Gao, Qiang v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 18, 2006*
Decided January 18, 2006
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1516
Petition for Review of an Order of the
QIANG GAO, Board of Immigration Appeals
Petitioner,
v. No. A79 287 670
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Qiang Gao, a native and citizen of China, petitions for review of the Board of
Immigration Appeals' decision affirming the Immigration Judge's denial of Gao's
application for asylum, withholding of removal, and relief under the Convention
Against Torture. The IJ denied Gao relief because he found Gao had submitted
fraudulent documents that were central to his claim and was therefore not credible.
Since the IJ's adverse credibility determination was supported by "specific, cogent
reasons," we deny the petition.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1516 Page 2
Gao claims that he has a well-founded fear of persecution for resisting
China's one-child policy. He says that after his wife gave birth to their first child in
1991, Chinese family planning officials forced her to have an intra-uterine birth
control device, (IUD), inserted. However, his wife had the IUD removed at a private
clinic and became pregnant again. According to Gao, the Chinese authorities forced
his wife to abort this second pregnancy in 1993. When the officials came to take his
wife to get the abortion, Gao says he fought with them and accidentally injured the
son of a local communist party official. Because of this incident, Gao was afraid he
would be imprisoned and hid for seven years before coming to the United States in
2000.
At his merits hearing Gao submitted corroborating evidence which included
two certificates purportedly from a Chinese hospital verifying his wife's IUD
insertion and abortion. Gao also submitted a receipt for an over-birth fine that he
says he was forced to pay.
The government submitted the testimony of an expert witness, Elaine
Wooten, a document examiner at the government's forensic document lab (FDL).
Gao did not challenge her expert qualifications. Wooten concluded that all three of
these documents were probably fraudulent. Wooten based her conclusions on the
following. Legitimate government documents are generally produced by a printing
press as this is a more efficient way of producing large numbers of documents. But
the ink used on the two hospital certificates indicated that they were produced by a
photocopier. In addition, the serial numbers on the certificates were made by a
letterpress numbering machine. Letterpress numbering machines, which cause
indentations in the surface of the paper, are usually part of a printing press
production and normally are not affixed to photocopied documents according to
Wooten. Therefore, it was unusual that Gao's documents, being photocopies, had
then been separately put through a letterpress.
In addition, the certificates were supposedly issued more than a year apart,
but they bore the same marks, which Wooten concluded were caused by defects in
the photocopier's toner drum. Wooten thought it highly unlikely that the toner
drum would not have been replaced in over a year, and a new drum should have
created different marks. Wooten also found the same marks on documents in an
unrelated case. In one of those other cases, the document was supposedly issued six
to seven years after the documents submitted by Gao. This indicated to her that all
these documents were fraudulently produced by the same photocopier. Finally,
with respect to the fine receipt, Wooten found the serial numbers on it were created
using the same letterpress machine used on the hospital certificates. Therefore, she
concluded it had probably been fraudulently created by the same individuals who
created the fraudulent hospital certificates.
No. 05-1516 Page 3
Gao testified after Wooten and offered no explanation or excuse for the
dubious authenticity of his documents. The IJ continued the hearing to give Gao a
chance to present a witness to rebut Wooten's testimony. When he did not do so,
the IJ issued a decision denying Gao all relief but granting him voluntary
departure. Specifically, the IJ found that Gao had submitted fraudulent documents
based on Wooten's report and testimony, and therefore was not credible. Gao
appealed and, while his appeal was pending, attempted to submit to the BIA
statements from doctors and a government official ostensibly certifying the
authenticity of his hospital certificates and fine receipt. The BIA found no error in
the IJ's decision and rejected Gao's new documents stating that it was not
permitted to engage in fact-finding. It also ruled that Gao had not met the
requirements for a motion to remand because he had not shown that this evidence
was previously unavailable.
Since the BIA adopted the IJ's credibility determination, we review the IJ's
decision directly. Tabaku v. Gonzales, 425 F.3d 417, 421 (7th Cir. 2005). We review
an IJ's credibility determination of a petitioner's claimed fear of persecution
deferentially and will uphold it if it is supported by "specific, cogent reasons." Ssali
v. Gonzales, 424 F.3d 556, 561–62 (7th Cir. 2005) (internal quotation marks and
citation omitted).
The IJ's decision in this case was amply supported by evidence in the record.
The submission of fraudulent documents on matters central to one's claims can be
grounds for an adverse credibility finding. See Hysi v. Gonzales, 411 F.3d 847,
852–53 (7th Cir. 2005) (upholding IJ's adverse credibility determination where the
FDL determined that the applicant who claimed he was persecuted for writing
newspaper articles had not really written articles in question), cert. denied, No. 05-
544, 2006 WL 37110 (U.S. Jan. 9, 2006); see also Selami v. Gonzales, 423 F.3d 621,
625 (6th Cir. 2005). Wooten testified that Gao's documents were likely fraudulent,
and she provided the IJ with a detailed explanation for her conclusions.
Furthermore, the contested documents go to the heart of Gao's claims for relief,
specifically whether Gao's wife was forced to get an abortion and submit to other
coercive population control practices. Gao offered no answer to the expert's
suspicions nor did he disclaim knowledge of the fraud. The IJ's decision to base his
adverse credibility finding specifically on Wooten's testimony was therefore
reasonable and cogent.
As for Gao's argument that the certifications he attempted to present to the
BIA while his appeal was pending rebut Wooten's conclusions, the BIA correctly
held that it is not permitted to engage in fact-finding. 8 C.F.R. 1003.1(d)(3)(iv); see
also Reyes-Hernandez v. I.N.S., 89 F.3d 490, 494 (7th Cir. 1996). Petitioners who
discover new evidence while their appeal before the BIA is pending are supposed to
No. 05-1516 Page 4
make a motion to remand their case to the IJ. 8 C.F.R. 1003.1(d)(3)(iv). The BIA
construed Gao's submission of new documents to be a motion to remand, but it
properly denied this motion because Gao never explained why he could not have
presented the certifications to the IJ at his initial hearing. See Berte v. Ashcroft,
396 F.3d 993, 997 (8th Cir. 2005); see also Cao v. U.S. Dep't of Justice, 421 F.3d 149,
156–57 (2d Cir. 2005) (motions to remand are held to same requirements as motions
to reopen); Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005) (motion to
remand is equivalent to motion to reopen filed while appeal is pending); 8 C.F.R.
§ 1003.2(c)(1).
For the foregoing reasons, we DENY the petition for review.