                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2577




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                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 04-2577


                                     MING GAO,

                                      Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                     Respondent


                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                 (BIA No. A95-864-224)




                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                September 27, 2005

             Before: RENDELL, FUENTES and GARTH, Circuit Judges.

                               (Filed: October 19, 2005)


                                OPINION OF THE COURT




FUENTES, Circuit Judge.

      Ming Gao petitions for review of a decision by the Board of Immigration Appeals
(“BIA”) affirming the rejection by an Immigration Judge (“IJ”) of his applications for

asylum, withholding of removal, protection under the Convention Against Torture

(“CAT”), and voluntary departure in lieu of removal. We find that there is substantial

evidence to support the IJ’s and the BIA’s decisions and accordingly deny Gao’s petition.

                             I. Facts and Procedural History

       Because we write only for the parties, we will recount only the essential facts. A

native of the People’s Republic of China, Gao illegally entered the United States on or

around December 10, 2001. He concedes that he is removable under Section 237(a)(1)(A)

of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(1)(A), but has applied for asylum,

withholding of removal, protection under CAT, and, those failing, voluntary departure in lieu

of removal.

       Gao is married and has two children. Though his wife Shu Fang Lin is also a Chinese

national in the United States illegally, their two children, both born in Pennsylvania, are

American citizens. Gao claims that if he is removed from the United States and returned to

China, he and his family will be subject to China’s coercive family planning policies and

possibly fined or jailed. In supporting these claims, Gao makes two primary arguments: 1)

that Lin, his wife, has been a victim of a past persecution in the form of her having been

forced to have an abortion in 1999 and 2) that should they be forced to return to China, the

family would face likely future persecution based upon both i) their having two sons in

violation of China’s one child per family policy and ii) their having left China illegally.



                                             2
Making similar arguments, Lin sought asylum in the United States in 2001; her application

was denied.

       The United States Immigration and Naturalization Service (now part of the

Department of Homeland Security) initiated removal proceedings by serving Gao with a

Notice to Appear. Conceding removability, Gao argued in his removal proceedings that he

should be deemed a refugee and permitted to stay in the United States. At the conclusion of

the removal proceedings, the IJ determined that both Gao and Lin (who both testified) lacked

credibility and denied all four of Gao’s applications. Additionally, the IJ determined that

there was no evidence Lin was once forced to have an abortion in China or that Gao and Lin

were likely to face persecution if deported. The BIA affirmed in an opinion adopting the IJ’s

decision and adding brief additional analysis relating to the likelihood of the couple’s being

persecuted for having two children or for having left China illegally. Gao timely filed an

appeal of the BIA’s dismissal to this Court.

                                       II. Discussion

       Because the BIA both adopted the findings of the IJ and discussed some of the

bases of the IJ’s decision, we review the decisions of both the BIA and the IJ. Chen v.

Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). For the reasons discussed below, we affirm.

A.     Adverse Credibility and Past Persecution

       We review adverse credibility determinations for substantial evidence. Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under this deferential standard of review, we



                                               3
must uphold the IJ’s adverse credibility determination and the BIA’s affirmance thereof

unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B). Hence, for Gao to prevail, the evidence of credibility must be so

strongly in his favor that this Court concludes there is simply no way a competent

adjudicator could have determined that he and his wife lacked credibility. We should

note, however, that adverse credibility determinations “based on speculation or

conjecture, rather than on evidence in the record, are reversible.” Dia v. Ashcroft, 353

F.3d 228, 249 (3d Cir. 2003) (en banc) (quoting Gao v. Ashcroft, 299 F.3d 266, 272 (3d

Cir. 2002)).

       Here, there is ample evidence that the determinations as to Gao’s and Lin’s

credibility were supported by the record. Though there are many examples, certain

discrepancies stand out. For instance, Gao claims Lin was forced to have an abortion in

China, yet provides no medical evidence of the procedure having occurred other than a

Chinese hospital certificate of questionable origin. Given that she has had two children in

the United States–at least one of them in a Philadelphia hospital–Lin clearly had access to

medical corroboration, and because a forced abortion is the only past persecution alleged

to have occurred in China, it was surely reasonable for the IJ to conclude such persecution

never occurred in light of the evidence before her. Similarly, in discussing their marriage

that took place in New York, Gao and Lin offered accounts contradicting each other as to

essential details, including whether there was a ceremony at all, whether the ceremony



                                             4
took place in a church, and whether it was presided over by a minister. Perhaps most

importantly, the IJ had the advantage of observing Gao and Lin on the witness stand.

Based on her observations, she noted that while the husband and wife had no trouble

answering questions covered in their affidavits quickly and coherently, they seemed to

have a great deal of trouble answering even the most simple factual questions that were

not covered in their affidavits, often hesitating before answering and offering internally

inconsistent responses. This behavior further suggests a pronounced lack of credibility.

Finally, we note that the IJ detailed the reasons why she made each of her adverse

credibility determinations, effectively showing that she was in fact basing each of her

determinations on evidence in the record pursuant to her duty under Dia. We see no

evidence compelling us to reach the conclusion that the IJ improperly made her adverse

credibility determinations.

       We add briefly that the mere fact some of the factual determinations the IJ made

eventually proved incorrect does not compel us to determine that a reasonable fact-finder

would not have made the adverse credibility determinations the IJ made based on the

record and evidence before her. So while it is true that the IJ’s speculation 1) that Gao

was not the father of Lin’s first child because his name did not appear on the child’s birth

certificate and 2) that the couple is not in fact married may be incorrect,1 we acknowledge


       1
        A DNA test performed after the IJ issued her Oral Decision proved that Gao is the
child’s biological father. The purported existence of the couple’s marriage is less clear,
but the existence of a marriage certificate from Monroe, New York–the third American

                                             5
that the IJ had to make a number of difficult factual findings and recognize that the

totality of the circumstances justified her determinations. Most importantly, none of

possibly erroneous factual determination the IJ made are essential to our analysis and

ultimate denial of Gao’s petition.

B.     Likelihood of Future Persecution

       We also affirm the IJ’s and BIA’s determination that Gao failed to show he would

more likely than not face persecution if forced to return to China. See Cao v. AG of the

United States, 407 F.3d 146, 153 (3d Cir. 2005) (stating “more likely than not” standard).

We accept the IJ’s and BIA’s determination that the mere fact Gao and Lin have two

children does not make it more likely than not they will be persecuted upon returning to

China. Though such persecution may have been common in the past, we accept the IJ’s

and BIA’s determination that China’s central government now prohibits the use of force

to compel women to submit to abortion or sterilization. While we accept the notion that

these practices still take place in certain rural parts of China–as well as the assertion that

Gao and Lin may be subject to fines for violating China’s one child per family

policy–Gao failed to show that his and his wife’s town of origin, Changle City, is such a

place. Further, as discussed above, we agree with the IJ’s determination that no medical

proof was presented of Lin’s forced abortion, the only past persecution Gao alleges. And

whereas “a showing of past persecution gives rise to a rebuttable presumption of a



jurisdiction where the couple sought a license–suggests that they may in fact be married.

                                               6
well-founded fear of future persecution,” here no such showing has been made. Id. The

lack of conclusive evidence as to past persecution buttresses our view that a claim of

future persecution has not been established.

       The BIA added two arguments in its affirmance of the IJ’s Oral Decision. First, it

pointed out that regardless of whether the couple’s New York marriage was legitimate,

the fact that Gao concedes that the couple was never officially married in China

extinguishes his past persecution claim based upon Lin’s alleged forced abortion.2 We

need not address this issue, as we believe the IJ and BIA were correct in their

determination that Gao has failed to establish that a forced abortion occurred. Second,

the BIA added that the claim that Gao will face persecution for leaving China illegally

would not, if true, constitute persecution. We concur. See Matter of Sibrun, 18 I. & N.

Dec. 354, 359 (BIA 1983); see also Janusiak v. INS, 947 F.2d 46, 48-49 (3d Cir. 1991).

                                     III. Conclusion

       For the foregoing reasons, we deny Gao’s petition for review.




       2
        The BIA has extended asylum protection to include the husband of a woman who
has been sterilized or otherwise subject to a coercive population control program, as
defined by 8 U.S.C. § 1101(a)(42)(B). In re C-Y-Z, 21 I. & N. Dec. 915, 918 (BIA
1997). In C-Y-Z, the BIA found that a husband of a woman forcefully sterilized could
“stand in her shoes” in the context of his pursuit of asylum. Id.

                                               7
