Gao v. Sessions
891 F.3d 67
| 2d Cir. | 2018Background
- Two Chinese nationals, Hong Fei Gao and Hao Shao, sought asylum, withholding of removal, and CAT relief based on religious persecution after police raids, arrests, and beatings for practicing Christianity. Both entered the U.S. without inspection and conceded removability.
- Each filed an I-589 asylum application that did not describe post-arrest medical treatment; both later testified that they had brief village clinic visits and received topical medicine.
- Immigration Judges (IJs) denied relief primarily on adverse credibility grounds, heavily relying on omissions in the initial applications and in corroborating third-party letters (parents, pastor).
- The Board of Immigration Appeals (BIA) affirmed, upholding adverse credibility findings based largely on omissions about medical treatment and other minor inconsistencies.
- The Second Circuit reviewed de novo legal questions and for substantial evidence the factual credibility findings, and remanded, holding the agency over-relied on certain omissions when considering the record as a whole.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omissions about post-arrest medical treatment justify adverse credibility findings | Gao/Shao: omissions were minor, supplementary, and consistent with claim; applicants need not list every aftermath detail | Government: omissions and third-party letters’ failures to mention clinic visits undermine credibility | Court: Omissions about clinic visits were supplementary and carried little weight when viewed in totality; agency erred in heavily relying on them |
| Whether third-party letters (parents/pastor) omitting medical treatment or arrest support adverse credibility | Plaintiffs: third-party omissions are less probative, especially when they do not contradict applicant's statements | Government: omissions by corroborating sources can corroborate disbelief | Held: Court found third-party omissions weak here and applicant’s failure to explain them was less probative |
| Whether omission in pastor’s handwritten "certificate" (not mentioning arrest) undermines credibility | Shao: the certificate’s purpose was membership confirmation, not a narrative of persecution; omission expected | Government: absence of arrest mention weakens corroboration | Held: Court found omission unsurprising given document type; IJ failed to evaluate plaintiff’s explanation adequately |
| Whether other minor inconsistencies (dates, counts, demeanor) support denial | Plaintiffs: discrepancies were trivial or ordinary memory lapses; record otherwise corroborates beatings | Government: vacillation on counts/dates and demeanor justified adverse credibility cumulatively | Held: Some demeanor/vacillation supported concern, but because agency relied substantially on erroneous bases, remand required for reweighing under totality of circumstances |
Key Cases Cited
- Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) (REAL ID Act permits reliance on omissions/inconsistencies but requires specific, cogent reasons assessed under totality of circumstances)
- Lianping Li v. Lynch, 839 F.3d 144 (2d Cir. 2016) (applicants need not list every incident; omissions may be less probative than inconsistencies)
- Pavlova v. INS, 441 F.3d 82 (2d Cir. 2006) (if agency relies on erroneous bases, remand is warranted when outcome uncertain absent those errors)
- Kone v. Holder, 596 F.3d 141 (2d Cir. 2010) (standards for asylum vs. withholding and CAT explained)
- Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) (applicant must do more than offer plausible explanations to overturn credibility finding)
- Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315 (2d Cir. 2006) (credibility-based denials remain reviewable and cannot insulate agency decisions from scrutiny)