Ding v. Ashcroft
| Decision Date | 08 November 2004 |
| Docket Number | No. 03-71013.,03-71013. |
| Citation | 387 F.3d 1131 |
| Parties | Lidan DING, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William Kiang, Law Offices of Kiang & Kiang, San Gabriel, CA, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division; Terri J. Scadron, Assistant Director; Hillel R. Smith, Attorney, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-679-308.
Before: REINHARDT, WARDLAW, and PAEZ, Circuit Judges.
Lidan Ding appeals from the Board of Immigration Appeals' ("BIA") denial of her application for asylum and withholding of deportation, affirming without opinion the adverse credibility finding of the Immigration Judge ("IJ"). The IJ denied asylum finding Ding's forced abortion at the hands of Chinese population control officials was, in fact, voluntary because she "was not subject to physical restraint" during the procedure. Because 8 U.S.C. § 1101(a)(42)(B), which makes persons "forced to abort a pregnancy" statutorily eligible for asylum, does not require a showing that the "force" be physical in nature, much less a showing of physical restraint "during the procedure," the IJ erred as a matter of law in finding Ding's testimony that she was not physically restrained during the abortion fatal to her claim. And because the other bases for the IJ's adverse credibility finding are either unsupported or contradicted by the record evidence, the IJ's adverse credibility decision is not supported by substantial evidence. Taking Ding's testimony as true, she has established statutory eligibility for asylum under 8 U.S.C. § 1101(a)(42)(B).1 We therefore grant Ding's petition.
In 1993, twenty-six-year old Lidan Ding was working in a government-owned construction company in Shanghai when she fell in love with a co-worker, Li Hong. Although Ding and Hong wished to marry, Hong's father, the highest ranking official in the local Communist party district, vehemently disapproved of Ding because she was Christian. Because of her family's Christian religious beliefs, they had been categorized as counter-revolutionaries. Hong's father's powerful position and control over Ding's work unit thus prevented Ding and Hong from obtaining their required marriage recommendation letter.
Ding and Hong devised a plan to force Hong's father's hand: she would become pregnant, and the shame of an out-of-wedlock birth would induce Hong's father to consent to the marriage. It was a plot not without substantial risks. Ding's unauthorized pregnancy would be a gross violation of the work unit's family planning policy; unmarried women were not allowed to become pregnant under any circumstances, and married women needed to have a birth permit issued by the work unit to lawfully conceive. Customarily, a woman who violated the family planning policy would be forced to have an abortion, she would lose her government housing and her job, and a letter would be placed in her permanent employment file. Ding and Hong knew of the possible penalties for violating the policy before deciding to conceive. However, they thought that once Hong's father had agreed to let them marry, his powerful position would protect them from any sanction.
Part of their plan worked; Ding did become pregnant in January of 1994. The night she and Hong discovered she was pregnant, they went to Hong's father, knelt in front of him, and asked permission to marry. However, Hong's father became enraged and kicked his son and Ding out of his home. He also informed Ding's work unit that she had become pregnant.
When Ding reported to work after telling Hong's father of her predicament, she and Hong went to their work unit's leader to ask again for permission to marry. He refused her and informed her that Hong's father had told him to look for the couple because Ding was pregnant. Ding confirmed her pregnancy.
The work unit leader told Ding that she must have an abortion. But even though she had been denied permission to marry Hong, Ding still wanted to carry her pregnancy to term. She wanted to have the child Her refusal to comply with the abortion order angered both the work unit leadership and Hong's father, who stormed into her work unit, severely reprimanded the leadership, and demanded that Ding be forced to abort immediately.
Because she refused to comply with the abortion order, Ding was suspended from her job and ordered to attend a month of birth control re-education classes where she was forced to write self-criticism. She refused, asking instead for permission to keep only this one child even though she was unmarried.
On February 15, 1994, the work unit leadership apparently decided it had enough of Ding's refusal to comply with the abortion order. The director of the birth control classes and her two assistants forced Ding into a van and took her to Shenzhen City Liuhua Hospital, the work unit's contract hospital. Upon arrival at the hospital, Ding attempted to resist the efforts of a nurse to take her into a hospital room. She got onto the floor and, trying to attach herself to it, refused to get up. Two population control officials overpowered her: they pulled her off the floor, forced her on to a hospital bed, and stood over her as the doctor performed the abortion without anesthesia. Ding cried out and attempted to move, but the doctor warned her against movement because the procedure involved suction and scraping of the uterus.
Hong's father used his political influence to transfer his son out of Ding's work unit and into another part of the country. Hong later married another woman, a general's daughter.
Although her relationship with Hong had failed, Ding still very much wanted to have children. In 1995, she met John Margulies, an American businessman who was then living in China. The two fell in love and continued their relationship even after Margulies returned to the United States. Ding knew that Margulies had some health problems, but never saw him ill and was unaware of the nature and extent of his illness.
As the relationship progressed, Margulies asked Ding to marry him and move to the United States. Margulies told her he wanted to have children with her. She happily accepted his proposal, and entered the United States on August 12, 1999, on a three-month K-1 visa intending to marry Margulies.
When Ding arrived in Los Angeles, she was met by Margulies' housekeeper. When they returned to Margulies' home, she discovered her fiancé was bedridden with multiple sclerosis, a condition that he had concealed from her. Ding spent two weeks with Margulies and visited his doctor with him. The doctor told her that Margulies would never be able to have children with her. Angered by this deception, Ding refused to marry Margulies and declined his sexual advances. He then evicted her from his home.
Margulies' housekeeper had met a Chinese woman at the airport while waiting for Ding. This woman took Ding into her home and introduced Ding to her church. Ding began participating in church activities. She was baptized on August 28, 1999. A member of Ding's church suggested that she might be eligible for asylum based upon her forced abortion and urged her to seek legal advice in order to stay in the country. Ding had never known such relief was possible.
On October 25, 1999, Ding filed for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), claiming fear of persecution based on China's coercive family planning policies.2 In her asylum application, she provided specific details of her forced abortion.
At her asylum hearing, Ding offered testimony consistent with her application, as well as testimony regarding persecution she faced as a Christian. In support of her application, Ding offered the 1999 State Department Report for China detailing the country's coercive population control policies; an affidavit from an American doctor stating Ding had uterine scarring consistent with an early-term abortion; and articles from Chinese newspapers detailing family planning policies.3
The IJ excluded several documents, including an abortion verification letter from Shenzen Hospital, which had been obtained for Ding at the request of counsel by a Chinese friend, and two Chinese notarial certificates indicating Ding's marital status and lack of criminal history. The IJ found that the documents had not been properly authenticated, although they had been notarized and Ding included all her correspondence with the Chinese authorities detailing her attempts to authenticate the documents.4
The IJ questioned Ding aggressively, particularly on the details of her forced abortion. At one point, he asked her if she was restrained by straps during the abortion. When she replied that she was not, the IJ asked Ding how she was restrained if nothing or no one was holding on to her. Ding explained that two people from the birth control unit surrounded her and the doctor warned her against moving. During her testimony, Ding began weeping openly and the proceedings were halted so that she could recompose herself.
On August 23, 2001, the IJ denied Ding's petition based on an adverse credibility finding. Although he credited Ding's testimony that she had undergone an abortion, he concluded that she had done so voluntarily, in large part because of her testimony (which he also chose to credit) that she had not been physically restrained during the procedure. To a lesser extent, the IJ also found the timing of Ding's baptism in the United States "suspicious," although he articulated...
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