Ge v. Ashcroft

• Decision Date: 13 May 2004
• Docket Number: No. 02-73700.,02-73700.
• Citation: 367 F.3d 1121
• Parties: Wenda GE, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

367 F.3d 1121

Wenda GE, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73700.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 2, 2004.

Filed May 13, 2004.

Franklin W. Nelson, San Gabriel, CA, for the petitioner.

John Andre, United States Department of Justice, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-667-318.

Before PREGERSON, BEEZER, and TALLMAN, Circuit Judges.

BEEZER, Circuit Judge:

Petitioner Wenda Ge, a native and citizen of the People's Republic of China, appeals a decision of the Board of Immigration Appeals ("BIA") affirming, without opinion, an Immigration Judge's ("IJ") decision to deny petitioner's application for asylum and withholding of removal. Ge contends that he is a victim of China's coercive population control program, and thus a refugee eligible for asylum under Section 101(a)(42)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(42)(B). Ge also asserts that he is entitled to withholding of removal. See 8 U.S.C. § 1231(b)(3).

Specifically, Ge asserts that Chinese authorities forced his wife to undergo three abortions following unauthorized and unplanned pregnancies. Ge claims that during his wife's third unauthorized pregnancy, he was detained, interrogated, and beaten when his wife failed to appear for a mandatory physical examination. Ge also claims that both he and his wife lost their jobs at a government-owned shipping company because they violated China's one-child policy, and that Chinese authorities threatened both Ge and his wife with sterilization.

The IJ denied asylum and withholding of removal based on an adverse credibility determination. Ge argues that the credibility determination is not supported by substantial evidence in the record. We agree, and grant review. We reverse the IJ's adverse credibility determination and hold that Ge is a refugee eligible for asylum by statute. We remand to the BIA for an exercise of the Attorney General's discretion whether to grant asylum. On remand, the BIA shall determine, after crediting Ge's testimony, whether he is entitled to withholding of removal.

I

Ge is a 43-year-old native and citizen of China. Ge is married and has one son, who is now sixteen years old. His wife and son currently reside in China.

Ge holds a university degree in shipping and worked for several years for the government-owned Shanghai Sun Jai Shipping Company. He started as an "ordinary worker," but eventually became a Department Manager. Ge's wife was also employed by the same shipping company as a factory worker.

In late 1991, four years after the birth of her first son, Ge's wife became pregnant despite the fact that she had been fitted with an intrauterine device ("IUD"). Ge testified that in late March 1992, local authorities forced his wife to have an abortion. According to Ge, his wife was "dragged from[the] factory [where she worked] to the hospital to have an abortion." The Ges were not subjected to further punishment or a fine for the first unauthorized pregnancy.

Ge asserts that in 1996, his wife became pregnant again, despite her continued use of an IUD, and was forced to have a second abortion. The second unauthorized pregnancy was discovered during a routine bimonthly exam given to women at the workplace to detect pregnancy. This time, the local authorities no longer believed that the pregnancy was a mistake, but assumed that the Ges had deliberately violated the one-child policy. Ge testified that because of the second illegal pregnancy, he was asked to resign from his job and his wife was forced to "step down" as well. Thereafter, Ge's wife received a small stipend from the shipping company.

Ge testified that both he and his wife had trouble finding work after leaving the shipping company because their records contained notations indicating that they had violated the one-child policy. For the next two years, the Ge family lived on savings and with financial help from parents, friends and siblings.

After two years of looking for work, Ge decided to open his own restaurant. Ge testified that he received help from a college friend who was living in Hong Kong at the time. This friend encouraged Ge to travel to Hong Kong to learn about the restaurant business and offered to pay Ge's way. Ge testified that the friend knew several people who owned restaurants in Hong Kong. Ge's friend arranged and paid for Ge's travel to Hong Kong through a university travel agent, and Ge traveled as part of a tour with a Shanghai youth group. The travel itinerary for the group was from China to Thailand, Hong Kong, the Seychelles, and then back to Hong Kong. Ge opened a small restaurant in Shanghai in March 1998 with funds he had borrowed. Ge's wife worked at the restaurant.

In April 1999, Ge's wife discovered that she was pregnant again, despite continued use of the IUD. Ge and his wife feared that she would be forced to undergo a third abortion, so she went to a village "to hide." She then missed her regular medical examination at the factory. Ge testified that his wife had to continue reporting to the factory for the exams even after she was forced to step down from her position because she continued to receive a monthly stipend and because "her file [was] there."

After Ge's wife missed the exam, two women, one from the family planning unit of the shipping company and one from the district committee, provided notice to Ge that he had three days to produce his wife for the physical. Ge was told that if he did not produce his wife, his restaurant would be closed. Ge's wife remained in hiding and did not report for the physical.

Ge testified that on May 6, 1999, four people, one from the factory, two from the district and one from the police, came to his restaurant. They locked up the restaurant and took Ge into custody. At that time, Ge's mother took Ge's son to stay with her and Ge's father. Ge testified that he was detained at the district committee detention center. Ge said that officials accused him of violating the family planning policy, kicked and hit him, and asked him to write a confession. Ge testified that he did not feel that he had done anything wrong. He testified that he had not deliberately violated the family planning policy because his wife's pregnancy was an accident. Ge also testified that he did not think his wife could endure another abortion and that he considered abortion inconsistent with his Buddhist faith.

Ge testified that he remained locked in a room at the detention center for three days. He claimed that he escaped through a bathroom window. Ge testified that a guard would accompany him to the restroom, which was in a nearby building. Ge told the guards that he had stomach upset and requested frequent trips to the restroom. Initially, the guards accompanied him all the way to the restroom, but eventually they allowed Ge to go the restroom building on his own, and simply watched from a nearby building. Ge went to the restroom unaccompanied and returned about three times before he escaped through a restroom window during one of his visits. Ge stated that the restroom was used by both detainees and guards and that the restroom window was unlocked and not barred. Ge testified that he went to a friend's house and hid there for just over two months until the friend helped him obtain a visa to the United States. Ge obtained money from his family to pay $8,000 for the visa. He entered the United States on July 21, 1999.

Ge testified that in the fall of 1999, his wife returned to Shanghai to check on her son, who was still staying with Ge's parents. While there, she was detained by the district committee and forced to have a third abortion in October 1999. At that time, she was forty years old and seven months pregnant. Ge testified that when his wife left the hospital after the abortion, she signed a letter promising to return in a month to be sterilized. Ge's wife never returned for the sterilization procedure. Instead, she hid from authorities in a suburb of Sichuan.

Ge stated that because the district committee could not find his wife, committee members sought out his parents. The district committee members warned Ge's parents that if they did not produce Ge or his wife for sterilization within three months, they would "close" or "seal" his house. Ge testified that authorities did, in fact, close his house in April 2000. Ge learned about these events through phone communication with his family subsequent to his arrival in the United States.

Ge stated that if he is forced to return to China, he fears forcible sterilization. He also fears that because he fled, he will be arrested and imprisoned under life-threatening conditions.

The IJ denied Ge's application for asylum and withholding of removal solely on the basis of her adverse credibility determination. The IJ cited over a dozen aspects of Ge's testimony that she found to be "incredible" or "implausible." The IJ did not point to any internal inconsistencies in Ge's testimony or any inconsistencies or contradictions between Ge's testimony and his written asylum application. The BIA affirmed the decision of the IJ without opinion pursuant to 8 C.F.R. § 3.1(e)(4).

II

Where, as here, the BIA affirms the Immigration Judge's ("IJ's") decision without opinion, we review the decision of the IJ as if it were that of the BIA. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1063 n. 1 (9th Cir.2003). We review adverse credibility determinations under the substantial evidence standard. Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Although this standard is deferential, "[s]peculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence." Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000).

III

The IJ based her adverse credibility determination on...