu also returned to his gov-
ernment work unit, where he was put on probation and threat-
ened with termination if he again committed similar acts.
With the help of a friend, Le Hai Hu, Gu fled to the United
States on May 9, 1998. Safe in the United States, Gu began
attending Christian religious services once a week. Twice he
1
At the hearing before the Immigration Judge (“IJ”), government coun-
sel asked Gu, “Were there any conditions on your release?” Gu responded,
“They asked me to report to [the] local police station on a weekly basis.”
The majority adheres to the literal translation of Gu’s words when it says
that the police “asked him to report to the police station once a week.”
Maj. Op. at 15589. Reading the statement in context, however, Gu was not
simply asked to report to the police station. Reporting to the police station
was a condition of his release; Gu was required to report to the police sta-
tion.
15600 GU v. GONZALES
sent religious materials back to China. In March 1999, a
friend living in China warned Gu to stop telephoning his fam-
ily because public security officers — apparently believing
Gu had returned from the United States — had visited the Gu
family’s home seeking to question him about the religious
materials he sent to China from the United States. This warn-
ing, coupled with his earlier experiences, served as the basis
for Gu’s fear that he would be arrested by the Chinese public
security officers if he were forced to return to China.
After a hearing, the IJ concluded that Gu failed to establish
that he was eligible for asylum. The IJ found that after his ini-
tial arrest Gu did not experience any adverse consequences at
his job. Furthermore, the IJ found that Gu continued to attend
his house church, receive religious materials from his sister,
and practice Christianity. As discussed below, these findings
are contradicted by the record. The IJ also found it important
that Gu was able to obtain a passport to travel to the United
States without difficulties from the Chinese government. Ulti-
mately, the IJ concluded that the abuse Gu endured did not
rise to the level of persecution. Thus, the IJ denied Gu’s
request for asylum, withholding of removal, and protection
under the Convention Against Torture.
The Board of Immigration Appeals (“BIA”) dismissed
Gu’s appeal after finding that the record supported the IJ’s
conclusion that Gu failed to demonstrate eligibility for asy-
lum. In support of its opinion, the BIA cited the IJ’s findings
that Gu experienced no further problems after his arrest, was
able to return to his job, and obtained a valid passport to leave
China.
II. Substantial Evidence
I disagree with the majority’s conclusion that the BIA’s
decision is supported by substantial evidence. We must
uphold the BIA’s determination that an alien is not eligible for
asylum only if it is “supported by reasonable, substantial, and
GU v. GONZALES 15601
probative evidence on the record considered as a whole.” INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quota-
tions omitted). The BIA’s decision must be reversed where a
reasonable factfinder would be compelled to conclude, based
on the evidence in the record, that there was a well-founded
fear of future persecution. Id. at 481 n.1. The evidence here
compels such a finding.
The majority opinion correctly notes that in determining
eligibility for asylum, we should look at the “record consid-
ered as a whole.” Id. at 481. The majority, however, fails to
perform that analysis properly. A comprehensive examination
of the record reveals that the decision to deny Gu asylum is
not supported by substantial evidence. The IJ’s decision is
premised on erroneous findings that are contradicted by the
administrative record. Moreover, rather than constituting what
the majority deems “isolated errors,” these mistakes go to the
heart of Gu’s asylum claim and undermine the BIA’s denial
of Gu’s asylum application.
Contrary to the IJ’s oral decision, Gu did not “concede[ ]
that he continued to attend his unregistered church . . . without
prohibition, without interruption or interference by the gov-
ernment . . . .”2 Instead, the record demonstrates that Gu’s
2
The majority improperly downplays the IJ’s blatant error by stating
that the BIA “neither explicitly adopted this portion of the IJ’s decision
nor mentioned this reason as a factor in support of its denial of Gu’s peti-
tion.” Maj. Op. at 15594 n.2. Under the law of this circuit, when the BIA
incorporates the IJ’s decisions as its own, we treat the IJ’s reasons as the
BIA’s. See He v. Ashcroft, 328 F.3d 593, 595-96 (9th Cir. 2003) (examin-
ing both the oral opinion of the IJ and the written opinion of the BIA
where the BIA relied on a combination of its own observations about He’s
testimony and “other problems noted by the IJ” when making an adverse
credibility determination). In this case, the BIA did not have its own inde-
pendent reasons for affirming the IJ’s denial. The BIA stated:
The record supports the Immigration Judge’s conclusion that the
respondent failed to demonstrate eligibility for asylum. Among
the other issues cited in the Immigration Judge’s decision, the
15602 GU v. GONZALES
religious practices were indeed stopped by the government,
because, after he was arrested and beaten, Gu’s fear of further
arrests caused him to stop attending his church. Gu testified
that after his arrest he was only able to practice his religion
by reading his Bible alone at home. Because Gu stopped
attending his church, it is impossible to know what additional
steps the public security police may have taken to stop him.
In addition, in his oral decision, the IJ stated that Gu testi-
fied that after his arrest he continued to receive religious tracts
from his sister without problems from the Chinese govern-
ment. This finding is directly at odds with the testimony of
both Gu and his sister that she sent him religious materials in
November 1996, and in January and February 1997. Based on
this testimony, the last time Gu’s sister sent him any religious
materials was eight months before he was arrested and beaten
by the Chinese public security police.
Finally, the IJ found it important that Gu was able to return
to his government job and was not terminated after he was
released from prison. This finding, however, is undercut by
Gu’s testimony that after he returned to that job, he was
placed on probation and threatened with termination if he
again engaged in such religious activities.
These erroneous factual findings are compounded by the
IJ’s conclusion that the public security police approved of
Gu’s religious activities because he was told that he no longer
needed to report to the police after three weekly meetings.
This conclusion misunderstands the reason for Gu’s weekly
respondent testified that he did not experience further problems,
was able to return to his government job, and obtained a valid
passport to leave China.
(emphasis added) (citation omitted). Thus, because the BIA did, in fact,
explicitly incorporate the IJ’s reasons as its own, we must also review the
IJ’s oral decision for substantial evidence. See He, 328 F.3d at 595-96.
GU v. GONZALES 15603
reports, which was to confirm that Gu was complying with
the police demand that he no longer participate in any illegal
religious activities. And, as Gu testified, this is what he did:
after his release from detention he stopped attending his
Christian house church and stopped distributing religious
materials. When Gu’s actual testimony is understood, it
becomes apparent that the security police lost interest in him
because he was no longer participating in the prohibited activ-
ities as required by his “confession.”
Similarly, the record contradicts the BIA’s (and majority’s)
conclusion that Gu suffered no further problems with the gov-
ernment after his arrest. That the government did not continue
to harass Gu after he ceased participating in the prohibited
religious activities only demonstrates the success of the gov-
ernment’s repression of Gu’s Christian religious activities.
The government did not try to stop Gu from attending his
house church because Gu made no attempt to attend. The gov-
ernment made no attempt to stop him from distributing reli-
gious materials because Gu made no attempt to distribute.
Gu’s acquiescence to the government’s repression, however,
does not lead to the conclusion that he would no longer be
subjected to repression if he again participated in his Christian
religious activities. Indeed, Gu testified that he was threatened
that if he did engage in such activities again, he would be
fired from his government job.
Because Gu ceased attending his house church and distrib-
uting religious materials, we cannot know whether the gov-
ernment would have interfered or stopped him had he
continued to do so. What we do know is that when Gu was
attending church and distributing religious materials he was
arrested, beaten, and detained for three days. After he ceased
his Christian religious activities he was not subjected to fur-
ther punishment. Mere speculation that Gu would have suf-
fered no repercussions had he continued to pursue his
Christian religious activities is not substantial evidence. See
Maini v. INS, 212 F.3d 1167, 1173 (9th Cir. 2000) (“It is well-
15604 GU v. GONZALES
established that we will not uphold the BIA’s determination
if it relies on personal conjecture and speculation, which we
have stressed is no ‘substitute for substantial evidence.’ ”);
Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996) (noting
that “conjecture” cannot “substitute for substantial evi-
dence”).
When the IJ’s erroneous factual findings are set aside, there
remains only the IJ’s findings that Gu (1) was permitted to
return to his government job — where he was put on proba-
tion and threatened with termination if he engaged in Chris-
tian religious activities again — and (2) was able to obtain a
Chinese passport. Such meager findings do not constitute sub-
stantial evidence and are insufficient to support the BIA’s
conclusion that Gu would suffer no further problems with the
government if forced to return to China.
III. Persecution
Because I believe that the denial of Gu’s asylum claim is
not supported by substantial evidence, the next step is to con-
sider whether a reasonable factfinder would be compelled to
conclude, based on the evidence in the record, that Gu has a
well-founded fear of persecution. See Elias-Zacarias, 502
U.S. at 481 n.1. In deciding whether a finding of persecution
is compelled, we look at the totality of the circumstances.
Guo, 361 F.3d at 1203 (quoting Korablina v. INS, 158 F.3d
1038, 1044 (9th Cir. 1998) (“The key question is whether,
looking at the cumulative effect of all the incidents a peti-
tioner has suffered, the treatment [he or] she received rises to
the level of persecution.”)). A well-founded fear of persecu-
tion must be both “subjectively genuine” and “objectively rea-
sonable.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.
2003). Because, as the majority concedes, Gu’s credible testi-
mony that he genuinely fears persecution satisfies the subjec-
tive component, the issue here is whether Gu can satisfy the
objective component by either demonstrating past persecution
or by citing “credible, direct, and specific evidence in the
GU v. GONZALES 15605
record of facts that would support a reasonable fear of perse-
cution.” See Nagoulko, 333 F.3d at 1016 (quoting Duarte de
Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999)).
A. Past Persecution
The majority contends that the suffering endured by Gu is
more closely aligned with that of the petitioner in Prasad v.
INS, 47 F.3d 336 (9th Cir. 1995), than that of the petitioner
in Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004). I disagree.
The majority notes that the crucial factors differentiating Guo
and Prasad are the length and the persistence of harassment.
However, the majority disregards key distinctions between the
facts of Prasad and those in the instant case when it con-
cludes that the evidence does not compel a finding of past
persecution for Gu.
Prasad was detained for four to six hours. During that time,
he was hit and kicked. Like Prasad, Gu was also arrested and
beaten. However, that is where the similarities end. Prasad
was only hit and kicked; Gu was beaten with a rod multiple
times. Prasad was only detained for a few hours; Gu was
detained for a substantially longer time — three days. Prasad
was questioned but not threatened explicitly; Gu was interro-
gated about his Christian religious activities in a room where
instruments of torture were displayed. Other than the arrest
and beating, there were no further allegations of governmental
mistreatment by Prasad.
The majority incorrectly states that Gu did not suffer any
adverse employment consequences. Gu’s testimony estab-
lished that after he returned to his government job, he was
punished with threats of termination if he ever engaged in his
Christian religious activities again. Finally, even though Gu
was released from prison, his release was conditioned on his
signing a “confession” promising not to engage in illegal
Christian religious activities and reporting weekly to the
15606 GU v. GONZALES
security police.3 The extent of Gu’s suffering was sufficiently
long and persistent to compel a finding of past persecution.
The majority believes that Gu’s testimony is somehow con-
flicting and cites this as support for denying his petition for
review. As the basis for this conclusion, the majority points
to Gu’s testimony (1) that he “did not dare” attend his house
church, but (2) that he was not prevented by authorities from
attending the house church. Contrary to the majority’s read-
ing, this testimony does not conflict. Rather, it is entirely con-
sistent that Gu was never physically prevented from attending
his house church precisely because he “did not dare” attend
it. The cumulative effects of the detention, beating, threats,
and coerced confession enabled the Chinese government to
successfully dissuade Gu from practicing his religion. When
he returned to his government job, he was put on probation
and threatened with termination if he participated in any more
Christian activities not authorized by the state. The majority
would penalize Gu for his reasonable belief that those threats,
delivered after days of detention and a beating, were genuine.
What the testimony in fact established is that the govern-
ment’s actions deterred him from attending the house church;
its persecution of him was successful. No further action was
necessary.
Accordingly, I believe that Gu’s credible testimony estab-
lishes that he suffered past persecution on account of his
Christian religious practices. See Nagoulko, 333 F.3d at 1016;
Guo, 361 F.3d at 1203; see also Duarte de Guinac, 179 F.3d
at 1161 (finding that detention combined with physical beat-
ings can establish persecution). I believe that the cumulative
3
The government argues and the majority endorses that denial of asylum
is appropriate because Gu “at most” “only” suffered three days of deten-
tion and a beating with rods that left no scars or permanent injuries. This
argument suggests that a similar claim from a frailer petitioner would suc-
ceed. The government has pointed to no authority supporting the proposi-
tion that the strength of a petitioner’s application should be dependent
upon his or her body’s ability to withstand a beating.
GU v. GONZALES 15607
treatment Gu was forced to endure rises to the level of and
compels the conclusion that Gu suffered persecution on
account of his religion, one of the five enumerated grounds
for the establishment of refugee status. See Elias-Zacarias,
502 U.S. at 481 n.1.
B. Objectively Reasonable Fear of Future Persecution and
Treatment of Hearsay in Immigration Proceedings
The majority improperly dismisses Gu’s objectively rea-
sonable fear of future persecution. Gu testified that public
security officials — apparently believing Gu had returned
from the United States — have visited Gu’s family’s home in
China on at least one occasion since his departure, seeking to
question Gu about religious materials he sent to China from
the United States. Gu learned of this fact from a telephone
conversation with a friend who was still in China. I am deeply
troubled by the majority’s treatment of this testimony.
Although the majority claims that it has not done so, it seems
apparent to me that the majority rejects Gu’s testimony out of
hand simply because it is hearsay. The majority maintains that
it only accords Gu’s testimony less weight, but its analysis
actually accords it no weight at all. In so doing, the majority
contravenes the well-established law of this circuit.
“This court recognizes the serious difficulty with which
asylum applicants are faced in their attempts to prove perse-
cution, and has adjusted the evidentiary requirements accord-
ingly.” Ladha v. INS, 215 F.3d 889, 899 (9th Cir. 2000)
(quoting Cordon-Garcia v. INS, 204 F.3d 985, 992-93 (9th
Cir. 2000)). Accordingly, in the asylum context, we have per-
mitted full consideration of an applicant’s testimony even if
that testimony is “founded upon hearsay, and, at times, hear-
say upon hearsay.” Cordon-Garcia, 204 F.3d at 992. Disre-
garding clear circuit precedent, the majority discounts Gu’s
testimony simply because it is hearsay, ignoring that we have
recognized that “it is difficult to imagine what other forms of
testimony the petitioner could present other than his own
15608 GU v. GONZALES
statements . . . .” McMullen v. INS, 658 F.2d 1312, 1319 (9th
Cir. 1981), superseded by statute on other grounds, 8 U.S.C.
§ 1253(h) (1996); see also Cordon-Garcia, 204 F.3d at 992-
93; Ladha, 215 F.3d at 899-900.
The friend who told Gu that Gu’s home had been visited by
the security officials did not testify at the hearing — he was
likely still in China. The majority’s sole reason for concluding
that the statement is untrue is merely that the statement is
hearsay. However, there is no evidence in the record that con-
tradicts Gu’s testimony. Moreover, neither the IJ nor the BIA
questioned Gu’s credibility. Absent a specific finding of Gu’s
lack of credibility, I find no reason to accord Gu’s testimony
less than full evidentiary weight. See Smolniakova v. Gon-
zales, 422 F.3d 1037, 1038 (9th Cir. 2005) (citing Akinmade
v. INS, 196 F.3d 951, 958 (9th Cir. 1999)) (holding that in the
absence of evidence that undermines the petitioner’s credibil-
ity, we accept the petitioner’s testimony as true).
The majority cites Murphy v. INS, 54 F.3d 605 (9th Cir.
1995), as support for granting Gu’s testimony less than full
evidentiary weight. Murphy is inapposite. In Murphy, the
Immigration and Naturalization Service (“INS”) submitted an
unauthenticated, undated, unnotarized, and unverified state-
ment signed by an INS agent reporting earlier conversations
regarding Murphy’s alienage. See id. at 607. The INS agent
did not testify at the hearing before the IJ. See id. We held
that without the agent’s “testimony on cross-examination, the
statement is subject to speculation and hardly worthy of full
evidentiary weight.” Id. at 611 (citing Martin-Mendoza v.
INS, 499 F.2d 918, 921 (9th Cir. 1974)).
The facts in the instant case are quite different from those
in Murphy. In Murphy, the hearsay declarant was an INS
agent, and the party offering the testimony was the INS. The
reason the Murphy court allocated less than full evidentiary
weight to the INS’s evidence was because it is easier for the
INS to produce a hearsay declarant who works for the INS
GU v. GONZALES 15609
than it is for an asylum seeker to produce someone from the
country he or she fled. See Saidane v. INS, 129 F.3d 1063,
1065 (9th Cir. 1997) (holding that where INS made no effort
to call admittedly available witness and relied on that wit-
ness’s hearsay affidavit, hearing was “fundamentally unfair”).
In this case, Gu offered the hearsay statement of a friend in
China. Neither the government’s counsel, nor the IJ, nor the
BIA questioned the whereabouts of Gu’s friend. Based on the
testimony, Gu’s friend, unlike the INS agent in Murphy, was
simply not the type of witness whose presence would be
expected at the hearing.
The standard applicable to situations where the government
wishes to introduce hearsay evidence is markedly different
from those where the alien introduces hearsay. For the gov-
ernment, admission depends on “ ‘whether its admission was
fundamentally fair’ ” to the alien. Saidane, 129 F.3d at 1065
(quoting Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983)).
The majority turns this standard on its head. Insisting that the
government “afford the alien a reasonable opportunity to con-
front the witnesses against him or her,” Cunanan v. INS, 856
F.2d 1373, 1375 (9th Cir. 1988), is an entirely inappropriate
requirement to apply to Gu. We have repeatedly recognized
that typical asylum applicants are faced with “serious diffi-
culty . . . in their attempts to prove persecution.” Ladha, 215
F.3d at 899. Requiring the government to produce an INS
agent to testify to his out-of-court statements is quite different
from asking an asylum applicant to produce a friend from
China he spoke with on the telephone. See id. at 900 (citing
Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.
1984)) (“[A]uthentic refugees rarely are able to offer direct
corroboration of specific threats . . . .”). Direct evidence that
the security officials had been looking for Gu would simply
not be “easily available.” See Guo, 361 F.3d at 1201 (citing
Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000) (“[I]t is
inappropriate to base an adverse credibility determination on
an applicant’s inability to obtain corroborating affidavits from
relatives or acquaintances living outside of the United States
15610 GU v. GONZALES
— such corroboration is almost never easily available.”)).
That Gu’s fear of persecution is objectively reasonable is sup-
ported by the testimony that public security officials have vis-
ited Gu’s home in China.4 See Al-Harbi v. INS, 242 F.3d 882,
888 (9th Cir. 2001) (holding that “even a ten percent chance
of persecution may establish a well-founded fear”).
In conclusion, I believe that Gu has established that his fear
of future persecution on account of his Christian religion is
“subjectively genuine” and “objectively reasonable.” See
Nagoulko, 333 F.3d at 1016. The BIA’s decision was not sup-
ported by substantial evidence. Evidence of his past experi-
ences and the fact that his house in China has been visited by
Chinese authorities since his departure compel a finding of a
well-founded fear of future persecution.
For the foregoing reasons, I dissent.
4
The majority ignores the context of Gu’s account and belittles his
experiences when it claims that the Chinese authorities “simply came to
interview him.” Maj. Op. at 15597. We must make “reasonable infer-
ences” from the facts to which an alien credibly testifies. Ladha, 215 F.3d
at 900. The visit occurred soon after Gu had sent Christian religious mate-
rials to his friends and fellow church members in China. Considering the
circumstances of Gu’s beating and detainment at the hands of security
officers, the “confession” he was forced to sign, and his threatened termi-
nation, any reasonable person would infer that the “visit” to his home was
in all likelihood not for the purpose of conducting a simple interview. Gu
himself credibly testified that these visits serve as the basis for his fear of
arrest and detainment upon return to China.