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A Chinese woman who claims she was expelled from high school, beaten, and imprisoned in a labor camp because she was a messenger for the Falun Gong — a spiritual movement that was banned by the Chinese government — has won a new hearing in her bid for political asylum now that a federal appeals court has found that an immigration judge improperly rejected the credibility of her story. But a dissenting judge said he would have upheld the immigration judge’s decision because the woman, Chen Yun Gao, “is using her association with Falun Gong as a cover for her truancy.” The decision in Gao v. Ashcroft is unusual because the majority’s reason for ordering a new hearing is that the immigration judge’s credibility decisions were flawed. Judge Judith M. Barzilay of the U.S. Court of International Trade, who was sitting on the 3rd U.S. Circuit Court of Appeals by invitation, found that the immigration judge’s reasons for rejecting Gao’s story were illogical and sometimes based on his own speculation about how the Chinese government was likely to treat a mere messenger for the Falun Gong. According to a U.S. State Department report, Falun Gong is a movement in the People’s Republic of China that “blends aspects of Taoism, Buddhism, and the meditation techniques of Qigong (a traditional martial art) with the teachings of Li Hongzhi.” The report said tens of thousands of members of the Falun Gong spiritual movement were detained after the movement was banned, and that several leaders of the movement were sentenced to long prison terms, while hundreds of others were sentenced to “re-education” through labor. According to some reports, the State Department said, the Chinese government also started confining some Falun Gong adherents to psychiatric hospitals. The immigration judge concluded that it was highly unlikely that Gao was punished as severely as she claims for her role as a messenger for the group. But the 3rd Circuit found that the immigration judge’s decision was “especially troubling in view of the State Department Report detailing a reign of terror against Falun Gong.” “The IJ concluded that Gao’s messenger activities could not be the reason for the action taken against her. That conclusion was improper,” Barzilay wrote in an opinion joined by 3rd Circuit Chief Judge Edward R. Becker. “Careful scrutiny of the record also shows that there are no significant inconsistencies in her story. Additionally, the IJ failed to consider important documentary evidence that supports claims that Gao made during the hearing,” Barzilay wrote. Gao was 17 years old when she arrived at Los Angeles International Airport in October 2000 without any proper documents. She was immediately detained and told she was subject to deportation. She responded by filing an application for asylum, claiming that her association with the banned Falun Gong movement in China led to her expulsion from school, beating and imprisonment at the hands of local security forces. In an immigration hearing, lawyers for the government argued that Gao’s claim of persecution for her association with Falun Gong was not credible. Instead, they said, she was disciplined for her extensive history of school truancy. But Gao testified that no action was taken against her by the school authorities or the Chinese government until they learned that she was a messenger for the Falun Gong. Gao testified that she was a high school student in Fujian Province, and that her aunt, Gao Yu, was an active member and instructor in the Falun Gong movement. She said she was close to her aunt, and would often accompany her when she went to meetings or ran errands. In March 2000, she said, her aunt recruited her to be a paid messenger for the group, which meant that she was frequently working for the Falun Gong instead of attending school. In June 2000, Gao was expelled from her school. School officials reported her connection to the Falun Gong to the local police, who arrested Gao and held her for two days. During that time, she claims, she was held without food and kept awake for long periods. She also says that police made her remove her pants and beat her on her buttocks. She was released after two days, but was arrested again and placed with a group of prisoners who were taken to a park and made to perform manual labor such as cutting grass and moving stones. Gao testified that during a lunch break when the two guards supervising the group were not paying attention, she escaped into a wooded area. She first went home, then her parents sent her to a relative’s house in a city about 100 miles away. She remained there for a few months before fleeing the country. She traveled through Thailand and Brazil before arriving in Los Angeles. As proof of her story, Gao submitted a “discipline determination letter” from the school stating the grounds for her expulsion. The letter states that Gao “keeps on joining the Falun Gong activities as their messenger. [S]he was questioned by the local justice department in June and has been absent from class for 56 times since then.” While the immigration judge found that Falun Gong membership could lead to persecution, he did not believe that she was tortured for her role as a mere messenger, describing as “implausible the preoccupation of Chinese authorities for someone who is a mere adjunct to the activity that the government is trying to stop or prevent, but that is not at all involved in it herself.” Barzilay found several flaws in the immigration judge’s decision. “Having concluded that Gao was not credible, the IJ also expressed doubt as to her story of escape and even her imprisonment, without demonstrating any foundation other than his suspicions that the story was not true,” Barzilay wrote. The immigration judge’s decision to reject Gao’s testimony as lacking credibility was flawed, Barzilay found, because it was premised on the IJ’s perception of inconsistencies in her story that simply aren’t inconsistent. The immigration judge said Gao at first claimed to be a member of Falun Gong, but changed her story on cross-examination. Barzilay disagreed, saying Gao never claimed to be anything more than a messenger and that cross-examination did not show any changes. The immigration judge also found that Gao’s report cards conflicted with her testimony, but Barzilay said the IJ “failed to distinguish between Gao’s account and how she believed the school perceived those activities.” Barzilay also found that the immigration judge erred by not considering the strong corroborating documentary evidence Gao presented. The school’s disciplinary determination, Barzilay said, “makes clear that the primary reason for her expulsion was not school truancy, but rather her link to the Falun Gong.” Barzilay said the document “suggests the school took this link so seriously that they not only expelled her, but also noted in the letter they were referring the matter to the local public security bureau, which Gao claims led to her working as a prisoner in the countryside.” The immigration judge, she said, “completely ignored this highly relevant and potentially corroborative evidence, evidence beyond that which a typical refugee must present to establish a claim for asylum.” Because of the “high probative value” of the document — which Barzilay said supported Gao’s consistent testimony, reconciled ambiguities and conflicted with the suspect report cards — Barzilay concluded that “it was reversible error for the IJ to fail to evaluate and discuss it.” In dissent, Senior Circuit Judge Morton I. Greenberg said he would have upheld the immigration judge’s rejection of Gao’s petition for asylum because the evidence shows that she “was merely a messenger who neither practiced Falun Gong nor knew how to practice it.” Greenberg said the evidence also showed that Gao missed an extraordinary amount of school and deserved to be punished for that. “It should be obvious that we have here a case involving nothing more than a high school student being disciplined for engaging activities diverting her attention from her school work. While we might regard the discipline as somewhat severe, surely it was appropriate for the authorities to discipline her,” Greenberg wrote. “The conversion of this case into a claim for political asylum and withholding of deportation is unjustified. I cannot understand how any court or agency can regard a 17-year-old student who, on a wholesale basis, violates a requirement that she attend school and then is disciplined as a legitimate candidate for relief from deportation,” Greenberg wrote. Gao was represented in the appeal by attorney J. Jack Artz of South Pasadena, Calif. John M. McAdams Jr., of the Justice Department argued the case for the government and was joined on the brief by Assistant Attorney General Robert D. McCallum Jr. and Senior Litigation Counsel Terri Jane Scadron.

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