FILED
NOT FOR PUBLICATION FEB 01 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YONGPING HU, No. 08-72663
Petitioner, Agency No. A075-644-756
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 9, 2013
Pasadena, California
Before: REINHARDT and WARDLAW, Circuit Judges, and BELL, District
Judge.**
Yongping Hu petitions for review of the Board of Immigration Appeals’
(BIA) denial of his motion to reconsider its denial of his application for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert Holmes Bell, District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
8 C.F.R. § 208.18. We grant the petition for review and remand to the BIA for
reconsideration.
The BIA erred by requiring Hu to identify the “specific actions” the Chinese
Government was likely to take against him, even though he provided credible
evidence that police officers threatened “serious punishment” if he returned to
China without disavowing his religion, which the Chinese Government calls
“Shouter Christianity.” An asylum applicant who has not demonstrated past
persecution must show that he has a “well-founded fear” of future persecution.
Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004). To meet this burden, Hu
had to adduce “credible, direct, and specific evidence that [he] faced an
individualized risk of persecution . . .” Lolong v. Gonzalez, 484 F.3d 1173 (9th Cir.
2007) (en banc).
Here, Hu’s failure to specify how the Chinese government would carry out
its threat of “serious punishment” does not diminish the existence of the threatened
punishment. The BIA “recognize[d]” that the Country Report “showed that the
Chinese Government wants to close the Shouters’ Christian Church” and that a
web article Hu submitted “states that Shouter Christians are persecuted in China,”
but rejected Hu’s claim on the ground that the evidence “did not contain any
specific actions that the Chinese Government engages in.” However, the Country
2
Report goes on to indicate that Shouter Christianity adherents are subject to arrests,
five to fifteen days of administrative detention, and fines because their religion is
deemed an “illegal cult.” The record also contains evidence that police had visited
Hu’s home in China, found and confiscated two Shouter Christian books he had
sent to his wife, detained and beat her, and informed her that Hu belonged to an
illegal group. It was legal error for the BIA to hold Hu to the burden of
demonstrating the specific means the Chinese government had in mind for
inflicting “serious punishment” on him.
Nor is the record clear that the BIA actually considered Hu’s affidavit, his
wife’s letter, and letters from his pastors, suggesting that Hu would likely suffer
persecution if he returned to China. It may have excluded this evidence on the
ground that it was not “objective.” However, Hu’s burden was to demonstrate that
his fear is “objectively reasonable,” a requirement that may be met by the
applicant’s own testimony and letters that demonstrate that objective factual
circumstances corroborate his subjective fear. There is no objectivity requirement
for the evidence applicants may put forward to make this showing. See Cardoza-
Fonseca v. I.N.S., 767 F.2d 1448, 1454 (9th Cir. 1985) (“Applicants must point to
specific, objective facts that support an inference of past persecution or risk of
future persecution. That the objective facts are established through the credible
3
and persuasive testimony of the applicant does not make those facts less
objective.”), aff’d by I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987). At
argument, the government conceded that if the BIA excluded this evidence from its
analysis of whether Hu’s fear is objectively reasonable, that would also constitute
legal error. On remand, the BIA should consider all “credible, direct, and specific
evidence in the record” in assessing whether Hu’s fear was objectively well-
founded. Kaiser v. Ashcroft, 390 F.3d 654, 658 (9th Cir. 2004).
PETITION FOR REVIEW GRANTED; REMANDED.
4