FILED
NOT FOR PUBLICATION NOV 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIN ZHANG, No. 13-70236
Petitioner, Agency No. A200-755-530
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Bin Zhang, 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 (“IJ”) decision denying his application for asylum and withholding of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
*
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).
substantial evidence the agency’s factual findings, applying the standards created
by the REAL ID Act. Ren v. Holder, 648 F.3d 1079, 1083-84 (9th Cir. 2011). We
deny in part, dismiss in part, and grant in part the petition for review, and we
remand.
The record does not compel the conclusion that Zhang applied for asylum
within a reasonable period after the end of his employment in Guam in November,
2009, or that he otherwise established extraordinary circumstances excusing his
untimely filing. See Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th Cir. 2008).
Further, we lack jurisdiction to consider the contentions regarding extraordinary
circumstances that Zhang raises for the first time in his opening brief. See Barron
v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (no jurisdiction over issues or claims
not presented in administrative proceedings below). Thus, we deny the petition as
to Zhang’s asylum claim.
As to withholding of removal, the BIA affirmed the IJ’s conclusion that
Zhang was not credible because there were inconsistencies between his testimony,
asylum application, and documentary evidence, and his testimony was evasive and
not detailed. Substantial evidence does not support the adverse credibility
determination because it was based on findings not supported by the record and
mischaracterizations of the record. See Ren, 648 F.3d at 1089 (adverse credibility
2 13-70236
finding not supported under the ‘totality of circumstances’). Thus, we remand
Zhang’s withholding of removal claim to the agency, on an open record, for further
proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-
18 (2002) (per curiam); see also Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th
Cir. 2009).
Zhang’s unopposed motion for a stay of removal is granted.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; DISMISSED in part;
GRANTED in part; REMANDED.
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