You Chen v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION APR 12 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

YUI GAN CHEN, No. 08-70903

Petitioner, Agency No. A098-268-939

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 5, 2011 **

Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

Yui Gan Chen, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have

*
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 under 8 U.S.C. § 1252. We review for substantial evidence. Zehatye

v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We grant the petition for

review and remand.

Chen has not raised any direct challenge to the agency’s denial of CAT

relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (stating

that issues not supported by argument are deemed abandoned).

The BIA found that even assuming Chen engaged in other resistance to

China’s family planning policy, he failed to demonstrate harm rising to the level of

persecution. In doing so, the BIA did not consider his wife’s sterilization or

address Chen’s assertion that his wife’s sterilization should be considered even

though it did not render him per se eligible for relief because their marriage was

not registered at the time of her sterilization. Because the BIA did not address

Chen’s argument, Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009), and in

light of our decision in Jiang v. Holder, 611 F.3d 1086, 1094-97 (9th Cir. 2010)

(concluding wife’s forced abortion was relevant to issues of resistance and

persecution despite no per se eligibility under 8 U.S.C. § 1101(a)(42)(B)), we

remand for the agency to reassess Chen’s asylum and withholding of removal

claims. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

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