2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-24-2009

Gao v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1915

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-1915

ZHAOJING GAO,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

(No. A97-521-525)

Before: McKEE, FUENTES and WEIS, Circuit Judges.

Submitted pursuant to Third Circuit LAR 34.1(a)

July 24, 2008

(Opinion filed: February 24, 2009)

OPINION

McKEE, Circuit Judge.

Zhaojing Gao petitions for review of a final order of the Board of Immigration

Appeals which affirmed the decision of an Immigration Judge denying his applications

for asylum, withholding of removal and relief under the Convention Against Torture

(“CAT”). For the reasons that follow, we will deny the petition for review.
An alien must prove by clear and convincing evidence that he filed his asylum 1

application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). 

However, if the alien can demonstrate “either the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum or extraordinary

(continued...)

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I.

Because we write primarily for the parties, who are intimately familiar with the

facts of this case, we will recite only such facts and procedural history as are necessary

for our disposition of this petition for review. 

To be eligible for asylum under Section 208 of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1158, an applicant must establish “persecution or a well-founded

fear of future persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” See 8 U.S.C. § 1101(a)(42)(A). To be

eligible for withholding of removal under Section 241(b)(3) of the INA, the applicant

must demonstrate that his “life or freedom would be threatened in [the country of

removal] because of race, religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An alien who has failed to satisfy the

standards for asylum is necessarily ineligible for withholding of removal. Zubeda v.

Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). To qualify for relief under the CAT, the

applicant must demonstrate that it is more likely than not that he/she would be tortured if

removed. 8 C.F.R. § 208.16(c)(2). 

The IJ found that Gao’s asylum petition was timely but that he was not credible 1
(...continued) 1

circumstances relating to the delay in filing the application,” failure to file within the one

year period may be excused. 8 U.S.C. § 1158(a)(2)(D). The IJ found that Gao’s

application was timely filed. JA 57. Pursuant to 8 U.S.C. § 1158(a)(3), “[n]o court shall

have jurisdiction to review any determination” under 8 U.S.C. § 1158(a)(2)(D). See, e.g.,

Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003); Sukwanputra v. Gonzales, 434

F.3d 627, 633 (3d Cir. 2006). 

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and could therefore not meet his burden of proving the allegations of persecution or

torture. She noted, however, that if Gao were credible, she would conclude that he had

met his burden of showing a well-founded fear of future persecution in China. Based on

her finding of adverse credibility, however, the IJ denied Gao’s requests for asylum and

withholding of removal. In addition, because the IJ concluded that Gao was not credible

regarding the allegations underlying his claim for asylum and withholding of removal

(which were the same allegations that supported his CAT claim), the IJ found that Gao

failed to establish that he qualified for protection under the CAT.

Gao appealed the IJ’s adverse credibility determination to the BIA, which

affirmed the IJ’s decision and provided additional analysis. Where the BIA issues an

opinion affirming the IJ’s decision and offering additional analysis, we look to both the

IJ’s and the BIA’s decisions. See Abdulai v. Ashcroft, 239 F.3d 542, 548-49 n.2 (3d Cir.

2001). We review factual findings, including adverse credibility findings, for substantial

evidence. Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). Under the substantial

evidence standard of review, a credibility determination will be upheld unless a

reasonable factfinder would be compelled to conclude to the contrary. Id.
To support his claim that he was a Falun Gong practitioner, Gao submitted (1) an 2

alleged membership certificate issued by the Changle Falun Gong Association in June

2001, indicating that he had completed an advanced Falun Gong course, (2) an alleged

written invitation to attend a Falun Gong conference in Bangkok, Thailand and (3) an

alleged hospital letter dated February 1998 regarding his father’s admission for mental

health problems. At a hearing, a DHS Forensic Document Examiner with a speciality in

authenticating Chinese documents, submitted a written report and testified that Gao’s

alleged Falun Gong membership certificate could not be authenticated. The Examiner

also explained that both Canadian and U.S. officials confirmed that Falun Gong does not

issue membership documents in China, and that they are available for a fee from schools

that “facilitate immigration to the United States.” JA 393. The Examiner’s Report also

indicated that the alleged Falun Gong invitation for the conference in Bangkok and the

alleged February 1998 hospital letter regarding Gao’s father’s mental health illness are

“probably not what they claim to be.” JA 232-36. The Report advised that these two

documents were consistent with numerous other documents that DHS has examined in

other cases and both documents appeared to have been prepared by the same source and

were given an artificial aged look by use of a brownish liquid. JA 393.

The IJ was persuaded by the DHS Examiner’s report and testimony and found that

the three documents Gao submitted to corroborate his story were probably not legitimate,

and he had not adequately corroborated his claim. JA 55-56, 60-64. In his appeal to the

BIA, Gao did not challenge this basis for his adverse credibility finding. Thus, Gao failed

to exhaust his administrative remedies as to his lack of credibility based on his

submission of these documents, and we have no jurisdiction to review this aspect of the

IJ’s decision. 8 U.S.C. § 1252(d)(1); Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.

2005). By itself, this unreviewable finding is sufficient to support the adverse credibility

decision and to deny the petition for review. See, e.g., Matter of O-D-, 21 I & N Dec.

1079, 1083 (BIA 1998) (holding that presentation of counterfeited documents, “in the

(continued...)

4

II.

Our review of the record leads us to conclude that substantial evidence supports

the adverse credibility findings. First, Gao submitted unauthenticated (probably

fraudulent) documents to corroborate his claim that he was a Falun Gong practitioner and

that his father had been hospitalized. Second, there were discrepancies between Gao’s 2
(...continued) 2

absence of an explanation regarding such presentation, creates serious doubts regarding

the [applicant’s] overall credibility.”); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

2007) (“In the immigration context . . . a single false document . . . may (if attributable to

the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated

evidence.”).

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testimony and written asylum statement about whether the police were continuing to look

for him, as well as a discrepancy with a letter written by his father on that point. Third,

Gao gave inconsistent testimony about when and where he practiced Falun Gong in

China. Finally, Gao’s testimony that his mother was arrested was not plausible since his

own witness, who lived in the United States and testified on Gao’s behalf, and whose

husband was a relative of Gao’s mother, knew nothing about the alleged arrest or

disappearance. 

Absent credible testimony, on this record, Gao cannot sustain his burden of

establishing that he qualifies as a refugee. Since substantial evidence supports the

adverse credibility determinations, we agree that he has not established eligibility for

relief from removal and we will therefore deny the petition for review.