                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2006

Gao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2481




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-2481


                                  XIU RONG GAO,
                                             Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A78-226-487


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 27, 2006


          Before: BARRY, VAN ANTWERPEN and SILER,* Circuit Judges


                            (Opinion Filed: August 7, 2006)


                                       OPINION




   *
     The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
BARRY, Circuit Judge

       Petitioner Xiu Rong Gao, a native of Changle City in the Fujian province of China,

asks this Court to grant her petition for review of an order of the Board of Immigration

Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of her applications for

asylum and withholding of removal. For the following reasons, we will deny the petition.

                                            I.

       Gao entered the United States in February 2000 and subsequently filed an

application for asylum and withholding of removal with the former Immigration and

Naturalization Service (“INS”). Because she entered without being admitted or paroled,

Gao was charged with inadmissibility under section 212(a)(6)(A)(i) of the Immigration

and Nationality Act (“INA”). See 8 U.S.C. § 1182(a)(6)(A)(i). Gao conceded the charge,

but reasserted her applications for asylum and withholding of removal.

       At her January 19, 2001 hearing, Gao testified that she and her husband, Shea

Sheng Gao, were married in 1989, and had their first child, a son, on January 1, 1990. In

April 1990, Chinese family planning officials, enforcing China’s one-child policy, forced

Gao to have an intra-uterine device (“IUD”) implanted to prevent additional pregnancies.

Gao later went to a private doctor to remove the IUD, and she became pregnant again in

August 1991. Fearful that local authorities would discover her pregnancy and force her to

have an abortion, Gao claims that she hid in her aunt’s home for approximately nine

months. Gao returned home in May 1992 to prepare to deliver her baby. Three days

later, family planning officials arrived at her home and demanded that Gao have an

                                             2
abortion. The officials relented, however, after Gao’s father-in-law paid them a bribe.

       Gao gave birth to her second child, a daughter, on June 13, 1992. Three days later,

Gao testified, family planning officials again came to her home, and this time brought her

to a medical facility where she was sterilized against her will. Gao’s husband confronted

the officials, according to her asylum application, and afterwards, “[i]n fear of being

detained and tortured, he fled home immediately.” (A.R. 699.) The husband went to live

in the province of Hubei for three years, and then left China for the United States where

he applied for asylum in 1995. His application was denied, and he was ordered deported

to China. The BIA affirmed. In 2000, Gao followed her husband to the United States.

       In addition to her testimony, Gao submitted a number of documents. Among them

was a certificate from the “LongMen Village Committee” of “ChangLe City” purporting

to certify that Gao “had female sterilization in June 1992 and [that she and her husband

had] paid [a] fine.” (A.R. 382.) Additionally, she submitted reports from two American

doctors who, after examining her, believed that she had been sterilized, and submitted

excerpts from the record of her husband’s removal proceeding.

       On March 28, 2001, the IJ rejected Gao’s asylum and withholding of removal

claims. The IJ found that “although it is clear that Respondent has been sterilized, the

court is without reliable and credible evidence from Respondent concerning when

sterilization took place and whether sterilization was involuntary.” (A.R. 121.) The IJ

pointed out a number of discrepancies and implausibilities in Gao’s testimony and

evidence. For instance, there were differences between Gao’s sterilization certificate and

                                             3
a certificate Gao’s husband submitted during his removal proceedings purporting to

evidence his wife’s sterilization. Additionally, Gao submitted a document stating that she

and her husband registered their marriage with the government on March 10, 1992, which

is during the period of time Gao testified that she was in hiding from government

officials.

       On appeal, the BIA remanded the case for reconsideration of the adverse

credibility determination. In its June 13, 2003 opinion, it explained that “[w]hile we do

not entirely disagree with some of the concerns outlined by the [IJ] regarding the

plausibility of the applicant’s claim, we do note that the [IJ] erred when she found that

respondent came out of hiding to register her marriage in 1992.” (A.R. 76.) The BIA

pointed out that Gao testified that her husband’s friend helped them to register the

marriage so that she did not have to come out of hiding. The BIA directed that the parties

should be permitted to provide further evidence.

       The IJ held a hearing on September 2, 2003 at which Gao declined to add to her

evidence. On October 14, 2003, in a new opinion fully incorporating her prior March 28,

2001 opinion, the IJ again found Gao incredible and ordered her removed to China. The

IJ noted that Gao’s “written submission claimed that she and her husband registered their

marriage in China yet she suddenly in testimony claimed that a friend arranged the

certificate’s issuance.” (A.R. 34.) In addition, the IJ observed that Gao’s application

“seems to be a patching-up job” of problems in her husband’s failed asylum application,

including the fact that Gao’s “sterilization certificate was redone.” (A.R. 34.) The IJ

                                             4
found it telling that, despite his availability, Gao refused to call her husband as a witness

to clear up discrepancies between their stories.

       Gao again appealed to the BIA, which affirmed the IJ’s decision “finding the

respondent incredible and denying her requests for relief.” (A.R. 2.) Gao now petitions

for review of that decision.1

                                              II.

       Under § 208(a) of the INA, 8 U.S.C. § 1158(b), the Attorney General has the

discretion to grant asylum to a “refugee,” that is, an alien “who is unable or unwilling to

return to, . . . [his or her] country [of nationality] 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.” See 8 U.S.C. § 1101(a)(42)(A); Zubeda v.

Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). An asylum applicant bears the burden of

establishing that he or she is a “refugee.” 8 C.F.R. § 1208.13(a).

       While the decision to grant asylum is discretionary, “the Attorney General must

grant withholding of removal if the alien demonstrates a ‘clear probability’ that, upon

return to his or her home country, his or her ‘life or freedom would be threatened’ on

account of race, religion, nationality, membership in a particular social group, or political

opinion.” Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). “An alien who fails to

establish that he or she has a well-founded fear of persecution, so as to be eligible for a


1
 The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3). We have jurisdiction
under 8 U.S.C. § 1252(a)(1). Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).
                                               5
grant of asylum, necessarily will fail to establish the right to withholding of removal.” Id.

Congress has specified that “a person who has been forced . . . to undergo involuntary

sterilization, . . . shall be deemed to have been persecuted on account of political

opinion.” 8 U.S.C. § 1101(a)(42)(B).

       Where, as here, the BIA summarily affirms a decision by the IJ, we review the IJ’s

decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). The IJ’s findings of

fact, including an adverse credibility determination, will be upheld only if they are

“supported by reasonable, substantial, and probative evidence on the record considered as

a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480 (1992). “To reverse the BIA finding

we must find that the evidence not only supports that conclusion, but compels it.” Id. at

481 n.1.

       “[A]n alien’s credibility, by itself, may satisfy his burden, or doom his claim.” Dia

v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003). For an adverse credibility determination to

be supported by “substantial evidence,” the IJ or BIA must provide “specific, cogent

reasons” for finding the alien’s testimony incredible. Id. at 249 (quoting Gao v. Ashcroft,

299 F.3d 266, 276 (3d Cir. 2002)). “Those reasons must bear a legitimate nexus to the

finding, and must be ‘valid grounds’ for disregarding an applicant’s testimony.” Secaida-

Rosales v. INS, 331 F.3d 297, 307 (3d Cir. 2003) (internal citations omitted). Valid

grounds include “inconsistent statements, contradictory evidences, and inherently

improbable testimony in view of the background evidence on country conditions,” but

may not include mere “speculation or conjecture.” Dia, 353 F.3d at 249.

                                              6
                                             III.

       Gao argues that it was inconsistent for the IJ to conclude that she was sterilized,

yet also find the rest of her testimonial and documentary evidence incredible. We

disagree. In order to establish persecution, it was Gao’s burden not only to demonstrate

that she was sterilized, but that the sterilization was involuntary. See 8 U.S.C. §

1101(a)(42)(B). While the doctors’ reports support the IJ’s conclusion that Gao was

sterilized, they say nothing about whether or not it was voluntary. Gao’s only evidence

that her sterilization was involuntary is her testimony to that effect. Testimony alone can,

of course, be sufficient, but only if that testimony is credible. See Dia, 353 F.3d at 257.

       The IJ’s finding that Gao’s testimony was not credible is supported by substantial

evidence. First, her testimony as to the sterilization certificate casts serious doubt on her

claims. At her husband’s asylum hearing, he testified much the same as Gao did at her

hearing, namely that she gave birth to their second child on June 13, 1992, and that a few

days later, authorities took her away for sterilization. As corroboration, her husband

submitted a document stating that Gao “is sterilized in my village and also pays $20,000

for . . . over birth according to the ‘birth control’ policy.” (A.R. 301.) This document

bore the stamp of the “Long Meng Village Committee, Heng Cheng Town, Changle

City,” and is dated April 6, 1996. Id. Despite the existence of this sterilization

certificate, Gao submitted a second sterilization certificate, dated May 19, 2000 and

bearing a similar seal, to the IJ. Gao’s certificate is more specific than the one her

husband submitted in that it says her “female sterilization” was “in June 1992,” and less

                                              7
specific in that it simply notes that she “paid fine.” (A.R. 382.) Gao claims that her

certificate—which is dated after her arrival in the U.S.—was obtained for her by her aunt

in China. When questioned why she felt the need to obtain a new certificate, Gao stated

that her husband’s certificate incorrectly indicated she was sterilized in “September.”

(A.R. 209.)

       Gao’s explanation for the existence of two sterilization certificates is without

merit. First, no “September” date appears in the English translation of the document

submitted by her husband. Even if it did, however, such an important error in the first

certificate justified the IJ’s skepticism about the accuracy of the second. Moreover, Gao

failed to coherently explain what the “LongMen Village Committee” is, or by what

authority it can certify the occurrence of an event such as a sterilization; indeed, she

indicated in her testimony that this committee does not verify the truthfulness of the

information it certifies.2 These discrepancies call into question the credibility of Gao’s

testimony surrounding the sterilization and the sterilization certificate she submitted.

       Inconsistencies in Gao’s testimony regarding the registration of her marriage also

support the IJ’s adverse credibility determination. Gao testified that during her second

pregnancy, from August 1991 until May 1992, she hid from “local authorities” at her

aunt’s home to avoid being forced to have an abortion. (A.R. 169-70.) Nevertheless, she

submitted a “notarial certificate” certifying that she and her husband “were married at the


2
 The IJ asked Gao, “So then officials [from the committee] sign anything, even if it’s
wrong. Correct? Am I right?” Gao replied, “Yeah, right.” (A.R. 212.)
                                              8
registry office on March 10, 1992 . . . [in] Changle County, Fujian Province.”3 (A.R.

333.) On cross examination, Gao attempted to explain that she and her husband did not

go themselves to register their marriage, but instead her husband “had a friend who

worked at the marriage license office, and . . . the friend help us.” (A.R. 180.) She could

not recall the name of this “friend.” (A.R. 182.) She further testified that they waited

until this date to register their marriage because in 1989 they were not yet of legal age to

be married in China. She claimed that registering her marriage while in hiding did not put

her pregnancy in danger of being discovered because the “marriage license office has

nothing to do with the family planning.” (A.R. 182.)

         The IJ was correct to find it implausible that someone who would flee her home

for nine months to avoid government detection in order to prevent an abortion would risk

making any contact with the government during that same period. Even assuming that

Gao and her husband did not register their marriage in 1989 because they were not yet of

age to do so, Gao offered no explanation for why the couple could not simply wait until

after the birth of their second child to register, having already waited so long to do so.

Additionally, Gao did not know the name of the friend who supposedly performed this

important favor. Her husband knew, but failed to testify even after Gao was given a

second opportunity to produce evidence at the September 2, 2003 remand hearing.

         We find that the adverse credibility determination is supported by substantial



3
    Additionally, Gao’s marriage certificate, dated March 10, 1992, appears in the record.
                                               9
evidence in the record.4 The inconsistencies detailed above “go to the heart of [Gao’s]

claim,” see Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004), i.e., that Chinese family

planning officials forced her to be sterilized in June of 1992. Because Gao failed to

demonstrate eligibility for asylum, the IJ also correctly denied her claim for withholding

of removal.

                                             III.

       In light of the foregoing, the petition for review will be denied.




4
  We do note, however, that the IJ made other factual findings that were not supported by
substantial evidence and, thus, do not support the adverse credibility determination. One
is the IJ’s finding that Gao “admits that the date of sterilization was provided by relatives,
not established by the committee that issued the certificate stating the supposed date.”
(A.R. 34-35.) Gao did not admit this. She testified, “[n]o, we, we just do not give [the
committee] the date. We just go in there asking for the record, and they just look it up,
the record.” (A.R. 211.) Additionally, the IJ found that Gao’s asylum application
incorrectly said her husband “fled China to avoid arrest.” (A.R. 119.) These words do
not appear in Gao’s application. Gao only stated that “he fled home immediately.” (A.R.
699.) While these errors by the IJ give us pause, they ultimately do not affect our
conclusion that the IJ’s decision is supported by substantial evidence.
                                             10
