Zhe Chen v. Holder , 474 F. App'x 621 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ZHE CHEN, No. 07-74633
Petitioner, Agency No. A096-342-752
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 10, 2012
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and BENSON, District
Judge.**
Zhe Chen, a native and citizen of China, petitions for review of a decision of
the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ)
denial of asylum, withholding of removal, and relief under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Dee V. Benson, District Judge for the U.S. District
Court for Utah, sitting by designation.
Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition
for review and remand to the BIA for further proceedings consistent with this
opinion.
1. Notwithstanding 8 U.S.C. § 1158(a)(3), our court suggests that we retain
jurisdiction to review whether Chen’s application for asylum was untimely,
because we are applying undisputed facts to the statute. See Ramadan v. Gonzales,
479 F.3d 646, 650 (9th Cir. 2007) (per curiam). We conclude that the BIA erred in
determining that Chen’s application was untimely.1 The BIA did not make an
adverse credibility determination. Thus, Chen’s credible testimony was that he
entered the United States in November 2002, which is totally uncontradicted in this
record. See She v. Holder, 629 F.3d 958, 964 (9th Cir. 2010) (explaining a
petitioner’s testimony is presumed credible absent an explicit adverse credibility
finding). Further, absent an adverse credibility finding, the BIA (contrary to its
order) cannot require Chen to produce corroborative evidence. See Singh v.
Holder, 649 F.3d 1161, 1167 (9th Cir. 2011) (en banc) (concluding that the BIA
erred in requiring corroboration (to an applicant’s otherwise credible testimony) to
1
The Government argued that this issue was unexhausted, because Chen
failed to raise the one-year bar claim to the BIA. However, because the BIA
addressed the issue, it was exhausted. See Kin v. Holder, 595 F.3d 1050, 1055 (9th
Cir. 2010).
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show that he timely filed an application for asylum); Kataria v. INS, 232 F.3d
1107, 1114 (9th Cir. 2000) (“Because [petitioner’s] testimony is deemed to be
credible, the BIA erred by requiring him to produce corroborating evidence.”).
2. The BIA (1) did not have an opportunity to address whether Chen qualified
for asylum in the first instance and (2) did not have the benefit of this court’s
opinion in Li v. Holder, 559 F.3d 1096, 1110 (9th Cir. 2009). Therefore, we
remand this matter for the BIA to decide in the first instance whether Chen, in light
of Li, has met his burden of proof for his applications for asylum, withholding of
removal, and CAT. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
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