Wang v. Ashcroft

• Decision Date: 29 August 2003
• Docket Number: No. 02-47086.,02-47086.
• Citation: 341 F.3d 1015
• Parties: Xuan WANG, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

341 F.3d 1015

Xuan WANG, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-47086.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 2003 — Pasadena, California.

Filed August 29, 2003.

COPYRIGHT MATERIAL OMITTED

Judith L. Wood and Jesse A. Moorman, Los Angeles, CA, for the petitioner-appellant.

Leslie McKay and James A. Hunolt, Office of Immigration Litigation, for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A73-827-084.

Before: BETTY B. FLETCHER, BARRY G. SILVERMAN, Circuit Judges, and FREDERICK J. MARTONE,^* District Judge.

OPINION

BETTY B. FLETCHER, Circuit Judge.

Xuan Wang ("Wang") appeals the Bureau of Immigration Appeal's ("BIA") decision to affirm the Immigration Judge's ("IJ") adverse credibility determination. The IJ found Wang removable from the United States because she was employed without authorization while present as the spouse of a nonimmigrant student. Wang applied for asylum and withholding of removal because she was subject to two forced abortions pursuant to China's strict one-child policy and will be subject to sterilization procedures if she returns to China. She provided testimony and documentary evidence that she had two forced abortions. We have jurisdiction pursuant to 8 U.S.C. § 1252. We conclude that (1) the BIA erred in denying Wang's application for asylum because the adverse credibility determination is not supported by substantial evidence and (2) the Immigration and Naturalization Service ("INS") failed to rebut the presumption of future persecution. Accordingly, we grant the petition for review and find that Wang is eligible for asylum and entitled to withholding of removal.

I. BACKGROUND

Wang, a native and citizen of China, entered the United States on October 13, 1996 as a nonimmigrant visitor. On March 3, 1997, her status was adjusted to F-2, a spouse of a nonimmigrant student. In July 1997, she was employed for compensation without INS authorization. On September 18, 1997, the INS initiated removal proceedings against Wang. Wang conceded removability and applied for political asylum under 8 U.S.C. § 1158(a), withholding of removal under 8 U.S.C. § 1231(b)(3)(A), withholding of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, art. 3, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987), and, in the alternative, voluntary departure under 8 U.S.C. 1229c(b)(1).

Wang petitioned for asylum claiming that she was forced to have two abortions and an intrauterine contraceptive device ("IUD") inserted pursuant to China's one-child policy. Attached to her asylum application, Wang provided a declaration regarding the details of events surrounding the forced abortions and medical records substantiating both abortions. She also provided details through testimony at the IJ hearing held on April 23, 1999.

In May 1994, Wang gave birth to a male child by caesarian procedure in Shanghai, China. Wang was to receive an IUD six months after her son's birth. However, five months later, she became pregnant again. At the time of her second pregnancy, she was working for a government enterprise.¹ The hospital notified the family planning officers at Wang's place of employment that she was pregnant. Family planning officers coerced Wang into getting an abortion by reducing her wages and threatening to fire her if she did not obtain an abortion. Wang relented and had the first abortion in November of 1994. Following this incident, Wang quit her government job and began working for a joint Chinese American venture in the hopes that the one-child policy would not be enforced. In April 1995, Wang learned that she was pregnant once again. Despite Wang's hope that changing occupations would alleviate government interference, the local birth control committee learned of her pregnancy and informed Wang and her husband of high penalties they would incur if she had the child. The local birth control committee coerced Wang into having another abortion in May of 1995, and thereafter an IUD was inserted in Wang. After the second abortion, the doctor recommended that sterilization procedures be completed within the year.

Approximately seventeen months after Wang entered the United States, she had the IUD removed in order to become pregnant again. Wang is currently seeing a doctor to adjust her hormone abnormality that resulted from the IUD. In addition to forcible sterilization, Wang fears that if she returns to China she will be subject to sterilization and to imprisonment for removing the IUD.

At the IJ hearing, Wang's husband, Ming Wang ("Ming"), was called as a witness. The IJ conducted a direct examination of Ming. His responses to the IJ comprise most of his testimony. The IJ asked Ming the exact day in November 1994 that Wang had an abortion. Ming responded that he did not quite remember. The IJ then asked Ming what he remembered about that day. Ming testified that he went to work on the day of the abortion and that Wang went from home to the hospital. He stated that he was notified of this fact by an employee from her unit. However, Wang testified that she went from home to work and then was accompanied by an officer from the birth control committee to the abortion clinic.

The IJ also inquired as to the time Wang went to work during a normal business day in November 1994. Ming responded that Wang would normally go to work at 9:00 a.m. and sometimes early, sometimes late. Wang testified that she normally went to work at 6:00 a.m. The IJ then asked Ming if he remembered the time Wang went to work on the day of her abortion in November 1994. Ming responded, "I don't quite remember." He then testified that he came home from work at 2 p.m. and his wife took a taxi cab home from the hospital, while Wang testified that Ming met her at the hospital and the couple took a taxi cab home. The IJ also asked Ming what the couple did after they found out that Wang was pregnant. Ming testified that they went out for dinner. Wang testified that she told her parents. The IJ then said:

Sir, your wife has told me a completely different story. Again, it's quite contradictory to what you just told me on that very big night in your life when your second child was — I guess, when you determined that you had a second child coming. Who should I believe this time? Should I believe you this time, or should I believe your wife this time?

Ming suggested that the IJ listen to his wife "because I, I am not the one who is involved."

The IJ inquired into the second abortion as to which Ming did not remember the exact date. The IJ asked why he did not remember the date. Ming stated, "Because it was not very pleasant to me, because I don't quite remember because of this kind of situation." He then told the IJ that he did not remember specific details about the event.

On April 28, 1999, the Immigration Judge ordered Wang removed to the People's Republic of China and denied her application for asylum, application for withholding of removal, request for voluntary departure, and her Convention Against Torture claim. The IJ found that Wang and Ming gave "false testimony for the purpose of gaining an immigration benefit." To support its adverse credibility determination, the IJ found that the testimony provided by Wang and Ming was materially inconsistent regarding dates and circumstances of the abortions.

Wang appealed. She requested a new hearing contending that the IJ erred in calling her husband as a witness because it violated her right to a full and fair hearing, and she challenged the IJ's adverse credibility determination used to support its decision to deny asylum and withholding of removal. The BIA dismissed the appeal and affirmed the IJ's decision to deny asylum and withholding of removal. Wang now petitions for review. Despite the denial of Wang's application for asylum, a different IJ subsequently granted Ming political asylum based on Wang's two forced abortions.²

II. DISCUSSION

A. Eligibility for Asylum

We review the BIA's decision that an alien has not established eligibility for asylum to determine whether it is supported by substantial evidence. See Espinoza-Castro v. INS, 242 F.3d 1181, 1185 (9th Cir.2001). Although we normally limit our review to the BIA's opinion, where as in this case, the BIA expressly adopted the IJ's reasoning, we also review the IJ's decision. See Gonzalez v. INS, 82 F.3d 903, 907(9th Cir.1996); Castillo v. INS, 951 F.2d 1117, 1120 (9th Cir.1991).

The Attorney General has discretion to grant asylum to "refugees." 8 U.S.C. § 1158(b)(1). To establish eligibility for asylum, Wang must demonstrate that she is a refugee as defined in 8 U.S.C. § 1101(a)(42). The regulation defines "refugee" as follows:

a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

8 U.S.C. § 1101(a)(42) (emphasis added). The plain language of the statute provides that forced abortions are per se persecution and trigger asylum eligibility. The statute also provides protection for individuals who are forcibly sterilized, He v. Ashcroft, 328 F.3d 593, 604 (9th Cir.2003), and the BIA has extended asylum protection to individuals and spouses of individuals forcibly sterilized under China's one-child policy, In re X-P-T, 21 I. & N. Dec. 634, 636, 638 (B.I.A.1996); In re C-Y-Z, 21...