## Facts

- Hong Ying Gao, a native and citizen of China, grew up in a rural village in Fujian Province.
- Gao testified (and the Immigration Judge (IJ) found credible) that in her region parents routinely sell daughters into marriage, and the practice is accepted locally and tolerated by local authorities.
- When Gao was nineteen, her parents, using a broker, accepted an up-front payment of 18,800 RMB from a man named Chen Zhi in exchange for a promise that Gao would marry him when she turned twenty-one.
- Gao’s parents used the money to pay existing debts.
- Gao initially went along with the arrangement under pressure from her parents.
- Gao later decided she did not want to marry Zhi after he proved bad-tempered; she testified that he gambled and beat her when she refused to give him money.
- After Gao’s family indicated she might not proceed with the marriage, Zhi threatened that he would take her by force or demand the money back.
- Gao fled China and, in removal proceedings in the United States, applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), asserting that she feared a forced marriage and related abuse if returned.
- The IJ found Gao credible but denied relief, concluding that Gao lacked a well-founded fear of forced marriage and that, even if forced marriage occurred, it would not be persecution “on account of” a protected ground; the IJ also reasoned that the government might be willing and able to protect her and that she could relocate within China.
- The Board of Immigration Appeals (BIA) summarily affirmed the IJ’s decision; Gao, proceeding pro se, petitioned the Second Circuit for review.

## Issues

1. Whether the IJ applied the correct legal standard for “particular social group” and the required nexus (“on account of”) under 8 U.S.C. § 1101(a)(42) when rejecting Gao’s forced-marriage claim as a private dispute.
2. Whether substantial evidence supported the IJ’s findings that the Chinese government would protect Gao and that internal relocation within China was reasonable.
3. Whether the denial of withholding of removal and CAT protection should stand in light of the errors identified in the asylum analysis.

## Decision

- The Second Circuit treated the IJ’s decision as the final agency decision because the BIA summarily affirmed.
- The court granted the petition in part, denied it in part, and remanded to the BIA for further proceedings consistent with its opinion.
- The court held that the IJ “failed to apply the correct definition” of the “particular social group” ground as set out in BIA and judicial precedent.
- The court stated that “particular social group” is broad enough to include groups whose primary shared trait is gender, so long as the group also shares an additional characteristic that is identifiable to would-be persecutors and is immutable or fundamental.
- The court rejected the IJ’s approach that treated Gao’s situation as merely a private or personal dispute and required a proper analysis of whether the harm was connected to membership in an asserted social group (such as young women in rural China sold into marriage who resist the forced marriage).
- The court further held that the IJ’s findings that the government might be willing and able to protect Gao and that she could relocate within China were not supported by substantial evidence.
- The court remanded for the agency to reconsider Gao’s eligibility for relief under the correct legal framework and supported factual findings; it otherwise denied relief to the extent Gao sought immediate reversal rather than remand.

## Legal Principles

- When the BIA summarily affirms, the court of appeals reviews the IJ’s decision as the agency’s final decision.
- A “particular social group” may be defined by gender plus another trait that is identifiable to persecutors and is immutable or fundamental.
- The “on account of” requirement is not answered by labeling the conflict a private dispute; adjudicators must evaluate whether the feared harm is tied to membership in the asserted group.
- Forced marriage, together with threats, physical abuse, and coerced sexual relations, can qualify as persecution when linked to a protected ground.
- Findings on whether a government is willing and able to protect an applicant, and whether internal relocation is reasonable, must be supported by substantial evidence in the record, not speculation.
- Where the agency uses an incorrect legal standard or relies on unsupported factual findings, the proper remedy is remand for reconsideration under the correct standards.

## Conclusion

The Second Circuit held that the IJ used the wrong legal approach to “particular social group” and nexus and relied on unsupported findings about government protection and internal relocation, so it granted the petition in part and remanded to the BIA to reconsider Gao’s forced-marriage-based claims under the proper standards, while denying the petition to the extent Gao sought outright relief without further agency proceedings.


Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006)