Gao v. Board of Immigration Appeals
| Decision Date | 28 March 2007 |
| Docket Number | Docket No. 04-4020-ag. |
| Citation | 482 F.3d 122 |
| Parties | Dong GAO, Ziang Zhen Gao, Petitioners, v. BOARD OF IMMIGRATION APPEALS, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Before: LEVAL and STRAUB, Circuit Judges, and UNDERHILL, District Judge.*
Petitioners Dong Gao and Xiang Zhen Gao, a married couple, are natives and citizens of the People's Republic of China. They challenge the decision of the Board of Immigration Appeals ("BIA") that affirmed the oral ruling of an immigration judge ("IJ"), denying their applications for asylum and withholding of removal under the Immigration and Naturalization Act, and directed their removal to China. In re Dong Gao & Xiang Zhen Gao, Nos. A76 132 444, A77 297 011 (B.I.A. July 16, 2004), aff'g Nos. A76 132 444, A77 297 011 (Immig. Ct. N.Y. City Sept. 24, 2002). Xiang Zhen Gao's ("Mrs.Gao") asylum claim is based primarily on her forced sterilization after the couple violated China's family planning laws. Dong Gao ("Mr.Gao") has applied for asylum derivatively. See Zhou Yun Zhang v. INS, 386 F.3d 66, 71-72 (2d Cir.2004) ().
The IJ denied the Gaos' petitions for asylum based solely on his determination that the couple lacked credibility. That adverse credibility determination was grounded exclusively on three purported inconsistencies in their testimony. None of those three subsidiary factual findings was supported by substantial evidence. Rather, the IJ relied on misstatements of the facts in the record and speculation concerning purported testimony of Mr. Gao from a previous asylum hearing — testimony that he did not admit to having given and of which there is no record. In a short opinion, the BIA affirmed the IJ's decision for the reasons he set forth but corrected one of the IJ's erroneous statements of fact. Accordingly, the petition for review is granted, the agency's decision is vacated, and the case is remanded for further proceedings consistent with this opinion.
Both Mr. and Mrs. Gao were born in the village of Longmen in Changle County, Fujian Province, China. They were married in a traditional marriage ceremony on March 20, 1992, and registered their marriage on November 21, 1992. The Gaos have two children.
Mrs. Gao was pregnant with her first child in 1993. During that pregnancy, she went into hiding in order to prevent the government from learning that she was pregnant. She testified that she gave birth to that child, a daughter, at her aunt's house in Hoshan, a neighboring village, on July 16, 1993. A midwife delivered the baby. After giving birth, Mrs. Gao left her daughter at her aunt's house in order to prevent the government from learning that she had a child.
The Gaos testified that Mrs. Gao again went into hiding at her aunt's house when she was pregnant for a second time in May of 1994. Mrs. Gao explained that she was afraid that the government officials would discover her pregnancy and force her to undergo an abortion because she already had one child.
In July or August 1994, while she was in hiding, the village family planning cadre came to the Gaos' house in search of Mrs. Gao because they suspected that she already had given birth to one child and was pregnant again.
Mrs. Gao testified that she feared she would be forced to undergo an abortion if discovered by the government officials. She explained that she went to the county hospital where a cousin worked, pretended to be more than ten days past her due date, and requested a Caesarian section. Mrs. Gao had a C-section, and the Gaos' son was born at the Changle County hospital on November 28, 1994. Mrs. Gao testified that she remained at the hospital for one week following her son's birth.
Two weeks after the birth, Mr. Gao tried to register their son with local authorities. Before they were permitted to register the birth, the village cadre required the Gaos to pay a fine for violating family planning policies, that is, for having two children without the mandated spacing. The Gaos paid that fine on February 15, 1995.
After their payment of the fine, in April 1995, the village cadre notified the Gaos that one of them would have to be sterilized. Initially, the Gaos successfully bribed a friend of Mr. Gao's father, who worked in the village government, in order to avoid an involuntary sterilization. In October of 1995, however, more than ten government officials surrounded the Gaos' house in order to take one of them to be sterilized. Eventually, they took away Mrs. Gao, detained her overnight, and took her the following day to the county hospital. She underwent a compelled bilateral tubal ligation without being fully anaesthetized.1
In 1999, government officials demanded that Mrs. Gao pay another fine for violating the family planning policies. They threatened her with arrest if she did not pay the additional fine. She refused to pay, then left her home, and came to the United States because she feared arrest and imprisonment.
In the meantime, in August 1998, Mr. Gao entered the United States and thereafter applied for asylum based on China's coercive family planning policy, including the forced sterilization of his wife. He testified at an asylum hearing on November 5, 1999; that day, the IJ issued an order denying Mr. Gao's application for asylum and denying his application for withholding of removal. On January 10, 2000, while Mr. Gao's appeal of that decision was pending before the BIA, Mrs. Gao entered the United States. She also applied for asylum based on China's family planning policy and her forced sterilization.
On appeal, the tape recordings and transcript containing the testimony of Mr. Gao's hearing and the IJ's oral decision, necessary for the BIA's review, were missing. In re Dong Gao, No. A76 132 444 . On May 9, 2001, the BIA returned the case to the IJ for further action, ordering the IJ to "take such steps as are necessary and appropriate to enable preparation of a complete transcript of the proceedings and a decision of the Immigration Judge including a new hearing, if necessary."
On remand, the Gaos' cases were consolidated, and they both testified at a removal hearing on September 24, 2002. In an oral decision issued that same day, the IJ ruled against them in reliance on three identified inconsistencies in their testimony, involving: (1) the birthplace of their first child, (2) problems encountered during Mrs. Gao's second pregnancy, and (3) the duration of Mrs. Gao's hospitalization following her forced sterilization. In his oral ruling, the IJ referenced Mr. Gao's testimony from the first hearing although the tape recording and transcript had not surfaced, and there was no record of that testimony in evidence.
On July 16, 2004, in a per curiam decision, the BIA affirmed the IJ's decision for the reasons stated therein with one exception. The BIA noted that, with respect to the third identified inconsistency, the discrepancy between the Gaos' testimony "did not relate to hospitalization after a sterilization procedure, but to hospitalization after the birth of the couple's second child."
When the BIA issues an opinion, that decision becomes the focus of our review. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). When the BIA adopts, modifies, or supplements the decision of an IJ, the scope of the Court's review will vary. The extent to which we review the IJ's decision directly depends on the approach employed by the BIA in affirming the IJ. See Ming Xia Chen v. Board of Immigration Appeals, 435 F.3d 141, 144 (2d Cir.2006) ().
For example, when the BIA issues an opinion and does not adopt the IJ's decision to any extent, we review only the BIA's decision. See Yan Chen, 417 F.3d at 271. At the other extreme, when the BIA expressly adopts the findings and reasoning of the IJ, we review only the IJ's decision, as if it were the BIA's. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005).
On occasion, the BIA will reference certain portions of the IJ's decision, sometimes rejecting one or more aspects of the IJ's reasoning. For instance, when the BIA affirms the IJ's decision in all respects except one, the Court reviews the IJ's decision "minus the single argument for denying relief that was rejected by the BIA." Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir.2005). Likewise, when the BIA issues a short opinion affirming the IJ decision in part and modifying it in part, we will review the IJ's decision as modified by the BIA. Ming Xia Chen, 435 F.3d at 144. That review will be confined to the rationale of the IJ on which the BIA relied. See Zerrei v. Gonzales, 471 F.3d 342, 346 (2d Cir.2006).
Other times, the BIA will adopt the IJ's reasoning and supplement it, affirming the result on additional grounds. In those instances, the Court reviews the IJ's decision as supplemented by the BIA. See Yu Yin Yang v. Gonzales, 431 F.3d 84, 85 (2d Cir.2005). Similarly, when the BIA adopts the entirety of an IJ's decision, then adds alternative grounds, this Court may review the underlying IJ decision. See Ming Xia Chen, 435 F.3d at 144 ().
When the BIA agrees with an IJ's ultimate credibility determination but emphasizes particular aspects of the IJ's reasoning, ...
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