Xiaoguang Gu v. Alberto R. Gonzales, Attorney General

(9th Cir.1988). Although the delay in this case is frustration with IJ’s

understandable, of this circuit is law delay about “cannot

clear that concerns statutory petitioner’s] over-shadow [the choice.” Baltazar-Al right to counsel of cazar v. Cir. 2004). may

Although appears it that Barroso statutory right well have been denied his counsel, it us to is not for determine v. the first instance. See INS question Ventura, 12, 16, 123 353, 154 537 U.S. S.Ct. curiam). (2002) (per Accord

L.Ed.2d grant petition and remand to ingly, we BIA to reconsider whether Barroso statutory right. was denied that GRANTED; REMANDED PETITION FOR FURTHER PROCEEDINGS. GU, Petitioner,

XIAOGUANG GONZALES,* Attorney Alberto R. General, Respondent.

No. 02-74417. of Appeals, United States Court Ninth Circuit. Argued April and Submitted 2004. Filed Dec. * States, pre- pursuant ‍​​​‌‌‌‌‌‌​‌‌‌​​‌​​‌​​​‌‌​‌​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‍R.App. R. Alberto Gonzales is substituted for his of the United to Fed. decessor, Ashcroft, 43(c)(2). Attorney John as General P. Justice, D.C., Washington,

ment for the respondent. PREGERSON, BEEZER,

Before TALLMAN, Judges. Circuit BEEZER, Judge. Circuit Gu, Xiaoguang a native and of citizen China, petitions for review of a decision (“BIA”) Immigration Appeals the Board of affirming Immigration Judge’s denial application asylum. of Gu’s for jurisdiction pursuant have We § 1252. In of our highly U.S.C. view def- erential review of the decisions of the Immigration Appeals, deny Board of we petition.

I

Xiaoguang Gu entered the United States 9,May on 1998 on a business visa. His entering for purported reason the United States, and the reason American consular visa, granted go him a was “to officials Gu, According to trip.” a business application and completed friend Gu’s visa questions American con- answered before his friend to sular officials. Gu allowed fraudulently indicate that Gu wished to the for a business travel United States confessed that he purpose. Gu has since conduct actually any never had business to States, actually nor did he United conduct business the United States. asylum hearing, At Gu admitted coming for his true reason United Porta, Joseph Law Offices of Cohen S. freely practice to more his reli- States was CA, Kim, Angeles, petition- & Los for the 23, 1999, only after over- gion. March On er. apply did for staying his visa entering purpose his true McClain, and reveal Immigra- D. Daniel Office Division, Depart- the United States. Litigation, Civil U.S. passport him to obtain a to leave persecuted by the lowed that he was claims he distribut- China. because at- materials and ed Christian speculates that if he were to return church” while unofficial “house tended an China, government will “the Chinese asylum hearing, At his living in China. during again.” me He states arrest that, in October testified a friend phone call home March authorities and de- by Chinese arrested family any longer him not to call his told days. station for three tained at a security people” “the сame interrogated for that he was He claimed house to look for him. Gu believes hours, where he obtained two asked authorities looked for that Chinese he had and to whom religious materials he had sent materials the arguing After distributed them. to China. from the United States the would not disturb religious materials hearing, Immigration the After the where he society refusing to disclose acknowledged that Gu “has had Judge materials, Gu asserted distributed practicing religion,” some difficulties approxi- with a rod police hit his back ... that he did “not believe the facts but mately Gu testified that he was ten times. of as intended rise to the level that the strikes left at the time and pain BIA af by immigration laws.”1 The marks, required but no temporary red Immigration Judge, concluding firmed the no treatment. Gu testified that medical in the “among the other issues cited bruises, welts, scars, injuries any dеcision, Judge’s testi [Gu] interrogated was not kind remain. Gu experience that he did not further fied further, nor assert that he was does Gu govern was able to return to his problems, subject physical mistreatment. to further job, passport ment and obtained a valid after testified that he was released leave China.” admitting a letter days, upon signing three wrong.” Gu testified that he had “done II to return to his home that he decided not A police further church because of fear of action, of the BIA’s determi choosing to read his Bible Our review instead release, applicant nation that an has not estab police home. After his asylum highly defer eligibility lished for report him to station asked week, visits, the decision of the four or five ential. We review once a but after Immigration Appeals for sub longer and no re- Board lost interest Elias-Zаcarias, v. by He was warned stantial evidence. INS quired report. 478, 481, 812, 112 S.Ct. 117 employer that if he en- 502 U.S. government (1992). will affirm the illegal activities he L.Ed.2d 38 We gaged additional fired, “supported by if it is rea but he was allowed to BIA’s decision would be sonable, substantial, probative evi job manager to his as a for the return considered as a any negative conse- dence on the record government without omitted). (citation may prob- whole.” Id. We quences. Gu suffered no additional the Board reverse the decision of lems from the while that the evidence com- applicant al- shows country, and the Chinese appeal Immigration Judge Gu did not the denial of these claims also denied Gu's 1. The withholding pro- BIA, request of removal and they for are not before us. Against Torture. tection under the Convention

1213 objective pels the cоnclusion that the deci The component is satisfied if the INS, applicant incorrect. Kataria v. 232 past persecution, sion was demonstrates (9th 1107, Cir.2000); automatically 1112 giving F.3d see also rise to a rebuttable (9th INS, presumption of a Prasad F.3d Cir. well-founded fear of fu- 1995) 208.13(b)(1). § ture (“Although a reasonable 8 C.F.R. factfinder alternative, In the objective component could have found this incident sufficient to “ credible, can be satisfied past persecution, ‘adducing establish we do not be direct, specific the record compelled lieve that a factfinder would be so.”). support facts that would a reasonable to do This “strict pre standard” ” persecution.’ INS, fear of Ladha v. cludes us from “independently weighing (quoting holding petition the evidence and Duarte de Guinac v. 179 eligible asylum, er is except cases (9th Cir.1999)). comрelling where evidence is shown.” Ko tasz v. Cir. Ill 1994). analyze turnWe whether Gu has opinion denying Because the BIA’s by compelling established evidence either asylum petition attributed significant past persecution or a well-founded fear of

weight Immigration Judge’s to the find persecution. answer in negative We the ings, we “look to the IJ’s oral decision as a and conclude that the BIA’s decision to guide lay to what behind the BIA’s conclu deny asylum claim is supported by INS, sion.” Avetova-Elisseva v. 213 F.3d substantial evidence. (9th Cir.2000). 1192, 1197 A B Persecution is an “extreme con claim, prevail To on his INS, 1425, cept,” Ghaly v. 58 F.3d. 1431 pursuant Immigration and National (9th Cir.1995), and has been defined as (“Act”), ity Act Gu must establish that he “the suffering upon infliction of or harm refugee. is a A “refugee” is defined as an (in race, religion politi those who differ or who is unwilling alien unable or to return opinion) way regаrded cal in a as offen country to his home “because of persecu INS, sive.” Singh F.3d 967 134 tion or a persecution ‍​​​‌‌‌‌‌‌​‌‌‌​​‌​​‌​​​‌‌​‌​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‍well-founded fear of (1998) 1431) (quoting Ghaly, at 58 F.3d race, on account of religion, nationality, (internal quotation citation and marks membership particular in a group, social omitted). persecution Because is an “ex political opinion.” 8 U.S.C. concept,” every treme it “does not include 1101(a)(42)(A). § Refugee status is avail sort of our society regards treatment as applicant able demonstrates either INS, offensive.” Al-Saher v. past persecution or a well-founded fear of Ghaly, 1146 (quoting persecution. Cordon-Garcia v. 204 1431). F.3d (9th Cir.2000). that, in recognized We have some cir- A well-founded fear of future cumstances, detentions combined with “subjectively must be both physical attacks which occur on account of genuine” “objectively reasonable.” protected ground a can persecu- establish (9th Nagoulko v. Ashcroft, tion. In Guo v.

Cir.2003). petitioner’s A Cir.2004), credible testimo asylum applicant ny genuinely that he or she persecu fears During arrested while he was in church. (not account protected ground detention, of a day-and-a-half-long sat Guo subjective Gu, isfies the component. See id. to be confhsed with Xiaoguang Appeals Board of case), Id. The was struck in the instant petitioner conduct did not rise to concluded that the stomach, required face, kicked held that persecution, and we the level of and forced to pushups repeated perform our permitted to substitute are “[w]e promised that he saying document sign a that of Board.” the matter for view of Christianity. Id. at 1197. not to believe (сitation omitted). held that We Id. at 340 later, Guo tried to weeks than two Less could a reasonable factfinder “[ajlthough removing a cross police officer stop incident sufficient to estab- have found this used an police officer a tomb. do not believe past persecution, we lish Guo, to subdue electrically-charged baton compelled to do factfinder would be that a his arms and officers held then two (second added). The emphasis so.” Id. him fall. causing Guo legs, kicked in Prasad was not government’s conduct station, where taken to was then necessarily con- overwhelming so as to “so times eight face seven or hit in the 47 F.3d at 339. persecution.” stitute chair and beaten with tied to a crucial difference between Guo being was released after pole. Guo plastic asylum applicant Prаsad is whether thereafter, Shortly days. for 15 detained to demonstrate that the evidence was able job from his because his fired Guo was that the BIA de- the conclusion compelled committed a claimed that had employer Guo, petition- In incorrect. cision was concluded that at 1197-98. We crime. Id. lengthy and repeated, to show er was able past evidence of presented substantial Guo contrast, the BIA’s harassment. severe supported by sub- finding in Prasad was conclusion at a different arrived We un- Prasad was stantial evidence because taken to a Prasad was Prasad. single, more than a isolated able to show hit in station, jail, in where he was placed with the authorities. encounter and kicked from behind. the stomach The abuse that Gu encountered for four Prasad was detained F.3d at 389. closеly mirrors the circumstances most his interrogated about to hours six Prasad, in Like discussed Prasad. not re- Prasad did political allegiances. only on one occa was detained and beaten not treatment and was quire any medical sion, interrogation lasted two Gu’s crime. Id. Once he was charged any with hours, require medical treat Gu did not released, that unless he Prasad assumed any Gu did not have adverse ment and activities, would he suppressed political his consequences. employment gov- and beaten. The again arrested be however, ernment, harass did not further The record also does not demon Prasad, objectively unable to the evidence indicate strate that Gu nor did Although church.2 in Prasad. attend his household any continuing interest it had Immigration Judge the Board Judge erroneously of the or of Immigration stated sion 2. The Appeals continued to attend his his decision that Gu is insufficient to show church, Gu's which is at odds with house would be com- that a reasonable factfinder contrary. testimony This isolated error eligi- applicant pelled conclude that the Immigration Judge proves to be of little of the addition, asylum. this isolated er- ble for In however, significance, because we are re Immigration Judge particular is of ror of the the "record considered as to look at quired given BIA neither ex- insignificance assessing petitioner whether a es whole” in Immigra- plicitly adopted portion of the asylum. eligibility for Elias-Zacari tablished as, Judge’s mentioned this rea- decision nor 812. Because U.S. at 112 S.Ct. support of its denial of son as a factor whole, as a inquiry our is based on the record petition. in either the deci- pointing out isolated errors not attend testified that he [him].” that he “did dare” believed that Gu testified arrest, after his he “security people” his household church would come to look that the authorities did not also testified for him religious because he sent material attending him from the household prevent from the United States some of his conflicting this somewhat church. While friends and fellow church members in Chi- testimony may demonstrate that was na, although appear it does not that Gu subjectively unwilling to attend the house- directly by was informed either his friends arrest, hold church after his the record family why or members the authorities not demonstrate that he was unable does came to his former home China. Indeed, suggestion so. there is no do rule, general aAs because the record that was disallowed from Immigration Judge did not render an ad meеting discussing religion his with credibility verse finding, accept we must praying with others or disallowed Kataria, testimony factual as true. than

worshiping outside his home. Other 232 F.3d at 1114. presented We are with on of con- ongoing prohibition distribution circumstance, however, unique tracts, there is no evi- traband the record contain does not regarding any dence in the record state- personally witness who observed the right practice imposed limitation public security individuals visit Gu’s resi religion. only hearsay dence. We have evidence facts, On these we conclude friend, anonymous says from an who Gu compel contrary a result evidence does public security told visited Gu’s finding the BIA’s that Gu fails to dem- context, immigration residence. past persecution. onstrate hearsay probative is admissible it is fair, fundamentally its admission is see Ba B liza v. Cir. Since Gu failed to establish that 1983), hearsay may evidence not be compels the record the conclusion out-of-hand, rejected Ashcroft, see Dia v. subject turn to past persecution, we (3d Cir.2003) (en banc) independently consider whether Gu has es (holding hearsay may that while persecu tablished a well-founded fear of weight immigration accorded in be less tion. We conclude that the BIA’s determi hearsay proceedings, “seemingly reliable nation that did not establish a well- rejected in a evidence should not be [] persecution supported founded fear of manner”). perfunctory by substantial evidence. general principle requiring argument primary support for his appeals the factfinder and a court of to a that he has established well-founded fear petitioner’s factual contentions as accept persecution speculation of is his that true in the absence of an adverse credibili China, returns to the authorities will ar- ty necessarily relaxed when as finding is supporting him As again. rest evidence underlying truth of what is not sessing the theory, this Gu testified that after he re- direct observa product petitioner’s of States, turned to the United “the local tions, rather, hearsay but mere evidence. [his] went to home and asked [his] deporta we Murphy v. held go ques- wife to ask back to be [him] con signed tion context that a statement of Apparently, tioned.” Gu learned taining hearsay, without cross-examination incident a friend “told not to [him] because evidentiary “hardly worthy of full family anymore the secu- was call[his] rity weight.” for people came to house look [his] family any way. him ened or his

(citing Martin-Mendoza Cir.1974)). recog- also simply We came tо interview him. authorities hearsay limits on evi- important alleged nized visit the author- than this Other endorsing proposition dence Gu, devoid to interview the record is ities “ given of a item of hearsay nature ‘[t]he authori- that the Chinese of evidence a substantial effect may well have evidence any interest or concern ties have shown ” value of evidence.’ probative on the shortly since after his brief Gu’s activities Ponco, Matter (quoting at 611 in 1997. detention 1974)). (BIA Dec. 15 I. & N. may be sufficient sat- an hold that where We required to isfy subjective component hearsay testimony consists applicant’s persecu- fear of establish well-founded susceptible to cross- is not evidence which failed, however, present tion. has examination, by the out-of- the statements objective demonstrat- compelling, automatically need not be court declarant ing persecution. a well-founded fear of and, compared to non-hear taken as true evidence, weight say may be accorded less IV of fact. by the trier principles, we do not to these Pursuant A factfinder would ‍​​​‌‌‌‌‌‌​‌‌‌​​‌​​‌​​​‌‌​‌​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‍not be reasonable veracity of Gu’s understand- question the compelled to conclude that Gu either suf- him that members his friend told ing that past persecution fered or has a well-found- security team came to of China’s ed fear of token, hold By him. the same we question DENIED. REVIEW is BIA, we, required not and the are hearsay out-of-court statement accept the PREGERSON, Judge, Circuit friend, foundation and which lacked of Gu’s dissenting: cross-examination, as subject true. past I believe that Gu has established the record does not conclude persecution

We on account of his Christian conclusion that Gu has estab- compel the asy- religious practices eligible and is for lished a well-founded fear 1101(a)(42)(A). § Ac- lum under 8 U.S.C. to China. Even after he were he to return I cordingly, dissent. and harassed October

was detained follow-up visits to the after several Background I. Factual station, further Gu did not suffer that Chinese authorities Gu testified while he problems with persecuted expressing his Chris- prevented in Gu was was China. by attending an un- religious tian beliefs services, al- religious he was attending by registered church and dis- Christian government job, and he to retain his lowed tributing religious Christian materials. freely without interference traveled testimony, be- According to his Gu first Because the re- authorities. Christianity in in came interested October him authorities visited port that Chinese sister, in after his older who resided hearsay product of mere after he left is States, him about her spoke the United to evidence, required accept we are not to later, A sister conversion. month Even if it underlying report. truth of that to him began sending religious materials authorities looked for Gu is true that the him materi- in She sent additional China, China. in Gu did not at his former home January February in 1997 and 1997. als testify that the authorities either threat- to write Christianity developed, confessing in a letter to the officers As his interest that he attending government-con- wrong” had “done and that he began Gu January agreed in not to in participate church further trolled Christian illegal religious there on March 1997. Christian activities. Gu baptized and was govern- agreed with the to write the confession letter Gu became disenchanted present- church because it because he feared that his refusal would ment-controlled and did nоt adhere to result further detainment and additional political opinions ed began beatings. then to gospel. the Christian Gu unregistered attend a small Christian prison, After he was released from Gu that held services a member’s church stopped attending his house church and services at this house

home. Gu attended -distributing religious ceased materials be- copies church once a week distributed arrested, cause he feared that he would be religious of his sister’s Christian materials detained, and beaten. He felt that also to his church members. He fellow only way safely practice he could his reli- co-work- these materials to his distributed gion was to read his Bible alone at home. job. at his ers During weekly pub- visits to the local security police, questioned Gu was arrested lic on October officers and taken to the hе had distributed Christian reli- public security whether City gious anyone Branch. At the materials or knew who had. Yang Shen Police station, police in a small made three such visits before the police placed Gu was Gu walls, him whips longer told that he no needed to com- interrogation room. On its ply were dis- with this condition of his release. “things police and other use” Gu unit, also returned to his work played. interrogated The officers religious probation where he on put two hours about the Christian was threat- with They again materials distributed. character- ened termination he commit- he as democra- ted similar acts. ized these materials Western cy The officers to propaganda. wanted friend, Hu, help of a Le Hai With got religious know how Gu materials 9,May fled to the United States on and to whom the materials were distribut- States, began Safe the United at- with the officers and re- argued ed. Gu tending religious once a Christian services per- them the of the give fused names religious Twice he sent materials week. given he had the materials. sons to whom In March a friend back China. result, with a As a the officers beat Gu rod stop tele- living China warned Gu times, leaving more than ten marks security phoning family back. apparently believing Gu had re- officers— days. for three He turned from the United States —had visit- imprisoned Gu was family’s seeking ques- home conditionally family released after his ed the Gu release, religious a condition of about the materials posted bail. As sent to China from the United States. required report to the local warning, coupled with his earlier ex- questioning regarding once a week for his This required as the basis for Gu’s fear periences, activities.1 Gu was also sеrved hearing report station 1. At before the "asked him to Gu, ("IJ”), Reading in con- Judge asked once a week.” the statement counsel text, however, simply your Gu was not asked to "Were there conditions on release?” "They report report police Reporting to the responded, asked to the station. Gu me release; police weekly police was a condition of his local station on a basis.” station [the] required report sta- majority to the The adheres literal translation Gu was- says Gu's words when it that the tion. by uphold substantial evidence. We must the be arrested Chinese that he would if he were forced to BIA’s determination that an alien is not security officers eligible asylum only “supported for if it is to China. return reasonable, substantial, by probative that hearing, a the IJ concluded After on the record considered as a eligible that he faded to establish Elias-Zacarias, 502 U.S. whole.” INS asylum. The IJ found that after his for 478, 481, 117 L.Ed.2d 38 S.Ct. experience any did not initial arrest Gu (1992) (internal omitted). quotations The job. at Further- consequences adverse his a BIA’s decision must be reversed where more, found that Gu continued to the IJ compelled reasonable factfinder would be church, receive attend his house conclude, based on the evidence sister, practice materials from his record, that was a well-founded fear there below, Christianity. As discussed these at n. persecution. of future Id. findings by are contradicted the record. compels S.Ct. 812. The evidence here such important also it that Gu was The IJ found finding. a passport a to travel to the able to obtain majority opinion correctly any illegal in longer particiрate that he no that reli Gu’s demonstrates the record And, testified, by the as stopped religious activities. Gu were indeed gious practices because, he arrest after was did: after his release from this is what he government, beaten, further arrests fear of attending Gu’s stopped ed and he his Chris- detention church. attending his stop to caused him stopped distributing tian house church and he was after his arrest that testified Gu’s actual tes- religious materials. When religion by read his only practice able to understood, timony apparent it becomes Because Gu Bible alone at home. ing his in him security police lost interest church, impossi it is stopped attending his in longer participating he no because was steps pub additional ble to know what his prohibited required by activities as stop may have taken security police lic “confession.”' him. Similarly, record contradicts the decision, addition, the IJ in his oral (and majority’s) conclusion that Gu BIA’s ar- that after his testified stated that Gu gov- with the problems no further suffered religious to receive he continued rest gov- That the ernment after his arrest. problems without from his sister tracts continue to ernment did not harass This find- government. from the Chinese prohib- participating after he ceased directly at odds with the ing is religious ited activities demonstrates him that she sent and his sister of both Gu repression government’s the success of the 1996, and in November materials religious religious activities. of Gu’s Christian Based on February 1997. January in stop Gu from try government did time sister testimony, the last Gu’s attending his house church because eight materials ‍​​​‌‌‌‌‌‌​‌‌‌​​‌​​‌​​​‌‌​‌​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‍was any religious him sent govern- to attend. The attempt made no arrested and beaten months he was before him from attempt stop no ment made security police. public by the Chinese materials because Gu distributing religious that important found it Finally, the IJ ac- attempt made no distribute. Gu’s government to his able to return Gu was repression, government’s to the quiescence was after he job and not terminated however, not lead to the conclusion does finding, how- This prison. released from subjected longer be that he no would testimony that ever, is undercut again participated if repression he job, that he returned to after Indeed, Gu activities. religious Christian with probation and threatened placed on if he that he was-threatened testified again engaged such termination again, he such activities engage did religious activities. job. fired from would be findings are factual These erroneous attending his house Because ceased by the IJ’s conclusion compounded materials, distributing religious church and approved of Gu’s security police we cannot know whether he was told activities had stopped would have interfered report longer he no needed do know to do so. What we he continued meetings. This conclu- weekly after three attending church is that when Gu the reason sion misunderstands ar- materials he was distributing religious which was to confirm weekly reports, beaten, rested, detained for three with the demand complying Gu was own, we must porate as its passport IJ's reasons to leave job, obtained a valid IJ's oral decision for substan- China. also review the Thus, omitted). added) (citation He, (emphasis at 595-96. tial See evidence. did, fact, explicitly incor- BIA because the 1220 reli- A well-founded fear of must be he ceased his Christian

days. After subjected was not activities he gious “subjectively genuine” “objective- both speculation Mere punishment. further INS, ly Nagoulko reasonable.” v. 333 repercus- no have suffered that Gu would (9th Cir.2003). 1012, Because, 1016 pursue he continued sions had concedes, majority as the Gu’s credible not sub- religious activities is Christian genuinely persecu- that he fears INS, 212 Maini v. stantial evidence. See subjective component, tion satisfies the (“It 1167, 1173 is well- satisfy can issue here is whether Gu uphold that we will not established objective component by either demonstrat- personal if it relies on determination BIA’s “credible, ing past persecution by citing conjecture speculation, which we have direct, specific the record stressed is no ‘substitute substantial support of facts would reasonable INS, ”); v. 79 F.3d Lopez-Reyes evidencе.’ Nagoulko, fear of 333 persecution.” See Cir.1996) (9th (noting that “con- 912 (quoting F.3d at Duarte de 1016 Guinac jecture” cannot “substitute for substantial (9th Cir.1999)). INS, 179 F.3d 1159 evidence”). findings the IJ’s erroneous factual When A. Past Persecution aside, only are set there remains the IJ’s (1) permitted findings that Gu was to re- majority suffering contends that the job' turn to his —-where closely aligned endured is more with and threatened with ter- put probation petitioner that of the in Prasad v. 47 engaged mination if he Christian reli- (9th Cir.1995), F.3d 336 than that of the (2) again was able to gious activities —and petitioner Ashcroft, in Guo v. 361 F.3d meager passport. obtain a Such (9th Cir.2004). disagree. I ma- not constitute substantial evi- findings do jority notes that the crucial factors differ- support dence and are insufficient to entiating length Guo and Prasad are the that Gu would suffer no BIA’s conclusion persistence and the of harassment. How- with the problems further ever, majority disregards key distinc- to China. forced return

tions between the facts of Prasad and III. Persecution those the instant case when it concludes compel that the evidence does not a find- I denial of

Because believe ing past persecution of for Gu. supported by substan claim is evidence, step tial the next is consider Prasad was detained for four to six whether a reasonable factfinder would be time, During hours. hit and conclude, based on the evi compelled Prasad, kicked. Like Gu was also arrest- record, that Gu has a dence well- However, ed and beaten. is where Elias- founded fear See only end. Prasad hit similarities Zacarias, at n. 502 U.S. S.Ct. kicked; Gu was beaten with a rod deciding finding per whether a multiple times. Prasad was detained at compelled, secution is we look the totali hours; for a few Gu was detained for a Guo, ty of the circumstances. substantially days. longer time —three (quoting Korablina v. questioned Prasad was but not threatened Cir.1998) (“The key ques explicitly; interrogated Gu was about his whether, looking at the cumulative religious activities in a room Christian petitioner effect of all the incidents a has torture were dis- suffered, where instruments of treatment she re [he or] played. than the arrest and beat- persecution.”)). ceived rises to the level Other and a days of after detention delivered of allegations no farther there were ing, n the testimo- genuine. What beating, were by Prasad. mistreatment governmental govern- the is that in fact established ny incorrectly states that majority The attend- him from actions deterred ment’s employment any adverse not suffer did church; of persecution the house its ing testimony established Gu’s consequences. action was No further him was successful. government to his he returned after that . necessary. termi threats of with job, punished he was Gu’s Accordingly, in his Christian I believe that credible engaged if he ever nation Finally, past even that he suffered again. testimony establishes activities religious his prison, from his account of Christian persecution was released on though Gu a signing Nagoulko, his on See religious practices. conditioned release in 1203; engage 1016; Guo, not F.3d at see promising “confession” re Guinac, activities and religious F.3d at 1161 illegal Christian Duarte de also security police.3 with weekly combined that detention (finding porting suffering was sufficient persecu- Gu’s beatings The extent of can establish physical finding a compel persistent tion). and treat- ly long that the cumulative I believе the past persecution. of rises to to endure forced ment that Gu compels the conclusion of and level that Gu’s testimo- believes majority The his reli- account of on suffered this as and cites conflicting ny is somehow grounds five enumerated one of the gion, for review. denying petition his for support refugee status. of the establishment conclusion, major- for this the basis As Elias-Zacarias, at 481 n. 502 U.S. See (1) that he testimony to Gu’s ity points 112 S.Ct. church, but house attend his “did not dare” (2) authori- prevented not that he was Fear of Fu- Objectively Reasonable B. house church. attending the

ties from of Treatment ture Persecution reading, majority’s Contrary Proceed- Hearsay Rather, it is not conflict. testimony does ings was never entirely consistent Gu’s dismisses majority improperly The attending his from 'physically prevented perse- future of fear objectively reasonable not he “did precisely church house security Gu testified cution. of effects it. The cumulative dare” attend re- believing Gu had apparently threats, detention, beating, officials— visit- United States —have from the turned the confession enabled coerced on at least family’s home China ed Gu’s successfully dissuade Gu government seeking departure, his occasion one since he re- When practicing religion. from materials Gu about question job, put turned to his States. United to China sent termi- with probation threatened telephone con- a fact from of this learned more participated if he nation was still a friend who versation by the with authorized Christian activities by the ma- deeply troubled I am for China. penalize Gu majority would The state. Al- testimony. of this threats, jority’s treatment those belief that his rеasonable govern- petitioner would succeed. majority argues frailer 3. The supporting authority appropriate pointed to no asylum is has denial ment endorses that petition- strength a "only” three suffered proposition "at most” because Gu beating upon with dependent and a rods days be application of detention should er’s ar- injuries. This permanent beating. or ability left no scars body’s to withstand her a similar claim gument suggests that though majority Gonzales, claims that it has not Smolniakova so, apparent done it Cir.2005) seems to me that the (citing Akinmade v. rejects majority testimony out (9th Cir.1999)) simply hearsay. hand because it is (holding that in the absence of evidence majority maintains that it accords petitioner’s undermines the credibili- weight, analysis less but its ty, accept petitioner’s we testimony as actually weight it nо at accords all. In so true). doing, majority the contravenes the well- INS, majority cites Murphy v. 54 established law of this circuit. (9th Cir.1995), F.3d 605 as support for “This court recognizes the serious diffi granting Gu’s testimony less than full evi- culty asylum applicants with which are dentiary weight. Murphy inapposite. is faced in attempts prove their persecu Murphy, the and Natural tion, adjusted evidentiary and has the re (“INS”) ization Service submitted an unau INS, quirements accordingly.” Ladha v. thenticated, undated, unnotarized, and un 889, 215 F.3d 899 (quoting verified signed by statement agent an INS INS, 985, Cordon-Garda v. 204 F.3d 992- reporting earlier conversations regarding (9th Cir.2000)). 93 Accordingly, in the Murphy’s alienage. See id. at 607. The context, asylum permitted we have full agent testify INS did not hearing at the applicant’s consideration of an testimony before the IJ. See id. We held ‍​​​‌‌‌‌‌‌​‌‌‌​​‌​​‌​​​‌‌​‌​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‍that with testimony even is “founded upon agent’s out the “testimony on cross-exami hearsay.” and, times, hearsay, hearsay at upon nation, subject the specula statement is don-Garcia, 204 at Cor hardly worthy of full evidentiary Disregarding clear precedent, circuit the weight.” Id. at 611 (citing Martin-Men majority testimony discounts simply Gu’s INS, (9th doza v. 499 F.2d 921 Cir. because it hearsay, ignoring is that we 1974)). recognized have that “it is difficult to facts the instant imagine quite what case are testimony other forms of the petitioner different from those in present Murphy. could than In Mur other his own ” INS, phy, hearsay statements.... the McMullen v. declarant was an 658 INS (9th Cir.1981), agent, superseded party the offering the testimo by statute on other grounds, ny was U.S.C. the INS. The Murphy reason the 1253(h) § (1996); Cordon-Garcia, see also court allocated less than full evidentiary 992-93; Ladha, 204 F.3d at 215 F.3d at weight to the INS’s evidence was because 899-900. it is easier for the produce INS to a hear say declarant who works for the than INS

The friend who told Gu that Gu’s home it is for an seeker to produce some had been security visited the officials one from country she fled. See testify did not hearing was —he (9th Saidane v. likely still in majority’s China. The sole Cir.1997) (holding that where INS made reason for concluding that the statement is no effort to call admittedly available wit merely untrue is the statement is ness and relied on that hearsay. However, hearsay witness’s there is no evidence in affidavit, hearing was “fundamentally record that un testimony. contradicts Gu’s fair”). Moreover, case, In neither Gu offered the IJ nor the BIA the hear questioned say credibility. Gu’s statement of a spe- Absent a friend China. Nei finding cific government’s counsel, Gu’s lack ther the credibility, IJ, I nor the find no reason to accord testimony questioned nor the BIA the whereabouts less than full evidentiary weight. See of Gu’s friend. Based on the testimony, (“[I]t an adverse base inappropriate is Mur- agent INS friend, unlike applicant’s on an credibility of witness determination type simply phy, corroborating at the affidavits expected inability be to obtain would presence whose living out acquaintances relatives or hearing. corrobora the United States —such side of to situations applicable The standard available.”)). easily never tion is almost introduce wishes where objectively is fear of That Gu’s markedly different is hearsay evidence by the supported reasonable introduces alien those where visited security officials have admission government, hearsay. For “ v. See Al-Harbi in China.4 Gu’s home its admission ‘whether depends on Cir.2001) F.Sd alien. Sai fundamentally fair’” percent chance that “even a ten (quоting (holding Baliza dane, at 1065 Cir.1983)). (9th a well-founded may INS, 1233 establish 709 F.2d fear”). on its standard turns this majority “af Insisting that head. conclusion, has es- I believe that Gu to opportunity a reasonable the alien ford persecu- of future that his fear tablished her,” him or against the witnesses confront religion is account of his Christian tion on (9th INS, v. Cunanan “objectively and “subjectively genuine” re Cir.1988), entirely inappropriate is an 333 F.3d Nagoulko, See reasonable.” have re to Gu. We apply to quirement sup- The BIA’s decision 1016. typical recognized peatedly Evidence by substantial evidence. ported difficulty with “serious are faced applicants and the fact experiences past of his prove persecu attempts to in their ... has been visited his China house Ladha, Requiring F.3d at tion.” departure his since authorities agent an INS produce to fear of well-founded finding a compel statements to his out-of-court testify future asylum ap asking an different quite from China he a Mend to produce plicant reasons, I dissent. foregoing For the id. at telephone. See with on spoke v. (citing Bolanos-Hernandez Cir.1984)) (“[A]u- (9th 1277, 1285 767 F.2d to offer rarely are able refugees

thentic specific corroboration direct ”). se Direct threats.... looking for had been curity officials “easily available.” not be simply would Guo, (citing Sidhu at 1201 See Cir.2000) security the hands ing detainment at ignores of Gu’s majority the context 4. The officers, forced to it when the "confession” experiences his account and belittles termination, any “simply rea- Chinese authorities sign, claims that the his threatened We must make him.” “visit” came interview infer that the person would sonable the facts inferences” “reasonable fоr the likelihood not home was all his Ladha, credibly an alien testifies. which conducting simple interview. purpose of soon after Gu visit occurred at 900. visits credibly that these testified Gu himself materials had sent Christian fear of arrest the basis for serve as church China. members friends fellow China. upon return detainment of Gu's beat- Considering circumstances without difficulties from the notes United States Ultimately,- government. determining eligibility asylum, the IJ that in for did concluded abuse Gu endured we should look at the “record considered Thus, not to the level of rise as whole.” Id. S.Ct. 812. request asylum, however, for majority, perform the IJ denied Gu’s fails to removal, withholding protection analysis properly. comprehensive un- that A Torture. Against der the Convention examination of the record reveals that the deny asylum sup- decision Appeals Immigration The Board of by ported substantial evidence. The IJ’s (“BIA”) appeal dismissed Gu’s after find- findings premised decision is on erroneous ing supported the record the IJ’s by that are contradicted the administrative to demonstrate conclusion Gu failed Moreover, rather than record. constitut- asylum. for eligibility support its majority ing what the deems “isolated er- opinion, findings the BIA cited the IJ’s rors,” go these mistakes to the heart of problems no further experienced claim and undermine the arrest, after to return to was able asylum application. BIA’s denial of Gu’s job, passport and obtained valid leave decision, China. Contrary to the IJ’s oral did not that he continued to “concede[] II. Substantial Evidence ... unregistered attend his church without disagree majority’s prohibition, interruption I with the conclusion without or inter Instead, supported by by governmеnt....”2 the BIA’s decision is ference majority improperly downplays making 2. The the IJ’s lems noted the IJ” when an ad- case, by stating determination). blatant error that the BIA "neither credibility verse In this explicitly adopted portion of the IJ's deci- independent the BIA did not have its own sion nor this reason as a mentioned factor in affirming IJ’s The BIA reasons for denial. support petition.” of its denial of Gu’s Under stated: circuit, incorpo- the law of this when the BIA supports The record own, we rates the IJ’s decisions as its treat Judge’s respondent conclusion that the IJ’s reasons as the BIA's. See He v. Ash- eligibility asylum. failed to demonstrate croft, 328 F.3d 595-96 Among Immigra- cited other issues (examining opinion IJ both the oral of the decision, Judge’s respondent testi- opinion the written of the BIA where the BIA experience prob- fied that he did not further relied on a combination of its own observa- lems, prob- tions about He’s and "other was able to return to his

Case Details

Case Name: Xiaoguang Gu v. Alberto R. Gonzales, Attorney General

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 1, 2005

Citation: 429 F.3d 1209

Docket Number: 02-74417

Court Abbreviation: 9th Cir.