Gao v. Gonzales

200 F. App'x 31
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 29, 2006
DocketNo. 05-0012-ag
StatusPublished
Cited by3 cases

This text of 200 F. App'x 31 (Gao v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gao v. Gonzales, 200 F. App'x 31 (2d Cir. 2006).

Opinion

SUMMARY ORDER

Ti Wu Gao, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (“BIA”), affirming Immigration Judge (“IJ”) Jeffery S. Chase’s denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the facts of this case, its procedural posture, and the decision below.

This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005) (per curiam); Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004); Ramsameachire v. Ashcroft, 357 F.3d 169, 177-78 (2d Cir.2004); Secaida-Rosales v. INS, 331 F.3d 297, 306-08 (2d Cir.2003); Diallo v. INS, 232 F.3d 279, 287-88 (2d Cir.2000). Where the BIA summarily affirms we review the IJ’s decision directly as the final agency determination. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005).

In this case, IJ Chase erred in denying Gao’s application for asylum, withholding of removal and CAT relief, as he improperly based his adverse credibility finding on two points of Gao’s testimony that he found “implausible” or “highly unlikely.” It is significant that the IJ did not substantially rely on Gao’s false statements made during his airport interview as a basis for his adverse credibility finding; rather, the IJ gave Gao “credit” for admitting that he had been untruthful after being instructed to enhance his story by the “snakehead” who had brought him over. Nor did the IJ find any inconsistencies in Gao’s asylum application and hearing testimony.

The IJ’s adverse credibility finding was based almost entirely on his finding that two points in Gao’s story were “highly unlikely” — first, that Xian Mie Chen, Gao’s wife, had become pregnant one month after the birth of their son;. and second, that Chen’s aunt had performed a “fake sterilization” at Changle hospital when Chen was taken there for a forced sterilization after the birth of their second child. The IJ’s findings, however, mischaracterized portions of Gao’s testimony, and, moreover, were based on the kind of speculation that this Court has held cannot provide the basis for an adverse credibility finding. See Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 159 (2d Cir.2006) (“We do not, conse[33]*33quently, rely on the IJ’s findings to the extent that he erroneously mischaracterized petitioner’s testimony or determined that petitioner was not credible due to perceived implausibilities or inconsistencies that were based solely on the IJ’s ‘bald speculation.’ ”); Zhou Yun Zhang, 386 F.3d at 74 (“[W]e look to see if the IJ has provided specific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding. In short, our review is meant to ensure that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.”) (internal quotations and citations omitted); Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 403 (2d Cir.2005) (“[T]he IJ’s conclusion that [petitioner’s] story is implausible was based on flawed reasoning and, therefore, cannot constitute substantial evidence supporting her conclusion.”).

As to the first point, the IJ found it “implausible” that Chen had become pregnant while breastfeeding within a month of having her son. The IJ based this finding on an excerpt from a Merck Manual, which stated that women who were breastfeeding generally ovulated later — approximately 10 to 12 weeks after delivery — than women who did not breastfeed, who ovulated approximately 2 to 4 weeks after delivery. But, the IJ’s conclusion that it was “implausible” or “highly unlikely” that Chen became pregnant within a month of having her son is not only speculative but also misstates Gao’s testimony and the Merck Manual. First, Gao’s testimony — that his first son was born on March 3, 1984, the abortion took place sometime in June 1984, and Chen was “around two months pregnant” at the time of the abortion — is just as consistent with Gao’s wife having conceived nearly two months after giving birth as it is with her conceiving after only one month. And the Merck Manual stated that mothers could resume normal activities, including sexual intercourse, when they felt able; that pregnancy was possible during sex post-delivery and that contraceptives should be used; and that although women who were breastfeeding generally ovulated 10 to 12 weeks after delivery, they occasionally ovulated approximately 2 to 4 weeks after delivery, when non-breastfeeding mothers began to ovulate and menstruate. Thus, the IJ’s finding that Chen becoming pregnant while breastfeeding was “highly unlikely” is not correct, and the IJ erred in making an adverse credibility finding on this basis.

Regarding the second point, the IJ found it implausible that Chen could have been taken to the hospital for a forced sterilization and that her aunt, a supervising doctor at Changle hospital, could have performed a “fake sterilization.” Again, the IJ’s finding was in part based on a misstatement of the record. The IJ was apparently confused as to why Gao had submitted a picture of Chen bearing a scar from an incision made during the course of a “fake sterilization” and suggested that submitting the photo “if anything hurt the case.” Gao’s asylum application, Gao’s testimony, and Dr. Xiu Juan Chen’s letter, however, all clearly indicated that Dr. Chen made an incision as if she were performing a routine sterilization, but did not complete the procedure; that is, she did not sever Chen’s tubes. Because an incision was made, but the tubes were not severed, Gao’s assertion was that the sterilization was “incomplete,” and not “fake” as described by the IJ. Indeed, because Dr. Chen allegedly performed an actual surgery, the photograph of Chen bearing a scar from the incision supported Gao’s claim that an incomplete sterilization had been performed. Because the IJ misstated the record and failed to consider the document showing Chen bearing a scar from the incomplete sterilization operation, the IJ’s adverse credibility finding on this basis was flawed.

[34]*34Moreover, IJ Chase’s opening statement expressing his general doubt about documents provided in support of asylum claims by asylum-seekers from the Fujian province and, in particular, about Gao’s supporting documents raises serious questions about whether the IJ properly considered the submitted documents.

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200 F. App'x 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gao-v-gonzales-ca2-2006.