Xiang Xing Gao v. Gonzales

467 F.3d 33, 2006 U.S. App. LEXIS 26634, 2006 WL 3028273
CourtCourt of Appeals for the First Circuit
DecidedOctober 26, 2006
Docket05-2330
StatusPublished
Cited by8 cases

This text of 467 F.3d 33 (Xiang Xing Gao v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Xiang Xing Gao v. Gonzales, 467 F.3d 33, 2006 U.S. App. LEXIS 26634, 2006 WL 3028273 (1st Cir. 2006).

Opinion

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 “snake-head,” to whom Gao had paid $45,000. Gao filed an application for asylum on November 3, 2000, claiming both that his *35 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. 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 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 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 sub *36 ject 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 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 then-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 religious problems. On August 17, 2005, the BIA again summarily affirmed the IJ’s decision.

II.

Gao makes several claims on appeal.

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467 F.3d 33, 2006 U.S. App. LEXIS 26634, 2006 WL 3028273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xiang-xing-gao-v-gonzales-ca1-2006.