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Monday, July 24, 2006


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Ninth Circuit Rejects Asylum Claim of Chinese Christian Man

Divided Panel Rules Credible Hearsay Testimony Not Weighty Enough to Establish Threat of Future Persecution


By TINA BAY, Staff Writer


Hearsay testimony, though admitted if credible, must be weighed less heavily than non-hearsay evidence in asylum determinations, the Ninth U.S Circuit Court of Appeals ruled Friday.

In a 2-1 decision, the panel denied review of a Board of Immigration Appeals decision affirming the denial of asylum to Xiaoguang Gu on the ground of religious persecution.

Gu, a Chinese citizen who entered the U.S. in 1998 on a purported business trip, applied for asylum in 1999 after his business visa expired, on the basis that the Chinese government would persecute him for practicing Christianity if he were to return home.

At the asylum hearing, Gu admitted that he never intended to conduct any business in the U.S., and that his real reason for coming to the U.S. had been to more freely practice his faith.

Phone Call

Gu testified that he believed persecution was imminent, in part because a friend from China called him in 1999 and told him that government officials came to his family’s home looking for him—due, Gu believed, to the fact that he had sent religious materials from the U.S. to China.

Gu, who converted to Christianity in early 1997, also offered evidence of past persecution, claiming that while he was living in China, the Chinese government arrested him and detained him at a police station for three days because he distributed Christian literature and attended an unregistered “house church” that operated independently of government-controlled Christian churches.

In the course of a two-hour interrogation about the religious materials he had been distributing, he testified, police beat him on his back approximately ten times with a rod when he refused to disclose where he had obtained the materials or to whom he had distributed them.

Insufficient Showing

Although the beating left Gu with no permanent scars or injuries requiring medical attention, Gu said that he feared further police action after his release and therefore ceased attending his house church, limiting his religious activities to private Bible-reading.

Immigration Judge Thomas Y.K. Fong found that Gu failed to establish eligibility for asylum.

Fong noted that after his police detention, Gu had returned to his government job with no negative consequences other than a warning from his employer that he would be fired if he engaged in any illegal activities. The judge also pointed out that, aside from several required follow-up visits to the police station, Gu had no subsequent interactions with the government, and that the government had issued him a passport to leave China.

Agreeing that Gu’s difficulties in practicing his religion did not merit asylum, the BIA affirmed Fong’s ruling.

In an opinion amending its original decision filed on December 2005, the appellate panel agreed with the BIA.

Writing for the majority, Judge Robert R. Beezer said that evidence of Gu’s persecution showed a minimal level of the severity.

“[O]ther 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,” Beezer wrote.

The judge further explained that Gu’s testimony regarding his friend’s 1999 phone call was not weighty enough to prove imminent persecution.

“[W]e 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,” he said. “By the same token, we hold that the out-of-court hearsay statement of Gu’s friend is less ‘persuasive’ or ‘specific’…than a firsthand account of the incident would have been.”

Judge Richard C. Tallman joined in the majority opinion.

Pregerson Dissent

Dissenting, Judge Harry Pregerson maintained that Gu had in fact established eligibility for asylum, and that the majority’s conclusions regarding hearsay were “disturbing.”

“By according Gu’s friend’s statement less evidentiary weight simply because it is hearsay, the majority contravenes the well-established law of this circuit and usurps the role of the fact finder in immigration proceedings,” he said, adding, “It is beyond the scope of this court’s duty to reweigh properly admitted and unobjected to evidence, whether it is hearsay or not.”

Pregerson noted that the fact a particular piece of evidence is hearsay had never before played a role in this court’s review of BIA decisions.

Moreover, the judge said, the weighting of hearsay testimony was an issue never raised by the parties or the lower courts, and the majority’s assertions on the issue thus constituted dicta extraneous to its holding.

Gu’s counsel, Joseph S. Porta, a partner in the Law Offices of Cohen, Porta & Kim, called the majority’s decision “strange” in light of the fact that the hearsay issue was never previously raised by the government, Fong, or the BIA.

“I’m very troubled by the decision,” he said. “I’m very worried about the repercussions of the decision for all future asylum seekers. I think they’re going to have an insurmountable burden to overcome to seek asylum in this country.”

The hearsay issue was crucial, Porta explained, because people fleeing persecution in their home countries often have no documentary evidence, and hearsay testimony is often sufficient to prove an asylum claim.

The attorney remarked:

“I think what this decision does accomplish is that it has very much made it more difficult for an asylum seeker to be able to prove his claim. Persecutors usually don’t leave a note with the persecuted person documenting the persecution that has transpired.”

Porta said he would recommend that his client seek rehearing by the panel and an en banc rehearing.

Daniel D. McClain, counsel for the government, could not be reached for comment.

The case is Gu v. Gonzales, 02-74417.


Copyright 2006, Metropolitan News Company