Ming Dai v. Sessions

• Decision Date: 08 March 2018
• Docket Number: No. 15-70776,15-70776
• Parties: MING DAI, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

884 F.3d 858

MING DAI, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-70776

United States Court of Appeals, Ninth Circuit.

Filed March 8, 2018

Submitted October 13, 2017^* San Francisco, California

David Z. Su, Law Offices of David Z. Su, West Covina, California, for Petitioner.

Aimee J. Carmichael, Trial Attorney; Mary Jane Candaux, Assistant Director; Office of Immigration, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Sidney R. Thomas, Chief Circuit Judge, and Stephen Reinhardt and Stephen S. Trott, Circuit Judges.

Dissent by Judge Trott

Ming Dai is a citizen of China. He testified that he was beaten, arrested, jailed, and denied food, water, sleep, and medical care because he tried to stop the police from forcing his wife to have an abortion.

The Board of Immigration Appeals (BIA) nevertheless found that Dai was not eligible for asylum or withholding of removal.

There is one clear and simple issue in this case: neither the Immigration Judge (IJ) nor the BIA made a finding that Dai's testimony was not credible. Under our well-established precedent, we are required to treat a petitioner's testimony as credible in the absence of such a finding. We adopted this rule before the REAL ID Act and reaffirmed it after its passage. The dissent clearly disapproves of our rule. We are, however, bound to follow it. We might add, though it does not affect our holding in this case, that we approve of it. We think it not too much to ask of IJs and the BIA that they make an explicit adverse credibility finding before deporting someone on that basis. In any event, under our well-established rule, Dai is unquestionably entitled to relief.

BACKGROUND

I. Dai's Persecution in China¹

Dai has been married for twenty years to Li Ping Qin. Dai and Qin have a daughter, who was born in 2000. In April 2009, Qin discovered that she was pregnant again. Dai and Qin were "very happy" about the pregnancy and believed they would be able to keep the child if they paid a fine, despite China's One Child policy.

However, the month after Qin found out she was pregnant, she was visited at work by a "family planning officer" who told Qin that she was required to have an abortion. Qin told the officer that she would need to think about it. Two months later, five family planning officers came to Dai and Qin's house early in the morning from "the local family planning office and also the police station." The officers were there to take Qin to the hospital for a forced abortion. Qin told the officers that she didn't want to go and Dai attempted to stop the officers from taking Qin against her will. Dai and the officers began arguing, with the officers telling Dai that Qin had to have the forced abortion as a matter of "Chinese policy" and Dai saying "you can't take my wife away."

When Dai continued resisting the officers' efforts to take Qin for the forced abortion, two of them pushed him to the ground. Dai got up and tried again to stop the officers, so they pushed him to the ground again. This time, the officers handcuffed Dai and repeatedly beat him, causing substantial injuries. While Dai was handcuffed and being beaten, the other officers dragged Qin out of the house.

The police took Dai to the Zha Bei detention center. There, they ordered Dai to confess to resisting arrest. Dai initially refused to confess and insisted that he had the right to protect his family. The officers continued to interrogate him over the next number of days. At times he was deprived of sleep because he was interrogated in the middle of the night. During the ten days he spent in detention, Dai was interrogated approximately seven times. He was fed one meal a day and often denied water. Dai characterized his treatment as "mental[ ] torture." Dai ultimately confessed to resisting arrest and fighting with the officers. He was released about two days after his confession.

Dai's injuries occurred when the officers beat him at his home. Despite telling the police about his injuries, he received no medical attention while in custody. When he was released he went to the hospital for x-rays, which showed that his right arm was dislocated and the ribs on his right side were broken. The doctor put Dai's arm back in place and wrapped it to keep it still for six weeks. Dai did not receive any treatment for his broken ribs.

When Dai returned home he found Qin crying. Qin told him that she had been taken to the Guang Hua hospital in the Chang Ning district, where a doctor made her get undressed and then sedated her. When she woke up, she learned that her pregnancy had been terminated and that an IUD had been implanted, all without her consent.

In addition to Qin's forced abortion and Dai's arrest, detention, and physical and mental abuse, Qin, Dai, and their daughter each suffered other repercussions arising out of Qin's unauthorized pregnancy and Dai's resistance to her forced abortion. Dai was fired from his job, while Qin was demoted and her salary was reduced by thirty percent. Their supervisors specifically informed them that they were fired and demoted because of the above events. Their daughter was also denied admission to more desirable schools despite good academic performance. Her teacher told Qin that this was likewise because of the events resulting from the illegal pregnancy.

On or about January 27, 2012, Dai, Qin, and their daughter arrived in the United States on tourist visas, with authorization to remain until July 26, 2012. Qin and their daughter returned to China in February while Dai remained in the United States. In the time since Qin and their daughter have returned to China, the Chinese police have come looking for Dai multiple times. Dai is afraid that if he returns to China he will be forcibly sterilized.

II. Asylum Application

Approximately eight months after arriving in the United States, Dai filed an affirmative asylum application. The next month, he was interviewed by an asylum officer. The asylum officer took notes during the interview, but did not prepare a verbatim transcript.

During the interview, Dai was not asked whether his wife and daughter had accompanied him to the United States. Rather, the asylum officer inquired whether they ever traveled anywhere outside of China. He told the asylum officer that both his wife and his daughter had been to Taiwan and Hong Kong and that his wife had been to Australia. When asked if they had traveled anywhere else, he said they had not. However, when told that government records showed that his wife and daughter had traveled to the United States with him, he agreed that they had done so. When asked why he did not initially disclose this, Dai said (through an interpreter and according to the non-verbatim notes of the interview), "I'm afraid you ask why my wife and daughter go back." Dai explained that his wife and daughter went back to China "[s]o that my daughter can go to school and in the US you have to pay a lot of money." Finally, Dai was asked, "Can you tell me the real story about you and your family's travel to the US?" Dai responded, "I wanted a good environment for my child. My wife had a job and I didn't and that is why I stayed here. My wife and child go home first."

The asylum officer denied Dai's asylum application.

III. Removal Proceedings

The Department of Homeland Security (DHS) then issued Dai a Notice to Appear. Dai conceded that he was removable and sought asylum, withholding of removal, and CAT protection. At a hearing before the IJ, Dai testified about the events in China we have described. When asked why he came to the United States, he said, "[b]ecause I was persecuted in China and my wife, my wife was forced to have an abortion and I lost my baby. I was arrested. I was beaten[ ]. I lost my job. America [ ] is a free country and it's [ ] a democratic country. I want to come here [ ] and have my very basic human rights. I really, really hate Chinese dictatorship."

During cross-examination, the government asked Dai about his initial failure to disclose his wife and daughter's travel to the United States. Dai testified that "I was very nervous" and "because I was already in the U.S. and they [ ] came with me to the U.S. ... I thought that you were asking me anywhere other than the U.S." In response to further questioning by the government, Dai testified that his wife and daughter returned to China so that his wife could care for his father-in-law and his daughter could attend school. When asked why he didn't keep them in the US to protect them from forced IUDs or abortions, Dai reminded the government that his wife's IUD was already inserted before she left China and that his daughter was only 13.

When the government asked Dai if there were any other reasons he was afraid to return to China, Dai said, "if I return to China, it's impossible for me to get another job.... Just the sterilization and that." Finally, when asked why he remained in the U.S. when his wife returned to China he responded, "Because at that time, I was in a bad mood and I couldn't get a job, so I want to stay here for a bit longer and another friend of mine is also here." At the time in question (when Qin returned to China in February 2012), Dai did not know about asylum. He first learned about the existence of that process in March of that year.

The IJ did not make an adverse credibility finding. Instead, the IJ found that Dai failed to meet his burden of proof for asylum, withholding of removal, and CAT protection.

IV. BIA Decision

The BIA affirmed the IJ's denial of relief. The BIA first found that Dai "failed to disclose both to the [DHS] asylum officer and the [IJ] that his wife and daughter had traveled with him to the United States and voluntarily returned to China shortly after"² and that Dai's reason for concealing this information was that "he believed that the true reasons for their return ... would be perceived as inconsistent with his claims of past and...