Tong v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION JUN 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RONGHUA TONG, No. 06-75281
Petitioner, Agency No. A097-854-211
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Ronghua Tong, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ order summarily affirming an immigration judge’s
(“IJ”) decision denying her application for asylum and withholding of removal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and we
review de novo legal determinations, including “the statutory definition of forced
abortion, which is a legal question,” Tang v. Gonzales, 489 F.3d 987, 989-90 (9th
Cir. 2007). We review for abuse of discretion the discretionary denial of asylum.
See Gulla v. Gonzales, 498 F.3d 911, 915 (9th Cir. 2007). We grant the petition
for review and remand.
The IJ did not set forth an express adverse credibility finding as to Tong’s
testimony regarding her abortions, and therefore we accept her testimony as true.
See Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000).
The IJ concluded that Tong’s abortions were not “forced” as defined by
8 U.S.C. § 1101(a)(42), prior to our intervening decision in Tang which expressly
rejected the requirement that the victim of a forced abortion demonstrate
resistance. See Tang, 489 F.3d at 990. Therefore, we remand for the agency to
reconsider whether Tong’s abortions were forced, such that she is eligible for
asylum and entitled to withholding of removal. See id. at 992; see also Wang v.
Ashcroft, 341 F.3d 1015, 1020 (9th Cir. 2003) (concluding that an abortion was
forced where family planning officials deducted Wang’s wages, and threatened to
fire her and impose unreasonably high fines).
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Further, to the extent that the IJ denied asylum as a matter of discretion, the
IJ abused her discretion by relying on credibility grounds. See Kalubi v. Ashcroft,
364 F.3d 1134, 1135 (9th Cir. 2004) (“If an applicant’s testimony on an issue is
found credible for purposes of determining whether he is eligible for asylum, he
cannot be found incredible on the same issue for purposes of determining whether
he is entitled to asylum”).
PETITION FOR REVIEW GRANTED; REMANDED.
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