Filed: Oct. 26, 2006
Latest Update: Feb. 21, 2020
Summary: Gao had a full and, fair opportunity to present evidence on the forced sterilization, claim at his first hearing, and it is clear from the record that, the IJ intended to rely on her decision on that claim from the, initial hearing.F.3d 365, 373 (1st Cir.testimony on religious persecution.
United States Court of Appeals
For the First Circuit
No. 05-2330
XIANG XING GAO,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Jim Li on brief for petitioner.
Gina Y. Walcott-Torres, Assistant United States Attorney,
and Michael J. Sullivan, United States Attorney, on brief for
respondent.
October 26, 2006
LYNCH, Circuit Judge. Petitioner Xiang Xing Gao, a
native and citizen of the People's Republic of China, petitions for
review of a final order of removal of the Board of Immigration
Appeals (BIA), which denied his petition for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).
An Immigration Judge (IJ) found that Gao was not credible and that
he had failed to establish either past persecution or a well-
founded fear of future persecution. The BIA summarily affirmed the
IJ's decision, but subsequently granted a motion to reopen the
proceedings. On remand, the IJ again found Gao not credible and
found that Gao had not met his burden. The BIA summarily affirmed
the IJ's decision. We affirm the BIA and deny the petition.
I.
On or about January 17, 2000, Gao entered the United
States using fraudulent documents procured through a "snakehead,"
to whom Gao had paid $45,000. Gao filed an application for asylum
on November 3, 2000, claiming both that his wife had been forcibly
sterilized and that he had been persecuted for his Roman Catholic
faith. On February 15, 2001, Gao was served with a Notice to
Appear, and on November 2, 2001, Gao appeared before an IJ on his
asylum claim.
Gao was the only person to testify at the hearing before
the IJ. Gao testified that he was born in the village of Liu Shiu
in the Fujian Province of China and lived most of his life there.
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He and his wife married in 1977 and had one son in 1978. They had
a second son in 1980, but he died in 1981. Gao testified that
following the birth of his second son, his wife had an IUD
inserted, which he subsequently paid a private doctor to remove.
Gao testified that he and his wife then went into hiding at his
cousin's house in Jiangsu Province for several years. While there,
Gao and his wife had a third child in 1983. Gao testified that
when his wife became pregnant with their fourth child, they were
forced to move back to his village because they did not have a
valid birth permit.
Gao testified that after the birth of their fourth child,
in 1985, his wife went into hiding at her mother's house, fearing
that she would be required to submit to sterilization. He asserted
that when the local government authorities found out about the
birth, they came to his house to arrest his wife, and, not finding
his wife, they arrested him instead. He further testified that
after his arrest, his mother contacted his wife to suggest that she
submit to sterilization in order to secure his release, which she
did.
Gao also testified to incidents when local officials
purportedly harassed him for adhering to the Roman Catholic faith.
He claimed that he was first contacted about this in 1997, and that
in 1998, officials threatened him with imprisonment if he continued
to practice Catholicism. Gao also testified that officials
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destroyed first the cross, then the entire church, that he had
contributed to building.
Following this testimony, the IJ issued an oral decision
denying Gao asylum, withholding of removal, and protection under
the CAT. The IJ first found that the documents Gao submitted to
corroborate his testimony should be given "very little weight,
virtually none." Gao had not authenticated his documents, and
fraudulent documentation from his region of China was relatively
common. Moreover, Gao had failed to establish a foundation for the
documents and, in particular, had not established that medical
reports documenting a sterilization were related to his wife.
The IJ then found Gao not credible. She found that Gao's
testimony was not consistent with the U.S. State Department's
Profile of Asylum Claims and Country Conditions for China, which
indicated that officials employed relatively little coercion in
enforcing the one-child policy. The IJ also found that Gao
appeared to be economically motivated, that a sterilization fifteen
years prior was an unlikely impetus for Gao's departure in 2000,
and that Gao had testified inconsistently about his motivations for
leaving China.
As to Gao's claim of religious persecution, the IJ found
that stern lectures did not amount to past persecution, and that
Gao had failed to establish a well-founded fear of future
persecution, particularly since it appeared that he could live in
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Jiangsu Province, where he apparently had lived for several years
with no problems.
On October 10, 2002, the BIA summarily affirmed the IJ's
decision. On January 3, 2003, Gao filed a motion to reopen the
proceedings, on the basis of seven new documents, including one
that purported to be a notice dated September 2002 from the
Villagers Committee in Gao's native village ordering Gao to present
himself or be subject to severe punishment for his religious
activities. On April 30, 2003, the BIA granted the motion to
reopen, finding that although most of the documents could have been
presented at the original hearing, the September 2002 Villagers
Committee notice was evidence "central to his claim" that was
unavailable at the time of the November 2001 hearing.
On November 13, 2003, the same IJ heard additional
testimony related to the Villagers Committee notice and Gao's claim
of religious persecution. Gao testified that he had led a "parade
of Virgin Mary" in a neighboring village, about an hour's walk
away. Gao initially testified that this parade had taken place on
August 15, 1998, but he later corrected himself and stated that the
parade had been on August 15, 1985. Gao also testified that local
officials arrested him and warned him not to practice Catholicism.
He initially indicated that this arrest had occurred on May 21,
1995, but he later stated that it had been on May 21, 1998. Gao
also testified that a local priest had been jailed for three or
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four years, and that because Gao was a "Roman Catholic Church
coordinator" in his village, he expected that local officials would
"come after" him also.
On March 15, 2004, the IJ issued another decision finding
Gao not credible and denying the relief sought. The IJ noted in
particular the inconsistencies in Gao's testimony about the dates
of crucial events. The IJ also expressed doubts about the
authenticity of the September 2002 notice, inasmuch as it had not
been authenticated, it gave a date for the religious parade that
did not agree with Gao's later testimony, and Gao had never
explained why local village officials would suddenly be concerned
about a parade that had taken place years ago in a village an
hour's walk away.
The IJ found that the various warnings, interrogations,
and brief detentions described by Gao, even if true, did not amount
to past persecution. The IJ also found that Gao had not
established a well-founded fear of future persecution because
(1) such claims were belied by his wife's continuing to practice
Catholicism in their village without incident; (2) the September
2002 notice was not credible; (3) any imprisonment of the local
priest did not reflect the potential treatment of individual
parishioners; and (4) Gao and his family could reasonably relocate
to an area such as Jiangsu Province, where they had experienced no
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religious problems. On August 17, 2005, the BIA again summarily
affirmed the IJ's decision.
II.
Gao makes several claims on appeal. First, Gao claims
that the BIA violated his due process rights in summarily affirming
the IJ's March 2004 decision, when that decision did not explicitly
address Gao's forced sterilization claim. Second, Gao claims that
the IJ erred in finding him not credible on both his forced
sterilization and religious persecution claims. Third, Gao claims
that the IJ erred in finding that the events he described did not
amount to past religious persecution and that Gao had not
established a well-founded fear of religious persecution. We
consider only the first two claims; because we find that
substantial evidence supports the IJ's adverse credibility
determinations, we do not reach Gao's other challenges to the IJ's
findings.
First, as to the due process point, Gao failed to argue
before the BIA that there was anything improper in the IJ's not
explicitly addressing the forced sterilization claim in the March
2004 decision. As a result, under the doctrine of exhaustion of
administrative remedies, we lack jurisdiction to consider this
claim. Olujoke v. Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005).
In his brief to this court, Gao points to three sentences in his
brief to the BIA that refer to his forced sterilization claim.
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While these sentences may have sufficed to preserve the claim on
the merits, nowhere in these sentences or elsewhere did Gao make
his procedural point. Gao's due process claim is one of "mere
'procedural error[],' which the BIA plainly [could have]
address[ed]," Ravindran v. INS, 976 F.2d 754, 762 (1st Cir. 1992),
and hence Gao cannot raise it for the first time here.1
We thus proceed to consider Gao's claims on the merits.
To be eligible for asylum, an alien must demonstrate that he is a
"refugee." 8 U.S.C. § 1158(b)(1)(A). To do so, an alien must show
"persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." Id. § 1101(a)(42)(A). One who has
been "forced . . . to undergo involuntary sterilization . . . shall
be deemed to have been persecuted on account of political opinion."
Id. § 1101(a)(42)(B). The BIA interprets this provision to also
apply to the spouses of those involuntarily sterilized. See Tai v.
Gonzales,
423 F.3d 1, 4 (1st Cir. 2005). The alien bears the
1
In any event, this claim lacks merit. Gao had a full and
fair opportunity to present evidence on the forced sterilization
claim at his first hearing, and it is clear from the record that
the IJ intended to rely on her decision on that claim from the
initial hearing. It was entirely reasonable for the IJ to do so,
given that the document that formed the basis for the reopening of
the proceedings related only to the religious persecution claim.
Gao was not in any way deprived of "a meaningful opportunity to be
heard" on his forced sterilization claim. See Choeum v. INS, 129
F.3d 29, 38 (1st Cir. 1997).
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burden of proof for establishing his eligibility for asylum.
8 U.S.C. § 1158(b)(1)(B)(i).
We review the BIA's factual determinations, including
credibility determinations, under the deferential substantial
evidence standard. Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir.
2005). Such determinations must stand "unless any reasonable
adjudicator would be compelled to conclude to the contrary."
8 U.S.C. § 1252(b)(4)(B); see also
Dhima, 416 F.3d at 95. Where
the BIA summarily affirms the decision of the IJ, we review the
IJ's decision as if it were that of the BIA. Albathani v. INS,
318
F.3d 365, 373 (1st Cir. 2003).
Substantial evidence supports the IJ's determination that
Gao did not testify credibly that his wife was involuntarily
sterilized, and that Gao therefore failed to establish persecution
on that basis. To begin with, the IJ found that Gao's documentary
evidence failed even to establish that his wife had in fact been
sterilized, in that there was nothing to show that the medical
reports Gao submitted were related to his wife. Moreover, none of
the documents Gao submitted were authenticated. Given the
government reports about widespread fabrication and fraud in
documents originating from Gao's region of China, it was reasonable
for the IJ to require some form of authentication for such
documents before finding that they corroborated his testimony. See
Lin v. Ashcroft, 371 F.3d 18, 22 (1st Cir. 2004).
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The IJ noted that Gao's testimony was inconsistent with
the U.S. State Department report, which "did not find any cases of
physical force actually employed in connection with abortion or
sterilization" in Fujian Province. But the IJ did not rely on the
State Department report alone. The IJ also found that Gao
testified inconsistently about his reasons for departing China.
Gao primarily testified that he left because of religious
persecution, but he also testified: "[M]y financials become [sic]
very poor, and so all my child[ren] drop out of school[,] so I
[was] really mad about the government[,] so I tell my wife, I say
I better find some other way to leave the country." The IJ
reasonably found that Gao appeared to have been economically
motivated to come to the United States, and that this weighed
against his credibility.2 Furthermore, any suggestion on Gao's
part that he was motivated by his wife's forced sterilization was
belied by the fact that this had supposedly happened fifteen years
before he departed China. Thus, substantial evidence supports the
2
In affirming the IJ's decision, we do not rely on any
reasoning that mere debt to snakeheads establishes that an alien is
primarily motivated by his financial situation and thus is not
credible in his testimony about grounds for asylum. Poor aliens
should not be deemed not credible simply because they pay large
sums to enter the United States. While the IJ mentioned Gao's
debt, the remaining evidence cited by the IJ provides far stronger,
direct support for her conclusion that Gao came to the United
States not because of any purported persecution, but because of his
financial situation. See Ziu v. Gonzales, 412 F.3d 202, 205 (1st
Cir. 2005).
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IJ's adverse credibility determination and her determination that
Gao failed to establish that his wife was involuntarily sterilized.
Substantial evidence also supports the IJ's finding that
Gao did not testify credibly about religious persecution. The IJ
primarily relied upon the inconsistencies in Gao's testimony,
particularly as to the dates of key events. Gao provides no
explanation for these inconsistencies, but merely tries to label
them "minor" and "incidental." It was not a "minor" inconsistency,
however, for Gao to testify first that he led a religious parade on
August 15, 1998, and then to state that the parade actually had
taken place thirteen years earlier, on August 15, 1985. Similarly,
Gao first testified that he was interrogated on May 21, 1995, but
he then switched the date to May 21, 1998. In both cases, he gave
each version of the testimony at least twice, so the discrepancies
cannot be attributed to inadvertent slips. Moreover, the date that
Gao settled on for the parade, 1985, did not agree with the date on
the Villagers Committee notice that Gao relied on to establish a
well-founded fear of persecution. We have no trouble finding
substantial evidence to support the IJ's refusal to believe Gao's
testimony on religious persecution.
Because we find that substantial evidence supports the
IJ's finding that Gao was not credible and that he therefore failed
to establish any evidence of persecution, we need not reach Gao's
other challenges to the IJ's findings.
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The petition for review is denied.
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