FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

XIAOGUANG GU, 

Petitioner, No. 02-74417

v. Agency No.  A75-653-110 ALBERTO R. GONZALES,* Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 2, 2004—Pasadena, California

Filed December 1, 2005

Before: Harry Pregerson, Robert R. Beezer, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Beezer;

Dissent by Judge Pregerson

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2). 

15585
COUNSEL

Joseph S. Porta, Law Offices of Cohen & Kim, Los Angeles,

California, for the petitioner. 

Daniel D. McClain, Office of Immigration Litigation, Civil

Division, U.S. Department of Justice, Washington, D.C., for

the respondent.

OPINION

BEEZER, Circuit Judge: 

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

15588 GU v. GONZALES
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

GU v. GONZALES 15589
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 Sates 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 (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

1The 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.

15590 GU v. GONZALES
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

[1] 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. CordonGarcia 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 wellfounded 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)

GU v. GONZALES 15591
(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

[2] 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-ahalf-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

15592 GU v. GONZALES
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. 

GU v. GONZALES 15593
[3] 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.

[4] 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. 

[5] 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.

2The 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. 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. 

15594 GU v. GONZALES
B

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 wellfounded 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 call [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 home in China. 

[6] 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. We are

presented with a unique circumstance, however, because the

record does not contain testimony from any witness who personally observed the public security individuals visit Gu’s residence. We have only 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

GU v. GONZALES 15595
that while hearsay evidence may be accorded less weight in

immigration proceedings, “seemingly reliable hearsay evidence should not be rejected in [ ] a perfunctory manner”). 

[7] 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 is necessarily relaxed when assessing the underlying truth of what is

not the product of petitioner’s direct observations, but rather,

mere hearsay evidence. In Murphy v. INS, we held in the

deportation context that a signed statement containing hearsay, without cross-examination was “hardly worthy of full

evidentiary weight.” 54 F.3d 605, 611 (9th Cir. 1995) (citing

Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974).

We also recognized the important limits on hearsay evidence

in endorsing the proposition that “ ‘[t]he hearsay nature of a

given item of evidence may well have a substantial effect on

the probative value of that evidence.’ ” 54 F.3d at 611 (quoting Matter of Ponco, 15 I. & N. Dec. 120, 123 (BIA 1974)).

[8] We hold that where an asylum applicant’s testimony

consists of hearsay evidence which is not susceptible to crossexamination, the statements by the out-of-court declarant need

not be automatically taken as true and, compared to nonhearsay evidence, may be accorded less weight by the trier of

fact. 

Pursuant to these principles, 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 we, and the BIA, are not

required to accept the out-of-court hearsay statement of Gu’s

friend, which lacked foundation and was not subject to crossexamination, as true. 

[9] We conclude that 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

15596 GU v. GONZALES
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 visited him after he left is the product of mere

hearsay evidence, we are not required to accept the underlying

truth of that report. Even if it is true 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

alleged 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. 

[10] 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

[11] 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. 

PREGERSON, Circuit Judge, dissenting: 

I believe that Gu has established past persecution on

account of his Christian religious practices and is eligible for

GU v. GONZALES 15597
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. 

As 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

15598 GU v. GONZALES
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

1At 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.”

Maj. Op. at 15589. 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. 

GU v. GONZALES 15599
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 that 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 failed 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

15600 GU v. GONZALES
probative evidence on the record considered as a whole.” INS

v. Elias-Zacarias, 502 U.S. 478, 481 (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. 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. 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, the record demonstrates that Gu’s

2The 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.” Maj. Op. at 15594 n.2. 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

GU v. GONZALES 15601
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

respondent testified that he did not experience further problems,

was able to return to his government job, 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. 

15602 GU v. GONZALES
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 days. 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 wellGU v. GONZALES 15603
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. 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

15604 GU v. GONZALES
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 beating, there were no further 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

GU v. GONZALES 15605
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

3The 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. 

15606 GU v. GONZALES
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. 

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.

Although 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-Garcia 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

GU v. GONZALES 15607
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

evidentiary 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

15608 GU v. GONZALES
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, Gu’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 friend 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]uthentic 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

GU v. GONZALES 15609
— 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.3d 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.

4The majority ignores the context of Gu’s account and belittles his

experiences when it claims that the Chinese authorities “simply came to

interview him.” Maj. Op. at 15597. 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. 

15610 GU v. GONZALES