Qunying He v. Eric H. Holder Jr. , 437 F. App'x 571 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
QUNYING HE; et al., No. 08-72074
Petitioners, Agency Nos. A098-471-456
A078-113-165
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Qunying He and her daughter, natives and citizens of China, petition for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s (“IJ”) decision denying her application for asylum,
*
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).
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992), and de novo
claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000). We grant the petition for review, and we remand.
The IJ found He’s asylum application untimely because she had not filed
within a reasonable time period from either her extraordinary or changed
circumstances. The record does not compel the conclusion that He filed for asylum
within a reasonable period of time after the extraordinary circumstance of her legal
status. See 8 C.F.R. § 1208.4(a)(5)(iv); see also Husyev v. Mukasey, 528 F.3d
1172, 1181-82 (9th Cir. 2008). However, in concluding that He failed to file her
asylum application within a reasonable period of time after changed circumstances,
the IJ mistakenly found that He filed her asylum application more than one year
after her baptism. In fact, He filed her asylum application less than 11 months
after her baptism. Therefore, we remand for the agency to determine whether He’s
delay of less than 11 months was a reasonable period of time. See Taslimi v.
Holder, 590 F.3d 981, 984-86 (9th Cir. 2010); see also Fakhry v. Mukasey, 524
F.3d 1057, 1064 (9th Cir. 2008).
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In light of our disposition, we grant the petition for review as to He’s
asylum, withholding of removal and CAT claims, and remand for further
proceedings consistent with this disposition.
PETITION FOR REVIEW GRANTED; REMANDED.
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