Song Yuan v. Eric H. Holder Jr.

Ninth Circuit

Song Yuan v. Eric H. Holder Jr.

444 F. App'x 221

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 21, 2011

Docket08-71922

StatusUnpublished

This text of 444 F. App'x 221 (Song Yuan v. Eric H. Holder Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Song Yuan v. Eric H. Holder Jr., 444 F. App'x 221 (9th Cir. 2011).

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Opinion

MEMORANDUM **

Song Lin Yuan, 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 decision denying her application for asylum, 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. Quan v. Gonzales, 428 F.3d 883, 885 (9th Cir.2005). We deny in part and grant in part the petition for review, and we remand.

Substantial evidence supports the BIA’s denial of CAT relief because Yuan failed to establish it is more likely than not that she will be tortured if returned to China. See Ahmed v. Keisler, 504 F.3d 1183, 1201 (9th Cir.2007).

Substantial evidence does not support the BIA’s adverse credibility determination based on a perceived inconsistency regarding the circumstances of Yuan becoming a Christian, see Quan, 428 F.3d at 887, or the omissions from Yuan’s application of details regarding her arrest and release from detention, see Bandari v. INS, 227 F.3d 1160, 1166-67 (9th Cir.2000); see also Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996).

In addition, substantial evidence does not support the BIA’s finding that Yuan failed to show her business was closed on account of a protected ground. See Canales-Vargas v. Gonzales, 441 F.3d 739, 744-45 (9th Cir.2006). Because the agency *222 did not consider this incident when evaluating Yuan’s past persecution claim, we remand for the agency to do so in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

Accordingly, we grant the petition with respect to Yuan’s asylum and withholding of removal claims, and remand to the agency, on an open record, for further proceedings consistent with this disposition. See id.; see also Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009).

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.

**

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

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MEMORANDUM **

Song Lin Yuan, 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 decision denying her application for asylum, 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. Quan v. Gonzales, 428 F.3d 883, 885 (9th Cir.2005). We deny in part and grant in part the petition for review, and we remand.

Substantial evidence supports the BIA’s denial of CAT relief because Yuan failed to establish it is more likely than not that she will be tortured if returned to China. See Ahmed v. Keisler, 504 F.3d 1183, 1201 (9th Cir.2007).

Substantial evidence does not support the BIA’s adverse credibility determination based on a perceived inconsistency regarding the circumstances of Yuan becoming a Christian, see Quan, 428 F.3d at 887, or the omissions from Yuan’s application of details regarding her arrest and release from detention, see Bandari v. INS, 227 F.3d 1160, 1166-67 (9th Cir.2000); see also Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996).

In addition, substantial evidence does not support the BIA’s finding that Yuan failed to show her business was closed on account of a protected ground. See Canales-Vargas v. Gonzales, 441 F.3d 739, 744-45 (9th Cir.2006). Because the agency *222 did not consider this incident when evaluating Yuan’s past persecution claim, we remand for the agency to do so in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

Accordingly, we grant the petition with respect to Yuan’s asylum and withholding of removal claims, and remand to the agency, on an open record, for further proceedings consistent with this disposition. See id.; see also Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009).

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.

**

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

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