Gao v. Ashcroft

• Decision Date: 07 August 2002
• Docket Number: No. 01-3472.,01-3472.
• Citation: 299 F.3d 266
• Parties: Chen Yun GAO, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

299 F.3d 266

Chen Yun GAO, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 01-3472.

United States Court of Appeals, Third Circuit.

Argued: May 20, 2002.

Filed: August 7, 2002.

As Amended: August 30, 2002.

J. Jack Artz (argued), Pasadena, CA, for petitioner.

Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, Terri Jane Scadron, Senior Litigation Counsel, Office of Immigration Litigation, John M. McAdams, Jr., (argued), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for respondent.

Before: BECKER, Chief Judge, GREENBERG, Circuit Judge, and BARZILAY, Judge, U.S. Court of International Trade.^*

OPINION OF THE COURT

BAZILAY, Judge, U.S. Court of International Trade.

The world has recently come to know Falun Gong as a movement in the People's Republic of China that "blends aspects of Taoism, Buddhism, and the meditation techniques of Qigong (a traditional martial art) with the teachings of Li Hongzhi." U.S. Dep't of State, Human Rights Report for 1999, China, February 25, 2000, available at http://www.state.gov/www/global/human—rights/ 1999—hrp—report/china.html. As the news media has widely reported, in July, 1998, the Chinese government officially declared Falun Gong illegal and began a nationwide crackdown against the movement, launching a massive propaganda campaign against the group. The government "rounded up and detained [tens of thousands of practitioners] for several days, often in open stadiums with poor, overcrowded conditions with inadequate food, water and sanitary facilities. Practitioners who refused to renounce their beliefs were expelled from their schools or fired from their jobs." Id.

According to the State Department Report, "despite the harshness of the crackdown, Falun Gong demonstrations continued around the country throughout the summer and into the fall. Authorities responded quickly by breaking up demonstrations — at times forcibly — and detaining demonstrators." Id. There have also been "credible reports of beatings and deaths of practitioners in detention who refused to recant their beliefs." Id. "According to Amnesty International, some adherents of Falun Gong [have been] tortured with electric shocks, as well as having their hands and feet shackled and linked with crossed steel chains." Id. It is against this back-drop that this appeal comes to us.

Chen Yun Gao (Gao), a young woman of 18, is a native and citizen of China, who escaped to the United States after being expelled from school, beaten, and imprisoned in a labor camp. Although the record clearly demonstrates that Gao has an extensive history of school truancy, and that she spent a lot of time participating in t'ai chi and other athletic endeavors, on the record before us it does not appear that any action was taken by the school authorities or the Chinese government against Gao until they learned that she was a messenger for the Falun Gong. It is on this ground, her fear of persecution if she returns to China on account of this Falun Gong connection, that she applied for political asylum and for withholding of deportation to China. Her application was denied following a hearing before an Immigration Judge (IJ) who found that Gao lacked credibility based upon inconsistencies in her story. The Board of Immigration Appeals (BIA) summarily affirmed the decision of the IJ. She petitions for review of the BIA's decision.

Gao's case is not a human rights cause celebre — she was not even a practitioner of Falun Gong, and was no more than a mere messenger, drawn into the organization's network through the influence of her aunt. For this reason, the IJ concluded that Gao's messenger activities could not be the reason for the action taken against her. That conclusion was improper. Careful scrutiny of the record also shows that there are no significant inconsistencies in her story. Additionally, the IJ failed to consider important documentary evidence that supports claims that Gao made during the hearing. Although it may be that Gao may not prevail upon a fuller review of the record, these problems with the IJ's decision, explicated below (which are especially troubling in view of the State Department Report detailing a reign of terror against Falun Gong) require us to grant the petition for review and remand this case for further proceedings.

I. BACKGROUND

Gao arrived at Los Angeles International Airport on October 31, 2000. Lacking proper documentation, she was served with a Notice to Appear by the Immigration and Naturalization Service (INS). The Notice charged her with removability as an alien who was likely to become a public charge, and as an immigrant who at the time of her application for admission did not possess a valid visa. 8 U.S.C. §§ 1182(a)(4)(A); 1182(7)(A)(i)(I). Gao responded by filing an application for asylum pursuant to 8 U.S.C. § 1158(b)(1), for withholding of removal, and for protection under Article 3 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The application was grounded on the claim that her association with the banned Falun Gong movement in China led to her expulsion from school, beating, and imprisonment at the hands of local security forces. Gao's asylum application, prepared by her attorney, contained minimal explanation as to the reasons for her asylum claim; we rescribe it in the margin.¹ On February 8, 2001, she was given a hearing before the IJ, at which time she was allowed to develop her story by presenting oral testimony and documentary evidence. The IJ based his opinion primarily on that testimony and some of the documentary evidence submitted at the hearing. The evidence may be summarized as follows.

Gao testified that she was a high school student in Fujian Province. Her aunt, Gao Yu, was an active member and instructor in the Falun Gong movement. Gao was apparently close to her aunt, and would often accompany her when she went to meetings or ran errands. This loose association with the Falun Gong began in 1998. In March 2000, Gao's aunt recruited her to be a paid messenger for the group, which meant that she was frequently working for the Falun Gong instead of attending school.

On June 13, 2000, she was expelled from her school. School officials reported her connection to the Falun Gong to the local police, who arrested Gao and held her for two days. During that time she claims that she was held without food and kept awake for long periods. She also says that police made her remove her pants and beat her on her buttocks. The instrument they beat her with was a long rod, which may or may not have been able to deliver an electric charge. Gao does not know if she was electrocuted, only that she was struck twice and kicked. Police also allegedly threatened to lock up her family and "sell" or "seal" her house.² After this two day incarceration she was released, then arrested again on June 16, 2000. At that point she was placed with a group of prisoners who were taken to a park and made to perform manual labor such as cutting grass and moving stones. Gao testified that during a lunch break when the two guards supervising the group were not paying attention, she escaped into a wooded area. She first went home, then her parents sent her to a relative's house in a city about 100 miles away. She remained there for a few months before fleeing the country. She traveled through Thailand and Brazil before arriving in Los Angeles.

Gao submitted two significant pieces of documentary evidence at her hearing. The first was her high school student transcript book, a booklet that was used by the school to record grades and comments by her teachers beginning in 1998 and ending in 2000, the relevant portions of which are detailed in the margin.³ The second was the Discipline Determination letter from the school stating the grounds for her expulsion. The letter states that Gao:

keeps on joining the Fa Lun Gong activities as their messenger. [S]he was questioned by the local justice department in June and has been absent from class for 56 times since then.... Based on regulation 11 section 4 (continuous high school discipline violation, law violation regulation) and the regulations of the public security authority ... GAO Chen Yun is expelled from school, this case is reported to the public security bureau and be processed based on the regulation.

[A.R. 388].

The IJ, in an oral opinion, denied Gao's application for asylum based on the facts of her case. He did, however, recognize that an association with the Falun Gong could subject one to a well founded fear of persecution.⁴ Based on background information, he observed that the Falun Gong is not just a small religious group but a "social phenomenon" in China that has "attracted the attention of Chinese government authorities," and caused some friction in relations between the United States and China. [A.R. 39]. Therefore, the IJ found, "the respondent's niche in China is one that could under certain circumstances be persecutory, or cause her persecution." [A.R. 40]. The IJ accepted "that the Falungong belief and activity is a religious, and/or political view, and persecution on account of it is persecution on account of one's religious or political views." [A.R. 42].

Gao, in her testimony, clarified that she was not practicing Falun Gong, but acting as a messenger and it was that association that puts in her in danger. The IJ stated that if a person were actually tortured for being a messenger, "the Court believes that that would constitute persecution." [A.R. 44]. The question then became whether Gao's testimony "regarding the treatment that she suffered is plausible, sufficiently detailed, and credible to allow us to conclude that she was in fact persecuted for these few activities." [Id]. The IJ found that Gao lacked credibility. Most importantly, without any evidence to support this...