Youqin He v. Eric Holder, Jr. , 512 F. App'x 705 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YOUQIN HE, No. 10-73790
Petitioner, Agency No. A098-445-282
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2013 **
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Youqin He, a native and citizen of China, petitions 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, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings, including adverse credibility findings. Chebchoub v.
INS, 257 F.3d 1038, 1042 (9th Cir. 2001). Contrary to the government’s argument,
our review is limited to the adverse credibility findings identified by the BIA. See
Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (reviewing only findings
explicitly identified by the BIA and examining reasons articulated by IJ in support
of those findings). We grant in part and dismiss in part the petition for review, and
we remand.
Substantial evidence does not support the agency’s adverse credibility
findings based on the omission of details from He’s declaration. See Bandari v.
INS, 227 F.3d 1160, 1166-67 (9th Cir. 2000) (IJ improperly based adverse
credibility finding on speculation about which details of beating petitioner should
have included in application). In addition, the agency’s findings that He testified
inconsistently about Aunt Li’s whereabouts during He’s arrest and about when He
first started attending home church meetings are not supported by the record. See
id. at 1167 (reversing credibility determination where the alleged inconsistencies
were not supported by the record).
We do not address Petitioner’s remaining contentions, including her
contention that the IJ violated her due process rights, because Petitioner did not
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raise these contentions to the BIA and we therefore lack jurisdiction to review
them. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); Abebe v.
Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (issue raised in notice of
appeal to BIA not exhausted where petitioner then files a brief that fails to raise
issue).
Thus, we grant He’s petition for review and remand He’s asylum and
withholding of removal claims, on an open record, for further proceedings
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam); Soto-Olarte v. Holder, 555 F.3d 1089, 1094-96 (9th Cir. 2009).
Each party shall bear its own costs for this petition for review.
PETITION for review GRANTED in part; DISMISSED in part;
REMANDED.
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