                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1385




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                                                                NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                     No. 06-1385


                                     ZHIE GAO,
                                                   Petitioner

                                          v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent


                    PETITION FOR REVIEW OF A DECISION OF
                     THE BOARD OF IMMIGRATION APPEALS
                              Agency No. A79-305-636
                       Immigration Judge: Hon. Eugene Pugliese


                               Argued: March 30, 2007


             Before: RENDELL, BARRY and CHAGARES, Circuit Judges

                            (Opinion Filed: April 18, 2007)




Joshua E. Bardavid, Esq. (Argued)
22nd Floor
401 Broadway
New York, NY 10013

Counsel for Petitioner
Paul Mansfield, Esq. (Argued)
Richard M. Evans, Esq.
Suite 1250
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

Counsel for Respondent



                                         OPINION



BARRY, Circuit Judge

       The procedural history and facts of this case are well known to the parties, and

need not be reprised. Suffice it to say that on April 23, 2004, an immigration judge (“IJ”)

denied the application of petitioner, Zhie Gao, for political asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). Based on

discrepancies between Gao’s testimony and his written application, the IJ made an

adverse credibility determination and concluded that his lack of credibility “affects all his

applications.” App. vol. 1 at 10.

       Gao timely appealed to the BIA. On December 28, 2005, the BIA affirmed the

IJ’s adverse credibility determination “except insofar as the Immigration Judge made a

finding that it was ‘non-sensical’ that the respondent would come to the United States

when his wife was pregnant in China.” (App. vol. 2 at 2.) The BIA further found that

Gao had failed to establish his eligibility for relief under the CAT because he had not


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demonstrated that he suffered past torture or that he could not relocate to another area of

China to avoid torture in the future. This petition for review followed.

          We have jurisdiction pursuant to 8 U.S.C. § 1252 and review adverse credibility

determinations of the IJ or the BIA for substantial evidence. Chen v. Ashcroft, 376 F.3d

215, 222 (3d Cir. 2004). Because the BIA affirmed the IJ’s findings of material

inconsistencies in the record without making an independent credibility determination of

its own, we review the IJ’s decision as the final agency decision. Xie v. Ashcroft, 359

F.3d 239, 242 (3d Cir. 2004). To overcome an adverse credibility determination, “the

evidence of credibility must be so strong in [the applicant’s] favor that in a civil trial he

would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d

at 222.

          The BIA made an independent finding that Gao failed to establish his entitlement

to relief under the CAT. We review that finding of the BIA for substantial evidence.

Wang v. Ashcroft, 368 F.3d 347, 349-50 (3d Cir. 2004).

          There is substantial evidence in the record to support the IJ’s adverse credibility

determination based on discrepancies between Gao’s January 23, 2001 affidavit and his

February 11, 2002 and April 23, 2004 testimony. He initially attested that he and his wife

decided to go into hiding after receiving an official “notice to report for an IUD and

pregnancy check-up” (App. vol. 2 at 279), but later attributed his decision to a July 2000

confrontation with “several” cadres who came to his home to “take [his] wife away” (id.

at 117-18). Indeed, his affidavit omits any mention of this pivotal July 2000

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confrontation, stating only that officials came to his house “several times” between the

April 4, 2000 birth of his daughter and his wife’s second pregnancy in May or June 2000.

(Id. at 278.) Gao also provided inconsistent accounts of the circumstances under which

officials learned of his wife’s second pregnancy, and, the IJ found, materially changed his

testimony at least once at his attorney’s prompting. See Dia v. Ashcroft, 353 F.3d 228,

252 n.23 (3d Cir. 2003) (en banc) (stating that an IJ’s personal observations of an

applicant’s demeanor are entitled to a high degree of deference). We find that these

inconsistencies were material to Gao’s claim of persecution inasmuch as they undermined

his stated reasons for fleeing China and seeking asylum in the United States. For this

reason, and because Gao concedes that he would face no immediate risk of sterilization

upon his return to China, we find substantial evidence to support the denial of all relief.

We will, therefore, deny the petition for review.




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