Gao v. Atty Gen USA ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
8-7-2002
Gao v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 01-3472
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"Gao v. Atty Gen USA" (2002). 2002 Decisions. Paper 483.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/483
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
Filed August 7, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3472
CHEN YUN GAO, Petitioner
v.
John Ashcroft, Attorney General
of the United States, Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Board No. A 77 341 155)
Argued: May 20, 2002
Before: BECKER, Chief Judge, GREENBERG,
Circuit Judge, and BARZILAY, Judge, U.S. C ourt of
International Trade.*
(Filed August 7, 2002)
J. JACK ARTZ, ESQUIRE (ARGUED)
1730 Huntington Drive, Suite #205
South Pasadena, CA 91030
Counsel for Petitioner
_________________________________________________________________
*Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
ROBERT D. McCALLUM, JR.,
ESQUIRE
Assistant Attorney General,
Civil Division
TERRI JANE SCADRON, ESQUIRE
Senior Litigation Counsel
Office of Immigration Litigation
JOHN M. McADAMS, JR., ESQUIRE
(ARGUED)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
BARZILAY, Judge, U.S. Court of International Trade:
The world has recently come to know Falun Gong as a
movement in the People’s Republic of China that"blends
aspects of Taoism, Buddhism, and the meditation
techniques of Qigong (a traditional martial art) with the
teachings of Li Hongzhi." U.S. Dep’t of State, Human Rights
Report for 1999, China, February 25, 2000, available at
http://www.state.gov/www/global/human_rights/
1999_hrp_report/china.html. As the news media has widely
reported, in July, 1998, the Chinese government officially
declared Falun Gong illegal and began a nationwide
crackdown against the movement, launching a massive
propaganda campaign against the group. The government
"rounded up and detained [tens of thousands of
practitioners] for several days, often in open stadiums with
poor, overcrowded conditions with inadequate food, water
and sanitary facilities. Practitioners who refused to
renounce their beliefs were expelled from their schools or
fired from their jobs." Id.
According to the State Department Report, "despite the
harshness of the crackdown, Falun Gong demonstrations
2
continued around the country throughout the summer and
into the fall. Authorities responded quickly by breaking up
demonstrations--at times forcibly--and detaining
demonstrators." Id. There have also been"credible reports
of beatings and deaths of practitioners in detention who
refused to recant their beliefs." Id."According to Amnesty
International, some adherents of Falun Gong [have been]
tortured with electric shocks, as well as having their hands
and feet shackled and linked with crossed steel chains." Id.
It is against this back-drop that this appeal comes to us.
Chen Yun Gao (Gao), a young woman of 18, is a native
and citizen of China, who escaped to the United States after
being expelled from school, beaten, and imprisoned in a
labor camp. Although the record clearly demonstrates that
Gao has an extensive history of school truancy, and that
she spent a lot of time participating in t’ai chi and other
athletic endeavors, on the record before us it does not
appear that any action was taken by the school authorities
or the Chinese government against Gao until they learned
that she was a messenger for the Falun Gong. It is on this
ground, her fear of persecution if she returns to China on
account of this Falun Gong connection, that she applied for
political asylum and for withholding of deportation to
China. Her application was denied following a hearing
before an Immigration Judge (IJ) who found that Gao
lacked credibility based upon inconsistencies in her story.
The Board of Immigration Appeals (BIA) summarily affirmed
the decision of the IJ. She petitions for review of the BIA’s
decision.
Gao’s case is not a human rights cause celebre -- she
was not even a practitioner of Falun Gong, and was no
more than a mere messenger, drawn into the organization’s
network through the influence of her aunt. For this reason,
the IJ concluded that Gao’s messenger activities could not
be the reason for the action taken against her. That
conclusion was improper. Careful scrutiny of the record
also shows that there are no significant inconsistencies in
her story. Additionally, the IJ failed to consider important
documentary evidence that supports claims that Gao made
during the hearing. Although it may be that Gao may not
prevail upon a fuller review of the record, these problems
3
with the IJ’s decision, explicated below (which are
especially troubling in view of the State Department Report
detailing a reign of terror against Falun Gong) require us to
grant the petition for review and remand this case for
further proceedings.
I. BACKGROUND
Gao arrived at Los Angeles International Airport on
October 31, 2000. Lacking proper documentation, she was
served with a Notice to Appear by the Immigration and
Naturalization Service (INS). The Notice charged her with
removability as an alien who was likely to become a public
charge, and as an immigrant who at the time of her
application for admission did not possess a valid visa. 8
U.S.C. SS 1182(a)(4)(A); 1182(7)(A)(i)(I). Gao responded by
filing an application for asylum pursuant to 8 U.S.C.
S 1158(b)(1), for withholding of removal, and for protection
under Article 3 of the Convention Against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment.
The application was grounded on the claim that her
association with the banned Falun Gong movement in
China led to her expulsion from school, beating, and
imprisonment at the hands of local security forces. Gao’s
asylum application, prepared by her attorney, contained
minimal explanation as to the reasons for her asylum
claim; we rescribe it in the margin.1 On February 8, 2001,
_________________________________________________________________
1. Gao’s asylum application reads as follows:
I am an 8th grade student at CHAO YANG HIGH SCHOOL in
03/2000 when one of my relatives (my aunt) named Yu Gao
recruited me as a messenger to the Falun Gong group in my area.
She paid me 150 RMB per month. I was absent from class many
times because of my messenger activities. The school took
disciplinary measures against me, so I stopped my activities with
the group for a while.
Again I participated in the group in May 2000. The principal
learned that I was absent again from class. The principal ordered
me to stop participating in the group, but I did not obey him. The
principal reported me to the local public security, and they came to
the school to arrest me immediately after I was formally expelled.
The principal announced my expulsion to the school on 6/13/2000
4
she was given a hearing before the IJ, at which time she
was allowed to develop her story by presenting oral
testimony and documentary evidence. The IJ based his
opinion primarily on that testimony and some of the
documentary evidence submitted at the hearing. The
evidence may be summarized as follows.
Gao testified that she was a high school student in
Fujian Province. Her aunt, Gao Yu, was an active member
and instructor in the Falun Gong movement. Gao was
apparently close to her aunt, and would often accompany
her when she went to meetings or ran errands. This loose
association with the Falun Gong began in 1998. In March
2000, Gao’s aunt recruited her to be a paid messenger for
the group, which meant that she was frequently working for
the Falun Gong instead of attending school.
On June 13, 2000, she was expelled from her school.
School officials reported her connection to the Falun Gong
to the local police, who arrested Gao and held her for two
days. During that time she claims that she was held
without food and kept awake for long periods. She also says
that police made her remove her pants and beat her on her
buttocks. The instrument they beat her with was a long
rod, which may or may not have been able to deliver an
electric charge. Gao does not know if she was electrocuted,
_________________________________________________________________
while we were in class. The public security, who were waiting for me
at the school, took me to the police station where they detained me
for two days, scolded me, and beat me.
The public security threatened that they would seal my house and
expel my family from it. Then on 6/16/2000 they took me with
other detainees to forced labor in the countryside. I managed to
escape and my parents quickly moved me to a relative’s house in Fu
Zhou City. I stayed there in hiding until 8/23/2000. My parents and
our relatives arranged an escape from China to the USA where I
could obtain asylum for this situation.
I flew from Chang Le to Guan Zhou City on 8/23/2000. I stayed
in Guan Zhou City for a night and flew to Thailand on 8/24/2000.
I flew from Thailand to Brazil on 9/23/2000. I arrived in Los
Angeles on 10/31/2000.
[A.R. 341].
5
only that she was struck twice and kicked. Police also
allegedly threatened to lock up her family and "sell" or
"seal" her house.2 After this two day incarceration she was
released, then arrested again on June 16, 2000. At that
point she was placed with a group of prisoners who were
taken to a park and made to perform manual labor such as
cutting grass and moving stones. Gao testified that during
a lunch break when the two guards supervising the group
were not paying attention, she escaped into a wooded area.
She first went home, then her parents sent her to a
relative’s house in a city about 100 miles away. She
remained there for a few months before fleeing the country.
She traveled through Thailand and Brazil before arriving in
Los Angeles.
Gao submitted two significant pieces of documentary
evidence at her hearing. The first was her high school
student transcript book, a booklet that was used by the
school to record grades and comments by her teachers
beginning in 1998 and ending in 2000, the relevant
portions of which are detailed in the margin.3 The second
_________________________________________________________________
2. There are two points in the record where Gao recounts this threat. In
her statement attached to the application Gao says,"they would seal my
house and expel my family from it." [A.R. 341]. In her testimony she
says, "they would lock my family up and they would sell my house." [Id.
at 108].
3. The relevant transcript pages show that Gao received comments
relating to her exercise habits starting in 1998:
1) 1998 to 1999 - 1st Semester
"Reward or Penalty: Joined those exercises activities and was absent
for 18 times, Appointed to be criticized." [A.R. 163].
"Comment:
This student was good and behaved . . . but shows more interest
in those body exercises, feels strong for the class honor, but has
been absent 18 times because of joining those body exercises,
after receiving criticisms from the Policy and administration
department of school, we hope that she will correct those
mistakes and get better progress." [A.R. 164].
2) 1998 to 1999 - 2d Semester
6
was the Discipline Determination letter from the school
stating the grounds for her expulsion. The letter states that
Gao:
keeps on joining the Fa Lun Gong activities as their
messenger. [S]he was questioned by the local justice
department in June and has been absent from class for
56 times since then . . . . Based on regulation 11
section 4 (continuous high school discipline violation,
law violation regulation) and the regulations of the
public security authority . . . GAO Chen Yun is
expelled from school, this case is reported to the public
security bureau and be processed based on the
regulation.
[A.R. 388].
The IJ, in an oral opinion, denied Gao’s application for
asylum based on the facts of her case. He did, however,
recognize that an association with the Falun Gong could
subject one to a well founded fear of persecution. 4 Based on
_________________________________________________________________
"Comment:
This student . . . always joins those outdoor exercise that has
been late for class for many times, we hope that she pays more
attention to the school rules and organization."[A.R. 167].
3) 1999 to 2000 - 2st Semester
"Comment:
This student shows emotional thinking, joins those outdoor
exercises too often that she gets slow progress, can not catch up
with other students, not active in class, we hope that the parents
can help her with her thinking and her mind to focus into study,
do not join those outdoor exercises again which affects her study
and progress." [A.R. 170].
4) 1999 to 2000 - 2d Semester
"Comment:
This student has fallen into last sixth in class, does not pay
attention in class, classmates say that she often joins those
outdoor social exercises, does not listen to the class instructor
after talking with her. . . ." [A.R. 173].
4. The IJ found that removal on grounds that Gao would become a
public charge was not sustainable on the evidence.
7
background information, he observed that the Falun Gong
is not just a small religious group but a "social
phenomenon" in China that has "attracted the attention of
Chinese government authorities," and caused some friction
in relations between the United States and China.[A.R. 39].
Therefore, the IJ found, "the respondent’s niche in China is
one that could under certain circumstances be persecutory,
or cause her persecution." [A.R. 40]. The IJ accepted "that
the Falungong belief and activity is a religious, and/or
political view, and persecution on account of it is
persecution on account of one’s religious or political views."
[A.R. 42].
Gao, in her testimony, clarified that she was not
practicing Falun Gong, but acting as a messenger and it
was that association that puts in her in danger. The IJ
stated that if a person were actually tortured for being a
messenger, "the Court believes that that would constitute
persecution." [A.R. 44]. The question then became whether
Gao’s testimony "regarding the treatment that she suffered
is plausible, sufficiently detailed, and credible to allow us to
conclude that she was in fact persecuted for these few
activities." [Id]. The IJ found that Gao lacked credibility.
Most importantly, without any evidence to support this
conclusion, the IJ stated that he found "implausible . . . the
preoccupation of Chinese authorities for someone who is a
mere adjunct to the activity that the government is trying to
stop or prevent, bur that is not at all involved in it herself."
He therefore denied her claim of asylum.
II. STANDARD OF REVIEW
We begin by noting that we have the power to review only
the final order of removal. 8 U.S.C. S 1252(a)(1). Ordinarily,
Courts of Appeals review decisions of the Board of
Immigration Appeals (BIA), and not those of an IJ. When
the BIA does not render its own opinion, however, and
either defers or adopts the opinion of the IJ, a Court of
Appeals must then review the decision of the IJ. Abdulai v.
Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001) ("When the
BIA defers to an IJ, a reviewing court must, as a matter of
logic, review the IJ’s decision to assess whether the BIA’s
8
decision to defer was appropriate."). In addition, the scope
of our review is extremely narrow:
The Attorney General has been "charged with the
administration and enforcement" of the INA, and
Congress has provided that his "determinations and
rulings . . . with respect to all questions of law shall be
controlling." 8 U.S.C. S 1103(a)(1). Because of this
delegation, the Supreme Court has held that
"principles of Chevron deference are applicable" in the
immigration context. INS v. Aguirre-Aguirre, 526 U.S.
415, 424, 143 L. Ed. 2d 590, 119 S. Ct. 1439 (1999).
The Court has also emphasized that--because of the
area’s profound foreign policy implications--"judicial
deference to the Executive Branch is especially
appropriate in the immigration context." Id. at 425.
And because the Attorney General has vested the BIA
with the power to exercise the "discretion and authority
conferred upon [him] by law," see 8 C.F.R. S 3.1(d)(1)
(2000), these principles of deference also apply to the
BIA. See Aguirre-Aguirre, 526 U.S. at 425.
Id. at 551.
A grant of asylum under S 1158(b)(1) of the Immigration
and Nationality Act (INA) allows an otherwise removable
alien to stay in the United States. The Attorney General
"may" grant asylum to an alien who demonstrates that
he/she is a refugee: a person unable or unwilling to return
to the country of that person’s nationality or habitual
residence because of past persecution or because of a well-
founded fear of future persecution on account of his race,
religion, nationality, membership in a particular social
group, or political opinion. See I.N.A.S 208(b)(1), 8 U.S.C.
S 1158(b)(1) (requiring asylum applicant conform to
definition of refugee); 101(a)(42)(A), 8 U.S.C.S 1101(a)(42)(A)
(providing definition of refugee). In order to establish
eligibility for asylum on the basis of past persecution, an
applicant must show: "(1) an incident, or incidents, that
rise to the level of persecution; (2) that is ‘on account of ’
one of the statutorily-protected grounds; and (3) is
committed by the government or forces the government is
either ‘unable or unwilling’ to control." Navas v. INS, 217
F.3d 646, 655 (9th Cir. 2000).
9
An applicant can demonstrate that she has a well-
founded fear of future persecution by showing that she has
a genuine fear, and that a reasonable person in her
circumstances would fear persecution if returned to her
native country. Elnager v. INS, 930 F.2d 784, 786 (9th Cir.
1991). Aliens have the burden of supporting their asylum
claims through credible testimony. Abdille v. Ashcroft, 242
F.3d 477, 482 (3d Cir. 2001). Testimony, by itself, is
sufficient to meet this burden, if "credible." 8 C.F.R.
S 208.13(a), Chan v. INS, 222 F.3d 1066, 1077 (9th Cir.
2000). In some cases the INS may require documentary
evidence to support a claim, even from otherwise credible
applicants, to meet their burden of proof. Abdulai, 239 F.3d
at 554.
Whether an asylum applicant has demonstrated past
persecution or a well-founded fear of future persecution is
a factual determination reviewed under the substantial
evidence standard. Abdille, 242 F.3d at 483. The Court will
uphold the agency’s findings of fact to the extent that they
are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Id. Likewise,
adverse credibility determinations are reviewed for
substantial evidence. Balasubramanrim v. INS, 143 F.3d
157, 161 (3d Cir. 1998). The court must sustain the
Board’s adverse credibility determination if there is
substantial evidence in the record to support it.
Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998).
Under this standard, the Board’s adverse credibility
determination must be upheld on review unless "any
reasonable adjudicator would be compelled to conclude to
the contrary." INA S 242(b)(4)(B), 8 U.S.C.S 1252(b)(4)(B);
accord INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
Adverse credibility determinations based on speculation or
conjecture, rather than on evidence in the record, are
reversible. Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.
2000). Generally, minor inconsistencies and minor
admissions that "reveal nothing about an asylum
applicant’s fear for his safety are not an adequate basis for
an adverse credibility finding." Vilorio-Lopez v. INS, 852
F.2d 1137, 1142 (9th Cir. 1988). The discrepancies must
involve the "heart of the asylum claim." Ceballos-Castillo v.
INS, 940 F.2d 513, 520 (9th Cir. 1990).
10
III. ANALYSIS
Although the substantial evidence standard grants
significant deference to the determination of the IJ, we
conclude that there are four problems with the IJ’s
determination that warrant reversal and remand in this
case. First, notwithstanding his conclusion, it appears from
the record that Gao’s testimony and application have
presented a consistent story that supports a finding of
credibility on her part. Second, the IJ found that Gao’s
report cards conflicted with her testimony, but failed to
distinguish between Gao’s account and how she believed
the school perceived those activities. Without clarifying if
Gao altered the report cards, or if she adopted them as her
testimony, the IJ found Gao’s credibility was weakened
because her story conflicted with the documents. This
failure further undermines the decision. Third, the IJ failed
to discuss and evaluate the Disciplinary Determination.
Fourth, having concluded that Gao was not credible, the IJ
also expressed doubt as to her story of escape and even her
imprisonment, without demonstrating any foundation other
than his suspicions that the story was not true.
A. Oral Testimony and Application
The IJ’s decision cannot be supported by internal
inconsistencies within Gao’s story as developed by her
testimony. Indeed, her application and her testimony
present a consistent statement that Gao was a messenger
for the Falun Gong. Gao’s asylum application stated that
she was "recruited" as a "messenger" for the Falun Gong.
See supra note 1. Her oral testimony, recounted in the
margin, also established that her association with the
Falun Gong was as a messenger.5
_________________________________________________________________
5. Her testimony during the hearing includes the following statements:
"I was practicing Falungong. I was a messenger." [A.R. 105].
"I was not practicing Falungong, I was a messenger. I work with my
aunt." [A.R. 112].
"Q: Do you yourself practice Falungong?
A: Seldom. I, basically I was watching people practicing." [A.R. 114].
11
The IJ, however, made reference to what he believed was
a change in her story once she was under cross-
examination, the effect of which was to reduce her
association with the Falun Gong from "practicing" to
"messenger." He states: "It turns out in her testimony
although she originally stated that what she was doing in
China before she came to the United States was that she
was ‘practicing Falungong,’ she later said during the same
direct testimony, that in response to the question‘when did
you start practicing’ that she did not actually practice, that
she was only a messenger." [A.R. 43]. The IJ does not cite
the two contradictory statements. In searching the record,
we find only one quotation from Gao that indicates she
"practiced" Falun Gong, and contrary to the IJ’s
characterization, this clarification does not come later in
her testimony. She stated, "I was practicing Falun Gong. I
was a messenger." [A.R. 105]. This statement was followed
up with a clarification in the very same breath that her role
was that of messenger. Other than this one instance, the IJ
recited no significant inconsistencies between her oral
testimony and her application. Therefore, we find no
substantial evidence in the record undermining Gao’s
credibility with respect to her statements.
B. Report Cards
The IJ’s determination essentially depends on his
analysis of the report cards that were offered as supporting
evidence by Gao’s attorney. The documents were presented
in a booklet form. Grades and comments were entered for
each semester, with the book returned to the school for
entry of new records after each semester. The individual
_________________________________________________________________
"Q: Well, ma’am, you weren’t a member of Falungong you testified
earlier, correct?
A: I was a messenger only, however, the government said that
messenger is the, the worst person because they are the, the people
who help communicate." [A.R. 122].
"Q: You can do some Falungong now?
A: I don’t know the details. I watch people doing it, because my job
is just a messenger." [A.R. 148].
12
reports have traditional columns of grades for various
subject matter, as well as a comments section where a
teacher or administrator could enter more specific written
notes. In each of the three years from 1998 to 2000, Gao’s
report cards included handwritten comments which
reference activities or exercises that were distracting her
from her schoolwork. See supra note 3. The following
summarizes the written comments for each semester and
the IJ’s comments and conclusions based on Gao’s
testimony concerning those written reports.
In Gao’s report card for the spring of 2000, the comments
said: "[C]lassmates say she often joins those outdoor social
exercises." [A.R. 173]. The IJ had two problems with this
comment. First, "according to the respondent’s own
testimony she was not involved in any outdoor social
exercises. She was a messenger doing administrative type
work for an organization whose members were doing
outdoor social exercises." [A.R. 45]. Second, "similar
comments are made on her report card the previous
semester, the semester before that, and the semester before
that, going all the way back to January 19 of 1999 relating
to the fall semester of 1998." [A.R. 45] . The IJ apparently
found these comments inconsistent with Gao’s testimony
on cross-examination, where she explained that she began
as a messenger for her aunt in March of 2000, and that
prior to that she had been following her aunt to Falun Gong
meetings since 1998, but that the school was not aware of
this activity. [A.R. 121]. The suggestion by the IJ is that the
reference to "social exercises" in the comments cannot be a
reference to Falun Gong activities.
The January 1999 report, for the fall semester 1998, said
that Gao "shows more interest in those body exercise [sic.],
feels strong for the class honor, but has been absent for 18
times because of joining those exercise [sic.]. [A]fter
receiving criticism from the party and administration
department of school we hope that she will correct those
mistakes and get better progress." [A.R. 164]. The IJ
pointed out that when questioned about the January 1999
comments, Gao said she did not believe they had anything
to do with Falun Gong, but instead related to other
exercises like jumping, jogging and t’ai chi. Gao also said
13
that she did not receive the reported criticism. The IJ
stated:
[t]he Court finds this not very plausible. If the system
is so strict that it is going to say that she should not
be doing physical exercises outside school, exercises
that have nothing to do with the castigated Falungong,
and then such criticisms never occur, the apparent
authoritarianism of the Chinese government is revealed
to be much less strict than the booklet she presented
would indicate it otherwise is.
[A.R. 47].
The June 1999 report said, "always joins those outdoor
exercise that has been late for class many times." [A.R.
167]. When questioned about this report, Gao said that it
did not relate to the Falun Gong activities as far as she
knew. Then the IJ noted:
She began to equivocate a little bit about her original
written statement [her application]. She said that she
was not a "formal messenger" at that time[meaning
June 1999], but just followed her aunt around. In
other words, she was implying that perhaps this had
something to do with her Falungong activities as well,
although she didn’t simply come out and state that.
The fact that she equivocated about this leads the
Court to question whether the comments that we have
in her report card reflect actual comments that were
made, and caused the Court to question whether she
herself may be aware that those comments do not
necessarily reflect comments that were actually made at
the time. At the very least, saying that she was
following her aunt around earlier does not succeed in
showing that the school knew about these Falungong
activities and called them "joining those outdoor
exercises" that deserved notation on her report card,
nor does it show that she actually was involved in
Falungong activities. Her statement says that her aunt
"recruited me as a messenger to the Falungong in my
area" in March 2000.
[A.R. 48, Emphasis Added].
14
The problem with the IJ’s analysis is that the IJ does not
distinguish between Gao’s account of her involvement with
the Falun Gong and how she believed the school perceived
those activities. Gao consistently stated that in 1998 she
began to follow her aunt and to attend meetings of the
Falun Gong, without ever becoming a member. It was not
until March 2000 that she assumed a formal position as a
messenger. It was only after she assumed the formal role of
messenger that she claims she was specifically criticized
and singled out for persecution. Her statement, attached to
her application, that the IJ references in the above-quoted
excerpt, begins its narrative only in March 2000; testimony
as to the background that led up to her formal association
does not contradict her application statement which begins
in 2000. See Aquilera-Cota v. INS, 914 F.2d 1375, 1382 (9th
Cir. 1990) (credibility was questioned because "oral
testimony included information not set forth in his asylum
application," but court concluded that "failure to file an
application form that was as complete as might be desired
cannot, without more, properly serve as the basis for a
finding of a lack of credibility").
The IJ does not focus on any differences between Gao’s
application and her testimony. Instead he focuses on her
attempts to reconcile what is in her report cards with her
actual activity. The IJ sees inconsistencies between Gao’s
statements and the statements of others, not among Gao’s
various recountings of her experience, which appear
consistent. Gao attempted to explain why the school would
have a different record of events than she claimed
transpired. When asked directly about whether the school
knew she was following her aunt to meetings, Gao said no,
because they thought she was too young and she had
denied that she was in the group. However, because Gao
believed she had fooled the school as to the nature of her
activity does not mean the school actually believed her
story. The inconsistency between her testimony and the
school reports is therefore, at best, speculative.
The IJ offers a possible reason why the report cards
contradict her story, namely, that their veracity should be
doubted. The IJ stated that the "Court finds it hard to
believe, actually, that the comments about her involvement
15
in those outside activities were indeed put in her note
booklet by the school itself." [A.R. 51]. However, neither the
IJ, nor either counsel, made any attempt to identify who
made the alleged alterations in her school booklet. 6 If the IJ
believes that the alteration occurred and it impacts on his
finding of lack of credibility, he must state a reason and
detail with specificity the issues of non-credibility. See
Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987) ("trier
of fact who rejects a witness’s positive testimony because in
his or her judgment it lacks credibility should‘offer ‘a
specific, cogent reason for [his] disbelief.’ ’ ") (internal
citations omitted). He does not.
Finally, having doubted the veracity of the reports cards,
the IJ then relies on them in concluding that Gao did not
truly participate in Falun Gong and therefore implies that
any discipline that Gao received was not a result of such
affiliation. The IJ says that the phrase "joining those
outdoor exercises" does not show that she was participating
in Falun Gong. [A.R. 48]. This is not only inconsistent with
the IJ’s conclusion that the report cards were suspect, but
also appears to be a complete non sequitur, since Gao
never claimed that the report cards showed she was an
active member in Falun Gong prior to her becoming a
messenger in March 2000. She equivocated only when
attempting to explain her guess as to what was on the
minds of school officials, whom she believed were not
suspicious of her activities at that particular time. The IJ
failed to make this crucial distinction and finds
contradiction where none exists in her testimony:
The respondent’s testimony boiled down to simply
saying that the school was suspicious of her, but that
sounds a little bit more like a plat device for dealing
with the fact that she could neither say that she was
in Falungong at that time nor say she was not, because
evidence in the hearing she had here was contradictory
_________________________________________________________________
6. Those who handled the documents included the school, Gao (before
she left China), Gao’s parents in China, Gao’s relatives in the United
States, and Gao’s lawyer. The identity of the person who altered the
documents, if they were indeed altered, would have different implications
for Gao’s credibility.
16
on this question, and to deal with the contradiction she
said that the school officials in effect were suspicious
but did not know.
[A.R. 50].
Contrary to this statement by the IJ, Gao’s testimony is
not contradictory as to the nature of her relationship with
the Falun Gong. Her testimony was that she began
following her aunt around in 1998, but that she did not
believe the school knew of this activity. In March 2000, she
began her role as a messenger, which she believes the
school discovered when a classmate reported her activity. It
was this discovery that she alleges led to her expulsion and
subsequent detention. If Gao misinterpreted the school’s
early vague statements about social exercises to mean
something other than Falun Gong, that does not make her
story contradictory. Before her expulsion and arrest, she
seems to have believed that the school did not know of her
informal links to the Falun Gong. This is what she said in
her testimony. In hindsight, the record indicates the school
may have been more suspicious of her activity than she
believed, but the IJ doubts the credibility of those
documents. See Balasubramanrim, 143 F.3d at 162 (when
document "may not represent an accurate account of the
persecution . . . suffered . . the Board placed undue
reliance on" it). However, whatever the school’s suspicions
or her beliefs about them, there is no evidence that
contradicts what she claims actually happened -- that the
school found out, at some point after March 2000, that she
was a messenger for the Falun Gong, she was then expelled
from school as a result, and subsequently imprisoned.
Moreover, it is arbitrary to charge Gao with knowledge of
what the school believed or what the comments in her
grade reports appear to reference.
Adverse credibility findings are afforded substantial
deference so long as the findings are supported by specific
cogent reasons. See Turcios, 821 F.2d at 1399. The reasons
must be substantial and bear a legitimate nexus to the
finding. Aguilera-Cota, 914 F.2d at 1381. With respect to
the evaluation of the report cards, we conclude that the IJ
failed to ground his conclusion on substantial reasoning on
the record, or provide a logical nexus between the report
17
cards and Gao’s credibility. Without adequate reasoning
supported by substantial evidence on the record, we cannot
defer to the IJ’s decision.
C. The Disciplinary Determination
The IJ’s heavy reliance on the report cards as
contradictory evidence of Gao’s claims is especially
troubling because the IJ failed to discuss in any way the
other documentary evidence offered by Gao -- the
Disciplinary Determination issued by the school. The
document is a one paragraph explanation for the school’s
action. It includes a seal of the school, and notes that
copies would be sent to Gao’s parents and "[r]ecords of the
school policy and administration department." It is titled:
"Discipline Determination Regarding Student GAO Chen
Yun’s Violation." It is dated June 12, 2000. The text reads:
Inspected junior high second grade (4) student GAO
Chen Yun, female, born on 1983 March 17, this
student during her school period, did not obey the
school moral education, joined the so called social
exercise movement by her own will; has been a
messenger for the illegal group: Fa Lun Gong Group.
She was absent from class for 43 times, the policy and
administration department had educated her over and
over, she still did not regret it and caused this serious
problem, this student was disciplined for a major
demerit in March 2000, right now she keeps on joining
the Fa Lun Gong activities as their messenger, she was
questioned by the local justice department in June and
has been absent from class for 56 times since then,
she has set up a very bad influence. Based on
regulation 11 section 4 (continuous high school
discipline violation, law violation regulation) and the
regulations of the public security authority, after the
study and the decision of the school administration,
GAO Chen Yun is expelled from school, this case is
reported to the public security bureau and be
processed based on the regulations.
[A.R. 388].
18
The government in its brief attempts to show that the
primary reason for Gao’s expulsion from school was
absenteeism. The Disciplinary Determination explicitly
contradicts this, and, if credible, makes clear that the
primary reason for her expulsion was not school truancy,
but rather her link to the Falun Gong. As the Disciplinary
Determination suggests, the school took this link so
seriously that they not only expelled her, but also noted in
the letter they were referring the matter to the local public
security bureau, which Gao claims led to her working as a
prisoner in the countryside. The IJ completely ignored this
highly relevant and potentially corroborative evidence,
evidence beyond that which a typical refugee must present
to establish a claim for asylum. See Senathirajah v. INS,
157 F.3d 210, 216 (3d Cir. 1998) (corroboration not
required to establish credibility).
Determining the document’s credibility is beyond the
scope of our review in this instance, and is a task that
must be accomplished by the fact finder. See Garrovillas v.
INS, 156 F.3d 1010, 1017 (9th Cir. 1998) (On remand, BIA
should consider credibility of letters they did not consider
in initial evaluation); Sotto v. INS, 748 F.2d 832, 837 (3d
Cir. 1984) ("If the administrative record fails to reveal that
such evidence has been fairly considered, the proper course
is to remand the case to the INS so that the Service may
evaluate such evidence and consider its effect on the
application as a whole."). Because of the high probative
value of this evidence, which supports Gao’s consistent
testimony, reconciles ambiguities and conflicts with the
suspect report cards, we conclude that it was reversible
error for the IJ to fail to evaluate and discuss it.
D. Additional Adverse Credibility Determinations
The IJ, having made a credibility determination based
upon the report card evidence, pointed out three other
elements to Gao’s story he found implausible. The IJ did
not attempt to justify the foundation for this implausibility,
but merely added it to his suspicions about Gao’s story.
The IJ did not believe the story of her escape; rather he
opined that he did not believe that security would be so lax
and lenient as to allow her to escape. The IJ also found Gao
19
unresponsive when asked about her escape. The record,
however, indicates that far from being unresponsive, Gao
gave specific and detailed answers to the question, even
working through the translator. She did not avoid
answering the question as much as she attempted to
explain her answer, as we report in the margin. 7 Having
_________________________________________________________________
7. The exchange between Mr. Bloom of the INS and Gao is instructive:
Q. And ma’am, why did they take you out of the prison that you were
in, or out of the rom [sic] that you were in?
A. Because they said since you Falungong members like to exercise, so
I’m going to let you do more stuff, so they took us to a park. It’s a big
park and it’s very dirty.
Q. And ma’am, did they have you in any handcuffs, or any kind of
restraint at that time?
A. Yes. When they took us out to, to the park we were handcuffed, and
however, as soon as we start working then we, then those stuffs are took
off.
Q. And ma’am, you indicated then at lunch time you just simply ran
away, correct?
A. (In English) Yes.
A. Yes.
Q. Didn’t anyone chase you?
A. Because all of the people are, are Falungong’s members, so they’re
really happy that I, that I could escaped.
Q. Okay. My question is, didn’t any of the guards or the officers, didn’t
they chase you?
A. They didn’t, they didn’t expect that a young child like me would run
away, and because at that, prior to that I was sitting with a big sister
and we were talking under the tree.
Q. Okay. But my question, ma’am, again is, did the officer or the
guards ever chase you?
A. Okay. We were working, we were working there counting the people,
and but we were, we were eating the lunch, they didn’t expect that, you
know, and small child like me would run away.
Q. Okay. Ma’am, you said that once already, but my question again is,
did the officers or the guards ever chase you? Did they chase you?
20
already made an adverse credibility determination based on
his suspicion of the report cards, the IJ does not provide a
foundation for his disbelief of Gao’s testimony on these
points, other than his own unsupported opinion as to how
an authoritarian government operates, including his
troubling remarks that he found "implausible . . . the
preoccupation of Chinese authorities for someone who is a
mere adjunct to the activity that the government is trying to
stop or prevent, but that is not at all involved in it herself."8
But the State Department Report contradicts this
unsupported assumption by the IJ. It seems that the
_________________________________________________________________
A. No, they did not know, so.
Q. Well, how is it that they didn’t know that you were escaping?
A. Because lots of trees in the, in the park. It’s not like here, so it’s,
it’s not difficult to, to run away. [A.R. 128-29].
8. The IJ also indicates his lack of credibility is based on a "meager
description" given by Gao as to what Falun Gong is. "She said it is a
theory of ‘truth, kindness and beauty,’ and was unable to say anything
more about what Falungong actually teaches."[A.R. 51]. The IJ did not
attempt to compare this to an actual description of the Falun Gong. A
book review, included in the record and submitted by the INS, includes
this passage:
Falun Gong combines elements of Buddhism, Taoism, and other
Eastern philosophies with a strikingly Western sensibility that
requires believers to do little more than simply lead conscientious
lives and turn the other cheek. By ‘cultivating’ truth, compassion
and forbearance practitioners are told they may increase their
‘cultivation energy’ (a measure of enlightenment)
. . . .
Though ‘China Falun Gong’ describes a set of exercises associated
with the faith, Li makes clear that there are few requirements as to
how often these must be performed, if at all.
[A.R. 334]. Mark Wallace, Falun Gong: What the religious leader who
made China tremble has to say for himself, Salon.com, September 8,
1999 at http://www.salon.com/books/feature/1999/09/08/falun/.
Gao’s comments do not appear to be far from the mark. The IJ did not
seem to consider that Gao’s "meager description" might actually reflect
the reality of the Falun Gong belief system, and is certainly consistent
with this record evidence of its requirements.
21
Chinese government is actively pursuing all means by
which to eradicate the Falun Gong movement, which
apparently cannot function without messengers, even if
they are not Falun Gong practitioners. At least on the
record it does not appear that the IJ’s conclusions are
supported.
IV. CONCLUSION
The IJ rested his decision on a credibility determination
that is not supported by substantial evidence in the record.
In addition, the IJ failed to consider or discuss potentially
corroborative evidence. Therefore, this case must be
remanded so that the IJ can reconsider the credibility of
Gao’s narrative based on the entire record, including her
explanations of seeming contradictions, serious evaluation
of the expulsion letter, and a reconsideration of the
significance of the report cards. We, therefore, grant Gao’s
petition for review and remand to the Board, with leave to
further remand to the immigration judge, for a
determination of Gao’s claims for asylum and withholding
of deportation without reliance on the adverse credibility
finding previously made. In reaching this conclusion we do
not comment on the credibility of the documents not
considered, or the ultimate credibility of the report cards
with regard to Gao’s claims. We will leave that to the fact-
finder with the understanding that any further conclusions
must be supported by substantial evidence in the record.
22
GREENBERG, Circuit Judge, dissenting:
I dissent as I regard the application for political asylum
and for withholding of deportation here as unmeritorious.
As far as I am concerned, the claim essentially is predicated
on the consequences attributable to Gao’s school truancy.
When Gao, a native and citizen of the People’s Republic of
China, arrived at the Los Angeles International Airport on
October 31, 2000, without a valid unexpired immigrant visa
or other valid entry document, she was 17 years old. Prior
to leaving China she had been an 8th grade student at the
Chao High School but was recruited in March 2000 by her
aunt to be a paid messenger for Falun Gong, an
organization with which she previously had not been
associated. In her subsequent application for asylum, Gao
stated that she feared persecution because of this activity.
Although her application states that she "participat[ed] in
the group" and feared torture for "practicing Falun Gong,"
see A.R. at 341 & 391, it is undisputed that she neither
practiced Falun Gong, nor knows how to practice it. See id.at 115 & 148. Rather, as we have indicated, she acted as
a messenger for Falun Gong. See id.In her application, Gao stated that she had been
disciplined for her March 2000 messenger activities which
caused her to be "absent from class many times."
Consequently, she stopped her activities on behalf of Falun
Gong for a time, but then resumed her participation in May
2000. See id. at 341. However, when she testified, Gao
stated that the government did not criticize her for her
participation with Falun Gong until June 2000 and that
her school’s previous criticisms of her concerned her
missing classes. See id. at 143-44. In this regard, in the fall
of 1999, during the first semester of her second year in
high school, prior to her involvement with Falun Gong, Gao
was absent 25 times and tardy 9 times, and during her
second semester in the spring of 2000, she was absent 43
times and tardy 5 times. Id. at 169 & 172. 1
Gao testified that a classmate told the school principal
that Gao participated in Falun Gong’s activities and that
_________________________________________________________________
1. In China, there are approximately 120 days in a semester. See A.R. at
116.
23
consequently, on June 13, 2000, she was expelled and
taken to the police station. She was held for two days,
scolded, teased and hit twice on her bottom with a stick.
See id. at 134. Gao states that on June 16, 2000, she was
taken to a park and made to cut grass. See id . at 109. Gao
ran away from the park during a lunch break, and stayed
with a relative for several months before beginning her trip
to the United States. See id. at 109-110.
To support her application for asylum, Gao introduced
her high school student transcript book that recorded her
attendance from 1998 to June 2000. In addition to the
absences already mentioned, the book shows that during
her last semester in school, Gao had fallen to the last sixth
in her class. See id. at 173. In the comments section
following Gao’s grades for each semester, the book
repeatedly notes that Gao was absent from school because
she "joins those outdoor exercise[s]." Id. at 167, 163, 164,
170 & 173. Gao stated that she practiced aerobics,
dancing, jumping, skating, t’ai chi, jogging and other
exercises. She testified that when her transcript book
criticized her participation in "outdoor exercises" in
January 1999, June 1999, and January 2000, the
references were to those activities. See id. at 143-47.
However, Gao asserted that when her transcript book used
similar language in June 2000, criticizing her involvement
in "exercises," it was referencing her participation in Falun
Gong. See id. at 147. Gao also asserted that although she
did not work as a messenger until March 2000, see id. at
119, her school "kind of kn[ew]" of her involvement with
Falun Gong in January 2000. Id. at 149.
As I have indicated, the record shows that Gao was
merely a messenger who neither practiced Falun Gong nor
knew how to practice it. Moreover, it is uncontested that
she missed an extraordinary amount of school over the
course of four semesters due in significant part to her
engagement in outdoor exercises including aerobics,
dancing, and running -- activities that, as the immigration
judge noted, in the context of this case, are worthy of
criticism because of their interference with her schoolwork.
See A.R. at 46. Gao admitted that some of her scores were
failing, see id. at 118-19, and that she expressed a lack of
24
interest in school. See id. at 121. She acknowledged that
criticism from the school policy and administration
department that was referenced in her transcript in
January 1999 was due to her absence from school and not
Falun Gong activities. See id. at 141-42 & 164. In fact,
Gao, though contending that her Falun Gong activities
caused the police to arrest her, acknowledged that she was
"required to attend school" and was "missing a very
significant amount of school." A.R. at 122.
It should be obvious that we have here a case involving
nothing more than a high school student being disciplined
for engaging activities diverting her attention from her
school work. While we might regard the discipline as
somewhat severe, surely it was appropriate for the
authorities to discipline her. Clearly, after Gao became a
paid messenger for Falun Gong she frequently was working
for that organization instead of attending school. The
conversion of this case into a claim for political asylum and
withholding of deportation is unjustified. I cannot
understand how any court or agency can regard a 17-year
old student who, on a wholesale basis, violates a
requirement that she attend school and then is disciplined
as a legitimate candidate for relief from deportation.
I find it useful to compare the facts in this case with
those described in our very recent opinion in Ezeagwuna v.
Ashcroft, No. 01-3294, 2002 WL 1752292, at *14 (3d Cir.
July 30, 2002), in which we found that the petitioner was
eligible for asylum because of past persecution on account
of her political opinion and that she also was entitled to
withholding of deportation. But Ezeagwuna was a serious
case where the petitioner made a very strong showing. On
the other hand here, in view of Gao’s acknowledged
misconduct, the Chinese authorities were justified in
disciplining Gao without regard for the circumstance that
she had been a messenger for Falun Gong.
I will not parse the record to demonstrate that there is
substantial evidence supporting the immigration judge’s
particularized credibility determinations although I am
satisfied that there is. See Balasubramanrim v. INS, 143
F.3d 157, 161 (3d Cir. 1998). Rather, I place my dissent on
the fact that Gao’s entire case lacks credibility. It is not
25
possible from the record to conclude that in view of Gao’s
acknowledged serious school truancy she would not have
been disciplined even if she had not been associated with
Falun Gong. As far as I can see Gao is using her
association with Falun Gong as a cover for her truancy.
Finally, I point out that we very recently noted that the
events of September 11, 2001, emphasized the heightened
need to conduct border searches. See Bradley v. United
States, No. 01-4103, 2002 WL 1723779, at *2 (3d Cir. July
25, 2002). Those tragic events also should demonstrate that
the immigration laws should not be applied so that
unworthy applicants receive relief from deportation.
I dissent as I am satisfied that we should dismiss this
petition for review.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
26