Gao v. Attorney General

140 F. App'x 396
CourtCourt of Appeals for the Third Circuit
DecidedJuly 29, 2005
DocketNo. 04-1001
StatusPublished

This text of 140 F. App'x 396 (Gao v. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gao v. Attorney General, 140 F. App'x 396 (3d Cir. 2005).

Opinion

OPINION

McKEE, Circuit Judge.

Qing Gao petitions for review of an order of the Board of Immigration Appeals affirming the decision of an Immigration Judge denying relief from removal. For the reasons that follow, we will dismiss the petition.

[397]*397i.

Inasmuch as we write primarily for the parties who are familiar with this case, we need not repeat the factual or procedural background except insofar as may be helpful to our brief discussion.

Gao conceded removability before an Immigration Judge and applied for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ did not find Gao’s testimony credible and he denied relief. The BIA affirmed without opinion, and this Petition for Review followed.

II.

Since the BIA summarily affirmed the decision, we review the decision of the IJ as the final decision of the BIA. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.2003) (en banc). Our review is limited to determining if the IJ’s ruling is supported by substantial evidence in the record. Id. at 247. We therefore must determine whether a reasonable factfinder could make the same determination as the IJ based upon the administrative record that was before the IJ. If so, the record supports the IJ’s ruling and we must dismiss the petition for review. Id. at 249. Where, as here, the IJ’s decision involves a credibility determination, the IJ must give specific reasons for his conclusion that bear upon “a legitimate nexus” to the credibility ruling. Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir.1998). Adverse credibility findings are also reviewed for substantial evidence. Id. at 161. An adverse credibility finding will be sustained “unless ... no reasonable person” would have found the applicant incredible. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004) (citations omitted).

III.

The IJ found that Gao’s testimony was not credible because:

1) Gao’s explanation of how he managed to escape from the family planning officials in April lacked details and was “highly implausible.”
2) The IJ found Gao’s national identification card and household registration “highly suspicious” because they were issued in October 2000 when Gao claimed to have been in hiding. Moreover, his explanation that his parents bribed officials was inconsistent with his assertion that family planning officials were threatening his parents to get them to divulge his whereabouts.
The IJ reasoned that if his parents were being threatened by authorities, his parents would not have asked them for documents on Gao’s behalf.
3) There was a substantial discrepancy between the story Gao provided at the airport and his asylum application.1

IV.

We exercise jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). An agency’s finding of fact that an applicant has failed to show eligibility for asylum and withholding of re[398]*398moval is “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

V.

To establish a claim for asylum or withholding of removal, an applicant must establish that he/she is a “refugee.” 8 C.F.R. § 208.13. A “refugee” is defined as:

[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country 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.

8 U.S.C. § 1101(a)(42)(A). An asylum applicant bears the burden of proving past persecution or a well founded fear of future persecution. 8 C.F.R. § 208.13(a), Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001). An applicant must demonstrate an actual and genuinely held subjective fear of persecution and show that the fear is objectively reasonable. INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

To qualify for withholding of removal, an alien must establish a clear probability that his/her life or freedom would be threatened on account of one of the five statutory grounds if removed. INA § 241(b)(3). INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).

In order to qualify for relief under Article III of the Convention Against Torture, an alien must prove that it is more likely than not that he/she would be “tortured” if removed to the proposed country of removal by, at the instigation of, or with the consent or acquiescence of, someone acting in an official capacity. 8 C.F.R. § 208.16(c)(4).

VI.

Gao argues that (1) the IJ’s adverse credibility determination is not supported by substantial evidence and (2) he is statutorily eligible for asylum under 8 U.S.C. § 1101(a)(42).

Gao claims that the three problems underlying the IJ’s adverse credibility determination were adequately explained and addressed in the record. He explains the inconsistencies between his airport interview and his asylum application by asserting that he did not learn about his fiancée’s abortion until after the airport interview. Therefore, he insists, he could not have mentioned it when first interviewed at the airport. However, even assuming that this is true, Gao still failed to relate his flight from China to any fear of family planning officials during the airport interview. As we noted above, we have in the past, expressed concerns about an IJ’s reliance on airport interviews in assessing credibility of an alien. See Balasubramanrim v. INS, 143 F.3d 157 (3d Cir.1998);

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140 F. App'x 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gao-v-attorney-general-ca3-2005.