                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-2006

Ding v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2249




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                                                                   NOT PRECEDENTIAL

                      IN THE UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT

                                    ____________________

                                         NO. 05-2249
                                    ____________________

                                          JING DING,
                                               Petitioner


                                                  v.

                    ATTORNEY GENERAL OF THE UNITED STATES

                                    ____________________

                           On Petition for Review of an Order of the
                               Board of Immigration Appeals
                                  (Board No. A95-476-277)

                                   ______________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     May 8, 2006
          Before: BARRY and SMITH, Circuit Judges, and DITTER * , District Judge

                                    (Filed August 28, 2006)

                                 ________________________

                                         OPINION
                                 ________________________




*
    Hon. J. William Ditter, Jr., Senior United States District Judge, sitting by designation.
DITTER, Senior United States District Judge.

       Jing Ding, a Chinese citizen and national, petitions for review of a final order of

removal of the Board of Immigration Appeals (BIA). Having overstayed her business

visa, Ding conceded removability. However, she applied for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). [JA 31-32] Ding

contends that while in China she was subjected to a forced abortion; indeed, this assertion

is the sole basis for her claim of persecution.1 The Immigration Judge (IJ) found that

while Ding may have faced government pressure to have the abortion, she failed to

provide any corroboration that her decision was forced. Therefore, the IJ reasoned, Ding

had not established she was the victim of persecution; had a well-founded fear of future

persecution if she returned to China; or was entitled to asylum, withholding of removal,

or CAT relief.2 We have no difficulty concluding that a reasonable factfinder could agree

with the IJ and we therefore deny Ding’s petition for review.

                            1. Facts and Procedural History

       Ding testified before the IJ that after she gave birth to a daughter in 1987, she was



1
  Both the Notice to Appear and the IJ stated that Ding had a business visa, but she
testified that she remained in China after the abortion because she could not find a
smuggler. [AR 331, 68-69- 275] Assuming that Ding was eligible for a business visa all
along, it is not clear to us why she needed a smuggler to enter the United States.
2
  A woman who has been forced to have an abortion shall be deemed to have been
persecuted on account of a political opinion. 8 U.S.C §1101(a)(42). Under 8 C.F.R.
§ 1208.13(b)(1), an alien who demonstrates past persecution creates a rebuttable
presumption that he or she will be subjected to future persecution.

                                             2
forced to have an Intra-Uterine Device (IUD) inserted and was required to attend

regular checkups. [JA 74] Despite the insertion of the IUD, Ding again became pregnant

in 1990. [JA 61] Ding and her husband felt “very happy” and wanted “to keep th[e]

baby.” [JA 63] However, as government employees, they were allowed only one child.

[JA 62] To keep the pregnancy a secret, Ding took a leave of absence from work. [JA 64-

65]

       Nonetheless, Ding testified that government officials somehow learned of her

pregnancy, appeared at Ding’s home, and took her to a hospital by car. [JA 64-65] Ding

further testified that she was restrained on a surgical table. [JA 66] She stated that an

abortion was then performed without anaesthetic, even though she requested anaesthetic

and cried in pain. [JA 66]

       Although the IJ technically did not make an adverse credibility determination

against Ding, he did note that there was not even a letter from her husband to corroborate

her testimony that her abortion was forced.3 [JA 38] During Ding’s testimony, the IJ

asked why she did not furnish such a letter, and Ding responded that she did not “know

you guys want[ed] that letter.” [JA 89]

       The IJ also considered an abortion certificate that Ding submitted as corroboration,



3
 See Xia Yue Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir. 2005) (stating that an adverse
credibility determination should be “based upon inconsistent statements, contradictory
evidence, and inherently improbable testimony,” whereas corroboration hinges on the
sufficiency of an applicant’s evidence).

                                              3
but the document stated that Ding agreed to the abortion. [JA 37, 138] Finally, the IJ

noted that Ding remained in China for more than ten years after the abortion occurred and

that she did not remove her IUD. [JA 39]

       Ultimately, the IJ opined that Ding complied with China’s family planning policies

because “it was in her and her husband’s best interest” to do so, not because of

persecution. [JA 39] The IJ noted that Ding and her husband held government jobs,

which they could lose if they failed to comply with China’s family planning policies. [JA

38-39] The IJ cited China: Profile of Asylum Claims and Country Conditions (1998), a

State Department publication contained in the administrative record. [JA 92] The profile

states that the central government does not allow officials to use physical force to make

women submit to abortions, although there are reports of forced abortions in some rural

areas. [JA 111] Ding lived in Shanghai, an urban center. [JA 35]

       The profile also states that individuals who resist China’s family planning policy

may be subjected to “stiff fines, withholding of social services, demotion, and other

administrative punishments, including, in some instances, destruction of property and loss

of employment.” [JA 111] Conversely, those who comply with the policy may receive

“monthly stipends and preferential medical, food, and educational benefits.” [JA 111]

The IJ found that Ding was not forced to have an abortion but consented to the procedure

to preserve her job, status, position, and salary. [JA 39] The IJ found that because Ding

had not been subjected to a forced abortion, there was no basis for any of her claims for


                                             4
relief.

                                         2. Discussion

          We have jurisdiction over final orders of removal under 8 U.S.C. § 1252(a). See

Partyka v. Attorney General, 417 F.3d 408, 411 (3d Cir. 2005). Where, as here, the BIA

affirms the IJ without opinion, we review the IJ’s decision directly. Konan v. Attorney

General, 432 F.3d 497, 500 (3d Cir. 2005).

          Central to the IJ’s decision was his finding that Ding’s claim failed because she

presented no corroboration to support it. The REAL ID Act of 2005 provides that no

court shall reverse a determination about the availability of corroborating evidence unless

the court is compelled to conclude that such a determination is unreasonable. 8 U.S.C. §

1252(b)(4)(D); see also Xia Yue Chen v. Gonzales, 434 F.3d 212, 218 (3d Cir. 2005).

The absence of corroboration requires a three-step analysis: “(1) an identification of facts

for which it is reasonable to expect corroboration; (2) the presence or absence of such

corroboration in the record; and (3) the adequacy of applicant’s explanation for its

absence.” Chen, 434 F.3d at 220. This three-step process, which requires corroboration

in some but not all cases, reflects BIA regulations. The relevant regulations state: “The

testimony of the applicant, if credible, may be sufficient to sustain the burden of proof

without corroboration.” 8 C.F.R. §§ 208.13(a) & 208.16(b) (emphasis added).

          Considering the record as a whole, we have no doubt that a reasonable factfinder

could agree with the IJ that Ding failed to provide corroboration that was necessary to



                                                5
establish her claim that she was physically forced to have an abortion. Applying the steps

outlined in Chen to this case, the IJ reasonably expected corroboration that the abortion

was forced as opposed to voluntary. After all, as we noted in Chen, and as the State

Department profile reveals, China’s family planning policies often result in voluntary

abortions. See 434 F.3d at 219 (“[T]hat a young woman in [petitioner’s] circumstances

voluntarily chose to have an abortion would hardly be an unusual event in China given

the government’s strong push for population control and the personal predicament in

which petitioner found herself . . . .”). However, as stated above, the abortion certificate

did not provide corroboration, and Ding failed to submit a letter from her husband

regarding the abortion. Finally, the IJ concluded that Ding’s explanation for the absence

of corroboration—that she did not know it would be expected—was insufficient, a

determination with which we agree.

       Under these circumstances, we conclude that a reasonable factfinder could agree

with the IJ that although corroboration was necessary, Ding failed to provide any

corroboration for her claim that she suffered a forced abortion.4 Indeed, we think that any

reasonable factfinder would reach this conclusion. Since the allegedly forced abortion




4
 In Chen, we upheld the IJ’s finding that the petitioner failed to provide sufficient
corroboration, even though the petitioner did offer some corroboration. 434 F.3d at 218.
Here, Ding offered no evidence to corroborate her claim that she was physically forced to
have an abortion.

                                              6
was the sole basis for all of Ding’s claims for relief, we deny Ding’s petition for review.5




5
  The IJ appears to have placed considerable emphasis on the fact that the abortion
certificate that Ding submitted as evidence states that she agreed to the procedure.
According to China: Profile of Asylum Claims and Country Conditions (1998), China
officially prohibits forcing a woman to have an abortion, but there are reports that local
officials have done so anyway. Therefore, we think it entirely possible that a woman
forced to have an abortion would be given a certificate stating that the abortion was
voluntary.
        Although the abortion certificate does not necessarily undermine Ding’s testimony
that the abortion was forced, it also does not provide the corroboration that the IJ
reasonably sought.

                                              7
