*1 266 II, Challenger
ful III. operation early reports FAA received had reasons, For these we will affirm the making flights, such continued that he 28, 2001, Emergency FAA’s June Cease over the Internet in- Ickes’ advertisement and Desist Order. gather property on his public vited fly-by for a weekend demonstrations. the demonstrations undisputed
It is II, an air- Challenger include the
were to failed to have certified as
craft that Ickes by an authorized
airworthy inspected mechanic. GAO, Petitioner, Yun Chen not hold a pilot Ickes also did valid v. or airman medical certificate. certificate ASHCROFT, Attorney John General of FAA thus had concrete information as States, Respondent. the United specific planned dates on which Ickes aircraft, an flights conduct unlawful No. 01-3472. time in which to stop
it had a limited those United Appeals, States Court of safety as to flights protect so Third Circuit. people property that could be harmed malfeasance. We conclude that Ickes’ Argued: May 2002. posed air show an undeniable exi- Ickes’ Aug. Filed: 2002. gent danger. We see no clear error of As Aug. Amended: 2002. judgment the FAA’s invocation of its 46105(c) § in an powers broad under at-
tempt stop flights. his unlawful complains deprived that he was
Ickes opportunity an for a hearing-
notice and issued Emergency
before the FAA regulations ordinarily FAA
Order. While
contemplate prior agency notice before the order,
will a cease and desist an issue understandably provided
exception See emergency.
the case of C.F.R. 13.20(b) (“Unless
§ the Administrator de- emergency
termines that an exists and requires in air commerce
safety imme- of an order under
diate issuance this sec-
tion, subject to the order person shall prior
be with notice to issu- provided
ance.”). the FAA Given committed deeming Ickes’ air show an
no error
emergency required an immediate re-
sponse, agency certainly did not err in
foregoing prior pursuant notice to 14 13.20(b). §
C.F.R. *2 Pasadena, CA, (argued), Artz for
J. Jack petitioner. Jr., MeCallum, D. Assistant At-
Robert Division, General, Terri Jane torney Civil Counsel, Seadron, Litigation Office Senior M. Mc- Immigration Litigation, John of Jr., Adams, Immigra- (argued), Office of Division, De- Litigation, tion Civil U.S. DC, Justice, Washington, for partment of respondent. BECKER, Judge, Chief
Before: GREENBERG, Judge, and Circuit BARZILAY, of Judge, U.S. Court Trade.* International THE COURT OPINION OF BAZILAY, Judge, U.S. Court Trade. International know recently come to The world has People’s in the Gong as movement aspects that “blends Republic of China Taoism, Buddhism, and the meditation (a martial techniques Qigong traditional art) Hongzhi.” Li teachings with the State, Rights Report Human Dep’t of U.S. 25, 2000, 1999, China, avail- February for http://www.state.gov/www/glob- able * designation. Barzilay, Judge, United Honorable Judith M. Trade, sitting by States Court of International hrp—repori/ehi- ground, persecution this her fear of if she rights/ 1999— al/human — widely has the news media returns to account of
na.html. As China on July, gov- connection, Chinese reported, Gong applied polit- that she officially declared Falun il- asylum ical withholding deporta- ernment and for a nationwide crackdown legal began tion to China.- Her denied *3 movement, launching a massive a an against following hearing Immigration before (IJ) campaign against group. Judge who found that Gao lacked propaganda up “rounded and detained government upon based inconsistencies practitioners] of thousands of for sev- story. Immigration [tens The Board of Ap- (BIA) open often in stadiums with days, peals summarily eral the deci- affirmed conditions with inade- poor, petitions overcrowded of the IJ. She for sion review food, sanitary quate water and facilities. the BIA’s decision. Practitioners who refused to renounce rights Gao’s case is not a human cause expelled
their beliefs were from their a practitioner celebre—she was not even jobs.” schools or fired from their Id. Gong, Falun and was no more than a mere Department to the Re-
According State messenger, organization’s drawn into the port, the harshness of the crack- “despite network through the influence of her aunt. down, Gong Falun demonstrations contin- reason, For this the IJ concluded that country throughout ued around messenger Gao’s activities could not be the summer into the fall. Authorities re- and reason for the against action taken her. demon- sponded quickly by breaking up That improper. conclusion was Careful forcibly times detaining strations —at scrutiny of the record also shows that —and demonstrators.” Id. There have also been significant there are no inconsistencies reports beatings “credible and deaths of story. Additionally, the IJ failed to practitioners detention who refused to important documentary consider evidence “According recant Id. their beliefs.” supports during claims that Gao made International, some Amnesty adherents of hearing. Although may it be that Gao Gong been] Falun tortured [have with may prevail upon a fuller review of the shocks, as well as having electric their problems these with the IJ’s deci- (which and feet shackled and linked with sion, hands explicated especially below Id. against crossed chains.” It is this steel troubling in Department view of the State appeal back-drop comes to us. Report detailing a reign against of terror Gong) require grant us to the peti- (Gao), a Yun Gao woman of young Chen for tion review and remand this case for 18, China, native and citizen of who is a proceedings. further escaped being to the United States after school, beaten, expelled impris- from and I. BACKGROUND camp. Although oned in labor the rec- an clearly ord demonstrates Gao has Gao arrived at Angeles Los Internation- history 31, truancy, extensive and al Airport on October 2000. Lacking documentation, a lot of time spent participating proper that she she was served endeavors, t’ai chi other athletic Appear by and on the with Notice to the Immigra- (INS). it appear record us does not tion before and Naturalization Service by taken any action was the school author- The Notice charged removability her with government against an likely ities or Chinese alien who was become charge, until learned that she was a public immigrant Gao and as an who at messenger Gong. for the Falun It is on the time of her application for admission Yu, an active member and in- Gao was a valid visa. 8 U.S.C. possess did not 1182(7)(A)(i)(I). Gong in the Falun movement. 1182(a)(4)(A); re- structor Gao §§ aunt, apparently was close to her asylum for filing application sponded 1158(b)(1), accompany would often her when she went § for with- pursuant to 8 U.S.C. ran meetings un- errands. This loose removal, protection holding Gong began with the Falun association Against Article 3 of the Convention der Cruel, In March aunt recruited De- 1998. Inhuman or and other Torture group, for the paid The her to be Punishment. Treatment or grading frequently claim that which meant on the grounded working for the Falun instead of with the banned her association expul- attending school. in China led to Gong movement school, beating, imprison- from sion expelled On June *4 security forces. at the hands of local ment reported her her school. School officials by her prepared asylum application, connection to the Falun to the local explanation minimal as attorney, contained and held her for police, who arrested Gao claim; we asylum for her to the reasons time claims days. During two she February margin.1 it in the On rescribe kept that she was held without food and the hearing before given she was long periods. says also awake for She IJ, allowed to devel- at which time she was pants her remove her and police made testimony oral story by presenting her op The instrument beat on buttocks. documentary The IJ based and evidence. rod, long with was a which they beat her primarily on opinion his have been to deliver may may or able documentary evidence and some of not know if charge. an electric Gao does hearing. The evidence submitted electrocuted, only she was she was as follows. may be summarized alleg- Police twice and kicked. also struck family and up threatened to lock high edly testified that she was school Gao aunt, two her house.2 After this Her “sell” “seal” Fujian Province. student they me for two station where detained asylum application reads as follows: 1. Gao’s me, days, me. scolded and beat grade at CHAO I am an 8th student they security public threatened that The when YANG HIGH SCHOOL 03/2000 expel my family my and would seal house aunt) my (my named Yu one relatives they me Then on took from it. 6/16/2000 to the Gao recruited me as labor in the with other detainees to forced paid Gong group my area. She managed escape my countryside. I per was absent me 150 RMB month. I parents quickly moved me to relative's many my of mes- times because from class City. stayed I there in in Fu Zhou house disciplin- senger activities. The school took My parents our hiding until 8/23/2000. me, against stopped my ary so I measures escape arranged an from China relatives group for a while. activities with asylum for USA where I could obtain May group in Again participated I in the this situation. I was principal The learned that 2000. Chang City Le to Guan Zhou I flew from principal again class. The or- absent from City stayed Guan Zhou I on 8/23/2000. group, stop participating in the dered me to night on and flew Thailand for a obey principal re- but I did not him. The Brazil I flew from Thailand to 8/24/2000. security, public ported me to the local Angeles on arrived in Los on I 9/23/2000. to the school to arrest me imme- came 10/31/2000. formally expelled. diately I was The after 341], my expulsion to the principal announced points record where are two in the were class. 2. There on while we school 6/13/2000 security, her statement waiting recounts this threat. Gao public who says, "they school, police attached to took me to the me at the released, she was day grounds incarceration then the school stating for her again on June 2000. At that expulsion. arrested The letter states that Gao: with a point placed group pris- keeps joining on the Fa Lun Gong activ- a park who were taken to and made oners ities as their messenger. [S]he was manual labor such perform cutting questioned by justice the local depart- moving grass and stones. Gao testified ment in June and has been absent from during a lunch break when the two class for 56 times since then.... Based guards supervising group were not (continuous regulation on section attention, paying escaped into a wood- violation, high discipline law viola- home, area. ed She first went then her tion regulation) and the regulations of parents sent her to a relative’s house in a public security authority ... GAO city away. about 100 miles She remained school, Yun Chen expelled for a fleeing there few months before reported case is public security to the country. through She traveled Thailand bureau and processed be based on the arriving Angeles. and Brazil before in Los regulation. significant pieces Gao submitted two [A.R. 388]. documentary evidence at her hearing] IJ, The first her high school student tran- in an oral opinion, denied Gao’s *5 book, script that by booklet was used asylum for based on the facts grades did, school to record and however, comments of her case. He recognize beginning her teachers ending 1998 and that an association with the Falun Gong the relevant portions subject of which are could one to a well founded fear of detailed in the margin.3 The second was persecution.4 background Based on infor- Discipline mation, letter from Determination he observed the Falun Gong that times, my expel my
would
family
seal
house and
many
hope
pays
we
that she
it.”
testimony
[A.R.
In her
341].
she
more attention to the school rules and
says, "they
my family up
would lock
and
organization.” [A.R. 167].
my
would sell
house.”
108].
[Id.
3) 1999 to 2000—1st Semester
"Comment:
3.
transcript pages
The relevant
show that Gao
This
thinking,
student shows emotional
relating
received comments
to her exercise
joins those outdoor exercises too often
starting in
habits
1998:
gets
progress,
that she
slow
can not catch
1) 1998 to 1999—1st Semester
students,
up with other
not active in
Penalty:
"Reward or
Joined those exer-
class,
hope
parents
we
help
that the
can
cises activities and was absent for 18
thinking
her with her
and her mind to
times, Appointed to be criticized.” [A.R.
study,
join
focus into
do not
those out-
163],
again
door exercises
which affects her
"Comment:
study
progress.”
and
[A.R. 170].
good
This student was
and behaved ...
4) 1999 to 2000—2d Semester
body
but shows more interest
in those
"Comment:
exercises,
honor,
strong
feels
for the class
This student has fallen into last sixth in
but has been absent 18 times because of
class,
class,
pay
does not
exercises,
attention in
joining
body
those
after receiv-
say
joins
classmates
that she
ing
often
those
Policy
criticisms from the
and admin-
exercises,
school,
outdoor social
department
istration
does not listen
hope
we
talking
she will correct
the class instructor after
those mistakes
with
and
get
173],
progress.”
better
her....”
[A.R.
[A.R. 164].
2) 1998 to 1999—2d Semester
4.
IJ
grounds
"Comment:
The
found that removal on
always joins
This student
...
public charge
those
Gao would
out-
become a
was not
door exercise that has been late for class
sustainable on the evidence.
just
religious group
adopts
a small
but
either
or
the opinion
defers
of the
IJ,
that has “at-
phenomenon”
Appeals
“social
China
a Court of
must then review
Ashcroft,
IJ. Abdulai v.
govern-
tracted the attention of Chinese
the decision of the
authorities,”
(3d
Cir.2001)
ment
and caused some fric- 239 F.3d
549 n.
(“When
IJ,
tion in
between the
the BIA
relations
United States
defers to an
a review-
39], Therefore,
must,
and
China.
court
as a matter of logic, review
found,
respondent’s
“the
niche China is
the IJ’s decision to assess whether
one that could under certain circumstances BIA’s decision to
appropriate.”)
defer was
addition,
persecutory,
persecution.”
be
or cause her
scope
of our review is
accepted
extremely
The IJ
“that the Fa-
[A.R. 40].
narrow:
lungong
activity
religious,
is a
belief
Attorney
General
has
been
view,
political
and persecution on
and/or
“charged with the administration and
persecution
account of it is
on account of
INA,
enforcement” of the
Congress
religious
political
one’s
views.” [A.R.
provided
has
that his “determinations
42],
...
rulings
all
respect
ques
tions of law shall
controlling.”
be
Gao,
testimony,
in her
clarified
1103(a)(1).
§
U.S.C.
Because of this
was not
practicing
Gong,
acting
delegation,
Supreme
Court has held
as a
and it was that association
that “principles of Chevron deference
puts
in her in danger. The IJ stated
applicable”
in the immigration con
person
actually
that if a
tortured for
v. Aguirre-Aguirre,
INS
text.
526 U.S.
being messenger,
“the Court believes
415, 424, 119
1439, 143
S.Ct.
L.Ed.2d 590
persecution.”
would constitute
(1999).
emphasized
The Court has also
question
then
[A.R. 44].
became
profound
that —because of the area’s
whether Gao’s
“regarding the
*6
foreign
policy implications “judicial
—
plausible,
treatment
that she suffered is
deference to the Executive Branch is
detailed,
sufficiently
and credible to allow
especially appropriate in
immigra
the
us to conclude that
in fact perse-
425, 119
tion context.” Id. S.Ct. 1439.
cuted for these few activities.”
[/</].
Attorney
And because the
General has
found that
credibility.
Gao lacked
Most
BIA
power
vested the
with the
to exer
importantly,
any
without
sup-
evidence to
authority
cise the “discretion and
con
conclusion,
port this
the IJ stated that he
law,”
see 8
upon
by
ferred
[him]
C.F.R.
“implausible
found
...
the preoccupation
3.1(d)(1) (2000),
§
principles
these
of
of Chinese authorities for someone who is
apply
deference also
to the BIA. See
adjunct
activity
mere
to the
the
Aguirre-Aguirre,
II. STANDARD OF REVIEW 1158(b)(1) § Immigration of the and Na (INA) begin by noting tionality We that we have Act an allows otherwise power only to review the final stay order of removable alien to the United 1252(a)(1). § Attorney removal. 8 U.S.C. “may” Ordinari States. General ly, Appeals of grant asylum Courts review decisions of to an alien who demonstrates (BIA), Immigration Appeals the Board of refugee: person is unable he/she country and not those of an the BIA unwilling IJ. When does or to return to the of however, not render own opinion, person’s nationality its or habitual resi- 272 substantial, on the probative evidence persecution or be- past of because
dence
Id. Like
as a whole.”
per-
future
record considered
fear of
a well-founded
cause
race,
wise,
credibility determinations
religion,
his
adverse
on account
secution
Ba
particular
in a
so-
reviewed for substantial evidence.
membership
are
nationality,
157,
INS,
F.3d
161
opinion. See I.N.A.
v.
143
lasubramamim
political
or
group,
cial
1158(b)(1)
Cir.1998).
(3d
208(b)(1),
(requir-
The court must sustain
§
§
8 U.S.C.
credibility
to definition
conform
determination
asylum applicant
Board’s adverse
ing
101(a)(42)(A),
rec
8 U.S.C.
in the
if
is
evidence
refugee);
there
substantial
INS,
1101(a)(42)(A)
definition of
(providing
Senathirajah v.
§
it.
support
ord to
(3d Cir.1998).
eligibility
210,
In order to establish
Under
refugee).
216
157 F.3d
past persecu-
standard,
asylum on
basis
adverse credibil
Board’s
“(1) an inci-
tion,
show:
applicant
an
must
upheld on re
ity
must be
determination
incidents,
dent,
to the level of
rise
adjudicator
or
“any
view unless
reasonable
(2)
'on account of one
that is
persecution;
to conclude to
compelled
would be
grounds; and
statutorily-protected
242(b)(4)(B),
§
8
contrary.”
U.S.C.
INA
(3)
or
government
committed
1252(b)(4)(B);
§
INS v. Elias-Za
accord
or
is either ‘unable
government
812,
forces
478, 483-84,
carias,
112 S.Ct.
502 U.S.
INS, 217
v.
control.” Navas
unwilling’ to
(1992).
Adverse
INS, 222 F.3d may require the docu In cases some INS Although the substantial evidence claim, support to even mentary evidence to grants significant deference standard applicants, to meet otherwise credible from IJ, the determination of the we conclude Abdulai, proof. 239 F.3d burden of their with the IJ’s problems that there are four at 554. warrant and determination that reversal First, in notwithstand remand this case. asylum applicant has Whether conclusion, it from the ing appears or a his past persecution well- demonstrated testimony and applica record that Gao’s persecution fear of future founded story that a consistent presented under the tion have determination reviewed factual Abdille, credibility on her finding supports standard. evidence substantial Second, found that Gao’s uphold part. the IJ at 483. Court will F.3d testimony, with her report fact to the cards conflicted findings extent agency’s the ac- reasonable, distinguish failed to between Gao’s by “supported that and how she believed the school before she came to the count United States was clarify- activities. Without was perceived ‘practicing those she Falungong,’ she cards, if the or if later report during Gao altered said the same direct testimo- adopted testimony, ny, response them as her the IJ that in to question she the ‘when credibility you found Gao’s was weakened be- did start practicing’ she did not story actually practice, her conflicted with the docu- only cause she was a mes- senger.” This failure further undermines [A.R. ments. The IJ 43]. does not cite Third, failed dis- the two contradictory decision. to statements. searching Deter- Disciplinary only cuss evaluate we find one Fourth, having quotation mination. concluded from Gao that indicates she credible, “practiced” the IJ also ex- Falun Gong, contrary Gao was characterization, pressed story escape doubt as to her the IJ’s this clarification and even her without dem- does imprisonment, not come later her testimony. She stated, onstrating any foundation other than his “I was practicing Gong. Falun I 105], suspicions story was not true. a messenger.” was This statement was followed with a up clarifica- Testimony Application A. Oral very tion same breath that her role messenger. was that of Other than this supported The IJ’s decision cannot be instance, one significant IJ recited no by internal inconsistencies within Gao’s inconsistencies between testimony her oral story developed by testimony. In- Therefore, and her application. we find no deed, and her substantial evidence the record under- present a consistent statement that Gao mining respect Gao’s with for the Falun Gong. her statements. asylum application stated that she Gao’s “messenger” was “recruited” as a for the B. Report Cards supra 1. Her oral Gong. See note
testimony, margin, recounted in the also essentially The IJ’s determination de- established her association pends analysis on his of the report cards Gong messenger.5 aas supporting that were offered as evidence IJ, however, attorney. made reference The documents were what change story presented he believed was a in her in a booklet form. Grades and cross-examination, semester, once she was under comments were entered for each effect of which was to reduce her associa- with the book returned to the “practicing” entry tion with the Falun of new records after each semester. “messenger.” He “It reports states: turns out The individual have traditional col- matter, testimony although originally grades subject umns of for various that what doing stated China as well as a comments section where a *8 "Q: Well, ma'am, testimony during hearing you 5. Her includes weren't member earlier, following Falungong you statements: testified correct? however, messenger only, A: I was a practicing Falungong. “I was I was a mes- the, government said that is senger.” [A.R. 105]. the, person they peo- worst because practicing Falungong. “I was not I was ple help who communicate.” messenger. my 122]. I work with aunt.” [A.R. TA.R. "Q: 112], Falungong You can do some now? “Q: you yourself peo- practice Falungong? A: I don't know the details. I watch Do I, it, basically watching ple doing my job just A: Seldom. I was because is a mes- people practicing.” senger.” [A.R. 114]. 148]. [A.R. 274 hope of school we she will department enter more could administrator
teacher or
get
better
In each of the
correct
those mistakes
notes.
written
specific
164],
2000,
out
pointed
to
re-
The IJ
progress.” [A.R.
1998
years
three
January
questioned
handwritten comments
that when
about the
included
port cards
comments,
or exercises that
Gao said she did not be-
activities
reference
which
with Falun
anything
from her schoolwork.
had
to do
distracting her
lieve
were
following
Gong,
summa-
instead related to other exercis-
3. The
but
supra note
See
chi.
jumping, jogging
for each se-
like
and t’ai
Gao
comments
es
the written
rizes
comments and conclu-
said that she did not receive the re-
and the IJ’s
also
mester
testimony concerning
The
stated:
ported criticism.
IJ
based on Gao’s
sions
reports.
written
those
very plausible.
Court finds this
[t]he
that it
system
going
If the
is so strict
spring
card for the
report
In Gao’s
say
doing
that she should not be
to
2000,
“[Classmates
said:
the comments
school, exer-
physical exercises outside
social
joins those outdoor
say she often
do with the
nothing
cises that have
The IJ had two
173].
[A.R.
exercises.”
Falungong, and then such
castigated
First, “ac-
comment.
with this
problems
occur,
au-
apparent
criticisms never
own
respondent’s
cording to
govern-
of the
thoritarianism
Chinese
any
outdoor social
not involved
revealed to be much less strict
ment is
messenger doing
She was
exercises.
presented
than the booklet she
would
organiza-
work for
type
administrative
it
indicate
otherwise is.
doing outdoor
tion whose members
Second,
47],
[A.R. 45].
social exercises.”
report
on her
comments are made
“similar
said,
joins
report
“always
The June 1999
semester, the semester
previous
card the
exercise that has been late
those outdoor
that,
that,
the semester before
before
many
times.” [A.R. 167].
class
When
January 19 of
way
all the
back to
going
report,
about this
said that
questioned
of 1998.”
the fall semester
relating
activi-
Gong
it did not relate to the Falun
these
found
apparently
The IJ
[A.R. 45].
far
Then the
ties as
as she knew.
testimo-
with Gao’s
comments inconsistent
noted:
cross-examination,
she ex-
where
ny on
a little bit about
began
equivocate
She
messenger for
began
as a
plained
she
ap-
written
original
[her
statement
prior
and that
her aunt in March of
plication].
said that she was not a
She
aunt
following her
to that she had been
messenger”
[mean-
“formal
at that time
but that
Gong meetings since
1999],
just
June
followed her
activity.
the school
aware of this
was not
words,
she
aunt around.
other
by the IJ is
suggestion
[A.R. 121].
this had some-
implying
perhaps
that the
to “social exercises”
reference
thing
Falungong
to do
activities
reference to
the comments cannot be a
well, although
simply
she didn’t
come
activities.
that. The fact that
out and state
equivocated
for the fall
about this leads the Court
January
report,
question
more
tu
whether the comments that
semester
that Gao “shows
said
[sic.],
report
we have in her
card
actual
body
exercise
feels
interest
those
reflect
made,
honor,
comments that were
and caused
but has been
strong for the class
*9
joining
question
to
whether she
because
Court
absent
18 times
herself
do
receiving
may
criti-
be aware that those comments
those
[sic.]. [A]fter
exercise
that
necessarily
not
comments
party
cism from the
and administration
reflect
actually made at the time. At the
The
any
IJ does not focus on
differences
least,
that she
very
saying
following
was
between Gao’s
and her testimo-
ny.
aunt around earlier
not
does
succeed
Instead he focuses on her attempts to
in
showing
the school knew about
reconcile what
report
is in her
cards with
Falungong
these
activities and called her actual activity. The IJ sees inconsis-
“joining
them
those outdoor exercises”
tencies between Gao’s statements and the
others,
notation
report
deserved
on her
among
statements of
Gao’svar-
card,
it
actually
nor does
show that she
ious recountings
experience,
of her
which
was involved in Falungong
appear
activities.
consistent. Gao attempted to ex-
says
Her
aunt
plain why
statement
that her
“re-
the school would have a differ-
a messenger
cruited me as
to the Falun-
ent record of events than she claimed
gong my
in
area” in March 2000.
transpired. When
directly
asked
about
whether the school knew she
following
48, Emphasis
[A.R.
Added].
her aunt meetings,
no,
Gao said
because
The
problem
analysis
the IJ’s
they thought
young
she was too
and she
distinguish
the IJ does not
between
had denied that
she was
the group.
Gao’s account of her involvement with the
However, because Gao believed she had
Falun Gong and how she
believed
fooled the school as to the nature of her
perceived
those activities. Gao con-
activity does not mean
actually
the school
sistently stated that in
began
1998 she
story.
believed her
inconsistency
The
be-
follow her aunt and to attend meetings of
tween
testimony
and the school re-
Gong,
becoming
the Falun
without ever
therefore,
best,
ports is
speculative.
member.
It was not until March
position
assumed
formal
as a mes-
a possible
IJ offers
reason why the
senger.
only
It was
after she assumed
report
cards contradict
story, namely,
formal role of
that she claims
their veracity should be doubted.
specifically
singled
criticized and
The IJ stated that the “Court finds it hard
statement,
persecution.
believe,
out for
Her
at-
actually, that
the comments
tached
application,
to her
that the
refer-
about her
involvement
those outside ac
above-quoted
ences
excerpt, begins
tivities were
put
indeed
her note booklet
2000;
only
its narrative
in March
However,
testimo-
the school
itself.”
51].
ny
background
IJ,
counsel,
as to the
up
led
to her
neither the
nor either
made
formal association
any
does not contradict her
attempt
identify
who made the al
application statement which
begins
leged
in her
alterations
school booklet.6 If
INS,
Aguilera-Cota
2000. See
v.
914 F.2d
the IJ believes that the alteration occurred
(9th Cir.1990)
(credibility
impacts
and it
finding
on his
of lack of
questioned
testimony
because “oral
includ-
credibility, he must state a reason and
ed information not set forth in
asylum
his
detail with specificity the issues of non-
application,”
INS,
but court
credibility.
concluded that “fail-
See Turcios v.
821 F.2d
(9th Cir.1987) (“trier
1396, 1399
ure to file an application form that was as
of fact who
cannot,
complete might
rejects
be
positive
desired
with-
witness’s
be
more, properly
out
serve as
the basis for
cause in his or her
it
judgment
lacks credi
a lack
finding
credibility”).
bility
specific, cogent
should ‘offer ‘a
rea-
documents,
6. Those who
person
handled
documents included
who
altered the
if
school,
(before
China),
altered,
she left
Gao's
were indeed
would have different im-
China,
parents in
Gao's relatives in the United
plications
credibility.
for Gao's
States,
lawyer.
identity
and Gao's
of the
*10
”) (internal
which she
began
messenger,
citations
her role as
disbelief.’
[his]
son for
omitted).
when a
not.
believes
school discovered
He does
activity.
It
reported
classmate
her
was
veracity
doubted the
having
Finally,
discovery
alleges
this
that she
led to her
cards, the
then relies on
IJ
report
subsequent
If
expulsion and
detention.
truly
did not
concluding
in
Gao
them
early
misinterpreted
Gao
the school’s
Gong
Falun
and therefore
in
participate
vague statements about social exercises to
discipline that
re-
any
implies
something
Gong,
mean
other than Falun
of such affiliation.
not a result
ceived was
story
that does not make her
contradicto-
phrase “joining
those
says
arrest,
ry.
expulsion
Before her
she
does not show that she
exercises”
outdoor
seems to have believed that the school did
48],
Gong.
[A.R.
participating
was
links to the Falun
not know of her informal
with the
only inconsistent
IJ’s
This is not
Gong. This is what she said in her testimo-
report
cards were sus-
conclusion
ny.
In
the record indicates the
hindsight,
complete
to be a
non
pect,
appears
but also
suspicious
more
may
have been
claimed that the
sequitur,
Gao never
since
believed,
activity
than she
but the IJ
an active
cards showed she was
report
doubts the
of those documents.
to her be-
prior
in Falun
member
Balasubramanrim,
See
277 security on the we can- bureau and be processed substantial evidence based regulations. on the defer to the IJ’s decision. not [A.R. 388]. Disciplinary The Determination
C. government in brief attempts its primary show that reason for Gao’s reliance on the heavy report The IJ’s expulsion from school absenteeism. contradictory cards as evidence of Gao’s Disciplinary explicitly Determination troubling is because the especially claims this, and, credible, contradicts if makes any way failed to discuss the other primary clear that the reason for ex documentary by evidence offered Gao—the was not pulsion truancy, school but rather by the Disciplinary Determination issued her link to the Falun Gong. As the Disci paragraph school. The document is a one plinary suggests, Determination the school for the school’s action. It in- explanation seriously they took this link so school, not a seal of the and notes that cludes her, only expelled also noted copies parents would be sent to Gao’s “[rjecords they letter referring the matter of the policy school and adminis- bureau, public security the local which Gao department.” tration It is titled: “Disci- led working prisoner claims to her as a pline Regarding Determination Student the countryside. completely The IJ ig GAO Chen Yun’s Violation.” It is dated nored 12, highly this relevant and potentially June 2000. The text reads: evidence, corroborative beyond evidence (4) junior Inspected high grade second typical refugee which a present must Yun, female, student GAO Chen born on See Sena asylum. to establish claim for 17, March during 1983 this student INS, thirajah v. (3d 210, 157 F.3d 216 period, obey school did not the school Cir.1998) (corroboration required education, joined moral the so called so- credibility). establish will; by cial exercise movement her own has been a illegal Determining document’s group: Gong Group. Fa Lun beyond scope She was of our review this times, instance, policy absent from class for 43 and is a task that must be accom- had edu- plished by the fact finder. See Garrovillas department and administration INS, over, (9th Cir.1998) she still did not v. cated over and 156 F.3d (On regret remand, it prob- and caused this serious BIA should consider credibili- lem, this student disciplined ty for a of letters did not consider in initial INS, major evaluation); Sotto v. right demerit March now 748 F.2d (3d (“If Cir.1984) keeps joining on the Fa Lun the administrative activities messenger, as their record fails to reveal that such evidence justice considered, questioned depart- fairly the local has been the proper ment in June and has been absent from course is to remand the case to the INS so then, class for 56 since may times she has set the Service evaluate such evi- up very regu- bad influence. Based on dence and on appli- consider its effect (continuous whole.”). high lation 11 section 4 cation high Because of the violation, evidence, discipline law violation probative value which regulation) regulations supports testimony, and the of the Gao’s consistent rec- public security authority, study ambiguities after the onciles with the and conflicts cards, and the decision of the that it suspect report school adminis- we conclude tration, expelled GAO Chen Yun is from was for the fail to reversible error IJ to school, reported this case is public evaluate and discuss it. Credibility through the trans- Adverse question, working even
D. Additional answering the lator. did not avoid She Determinations attempted much as she to ex- question as *12 IJ, credibility a deter- having made The answer, report as we the plain the card evi- upon report mination based already made an adverse margin.7 Having dence, three other elements to out pointed credibility based on his sus- determination The implausible. found story he Gao’s cards, report of the the IJ does not picion justify the foundation attempt did for his disbelief of provide a foundation it merely but added implausibility, for this points, on these other story. The about Gao’s suspicions to his unsupported opinion own as to than his story escape; the not believe IJ did operates, government how an authoritarian that he did not believe opined rather he that he including troubling his remarks be so lax and lenient as security that would preoccupation ... the “implausible found escape. The IJ also found to allow her authorities for someone who is of Chinese unresponsive when asked about adjunct activity to the that the a mere however, prevent, indicates escape. trying stop or government is in it unresponsive, Gao that not at all involved her- being far from but is that Department Report But the to the self.” State gave specific and detañed answers Okay. working, we were the A. We were exchange Bloom of 7. The between Mr. working counting people, and but INS and Gao is instructive: there lunch, Q. were, ma'am, eating they we we were why they you And did take out that, know, in, expect you and small you out of the didn't prison were or you away. rom were in? child like me would run Q. [sic] Ma'am, you Falungong they since Okay. you A. Because said said that once al- exercise, is, going I'm to let like to so again members ready, my question did the stuff, park. you they us to a do more so took guards you? or the ever chase Did officers big park very dirty. It’s a Q. and it’s they you? chase ma'am, any they you have And did No, know, they A. did not so. handcuffs, any at that kind of restraint Q. Well, they know how is it that didn't time? you escaping? to, to the A. Yes. When took us out the, park. A. Because lots of trees in handcuffed, however, park and as we were it’s, to, here, it's not difficult It's not like so we, working then soon as start then we away. 128-29]. to run those stuffs are took off. Q. ma'am, you at indicated then And lack of is 8. The IJ also indicates his just simply away, you ran cor- lunch time description” given by "meager based on a rect? Gong what is. "She said it is Gao as to Falun (In English) A. Yes. 'truth, beauty,' theory kindness and A. Yes. say anything more about what was unable to Q. you? anyone chase Didn't Falungong actually 51]. teaches.” [A.R. are, people are Fa- A. all of the Because attempt compare this to an IJ did not members, really lungong's they’re happy so Gong. description A book actual Falun I, escaped. that I could review, in the record and submitted included Q. is, question any Okay. My didn’t of the INS, passage: by includes officers, guards they chase or the didn’t Gong elements of Bud- combines you? dhism, Taoism, philoso- other Eastern didn't, they expect They A. didn't strikingly sensibility phies Western away, young child like me would run requires more than believers to do little that, sitting prior to that I was because simply and turn the lead conscientious lives talking big we were under with a sister and truth, By "cultivating” com- cheek. other the tree. Q. practitioners are ma’am, passion and forbearance again my question, Okay. But is, they may "cultivation told increase their guards ever chase did the officer or (a enlightenment) energy” measure you? contradicts this unsupported assumption GREENBERG, Circuit Judge, by the IJ. It seems that the gov- Chinese dissenting. ernment actively pursuing all means I dissent I regard as which to eradicate the Falun Gong move- political asylum and for withholding of de- ment, which apparently cannot function portation here as unmeritorious. farAs
without messengers, if they even are not I am concerned, the claim essentially is practitioners. At least on the predicated on the consequences attribut- record it does not appear that the IJ’s able to Gao’s school truancy. Gao, When conclusions supported. native and citizen of People’s Republic *13 China, of arrived at the Los Angeles Inter- IV. CONCLUSION national Airport 31, on 2000, October with- The IJ rested his on a decision credibili- out a valid unexpired immigrant visa or ty determination that is not supported by other valid entry document, she was 17 substantial evidence in the record. In ad- years old. Prior to leaving China she had dition, the IJ failed to consider or discuss been an grade 8th student at the Chao potentially corroborative evidence. There- High School but was recruited in March fore, this case must be remanded so that 2000 by her aunt to be a paid messenger the IJ can reconsider the credibility of Falun for Gong, an organization with Gao’s narrative based on the entire which she previously had not been associ- including her explanations seeming con- ated. In subsequent her application for tradictions, serious evaluation of expul- asylum, Gao stated that she perse- feared letter, sion and reconsideration of the cution because of this activity. Although significance of We, the report cards. her states that she “partic- therefore, grant Gao’s petition for review ipat[ed] the group” and feared torture Board, and remand to the with leave to “practicing for Falun Gong,” see A.R. at further remand to immigration judge, 391, 341 & it is undisputed that she neither for determination of Gao’s claims for practiced Gong, Falun nor knows how to asylum and withholding of deportation practice it. See id. at Rather, 115 & 148. without reliance on the adverse credibility indicated, as we have she acted as a mes- finding previously made. reaching this senger for Falun Gong. See id. conclusion do not we comment on the cred- ibility of the considered, documents not In her application, Gao stated that she ultimate of the report cards had been disciplined for her March 2000 regard with to Gao’s claims. We will leave messenger activities which caused her to to the fact-finder with the understand- be “absent from many class times.” Con- any further conclusions must be sequently, stopped her activities on supported by substantial evidence in the behalf of Falun Gong time, for but then record. resumed participation her in May 2000. 8, http://www.salon.com/boolcs/iea- 1999 at Though Gong” "China Falun describes a Gao's do ture/1999/09/08/falun/. comments faith, set of exercises with associated Li appear not be far mark. The makes clear that require- there are few did not "meager seem consider Gao's ments as to how per- often these must be description” might actually reality reflect the formed, if all. at system, Falun belief and is cer- Wallace, [A.R.334]. Mark Falun Gong: What tainly with consistent record evidence of religious leader who made China tremble requirements. its Salon.com, say himself,
has September 1999, January 341, exercises” in “outdoor However, she testi- when at id. See 2000, refer- 1999, January did and June government that the fied, stated Gao id. at activities. See to those participation ences for her her criticize not when However, and that her Gao asserted June Gong until 143-47. Falun language con- of her criticisms used similar transcript book previous her school’s at id. classes. See involvement missing criticizing her her cerned in June fall of in the regard, “exercises,” referencing partic- In this her 143-44. it was her second first semester during the at 147. Gao Gong. id. in Falun See ipation school, her involve- prior high year did although she also asserted absent 25 was Gong, Gao ment with 2000, see March messenger until as a work times, during tardy 9 times “kind of kn[ew]” school id. 2000, she in the spring semester second Gong in Janu- with Falun involvement tardy 5 times. times absent 43 Id. at 149. ary 2000. & 172.1 Id. at 169 indicated, the record shows I have As told the classmate that a testified Gao who merely that Gao participated principal Gong nor knew practiced neither *14 and that conse- activities Gong’s Falun Moreover, it uncon- is it. practice how 13, 2000, expelled was she quently, on June extraordinary missed that tested she She was police station. taken to the of four course over the amount of school hit scolded, teased and days, held for two to her part in significant due semesters id. a stick. with See twice on her bottom including exercises in outdoor engagement 16, 2000, that June on Gao states at 134. aerobics, running dancing, and —activities cut and made to a park was taken she noted, in judge that, immigration as the ran from away at 109. Gao id. grass. See case, worthy of are context of break, stayed a lunch during park with interference of their criticism because months before for several a relative at Gao 46. See A.R. schoolwork. her United to the States. trip her beginning her scores some of admitted 109-110. at See id. 118-19, and that she at failing, see id. asylum, for her support To in See school. a lack of interest expressed high school student her introduced Gao criti- acknowledged that at 121. id. She her attend- book recorded transcript and adminis- policy school from the cism In 2000. to June addition from ance in that was referenced department tration mentioned, already to the absences due to January in 1999 was transcript her last semester during her shows book and not from school absence her in the last sixth school, had fallen to at 141-42 & 164. See id. Gong activities. In com- id. at 173. See class. her her fact, Gao, contending that though In for following grades ments section police caused activities semester, *15 ENTERPRISES, DEE-K INCORPO cution on account of her political opinion RATED, corporation a of the Com and that she also was entitled to withhold- Virginia; monwealth of Asheboro of deportation. Ezeagwuna But awas Corporation, corporation Elastics a serious case petitioner where the a made the state of Carolina, North on behalf very strong showing. On the other hand of themselves similarly and all others here, in view of Gao’s acknowledged mis- situated, Plaintiffs-Appellants, conduct, the Chinese jus- authorities were tified disciplining Gao v. without regard for the circumstance that she had been BHD; HEVEAFIL SDN. Filmax Sdn. messenger for Falun Gong. Bhd; Bhd; Rubfil Sdn. Filati Lastex Bhd, corporations Sdn. Malaysia; I will parse the record to demon- USA, Incorporated, Rubfil corpora strate that there substantial evidence tion of the Carolina, State of North supporting the immigration judge’s partic- Defendants-Appellees, ularized credibility determinations al- though I am satisfied that there is. See INS, Balasubramanrim v. 143 F.3d (3d Cir.1998). Rather, I place my Bhd; Rubberflex Sdn. Filati Lastex on
dissent the fact that Gao’s entire ease USA, Incorporated, Elastofibre a cor lacks credibility. It possible is not poration Island; Rhode Flexfil the record to conclude Corporation view of Island, corpo Rhode Gao’s acknowledged serious school truancy registered ration to do business she would not have been disciplined if Carolina; even North Corporation, Flexfil had not been associated corporation with Falun state of North notes repeatedly book each her, she “re- acknowledged that was arrest school because absent from that Gao “missing and was school” quired to attend Id. exercisefs].” outdoor “joins those she A.R. of school.” amount very significant 163, 164, 173. Gao stated 170 & at 122. aerobics, dancing, jump- practiced she we here have be obvious It should other chi, jogging t’ai skating, ing, high than a involving nothing more case her when testified She exercises. engag- disciplined being student participation her criticized book transcript 116. See A.R. at daj's in a semester. China, approximately 1. there diverting activities Gong. attention As far Ias can see Gao using from school work. we might While association with Falun Gong as a cover for regard severe, the discipline as somewhat her truancy. Finally, I point out that we surely it appropriate for the authori- very recently noted that the events of Sep- discipline ties to her. Clearly, 11, 2001, after Gao tember emphasized height- became a paid messenger for Falun Gong ened need to conduct border searches. frequently was working for that orga- See Bradley v. States, United 299 F.3d nization instead of attending (3d Cir.2002). school. The 201-02 Those tragic conversion of this case into a claim for events also should demonstrate that political asylum and withholding depor- immigration laws should not be applied so unjustified. tation is I that unworthy cannot understand applicants receive relief any how court or agency deportation. from regard can a 17- year who, old basis, student on a wholesale I dissent as I am satisfied that we requirement violates a that she attend should dismiss this petition for review. school and then is disciplined a legiti- mate candidate for relief deportation. I find it compare useful to facts this case with those very described our recent opinion in Ezeagwuna v. Ashcroft, (3d 301 F.3d Cir.2002), 133-34 which we found that the petitioner was eligible for asylum because of past perse-