Gu v. Gonzales

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 July 21, 2006
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).
8043
8046 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, for the respondent.
ORDER
The panel’s opinion and dissent filed December 1, 2005
and appearing at 429 F.3d 1209 (9th Cir. 2005), is withdrawn.
It may not be cited as precedent by or to this court or any dis-
trict court of the Ninth Circuit.
GU v. GONZALES 8047
All pending Petitions for Panel Rehearing and for Rehear-
ing En Banc are denied as moot.
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
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
8048 GU v. GONZALES
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
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.
GU v. GONZALES 8049
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
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).
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.
8050 GU v. GONZALES
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)
(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
GU v. GONZALES 8051
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
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.
8052 GU v. GONZALES
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.
[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.
GU v. GONZALES 8053
[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.
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-
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.
8054 GU v. GONZALES
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 residence 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. That tes-
timony includes hearsay evidence from an anonymous friend,
who Gu says told him that public security visited Gu’s resi-
dence. In the immigration context, hearsay is admissible if it
is probative and its admission is fundamentally fair, see Bal-
iza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983), and hearsay
evidence may not be rejected out-of-hand, see Dia v. Ashcroft,
353 F.3d 228, 254 (3d Cir. 2003) (en banc) (holding that
while hearsay evidence may be accorded less weight in immi-
gration proceedings, “seemingly reliable hearsay evidence
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 does not
prevent us from considering the relative probative value of
GU v. GONZALES 8055
hearsay and non-hearsay testimony. We hold that where an
asylum applicant’s testimony consists of hearsay evidence,
the statements by the out-of-court declarant may be accorded
less weight by the trier of fact when weighed against non-
hearsay evidence. See id.
[8] Pursuant to this principle, 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 the out-of-court hearsay state-
ment of Gu’s friend is less “persuasive” or “specific,”
Cardozo-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.
1985), than a first hand account of the incident would have
been.
[9] The record does not compel the conclusion that Gu has
established a well-founded fear of persecution were he to
return to China. Even after he was detained and harassed in
October 1997, after several follow-up visits to the police sta-
tion, 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 Chi-
nese authorities. Because the report that Chinese authorities
sought to speak with him after he left the country is the prod-
uct of hearsay evidence, it is less probative of the likeliness
that he would be persecuted should he return to China than
this non-hearsay evidence of Gu’s experiences after his deten-
tion.
Even if we were to give full weight to the evidence 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 visit by the authorities to interview Gu,
the record is devoid of any evidence that the Chinese authori-
ties have shown any interest or concern in Gu’s activities
since shortly after his brief detention in 1997.
8056 GU v. GONZALES
[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 the record compels us to find that Gu has
established past persecution on account of his Christian reli-
gious practices and is eligible for asylum under 8 U.S.C.
§ 1101(a)(42)(A). Accordingly, I dissent.
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-
GU v. GONZALES 8057
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 house. 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 reveal the names of the persons to
whom he had given the materials. As a result, the officers 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
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 8048. 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.
8058 GU v. GONZALES
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
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 and harshly treated by
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
GU v. GONZALES 8059
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. Treatment of Hearsay in Asylum Proceedings
I first discuss what I believe to be the most disturbing
aspect of the majority’s holding — its treatment of hearsay in
asylum proceedings. Gu testified that Chinese security offi-
cials — believing that Gu had returned from the United States
— visited Gu’s family’s home in China on at least one occa-
sion since his departure. On that occasion, they were looking
for Gu to question him about religious materials he sent to
China from the United States. Gu received this information
during a telephone conversation with a friend living in China.
The majority’s sole reason for according Gu’s friend’s state-
ment less evidentiary weight is that as hearsay, it is necessar-
ily “less ‘persuasive’ or ‘specific’ than a first hand account of
the incident would have been.” Maj. Op. at 8055 (citation
omitted).
I am troubled by the majority’s improper treatment of this
testimony. By according Gu’s friend’s statement less evidenti-
ary weight simply because it is hearsay, the majority contra-
venes the well-established law of this circuit and usurps the
role of the fact finder in immigration proceedings.
It is well-settled that hearsay testimony is admissible in
immigration proceedings unless its use is fundamentally
8060 GU v. GONZALES
unfair to the alien. See Cordon-Garcia v. INS, 204 F.3d 985,
992 (9th Cir. 2000); In re Grijalva, 19 I. & N. Dec. 713, 721-
22 (BIA 1988). Thus, in administrative proceedings, “hearsay
evidence admitted without objection or later motion to strike
may constitute substantial evidence in like manner as any
other evidence.” See Calhoun v. Bailar, 626 F.2d 145, 150
(9th Cir. 1980) (emphasis added). As this court has emphati-
cally stated, “it is not the hearsay nature per se of the prof-
fered evidence that is significant, it is its probative value,
reliability and the fairness of its use that are determinative.”
Calhoun, 626 F.2d at 148 (emphasis added).
Once hearsay testimony is admitted, it may be considered
and relied on by the finder of fact, even if it is contradicted
by direct evidence. See Richardson v. Perales, 402 U.S. 389,
402 (1971); see also Hayden v. Chalfant Press, Inc., 281 F.2d
543, 548 (9th Cir. 1960) (“It is well settled that hearsay evi-
dence which is admitted without objection and without a
motion to strike may be considered by the trier of fact.”)
(emphasis added). Accordingly, this court has long held that
it is the trier of fact’s duty “to consider such [hearsay] evi-
dence and give it such weight as under all of the circum-
stances of the case appeared to be proper.” Hayden, 281 F.2d
at 548; see also United States v. Weiner, 578 F.2d 757, 770
(9th Cir. 1978) (“Once the judge determines that the hearsay
evidence is admissible, the weight to be given that evidence
becomes a question for the [fact finder].”). It is equally well-
settled that it is inappropriate for this court to weigh evidence
and determine its probative value. See Dolliver v. United
States, 379 F.2d 307, 308 n.1 (9th Cir. 1967) (“An appellate
court may not usurp the function of the duly constituted fact
finder.”). Even the majority recognizes that proper application
of the substantial evidence standard requires us to refrain
from “independently weighing the evidence.” Maj. Op. at
8049 (quoting Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.
1994)).
In this case, Gu’s testimony must be taken as true. The IJ
admitted Gu’s testimony into evidence. We regard testimony
GU v. GONZALES 8061
as reliable and credible where neither the IJ nor the BIA
makes an adverse credibility finding, as was the case here. See
Smolniakova v. Gonzales, 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 under-
mines the petitioner’s credibility, we accept the petitioner’s
testimony as true). Nevertheless, the majority holds that the
hearsay statement of Gu’s friend — establishing that Chinese
security officials are looking for Gu — is less “persuasive” or
“specific” than direct evidence would have been. Maj. Op. at
8055. Our case law, however, requires that such a determina-
tion is to be made by the fact finder in immigration proceed-
ings. It is beyond the scope of this court’s duty to reweigh
properly admitted and unobjected to evidence, whether it is
hearsay or not.
The fact that a particular piece of evidence is hearsay has
never before played a role in this court’s review of BIA deci-
sions. See, e.g., Ge v. Ashcroft, 367 F.3d 1121, 1124-25, 1127
(9th Cir. 2004) (relying in part on petitioner’s hearsay testi-
mony regarding “phone communication with his family sub-
sequent to his arrival in the United States” to reverse an IJ’s
adverse credibility determination); Hoque v. Ashcroft, 367
F.3d 1190, 1194, 1198 (9th Cir. 2004) (holding that an admin-
istrative record that included petitioner’s account of his com-
munications with family and friends in Bangladesh after he
arrived in the United States compelled conclusion that peti-
tioner was persecuted on account of his political beliefs).
Even outside of the immigration context, this court has long
held that hearsay testimony, if “received without objection,
[is] entitled to consideration as substantive evidence of the
fact asserted, notwithstanding its hearsay character.” Cont’l
Oil Co. v. United States, 184 F.2d 802, 813 (9th Cir. 1950);
see also Pearson v. Dennison, 353 F.2d 24, 29 (9th Cir.
1965); Hornin v. Montgomery Ward & Co., 120 F.2d 500,
504 (3d Cir. 1941) (“Having been received without objection,
the [hearsay] evidence, which was both relevant and material,
has the value of testimony directly elicited.”).
8062 GU v. GONZALES
Furthermore, “this court recognizes the serious difficulty
with which asylum applicants are faced in their attempts to
prove persecution, and has adjusted the evidentiary require-
ments accordingly.” Ladha v. INS, 215 F.3d 889, 899 (9th Cir.
2000) (quoting Cordon-Garcia, 204 F.3d at 992-93). Accord-
ingly, in the asylum context, we have permitted full consider-
ation of an applicant’s testimony even if that testimony is
“founded upon hearsay, and, at times, hearsay upon hearsay.”
Cordon-Garcia, 204 F.3d at 992. Disregarding clear circuit
precedent, the majority discounts Gu’s testimony 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 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 majority faults Gu for failing to provide a “first hand
account” of the incident. Maj. Op. at 8055. But direct evi-
dence that the security officials had been looking for Gu
would not be “easily available” to Gu. See Guo v. Ashcroft,
361 F.3d 1194, 1201 (9th Cir. 2004) (quoting 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 — such cor-
roboration is almost never easily available.”)). The majority
forgets that “authentic refugees rarely are able to offer direct
corroboration of specific threats.” Ladha, 215 F.3d at 900.
The majority fails to explain why Gu’s friend’s hearsay
statement, admitted into evidence, was unreliable or implausi-
ble. Moreover, the majority points to no evidence in the
record that contradicts Gu’s testimony. And neither the IJ nor
the BIA questioned Gu’s credibility or inquired about the
whereabouts of Gu’s friend, who was likely still in China.
The majority’s view that reviewing appellate courts may
independently devalue hearsay evidence relative to non-
GU v. GONZALES 8063
hearsay evidence contravenes this circuit’s well-established
rule regarding the treatment of hearsay in administrative pro-
ceedings. The majority also ignores the well-recognized diffi-
culty that asylum applicants face when seeking to prove their
cases. The majority expresses this view of hearsay testimony
admitted into evidence without citation to any relevant legal
authority, including Ninth Circuit or Supreme Court law.
I further note that neither in their briefs nor at oral argu-
ment did either party discuss hearsay testimony. Neither the
IJ nor the BIA purported to give hearsay testimony less than
full weight. In addition, as the majority indicates, its discus-
sion of hearsay testimony is extraneous to its holding. Maj.
Op. at 8055 (noting that “[e]ven if we were to give full weight
to the evidence that the authorities looked for Gu at his former
home in China,” the record does not “present compelling,
objective evidence demonstrating a well-founded fear of per-
secution”) (emphasis added). Thus the majority implicitly
acknowledges that its assertion that “where an asylum appli-
cant’s testimony consists of hearsay evidence, the statements
by the out-of-court declarant may be accorded less weight by
the trier of fact when weighted against non-hearsay evi-
dence,” is dicta.
III. Substantial Evidence and Erroneous Findings by the IJ
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
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 fact finder 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.
8064 GU v. GONZALES
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 the gov-
ernment effectively halted Gu’s religious practice. After Gu
was arrested and beaten, his fear of further arrests caused him
to stop attending his church. Gu testified that after his arrest
2
The majority 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 petition.” Maj. Op.
at 8053 n.2. Under the law of this circuit, when the BIA incorporates the
IJ’s decision 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) (examining 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 determina-
tion). In this case, the BIA did not have its own independent 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
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 8065
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
with them. This conclusion misunderstands the reason for
Gu’s weekly reports, which was to confirm that Gu was com-
plying 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. It is apparent, then, that the security police
lost interest in Gu because he was no longer participating in
the prohibited activities, 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-
8066 GU v. GONZALES
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 in 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-
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
remain 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
GU v. GONZALES 8067
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.
IV. 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 fact finder 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
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.
8068 GU v. GONZALES
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 hit and kicked; Gu was beaten with a rod multiple times.
Prasad was detained for a few hours; Gu was detained for a
substantially longer time — three days. Prasad was ques-
tioned but not threatened explicitly; Gu was interrogated
about his Christian religious activities in a room where instru-
ments of torture were displayed. Other than the arrest and
beating, there were no further allegations of governmental
mistreatment by Prasad.
Additionally, the majority incorrectly states that Gu did not
suffer any adverse employment consequences. Gu’s testimony
established 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
security police.3 The extent of Gu’s suffering was sufficiently
long and persistent to compel a finding of past persecution.
3
The government argues and the majority agrees 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 severe beating. See Mihalev
v. Ashcroft, 388 F.3d 722, 730 (9th Cir. 2004) (noting that “it would be
a strange rule if the absence or presence of a broken arm were the disposi-
tive fact”).
GU v. GONZALES 8069
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
treatment Gu was forced to endure compels the conclusion
that Gu suffered persecution on account of his religion, one
of the five enumerated grounds for the establishment of refu-
gee status. See Elias-Zacarias, 502 U.S. at 481 n.1.
B. Objectively Reasonable Fear of Future Persecution
I disagree with the majority’s conclusion that Gu does not
have an objectively reasonable fear of future persecution. As
I discussed above, because neither the BIA nor the IJ made an
8070 GU v. GONZALES
adverse credibility finding, we are required to accept Gu’s tes-
timony as true, including the hearsay statement of Gu’s
friend. See Smolniakova, 422 F.3d at 1038. Gu’s friend told
Gu that Chinese security officials had been looking for Gu to
question him about religious materials Gu sent to China from
the United States. 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 8055. We must make “reasonable inferences” from the
facts to which an alien credibly testifies. Ladha, 215 F.3d at
900. In this case, the visit occurred soon after Gu had sent
Christian religious materials to his friends and fellow church
members in China. Considering the totality of Gu’s experi-
ences — Gu’s beating and detainment at the hands of security
officers, the “confession” he was forced to sign; and his
threatened termination — any reasonable person would infer
that the “visit” to his home was not for the purpose of con-
ducting a simple interview. Gu credibly testified that these
visits serve as the basis for his fear of arrest and detainment
upon return to China. In my opinion, Gu’s fear of persecution
is objectively reasonable and is supported by the evidence that
public security officials have tried to locate him at his home
in China. 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.