Gu v. Gonzales

• Decision Date: 21 July 2006
• Docket Number: No. 02-74417.,02-74417.
• Citation: 454 F.3d 1014
• Parties: Xiaoguang GU, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

454 F.3d 1014

Xiaoguang GU, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 02-74417.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 2, 2004.

Filed July 21, 2006.

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Joseph S. Porta, Law Offices of Cohen & Kim, Los Angeles, CA, for the petitioner.

Daniel D. McClain, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, for the respondent.

Laura A. Wytsma, Sonnenschein Nath & Rosenthal LLP, Los Angeles, CA, for Amici Curiae Center for Gender & Refugee Studies, Harvard Immigration and Refugee Clinic, Human Rights First, Jubilee Campaign USA, and Public Counsel.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-653-110.

Before HARRY PREGERSON, ROBERT R. BEEZER, and RICHARD C. TALLMAN, Circuit Judges.

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The panel's opinion and dissent filed December 1, 2005 and appearing at 429 F.3d 1209 (9th Cir.2005), is withdrawn.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.

A

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...