Xiaoguang Gu v. Alberto R. Gonzales, Attorney General

454 F.3d 1014, 2006 WL 2035319

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 21, 2006
• Docket: 02-74417
• Status: Published

Opinions

ORDER

BEEZER, Circuit Judge.

The panel’s opinion and dissent filed December 1, 2005 and appearing at 429 F.3d 1209 (9th Cir.2005), is withdrawn.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 district court of the Ninth Circuit.

All pending Petitions for Panel Rehearing and for Rehearing En Banc are denied as moot.

OPINION

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 questions 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 overstaying his visa did Gu apply for asylum and reveal his true purpose for entering the United States.

Gu claims that he was persecuted by the Chinese government because he distributed Christian religious materials and attended an unofficial “house church” while living in China. At his asylum hearing, Gu testified that, in October 1997, he was arrested by Chinese authorities and detained at a police station for three days. He claimed that he was interrogated for two hours, asked where he obtained the religious materials and to whom he had distributed them. After arguing that the religious materials would not disturb the society and refusing to disclose where he distributed the materials, Gu asserted that the police hit his back with a rod approximately ten times. Gu testified that he was in pain at the time and that the strikes left temporary red marks, but required no medical treatment. Gu testified that no scars, bruises, welts, or injuries of any kind remain. Gu was not interrogated further, nor does Gu assert that he was subject to further physical mistreatment.

Gu testified that he was released after three days, upon signing a letter admitting that he had “done wrong.” Gu testified 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 Chinese 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 people” came to his house to look for him. Gu believes that Chinese authorities looked for him because he had sent religious materials from the United States to China.

After the hearing, the Immigration Judge acknowledged that Gu “has had some difficulties practicing his religion,” but that he did “not believe the facts ... rise to the level of persecution 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We will affirm the BIA’s decision if it is “supported 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 asylum 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 persecution, we do not believe that a factfinder would be compelled to do so.”). This “strict standard” precludes us from “independently weighing the evidence and holding that the petitioner is eligible for asylum, except in cases where compelling evidence is shown.” Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994).

Because the BIA’s opinion denying Gu’s asylum petition attributed significant weight to the Immigration Judge’s findings, 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

To prevail on his asylum claim, pursuant to the Immigration 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 persecution 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). Refugee 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 petitioner’s credible testimony that he or she genuinely fears persecution on account of a protected ground satisfies the subjective component. See id. The objective component is satisfied if the applicant demonstrates past persecution, automatically 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 persecution.’ ” 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 compelling evidence either past persecution or a well-founded fear of persecution. We answer in the negative and conclude that the BIA’s decision to deny Gu’s asylum claim is supported by substantial evidence.

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 offensive.” 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, detentions 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. 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 political 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 political activities, he would again be arrested and beaten. The government, 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 matter 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 Prasad 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 evidence 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 Prasad was unable to show more than a single, isolated encounter with the authorities.

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.

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 contraband religious tracts, there is no evidence in the record regarding any state-imposed limitation on his right to practice his religion.

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.

Since Gu failed to establish that the record compels the conclusion that Gu was subject to past persecution, we turn to consider whether Gu has independently established a well-founded fear of persecution. We conclude that the BIA’s determination that Gu did not establish a well-founded fear of persecution is supported by substantial evidence.

Gu’s primary support for his argument that he has established 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 eall[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.

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 testimony includes hearsay evidence from an anonymous friend, who Gu says told him that public security visited Gu’s residence. In the immigration context, hearsay is admissible if it is probative and its admission is fundamentally fair, see Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir.1983), and 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 immigration proceedings, “seemingly reliable hearsay evidence should not be rejected in [ ] a perfunctory manner”).

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 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.

Pursuant to this principle, we do not question the veracity of Gu’s understanding that his friend told him that members of China’s public security team came to question him. By the same token, we hold that the out-of-court hearsay statement of Gu’s friend is less “persuasive” or “specific,” Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.1985), than a first hand account of the incident would have been.

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 station, Gu did not suffer further problems with the government while he was in China. Gu was not prevented from attending religious services, he was allowed to retain his government job, and he traveled freely without interference from the Chinese authorities. Because the report that Chinese authorities sought to speak with him after he left the country is the product 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 detention.

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 authorities have shown any interest or concern in Gu’s activities since shortly after his brief detention in 1997.

Gu’s testimony may be sufficient to satisfy the subjective 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 persecution.

IV

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.

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.

2 . The Immigration Judge erroneously stated in his decision that Gu continued 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 “record considered as a whole” in assessing whether a petitioner established eligibility for asylum. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. 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 Immigration Appeals is insufficient to show that a reasonable factfinder would be compelled to conclude that the applicant is eligible for asylum. In addition, this isolated error of the Immigration Judge is of particular insignificance given that the BIA neither explicitly adopted this portion of the Immigration Judge's decision nor mentioned this reason as a factor in support of its denial of Gu's petition.