Daw Kyu Kyu Sun v. Holder

337 F. App'x 731

Opinion

MEMORANDUM

**

Daw Kyu Kyu Sun, a native and citizen of Burma, 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. We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s legal determinations de novo, and factual findings for substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and we grant the petition for review.

Where a petitioner is eligible for withholding of removal “it follows that [petitioner] is also eligible for asylum under the less stringent well-founded fear of persecution standard.” See Khunaverdiants v. Mukasey, 548 F.3d 760, 767 (9th Cir.2008). Therefore, the BIA erred by concluding that Sun was ineligible for asylum without taking into account that the IJ granted withholding of removal on the ground that Sun faced a clear probability of persecution based upon her failure to return to Burma within the limitations of her passport.

Accordingly, we grant the petition for review, and remand for the exercise of the Attorney General’s discretion with respect to Sun’s asylum claim. See id.

The government shall bear the costs for this petition for review.

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.