                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-24-2008

Cao-Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1658




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                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-1658
                                      ___________

                                    PING CAO-LIU,
                                                           Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A98-717-860 )
                   Immigration Judge: Honorable Alberto J. Riefkohl
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 2, 2008

                 Before: FUENTES, WEIS and GARTH, Circuit Judges

                             (Opinion filed: April 24, 2008)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Ping Cao-Liu petitions for review of the Board of Immigration Appeals’ (“BIA”)

order dismissing his appeal from the Immigration Judge’s (“IJ”) denial of his applications

for asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). For the reasons set forth below, we will grant the petition for review and

remand for further proceedings consistent with this opinion.

      Cao, a native and citizen of the People’s Republic of China, entered the United

States without inspection on December 24, 2004. Four days later, Cao was served with a

Notice to Appear charging him as an alien present in the United States without being

admitted or paroled. See INA § 212(a)(6)(A)(i) (8 U.S.C. § 1182(a)(6)(A)(i)). On May

5, 2005, Cao submitted applications for asylum, withholding of removal, and relief under

the CAT on the ground that he had been persecuted for practicing Falun Gong in China.

      At his December 15, 2005 removal proceedings, Cao testified that the Chinese

government had punished his family for practicing Falun Gong on several occasions. The

first incident took place in August 1999, when both his parents were arrested and detained

for their Falun Gong activities. His parents were arrested again on January 20, 2004, and

this time, Cao’s younger brother was arrested as well. Chinese authorities sent Cao’s

parents to a labor camp for six months and detained his brother for one month, during

which time he was repeatedly beaten. Then, in September 2004, Cao himself was

arrested while practicing Falun Gong at a friend’s house. He was beaten and detained for

one month. Cao and his brother left China approximately six weeks after Cao was

released. Cao eventually settled in Neptune, New Jersey, and his brother settled in New

York City.




                                            2
         Following the hearing, the Immigration Judge denied Cao’s applications and

ordered that he be removed to China pursuant to the charges in the Notice to Appear. The

IJ found Cao to be “honest” and “not evasive,” but nevertheless denied his application on

the ground that he had failed to provide sufficient evidence to corroborate his story. In

particular, the IJ believed that Cao should have asked his brother to attend the hearing in

order to corroborate Cao’s account of the persecution he suffered in China. Upon review,

the BIA agreed, stating that, “the respondent’s brother lives in nearby New York, but

failed to appear at the hearing to present testimony despite having personal knowledge

regarding the alleged persecution in this case.” Accordingly, the BIA affirmed the IJ’s

decision on February 9, 2007. The present petition for review followed.

         We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. §

1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). Where, as here,

the BIA defers to the IJ’s findings, we review the IJ’s decision to assess whether the

BIA’s decision to defer was appropriate. See id. at 549 n.2. We review an IJ’s factual

findings, including his determination of whether an alien was subject to persecution,

under the substantial evidence standard. Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.

2004).

         To establish eligibility for asylum, an applicant must demonstrate past persecution

or a well-founded fear of persecution that is both subjectively and objectively reasonable.

Singh v. Gonzales, 406 F.3d 191, 195 (3d Cir. 2005). An applicant who establishes that



                                              3
he or she has suffered past persecution on account of one of the five grounds enumerated

in the INA “triggers a rebuttable presumption of a well-founded fear of future

persecution, as long as that fear is related to the past persecution.” Id. at 196 (citing 8

C.F.R. § 208.13(b)(1)) (quotation omitted).

       In the present case, Cao sought to qualify for asylum by demonstrating that he had

suffered past persecution for practicing Falun Gong. See 8 U.S.C. § 1101(a)(42)(A). The

IJ found that although Cao’s testimony was credible, he failed to meet his burden of proof

because he failed to corroborate his testimony with that of his brother. While we have

held that in certain circumstances, an IJ may require an otherwise credible asylum

applicant to provide corroborating evidence in order to meet his burden of proof,

see Abdulai, 239 F.3d at 554, we do not believe that it was reasonable for the IJ to expect

the brother’s corroboration here. Cao testified that when he was arrested in 2004, he was

not at home but at a friend’s house, and nothing else in the record suggests that Cao’s

brother had any knowledge of the circumstances surrounding Cao’s arrest. Furthermore,

when Cao was asked why his brother did not attend, Cao explained that he rarely sees his

brother, and that his brother had to work on the day of the hearing. Given this evidence,

it was not reasonable for the IJ and the BIA to require the brother’s testimony.

       Therefore, we conclude that the justification for denying Cao’s application for

asylum is not supported by substantial evidence. Moreover, to the extent that the IJ and

BIA relied on this lack of corroboration to deny Cao’s applications for withholding of



                                               4
removal and relief under the CAT, these decisions are not supported by substantial

evidence.




      Accordingly, we will grant the petition for review, vacate the BIA’s order and

remand to the BIA with directions to remand to the IJ to grant Cao-Liu’s petition for

asylum.




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