500 F.3d 93 (2nd Cir. 2007), 06-3285, Xu Sheng Gao v. United States Atty. Gen.

Docket Nº:06-3285-ag.
Citation:500 F.3d 93
Party Name:XU SHENG GAO, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent.
Case Date:September 04, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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500 F.3d 93 (2nd Cir. 2007)

XU SHENG GAO, Petitioner,



No. 06-3285-ag.

United States Court of Appeals, Second Circuit.

Sept. 4, 2007

Submitted: July 13, 2007.

Petition for review of an order of the Board of Immigration Appeals affirming the Immigration Judge's decision finding petitioner statutorily ineligible for asylum or withholding of removal on the basis of the persecutor bar. Petition granted; order vacated and remanded.

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Gang Zhou, New York, NY, for Petitioner.

Benjamin H. White, Jr., First Assistant United States Attorney, for Anna Mills Wagoner, United States Attorney for the Middle District of North Carolina, Greensboro, NC, for Respondent.

Before: POOLER, PARKER, and WESLEY, Circuit Judges.

POOLER, Circuit Judge.

Petitioner Xu Sheng Gao seeks review of the June 30, 2006, order of the Board of Immigration Appeals ("BIA") adopting and affirming Immigration Judge ("IJ") Paul A. DeFonzo's February 3, 2005, decision finding Gao statutorily ineligible for asylum or withholding of removal on the basis of the persecutor bar in 8 U.S.C. § 1158(b)(2)(A)(i) and 8 U.S.C. § 1231(b)(3)(B)(i). See In re Gao, No. A. 95 172 158 (B.I.A. June 30, 2006), aff'g No. A. 95 172 158 (Immig. Ct. N.Y. City Feb. 3, 2005). We previously granted Gao's motion seeking expedited review. On July

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16, 2007, we issued an order announcing our disposition in this case. As we stated in that order, the petition for review is granted, the order of the BIA is vacated, and the matter is remanded to the agency for further proceedings consistent with this opinion. We now explain the basis of our decision and hold that the IJ erred in concluding that Gao was statutorily barred from obtaining asylum or withholding of removal on the basis that he had "assisted" in the persecution of others.1


Gao is a native and citizen of China. He entered the United States on March 11, 2001, as a non-immigrant B1 visitor. On December 10, 2001, Gao filed an affirmative application for asylum and withholding of removal on the basis that he had been persecuted in China on account of his political opinion. Gao was subsequently interviewed by an asylum officer, who determined that Gao was "barred by statute from a grant of asylum" because evidence indicated that he had "ordered, incited, assisted, or otherwise participated in the persecution of others ...." The matter was therefore referred to an immigration judge.

On November 16, 2003, the government filed a motion to pretermit Gao's asylum application on the basis that he was a persecutor under Section 208(b)(2)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(b)(2)(A)(i). On February 3, 2005, Gao had a hearing before the IJ in which he testified as follows. From February 1997 to October 2000, Gao was the chief officer of the Quingdao City Culture Management Bureau. Gao supervised approximately 35 inspectors who were assigned to different districts. Gao's Bureau was responsible for inspecting bookstores to determine if they were selling any prohibited materials. Prohibited materials were items that were banned by the Chinese government's cultural laws, such as works that violated copyright laws, works containing sexual content, and works of a "politically sensitive" nature. Every year, Gao and his inspectors would receive a list from the Quingdao City Culture Management Administrative Office that contained the titles of each prohibited item. If prohibited materials were found, the inspectors would confiscate the items and issue a violation certificate. Gao's Bureau did not have authority to impose any sanction beyond confiscating the prohibited materials and issuing citations. When they encountered a serious case, which occurred when either the seller was a repeat offender or had more than 50 prohibited items, Gao would report the matter to the Vice President of his Bureau, who would then determine whether the matter should be referred to the Industrial and Commercial Management Bureau. The Industrial and Commercial Bureau would then decide whether to impose a sanction such as levying a fine or canceling the seller's business license. Gao stated that based on his knowledge of Chinese law, he was aware that the most serious sanction that a violator could receive was a sentence of 10 years in prison, but during his time with the Bureau, he did not know of anyone who had been arrested or jailed. The most severe penalty that occurred during his tenure with the Bureau was the revocation of an owner's business license. However, the possibility existed that a serious matter could be referred to the Public Security Bureau, which did have the authority to make arrests and pursue criminal charges against a violator. Gao did not have any input in such decisions, and

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his authority ceased once the matter had been referred to the Vice President of his Bureau.

As part of his job, Gao would on occasion personally conduct inspections of bookstores. This occurred at least once a month. During these inspections, bookstore owners would sometimes give books to Gao to have him assess whether they were prohibited. Gao started reading some of these books, including books about democracy, Western culture, and works that were critical of the Chinese government. In these cases, Gao would not report the violations and would not confiscate the books. He also began giving these books to his friends to read. Gao testified that although he was concerned that he himself was violating the regulations, he believed these were important books and the Chinese people should be told about what their government was doing.

Generally, when Gao conducted inspections, he went by himself. On one occasion, however, on October 3, 2000, he conducted an inspection with two other inspectors. During this inspection, he found a book entitled The Prince Party of China, which was a prohibited book that he had previously read. Gao told the owner to get rid of the book, but he did not confiscate it because he had changed his attitude toward these types of books and now believed that they should be sold. Although Gao thought his actions went unnoticed by the two inspectors who had accompanied him, a few days later, his supervisor came to him and told him that he had violated the rules by failing to detect and confiscate a prohibited item. Gao was temporarily suspended from his duties by his supervisor. Then, on October 12, 2000, two police officers came and took Gao to the Public Security Bureau for questioning. Gao testified that they confronted him about his failure to confiscate the book on October 3rd, which he denied. The police officers then began beating him with their batons in order to force him to admit that he was working with the book sellers to sell prohibited materials. Gao was ultimately detained fifteen days before he was released. The officers released him so that he could obtain medical treatment for the injuries caused by the beating, but told him he would have to report to the police station every week. Soon after he was released, Gao received notice that he had been fired from his job because he had violated the rules and assisted book sellers in distributing prohibited materials.

Gao reported to the police station as instructed twice, but then learned that the police planned to bring criminal charges against him. He therefore fled China and came to the United States. While in the United States, Gao has learned from his wife that police have repeatedly come to his house looking for him because had failed to report to the police station as required.

At the conclusion of the hearing, the IJ rendered his oral decision. The IJ first made an "overall positive credibility" finding with regard to Gao's testimony. The IJ further found that Gao "possesses a well-founded fear of persecution should he be compelled to return to China" and "has also demonstrated by a clear probability of...

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