Gao v. Gonzales

• Decision Date: 03 March 2006
• Docket Number: Docket No. 04-1874-ag.
• Citation: 440 F.3d 62
• Parties: Hong Ying GAO Petitioner, v. Alberto GONZALES,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 62

440 F.3d 62

Hong Ying GAO Petitioner, v. Alberto GONZALES,¹ Respondent.

Docket No. 04-1874-ag.

United States Court of Appeals, Second Circuit.

Submitted: January 30, 2006.

Decided: March 3, 2006.

Hong Ying Gao, pro se.

Sandra Henson Kinney, Assistant United States Attorney (Kasey Warner, United States Attorney for the District of West Virginia, on the brief), Charleston, West Virginia for Respondent.

Before: CALABRESI, STRAUB, and WESLEY, Circuit Judges.

STRAUB, Circuit Judge.

Petitioner Hong Ying Gao ("Gao") petitions for review of a Board of Immigration Appeals ("BIA") decision summarily affirming an Immigration Judge's ("IJ") denial of her claims for asylum, withholding of removal, and protection under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. Gao argues that the IJ erred in finding that she did not have a well-founded fear of forced marriage and in finding that a forced marriage, even were it to occur, would not constitute persecution under paragraph 1101(a)(42) of Title 8 of the United States Code, which sets forth the grounds for establishing asylum eligibility.

We agree with Gao that the IJ, in finding that Gao's problems were not "on account of" a legally protected ground, failed to apply the correct definition of the "particular social group" ground as established by BIA and judicial precedent. As this precedent makes clear, the statutory term "particular social group" is broad enough to encompass groups whose main shared trait is a common one, such as gender, at least so long as the group shares a further characteristic that is identifiable to would-be persecutors and is immutable or fundamental. We further find that the IJ's decision was based, in part, on certain factual conclusions reached without substantial evidence: namely, that the government might be willing and able to protect Gao and that Gao could internally relocate within China. Accordingly, we remand for further proceedings.

BACKGROUND

I. Factual History

Because the IJ found Gao to be credible, we take as true the facts Gao presented to the IJ. See Bocova v. Gonzales, 412 F.3d 257, 262-63 (1st Cir.2005). Gao, who was twenty years old when she left China, grew up in a rural village in the Fujian Province. In this region of China, parents routinely sell their daughters into marriage, and this practice is sanctioned by society and by the local authorities.

When Gao was nineteen years old, her parents, through a broker, sold Gao to a man named Chen Zhi; in return for an up-front payment of 18,800 RBM, Gao's parents promised that Gao would marry Zhi when she turned twenty-one. Gao's parents used this money to pay off previous debts. At first, Gao acquiesced in the arrangement under pressure from her parents. However, because Zhi soon proved to be bad-tempered, and gambled, and beat her when she refused to give him money, Gao decided that she did not want to marry Zhi. When Gao tried to break their engagement, Zhi threatened her. He also threatened that, if she refused to marry him, his uncle, a powerful local official, would arrest her. Gao had heard that Zhi's uncle had arrested other individuals for personal reasons, and so she was afraid the same would happen to her.

To escape Zhi, Gao moved an hour away by boat and took a job in the Mawei district of Fuchou. Zhi continued to visit Gao's family and demand that she marry him, and when her parents refused to tell him where she had moved, he vandalized their home. Zhi also figured out that Gao was living in Mawei by following her to her boat one night when she was returning from a visit with her family. About half a year later, Gao fled to the United States out of fear that, if she remained in China, she would be forced to marry Zhi. Since Gao left, Zhi and his cohorts have continued to harass her family, to the point where the family has had to move repeatedly.

II. Procedural History

At her hearing, Gao testified to the events described above. In addition to Gao's testimony and a corroborating affidavit from her mother, the IJ had before her the 2001 State Department Country Report on Human Rights Practices in China ("Country Report"), which described widespread domestic violence and trafficking in brides and prostitutes. The Country Report explained that this problem is fueled by the gender imbalance that has resulted from selective abortions and infanticides of female offspring, and that the problem is worse in rural areas. The Country Report also stated that, although the central government has been trying to prevent trafficking in women, its efforts have been hampered by official corruption and by active resistance on the part of village authorities.

At the end of the hearing, the IJ issued an oral decision denying Gao asylum, withholding of removal, and CAT relief. The IJ found Gao credible, but concluded that Gao had not made out a claim for asylum or withholding of removal. Specifically, the IJ found that Gao's predicament did not arise from a protected ground such as membership in a particular social group, but was simply "a dispute between two families." The IJ also found that the record did not establish that the government would not protect her from Zhi. Finally, the IJ found that because Gao "was able to relocate safely to another city," she did not need asylum in the United States. The IJ also, without separate analysis, denied Gao's CAT claim. The BIA summarily affirmed.

DISCUSSION

I. Standard of Review

We review de novo the IJ's determination of mixed questions of law and fact, as well as the IJ's application of law to facts. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). We review BIA interpretations of ambiguous Immigration and Nationality Act language-such as the meaning of "particular social group"-with the deference described in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We do not, however, give Chevron deference to summary BIA affirmances of IJ interpretations. See Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 190-91 (2d Cir. 2005).²

By contrast, the scope of our review of an IJ's factual findings is narrow, and we uphold such findings so long as they are supported by "substantial evidence." Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003) (internal quotation marks omitted). The "substantial evidence" standard, however, is slightly stricter than the clear-error standard generally applied to a district court's factual findings. Id. at 149. We require "more than a mere scintilla" of evidence, or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir.2001) (internal quotation marks omitted). We also "require some indication that the IJ considered material evidence supporting a petitioner's claim." Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005); see also Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir.1992) ("[W]e cannot assume that the BIA considered factors that it failed to mention in its decision." (internal quotation marks omitted)). It is not our role, moreover, to assume factual findings supporting denial "on the basis of record evidence not relied on by the BIA." Jin Shui Qiu, 329 F.3d at 149.

Applying these principles here, we review de novo the IJ's interpretation of the legal term "particular social group"; assume without deciding that the IJ's interpretation might be entitled to Skidmore deference based on its inherent persuasiveness; accord Chevron deference to relevant BIA precedent; and review under the "substantial evidence" standard the IJ's findings of fact as to whether Gao could have sought government protection and/or relocated within China.

II. The Governing Law

To establish eligibility for the discretionary relief of asylum, a petitioner must show that she has suffered past persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion," or that she has a well-founded fear of future persecution on these grounds. See 8 U.S.C. § 1101(a)(42). "An alien's fear may be well-founded even if there is only a slight, though discernible, chance of persecution." Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). If an applicant satisfies the higher burden of demonstrating that such persecution is more likely than not, she is automatically entitled to withholding of removal under 8 U.S.C. § 1231(b)(3). See Diailo, 232 F.3d at 284-85. An applicant is also entitled to CAT relief if she establishes that it is more likely than not that she would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2); see Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.2004).

The three issues in this case, which we address in turn, are: 1) whether Gao established that she might be forced into marriage "on account of ... membership in a particular social group"; 2) whether the IJ had a substantial basis for finding insufficient evidence that the Chinese authorities would not protect Gao; and 3) whether the IJ had a substantial basis for finding that Gao could safely relocate within China. The government appears to concede, as it must, that forced marriage is a form of abuse that rises to the level of persecution. Moreover, as the IJ and BIA failed to address Gao's CAT claim, we simply remand that claim for consideration by an IJ or the BIA in the first instance.

A. Particular Social Group

The five grounds protected under paragraph 1101(a)(42)-race, religion, nationality, membership in a particular social group, and political opinion-derive verbatim from the United Nations Protocol Relating to the Status of Refugees ("Protocol"),...