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Gao v. Sessions

United States Court of Appeals, Second Circuit

May 25, 2018

Hong Fei Gao, AKA Xue Liang Zhang, Petitioner,
v.
Jefferson B. Sessions III, United States Attorney General, Respondent. Hao Shao, Petitioner,
v.
Jefferson B. Sessions III, United States Attorney General, Respondent.

          Argued: December 11, 2017

          On Petitions for Review from the Board of Immigration Appeals

         Petitions for review heard in tandem from decisions of the Board of Immigration Appeals affirming the decisions of Immigration Judges denying petitioners asylum and related relief on adverse credibility grounds. During removal proceedings, petitioners testified to certain details about their experiences that they had not included in their initial applications and supporting documents. The Immigration Judges relied substantially on these omissions in finding petitioners not credible.

         Petitions Granted.

          Mona Liza Fabular Lao, New York, New York, for Petitioner Gao.

          Joshua E. Bardavid, Law Office of Joshua E. Bardavid, New York, New York, for Petitioner Shao.

          Brett F. Kinney and Jesse Lloyd Busen, Trial Attorneys, Jeffery R. Leist, Senior Litigation Counsel, Holly M. Smith, Senior Litigation Counsel, Laura M. Cover, Law Clerk, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

          Before: Winter and Chin, Circuit Judges, and Korman, Judge.[*]

          Chin, Circuit Judge:

         These petitions for review heard in tandem challenge two decisions of the Board of Immigration Appeals (the "BIA"), affirming decisions by two Immigration Judges ("IJs"), denying asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") to two petitioners seeking relief from religious persecution in China on adverse credibility grounds. During removal proceedings, petitioners testified regarding the medical attention they received for injuries they sustained from police beatings. The IJs and the BIA relied substantially on the omission of that information from petitioners' initial applications and supporting documents to determine that petitioners lacked credibility.

         On appeal, petitioners principally challenge the agency's adverse credibility determinations. In light of the totality of the circumstances and in the context of the record as a whole, in each case we conclude that the IJ and BIA erred in substantially relying on certain omissions in the record. Accordingly, we grant the petitions, vacate the decisions of the BIA, and remand the cases to the BIA for further proceedings consistent with this opinion.

         BACKGROUND

         We summarize the facts and procedural history of each case separately, as follows:

         I. Hong Fei Gao

         Around April 2010, Gao, a native and citizen of China, entered the United States without inspection. In September 2010, Gao applied for asylum, withholding of removal, and protection under the CAT.

         In his application, which included a short personal statement in Chinese, Gao explained that in February 2009, influenced by his mother, he began practicing Christianity in China. In November 2009, while he was praying at a friend's house with other church members, the police broke into the house and arrested Gao and his friends. Gao was brought to the police station and was detained for ten days, during which he was repeatedly interrogated and beaten. His family spent money and relied on connections to secure Gao's release, and the police required Gao to sign a letter promising not to attend church activities anymore. After his release and before he recovered from his detention, Gao was fired from his restaurant job. He left China in March 2010 and continued to practice Christianity in the United States. The statement did not provide any description of any medical treatment.

         In December 2010, Gao was served with a notice to appear in removal proceedings. Through counsel, Gao conceded removability.

         On September 12, 2014, following a hearing on September 27, 2012, the IJ (Loprest, IJ) issued written orders denying Gao's application for asylum, withholding of removal, and protection under the CAT, and ordered Gao removed to China. The IJ denied relief principally on adverse credibility grounds.[1] The IJ cited the following "evidentiary shortcomings that might not undermine [Gao's] case individually, but when considered cumulatively, " led the IJ to conclude that Gao lacked credibility, Gao Cert. Admin. R. 64:

         . Gao testified that he was interrogated by police four times and was beaten during those interrogations, but his application omitted the number of interrogations and the fact that his injuries required medical attention.[2]

          . Gao testified that he was beaten and visited a clinic, but Gao's mother's letter did not mention that Gao was physically injured or that she and Gao's father took him to a clinic. Instead, her letter stated that she was "afraid that [he] would be beaten by the police." Id. at 251.

         . Gao could not explain why his Chinese birth certificate and a letter from his underground church used identical photographs.

         . Gao could not explain how he traveled under an electronic airline ticket in his real name while simultaneously using a fraudulent passport.

         . Gao lacked candor and responsiveness, as he responded to questions vaguely, asked for many questions to be repeated, and paused for a long time before answering.

         Gao failed to explain the inconsistencies and omissions to the IJ's satisfaction. The IJ was not persuaded by Gao's explanation that he did not know why his mother failed to mention the clinic visit in her letter. The IJ noted that he reached the adverse credibility determination "with some reluctance" as "the documentary record appears to corroborate certain aspects of Gao's claim, " citing letters, photographs, and statements relating to Gao's mistreatment in China and his practice of Christianity in the United States, as well as U.S. Department of State reports on religious persecution in China. Id. at 64.

         On June 6, 2016, the BIA affirmed the IJ's decision and dismissed Gao's appeal, finding no clear error in the IJ's determination that Gao lacked credibility. In re Hong Fei Gao, No. A200 922 341 (B.I.A. June 6, 2016), aff'g No. A200 922 341 (Immig. Ct. N.Y. City Sep. 12, 2014). Although it noted that some of the IJ's findings did not support an adverse credibility determination, citing one example of the discrepancy relating to the number of interrogations, the BIA upheld the adverse credibility determination based on two omissions: (1) the omission in Gao's mother's letter of the facts that he was physically injured and that his parents took him to a clinic, and (2) the omission in Gao's asylum application of the fact that he required medical treatment and the extent of his mistreatment. After considering Gao's proffered explanations -- he did not know why his mother failed to mention his medical treatment, he did not request that her letter include all details about what happened after his release, and he could not produce a receipt because the clinic did not give him one -- the BIA found no error in the IJ's conclusion that Gao did not reasonably explain the omissions.

          On appeal, Gao challenges the adverse credibility determination, arguing that his testimony was not inconsistent with his asylum application or his mother's letter. He contends that the omissions were minor, ...


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