Xiaoguang Gu v. Alberto R. Gonzales, Attorney General

PREGERSON, Circuit Judge,

dissenting:

I believe that Gu has established past persecution on account of his Christian religious 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 sending religious materials to him in China. She sent him additional materials in January 1997 and February 1997.

*1217As his interest in Christianity developed, Gu began attending a government-controlled Christian church in January 1997 and was baptized there on March 16, 1997. Gu became disenchanted with the government-controlled church because it presented political opinions and did not adhere to the Christian gospel. Gu then began to attend a small unregistered Christian church that held services in a member’s home. Gu attended services at this house church once a week and distributed copies of his sister’s Christian religious materials to his fellow church members. He also distributed these materials to his co-workers at his government job.

In October 1997, Gu was arrested by public security officers 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 displayed. The officers interrogated Gu for two hours about the Christian religious materials he distributed. They characterized these materials as Western democracy propaganda. The officers wanted to know how Gu got the religious materials and to whom the materials were distributed. Gu argued with the officers and refused to give them the names of the persons to whom he had given the materials. As a result, the officers 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 further illegal Christian religious activities. Gu agreed to write the confession letter only because he feared that his refusal would result in further detainment and additional beatings.

After he was released from prison, Gu stopped attending his house church and ceased -distributing religious materials because he feared that he would be arrested, detained, and beaten. He felt that the only way he could safely practice his religion was to read his Bible alone at home. During Gu’s weekly visits to the local public security police, he was questioned on whether he had distributed Christian religious materials 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 government work unit, where he was put on probation and threatened 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 family 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 warning, coupled with his earlier experiences, served as the basis for Gu’s fear *1218that he would be arrested by the Chinese public security officers if he were forced to return to China.

After a hearing, the IJ concluded that Gu faded to establish that he was eligible for asylum. The IJ found that after his initial arrest Gu did not experience any adverse consequences at his job. Furthermore, the IJ found that Gu continued to attend his house church, receive religious materials from his sister, and practice Christianity. As discussed below, these findings are contradicted by the record. The IJ also found it important that Gu was able to obtain a passport to travel to the United States without difficulties from the Chinese government. Ultimately,- 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 asylum. In support of its opinion, the BIA cited the IJ’s findings that Gu experienced no further problems after his arrest, was able to return to his job, and obtained a valid passport to leave China.

II. Substantial Evidence

I disagree with the majority’s conclusion that the BIA’s decision is supported by substantial evidence. We must uphold the BIA’s determination that an alien is not eligible for asylum only if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotations omitted). The BIA’s decision must be reversed where a reasonable factfinder would be compelled to conclude, based on the evidence in the record, that there was a well-founded fear of future persecution. Id. at 481 n. 1, 112 S.Ct. 812. The evidence here compels such a finding.

The majority opinion correctly notes that in determining eligibility for asylum, we should look at the “record considered as a whole.” Id. at 481, 112 S.Ct. 812. 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 government....”2 Instead, *1219the record demonstrates that Gu’s religious practices were indeed stopped by the government, because, after he was arrested and beaten, Gu’s fear of further arrests caused him to stop attending his church. Gu testified that after his arrest he was only able to practice his religion by reading his Bible alone at home. Because Gu stopped attending his church, it is impossible to know what additional steps the public security police may have taken to stop him.

In addition, in his oral decision, the IJ stated that Gu testified that after his arrest he continued to receive religious tracts from his sister without problems from the Chinese government. This finding is directly at odds with the testimony of both Gu and his sister that she sent him religious materials in November 1996, and in January and February 1997. Based on this testimony, the last time Gu’s sister sent him any religious materials was eight months before he was arrested and beaten by the Chinese public security police.

Finally, the IJ found it important that Gu was able to return to his government job and was not terminated after he was released from prison. This finding, however, is undercut by Gu’s testimony that after he returned to that job, he was placed on probation and threatened with termination if he again engaged in such religious activities.

These erroneous factual findings are compounded by the IJ’s conclusion that the public security police approved of Gu’s religious activities because he was told that he no longer needed to report to the police after three weekly meetings. This conclusion misunderstands the reason for Gu’s weekly reports, which was to confirm that Gu was complying with the police demand that he no longer participate in any illegal religious activities. And, as Gu testified, this is what he did: after his release from detention he stopped attending his Christian house church and stopped distributing religious materials. When Gu’s actual testimony is understood, it becomes apparent that the security police lost interest in him because he was no longer participating in the prohibited 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 government 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 government’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 government made no attempt to stop him from distributing religious materials because Gu made no attempt to distribute. Gu’s acquiescence to the government’s repression, however, does not lead to the conclusion that he would no longer be subjected to repression if he again participated in his Christian religious activities. Indeed, Gu testified that he was- threatened that if he did engage in such activities again, he would be fired from his government job.

Because Gu ceased attending his house church and distributing religious materials, we cannot know whether the government 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 *1220days. After he ceased his Christian religious activities he was not subjected to further punishment. Mere speculation that Gu would have suffered 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 evidence”).

When the IJ’s erroneous factual findings are set aside, there remains only the IJ’s findings that Gu (1) was permitted to return to his government job' — -where he was put on probation and threatened with termination if he engaged in Christian religious activities again — and (2) was able to obtain a Chinese passport. Such meager findings do not constitute substantial evidence and are insufficient to support the BIA’s conclusion that Gu would suffer no further problems with the government if forced to return to China.

III. Persecution

Because I believe that the denial of Gu’s asylum claim is not supported by substantial evidence, the next step is to consider whether a reasonable factfinder would be compelled to conclude, based on the evidence in the record, that Gu has a well-founded fear of persecution. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. 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 petitioner has suffered, the treatment [he or] she received rises to the level of persecution.”)). A well-founded fear of persecution must be both “subjectively genuine” and “objectively reasonable.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003). Because, as the majority concedes, Gu’s credible testimony that he genuinely fears persecution satisfies the subjective 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 persecution.” See Nagoulko, 333 F.3d at 1016 (quoting Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999)).

A. Past Persecution

The majority contends that the suffering endured by Gu is more closely aligned with that of the petitioner in Prasad v. INS, 47 F.3d 336 (9th Cir.1995), than that of the petitioner in Guo v. Ashcroft, 361 F.3d 1194 (9th Cir.2004). I disagree. The majority notes that the crucial factors differentiating Guo and Prasad are the length and the persistence of harassment. However, the majority disregards key distinctions between the facts of Prasad and those in the instant case when it concludes that the evidence does not compel a finding of past persecution for Gu.

Prasad was detained for four to six hours. During that time, he was hit and kicked. Like Prasad, Gu was also arrested and beaten. However, that is where the similarities end. Prasad was only hit and kicked; Gu was beaten with a rod multiple times. Prasad was only detained for a few hours; Gu was detained for a substantially longer time — three days. Prasad was questioned but not threatened explicitly; Gu was interrogated about his Christian religious activities in a room where instruments of torture were displayed. Other than the arrest and beat*1221ing, there were no farther allegations of governmental mistreatment by Prasad. ■

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.

The majority believes that Gu’s testimony is somehow conflicting 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 reading, this testimony does not conflict. Rather, it is entirely consistent 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 government’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 establishes 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 beatings can establish persecution). I believe that the cumulative treatment Gu was forced to endure rises to the level of and compels the conclusion that Gu suffered persecution on account of his religion, one of the five enumerated grounds for the establishment of refugee status. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812.

B. Objectively Reasonable Fear of Future Persecution and Treatment of Hearsay in Immigration Proceedings

The majority improperly dismisses Gu’s objectively reasonable fear of future persecution. Gu testified that public security officials — apparently believing Gu had returned from the United States — have visited Gu’s family’s home in China on at least one occasion since his departure, seeking to question Gu about religious materials he sent to China from the United States. Gu learned of this fact from a telephone conversation with a friend who was still in China. I am deeply troubled by the majority’s treatment of this testimony. Al*1222though the majority claims that it has not done so, it seems apparent to me that the majority rejects Gu’s testimony out of hand simply because it is hearsay. The majority maintains that it only accords Gu’s testimony less weight, but its analysis actually accords it no weight at all. In so doing, the majority contravenes the well-established law of this circuit.

“This court recognizes the serious difficulty with which asylum applicants are faced in their attempts to prove persecution, and has adjusted the evidentiary requirements accordingly.” Ladha v. INS, 215 F.3d 889, 899 (9th Cir.2000) (quoting Cordon-Garda v. INS, 204 F.3d 985, 992-93 (9th Cir.2000)). Accordingly, in the asylum context, we have permitted full consideration 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 simply because it is hearsay, ignoring that we have recognized that “it is difficult to imagine what other forms of testimony the petitioner could present other than his own statements.... ” McMullen v. INS, 658 F.2d 1312, 1319 (9th Cir.1981), superseded by statute on other grounds, 8 U.S.C. § 1253(h) (1996); see also Cordon-Garcia, 204 F.3d at 992-93; Ladha, 215 F.3d at 899-900.

The friend who told Gu that Gu’s home had been visited by the security officials did not testify at the hearing — he was likely still in China. The majority’s sole reason for concluding that the statement is untrue is merely that the statement is hearsay. However, there is no evidence in the record that contradicts Gu’s testimony. Moreover, neither the IJ nor the BIA questioned Gu’s credibility. Absent a specific finding of Gu’s lack of credibility, I find no reason to accord Gu’s testimony less than full evidentiary weight. See Smolniakova v. 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 undermines the petitioner’s credibility, we accept the petitioner’s testimony as true).

The majority cites Murphy v. INS, 54 F.3d 605 (9th Cir.1995), as support for granting Gu’s testimony less than full evi-dentiary weight. Murphy is inapposite. In Murphy, the Immigration and Naturalization Service (“INS”) submitted an unauthenticated, undated, unnotarized, and unverified statement signed by an INS agent reporting earlier conversations regarding Murphy’s alienage. See id. at 607. The INS agent did not testify at the hearing before the IJ. See id. We held that without the agent’s “testimony on cross-examination, the statement is subject to speculation and hardly worthy of full evidentiary weight.” Id. at 611 (citing Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974)).

The facts in the instant case are quite different from those in Murphy. In Murphy, the hearsay declarant was an INS agent, and the party offering the testimony was the INS. The reason the Murphy court allocated less than full evidentiary weight to the INS’s evidence was because it is easier for the INS to produce a hearsay declarant who works for the INS than it is for an asylum seeker to produce someone from the country he or she fled. See Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir.1997) (holding that where INS made no effort to call admittedly available witness and relied on that witness’s hearsay affidavit, hearing was “fundamentally unfair”). In this case, Gu offered the hearsay statement of a friend in China. Neither the government’s counsel, nor the IJ, nor the BIA questioned the whereabouts of Gu’s friend. Based on the testimony, *1223Gu’s friend, unlike the INS agent in Murphy, was simply not the type of witness whose presence would be expected at the hearing.

The standard applicable to situations where the government wishes to introduce hearsay evidence is markedly different from those where the alien introduces hearsay. For the government, admission depends on “ ‘whether its admission was fundamentally fair’” to the alien. Saidane, 129 F.3d at 1065 (quoting Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir.1983)). The majority turns this standard on its head. Insisting that the government “afford the alien a reasonable opportunity to confront the witnesses against him or her,” Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir.1988), is an entirely inappropriate requirement to apply to Gu. We have repeatedly recognized that typical asylum applicants are faced with “serious difficulty ... in their attempts to prove persecution.” Ladha, 215 F.3d at 899. Requiring the government to produce an INS agent to testify to his out-of-court statements is quite different from asking an asylum applicant to produce a Mend from China he spoke with on the telephone. See id. at 900 (citing Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984)) (“[A]u-thentic refugees rarely are able to offer direct corroboration of specific threats.... ”). Direct evidence that the security officials had been looking for Gu would simply not be “easily available.” See Guo, 361 F.3d at 1201 (citing Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir.2000) (“[I]t is inappropriate to base an adverse credibility determination on an applicant’s inability to obtain corroborating affidavits from relatives or acquaintances living outside of the United States — such corroboration is almost never easily available.”)). That Gu’s fear of persecution is objectively reasonable is supported by the testimony that public security officials have visited Gu’s home in China.4 See Al-Harbi v. INS, 242 F.Sd 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 supported by substantial evidence. Evidence of his past experiences 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.

. At the hearing before the Immigration Judge ("IJ”), government counsel 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.” 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 station.

. The majority improperly downplays the IJ’s blatant error by stating that the BIA "neither explicitly adopted this portion of the IJ's decision nor mentioned this reason as a factor in support of its denial of Gu’s petition.” Under the law of this circuit, when the BIA incorporates the IJ’s decisions as its own, we treat the IJ’s reasons as the BIA's. See He v. Ashcroft, 328 F.3d 593, 595-96 (9th Cir.2003) (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 determination). 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 *1219job, 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.

. The government argues and the majority endorses that denial of asylum is appropriate because Gu "at most” "only” suffered three days of detention and a beating with rods that left no scars or permanent injuries. This argument suggests that a similar claim from a frailer petitioner would succeed. The government has pointed to no authority supporting the proposition that the strength of a petitioner’s application should be dependent upon his or her body’s ability to withstand a beating.

. 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.” We must make “reasonable inferences” from the facts to which an alien credibly testifies. Ladha, 215 F.3d at 900. The visit occurred soon after Gu had sent Christian religious materials to his friends and fellow church members in China. Considering the circumstances of Gu's beating and detainment at the hands of security officers, the "confession” he was forced to sign, and his threatened termination, any reasonable person would infer that the “visit” to his home was in all likelihood not for the purpose of conducting a simple interview. Gu himself credibly testified that these visits serve as the basis for his fear of arrest and detainment upon return to China.