Xiaofeng Xu v. Gonzales

Ninth Circuit

Xiaofeng Xu v. Gonzales

156 F. App'x 981

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 12, 2005

DocketNo. 04-74455; Agency No. A95-876-851

StatusPublished

This text of 156 F. App'x 981 (Xiaofeng Xu v. Gonzales) 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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Xiaofeng Xu v. Gonzales, 156 F. App'x 981 (9th Cir. 2005).

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Opinion

MEMORANDUM

**

Xiaofeng Xu, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing her appeal from an immigration judge’s (“IJ”) order denying her motion to reopen removal proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. “Where, as here, the BIA adopts the IJ’s decision while adding its own reasons, we review both decisions.” See Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000). We review for abuse of discretion, see Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we grant the petition for review.

The IJ abused his discretion in concluding that Xu’s affidavit was not credible, because the facts presented in her affidavit are not inherently unbelievable and the IJ did not give Xu an opportunity to explain. See Ordonez, 345 F.3d at 786 (recognizing that the agency violates an alien’s due process rights when it makes a sua sponte adverse credibility determination).

Because we conclude that the IJ improperly found Xu incredible, and we remand for consideration of her ineffective assistance of counsel claim, we need not address her remaining challenges to the agency’s decision.

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

Xiaofeng Xu, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing her appeal from an immigration judge’s (“IJ”) order denying her motion to reopen removal proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. “Where, as here, the BIA adopts the IJ’s decision while adding its own reasons, we review both decisions.” See Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000). We review for abuse of discretion, see Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we grant the petition for review.

The IJ abused his discretion in concluding that Xu’s affidavit was not credible, because the facts presented in her affidavit are not inherently unbelievable and the IJ did not give Xu an opportunity to explain. See Ordonez, 345 F.3d at 786 (recognizing that the agency violates an alien’s due process rights when it makes a sua sponte adverse credibility determination).

Because we conclude that the IJ improperly found Xu incredible, and we remand for consideration of her ineffective assistance of counsel claim, we need not address her remaining challenges to the agency’s decision.

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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