FILED
NOT FOR PUBLICATION JUN 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHENGLI HE, No. 12-73033
Petitioner, Agency No. A088-290-413
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2014**
Before: McKEOWN, WARDLAW, and M. SMITH, Circuit Judges.
Shengli He, 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. We have jurisdiction under
8 U.S.C. § 1252. We review de novo questions of law and for substantial evidence
*
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).
factual findings. Jiang v. Holder, 611 F.3d 1086, 1091 (9th Cir. 2010). We grant
the petition for review and remand.
He testified that his wife suffered a forced abortion in Fujian Province and
that they fled to Hunan Province after she became pregnant again in 1994. He also
testified that Fujian family planning officials fined them in 1993 for an early
marriage and in 2000 for an unauthorized birth, they paid off only the 1993 fine,
the officials sought them for sterilization, his wife has avoided the officials by
remaining in Hunan, and he fled to the United States because he feared
sterilization. Further, He submitted a 2007 notice from his village committee
directing him and his wife to submit to sterilization and “pay off the social
compensation fee.”
We do not reach the issue of whether He established “other resistance” as
the BIA assumed his conduct constituted resistance to a coercive population
control program. We reject He’s contention that he established past persecution
based solely on his own resistance and his wife’s forced abortion. See He v.
Holder, No. 09-73516, 2014 WL 1491882, *3 (9th Cir. Apr. 17, 2014) (holding
that a petitioner may present his spouse’s forced abortion as “part” of proof of
persecution but must also show “substantial evidence of further persecution in
support of his claims”) (citations omitted).
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However, substantial evidence does not support the BIA’s rejection of He’s
past and future persecution claims because the BIA’s finding that the fines “appear
to have been paid off” is contrary to the record and because the BIA does not
appear to have considered the 2007 notice. See Vitug v. Holder, 723 F.3d 1056,
1064 (9th Cir. 2013) (indications BIA ignored evidence include misstating the
record and failing to mention highly probative or potentially dispositive evidence)
(internal citation and quotation omitted). Thus, we grant the petition as to He’s
asylum claim and remand for reconsideration of whether He established past or
future persecution and/or for other proceedings consistent with this disposition.
See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); see also Zhang v.
Gonzales, 408 F.3d 1239, 1248-49 (9th Cir. 2005) (remanding for reconsideration
given reliance on unsupported factual assertions).
Finally, in light of this disposition, we do not reach He’s other contentions
regarding his future persecution claim.
PETITION FOR REVIEW GRANTED; REMANDED.
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