Chen Yun Gao v. John Ashcroft, Attorney General of the United States

GREENBERG, Circuit Judge,

dissenting.

I dissent as I regard the application for political asylum and for withholding of deportation here as unmeritorious. As far as I am concerned, the claim essentially is predicated on the consequences attributable to Gao’s school truancy. When Gao, a native and citizen of the People’s Republic of China, arrived at the Los Angeles International Airport on October 31, 2000, without a valid unexpired immigrant visa or other valid entry document, she was 17 years old. Prior to leaving China she had been an 8th grade student at the Chao High School but was recruited in March 2000 by her aunt to be a paid messenger for Falun Gong, an organization with which she previously had not been associated. In her subsequent application for asylum, Gao stated that she feared persecution because of this activity. Although her application states that she “partic-ipat[ed] in the group” and feared torture for “practicing Falun Gong,” see A.R. at 341 & 391, it is undisputed that she neither practiced Falun Gong, nor knows how to practice it. See id. at 115 & 148. Rather, as we have indicated, she acted as a messenger for Falun Gong. See id.

In her application, Gao stated that she had been disciplined for her March 2000 messenger activities which caused her to be “absent from class many times.” Consequently, she stopped her activities on behalf of Falun Gong for a time, but then resumed her participation in May 2000. *280See id. at 341, However, when she testified, Gao stated that the government did not criticize her for her participation with Falun Gong until June 2000 and that her school’s previous criticisms of her concerned her missing classes. See id. at 143-44. In this regard, in the fall of 1999, during the first semester of her second year in high school, prior to her involvement with Falun Gong, Gao was absent 25 times and tardy 9 times, and during her second semester in the spring of 2000, she was absent 43 times and tardy 5 times. Id. at 169 & 172.1

Gao testified that a classmate told the school principal that Gao participated in Falun Gong’s activities and that consequently, on June 13, 2000, she was expelled and taken to the police station. She was held for two days, scolded, teased and hit twice on her bottom with a stick. See id. at 134. Gao states that on June 16, 2000, she was taken to a park and made to cut grass. See id. at 109. Gao ran away from the park during a lunch break, and stayed with a relative for several months before beginning her trip to the United States. See id. at 109-110.

To support her application for asylum, Gao introduced her high school student transcript book that recorded her attendance from 1998 to June 2000. In addition to the absences already mentioned, the book shows that during her last semester in school, Gao had fallen to the last sixth in her class. See id. at 173. In the comments section following Gao’s grades for each semester, the book repeatedly notes that Gao was absent from school because she “joins those outdoor exercisefs].” Id. at 167, 163, 164, 170 & 173. Gao stated that she practiced aerobics, dancing, jumping, skating, t’ai chi, jogging and other exercises. She testified that when her transcript book criticized her participation in “outdoor exercises” in January 1999, June 1999, and January 2000, the references were to those activities. See id. at 143-47. However, Gao asserted that when her transcript book used similar language in June 2000, criticizing her involvement in “exercises,” it was referencing her participation in Falun Gong. See id. at 147. Gao also asserted that although she did not work as a messenger until March 2000, see id. at 119, her school “kind of kn[ew]” of her involvement with Falun Gong in January 2000. Id. at 149.

As I have indicated, the record shows that Gao was merely a messenger who neither practiced Falun Gong nor knew how to practice it. Moreover, it is uncontested that she missed an extraordinary amount of school over the course of four semesters due in significant part to her engagement in outdoor exercises including aerobics, dancing, and running — activities that, as the immigration judge noted, in the context of this case, are worthy of criticism because of their interference with her schoolwork. See A.R. at 46. Gao admitted that some of her scores were failing, see id. at 118-19, and that she expressed a lack of interest in school. See id. at 121. She acknowledged that criticism from the school policy and administration department that was referenced in her transcript in January 1999 was due to her absence from school and not Falun Gong activities. See id. at 141-42 & 164. In fact, Gao, though contending that her Falun Gong activities caused the police to arrest her, acknowledged that she was “required to attend school” and was “missing a very significant amount of school.” A.R. at 122.

It should be obvious that we have here a case involving nothing more than a high school student being disciplined for engag*281ing in 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. Clearly, after Gao became a paid messenger for Falun Gong she frequently was working for that organization instead of attending school. 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.

I find it useful to compare the facts in this case with those described in our very recent opinion in Ezeagwuna v. Ashcroft, 301 F.3d 116, 133-34 (3d Cir.2002), in which we found that the petitioner was eligible for asylum because of past persecution on account of her political opinion and that she also was entitled to withholding of deportation. But Ezeagwuna was a serious case where the petitioner made a very strong showing. On the other hand here, in view of Gao’s acknowledged misconduct, the Chinese authorities were justified in disciplining Gao without regard for the circumstance that she had been a messenger for Falun Gong.

I will not parse the record to demonstrate that there is substantial evidence supporting the immigration judge’s particularized credibility determinations although I am satisfied that there is. See Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998). Rather, I place my dissent on the fact that Gao’s entire ease lacks credibility. It is not possible from the record to conclude that in view of Gao’s acknowledged serious school truancy she would not have been disciplined even if she had not been associated with Falun Gong. As far as I can see Gao is using her association with Falun Gong as a cover for her truancy. Finally, I point out that we very recently noted that the events of September 11, 2001, emphasized the heightened need to conduct border searches. See Bradley v. United States, 299 F.3d 197, 201-02 (3d Cir.2002). Those tragic events also should demonstrate that the immigration laws should not be applied so that unworthy applicants receive relief from deportation.

I dissent as I am satisfied that we should dismiss this petition for review.

. In China, there are approximately 120 daj's in a semester. See A.R. at 116.