Qing Gao v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-1001
QING GAO,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of Removal from
the Board of Immigration Appeals
File: A77-347-338
Submitted Under Third Circuit LAR 34.1(a)
March 8, 2005
Before: *NYGAARD, MCKEE, RENDELL, Circuit Judges
( Filed: July 29, 2005 )
OPINION
McKee, Circuit Judge
Qing Gao petitions for review of an order of the Board of Immigration Appeals
affirming the decision of an Immigration Judge denying relief from removal. For the
reasons that follow, we will dismiss the petition.
I.
Inasmuch as we write primarily for the parties who are familiar with this case, we
________________
* The Honorable Richard L. Nygaard assumed senior status on July 9, 2005

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need not repeat the factual or procedural background except insofar as may be helpful to
our brief discussion.
Gao conceded removability before an Immigration Judge and applied for asylum,
withholding of removal, and protection under the Convention Against Torture. The IJ did
not find Gao’s testimony credible and he denied relief. The BIA affirmed without
opinion, and this Petition for Review followed.
II.
Since the BIA summarily affirmed the decision, we review the decision of the IJ as
the final decision of the BIA. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en
banc). Our review is limited to determining if the IJ’s ruling is supported by substantial
evidence in the record. Id. at 247. We therefore must determine whether a reasonable
factfinder could make the same determination as the IJ based upon the administrative
record that was before the IJ. If so, the record supports the IJ’s ruling and we must
dismiss the petition for review. Id. at 249. Where, as here, the IJ’s decision involves a
credibility determination, the IJ must give specific reasons for his conclusion that bear
upon “a legitimate nexus” to the credibility ruling. Balasubramanrim v. INS, 143 F.3d
157, 162 (3d Cir.1998). Adverse credibility findings are also reviewed for substantial
evidence. Id. at 161. An adverse credibility finding will be sustained “unless . . . no
reasonable person” would have found the applicant incredible. Chen v. Ashcroft, 376
F.3d 215, 222 (3d Cir. 2004)(citations omitted).
III.

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To his credit, the IJ recognized that Gao may have felt pressured during the1
airport interview. See Senathirajah v. INS, 157 F.3d 210. 218 (3d Cir. 1998) (noting the
limitations of airport interviews in making credibility determinations in a subsequent
Immigration proceeding). However, even after allowing for the possibility that Gao may
have felt pressured at the airport, the IJ concluded that Gao’s explanation that he signed
the INS statement because he feared he would be sent back to China was “not particularly
plausible or persuasive.” As we explain further below, given the other problems with
Gao’s testimony, the IJ’s skeptical view of the discrepancies in Gao’s account of his
flight from China is supported by the record.
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The IJ found that Gao’s testimony was not credible because:
1) Gao’s explanation of how he managed to escape
from the family planning officials in April lacked details and
was “highly implausible.”
2) The IJ found Gao’s national identification card and
household registration “highly suspicious” because they were
issued in October 2000 when Gao claimed to have been in
hiding. Moreover, his explanation that his parents bribed
officials was inconsistent with his assertion that family
planning officials were threatening his parents to get them to
divulge his whereabouts.
The IJ reasoned that if his parents were being
threatened by authorities, his parents would not have asked
them for documents on Gao’s behalf.
3) There was a substantial discrepancy between the
story Gao provided at the airport and his asylum application.1
IV.
We exercise jurisdiction to review final orders of removal pursuant to 8 U.S.C. §
1252(a)(1). An agency’s finding of fact that an applicant has failed to show eligibility for
asylum and withholding of removal is “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
V.
To establish a claim for asylum or withholding of removal, an applicant must
establish that he/she is a “refugee.” 8 C.F.R. § 208.13. A “refugee” is defined as:

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[A]ny person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the
protection of that country because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.
8 U.S.C. § 1101(a)(42)(A). An asylum applicant bears the burden of proving past
persecution or a well founded fear of future persecution. 8 C.F.R. § 208.13(a), Abdile v.
Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). An applicant must demonstrate an actual and
genuinely held subjective fear of persecution and show that the fear is objectively
reasonable. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
To qualify for withholding of removal, an alien must establish a clear probability
that his/her life or freedom would be threatened on account of one of the five statutory
grounds if removed. INA § 241(b)(3). INS v. Stevic, 467 U.S. 407, 429-30 (1984).
In order to qualify for relief under Article III of the Convention Against Torture,
an alien must prove that it is more likely than not that he/she would be “tortured” if
removed to the proposed country of removal by, at the instigation of, or with the consent
or acquiescence of, someone acting in an official capacity. 8 C.F.R. § 208.16(c)(4).
VI.
Gao argues that (1) the IJ’s adverse credibility determination is not supported by
substantial evidence and (2) he is statutorily eligible for asylum under 8 U.S.C. §
1101(a)(42).
Gao claims that the three problems underlying the IJ’s adverse credibility

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determination were adequately explained and addressed in the record. He explains the
inconsistencies between his airport interview and his asylum application by asserting that
he did not learn about his fiancée’s abortion until after the airport interview. Therefore, he
insists, he could not have mentioned it when first interviewed at the airport. However,
even assuming that this is true, Gao still failed to relate his flight from China to any fear of
family planning officials during the airport interview. As we noted above, we have in the
past, expressed concerns about an IJ’s reliance on airport interviews in assessing
credibility of an alien. See Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998);
Senathirajah v. INS, 157 F.3d 210 (3d Cir.1998). However, those concerns are not present
here because of the totality of factors the IJ relied upon in assessing Gao’s credibility, and
Gao does not challenge the manner in which the airport interview was conducted or the
circumstances surrounding it. Moreover, unlike some cases we see, the inconsistencies the
IJ focused on here can hardly be characterized as “immaterial.” “[W]here the
discrepancies between an airport interview and the alien’s testimony go to the heart of the
claim, they certainly support an adverse credibility determination.”. Chen v. Ashcroft, 376
F.3d. 215, 224 (3d Cir. 2004) (citation and internal quotations omitted).
Gao also argues that the IJ’s conclusion that his account of his escape from the
family planning officials was implausible because it was “mere speculation and
conjecture.” Gao believes that it is “inappropriately stringent” for the IJ to expect him to
recall minute details of that event. We agree that minor inconsistencies and minor
omissions that reveal nothing about an asylum applicant's fear will not support an adverse
credibility finding. Rather, the IJ’s should focus on discrepancies that involve the “heart

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of the asylum claim.” Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004)(citation
omitted). Nevertheless, Gao’s altercation with family planning officials was central to his
asylum claim of persecution based upon resisting a coercive population control program. It
was therefore not unreasonable for the IJ to expect more detail in Gao’s testimony
regarding that incident.
Regarding Gao’s identity documents, the IJ opined that it would have been more
understandable if Gao’s parents had approached police for his Chinese identification
documents when Gao was in a place of “relative safety,” such as the United States. Gao
claims that he was in a place of relative safety in October, 2000 because he was in a
neighboring province. However, the IJ’s evaluation of that aspect of Gao’s testimony was
reasonable. Contrary to Gao’s assertion, it was not mere speculation for the IJ to be
skeptical of testimony that the police would issue an official document to a fugitive. Nor
was it unreasonable for the IJ to reject Gao’s bribery explanation given his testimony that
officials were threatening his parents in an effort to discover his whereabouts.
VI.
The IJ ruled in the alternative that even if Gao had been credible, his testimony
would not have satisfied his burden of proof for asylum. However, we need not review the
IJ’s alternative ruling because we conclude that his adverse credibility determination is
supported by substantial evidence on this record.
VII.
Finally, we find that substantial evidence supports the IJ’s finding that Gao is not
eligible for CAT relief. As noted, under the CAT an applicant may be granted

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withholding of removal if he/she can show that, if removed, it is more likely than not that
he/she would be tortured. At the hearing, Gao was specifically asked if he would be
harmed if returned to China and he answered: “No, but I will be hurt extremely bad
financially.” He also stated that his only “fear or concern” about returning to China was
that he would be “embarrassed if he cannot make it into the United States.” Clearly,
financial harm and embarrassment do not constitute torture. See 8 C.F.R. § 208.18(a)
(defining “torture).
VIII.
For all of the above reasons, we will deny the petition for review.

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