Lidan Ding v. John Ashcroft, Attorney General

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). We therefore grant Ding’s petition.

I.

In…