NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YINKANG ZHANG, No. 16-72797
Petitioner, Agency No. A205-181-585
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 14, 2020**
Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
Yinkang Zhang, a native and citizen of China, petitions pro se 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”). Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the agency’s factual findings and review de novo questions of law. Brezilien v.
Holder, 569 F.3d 403, 411 (9th Cir. 2009). We dismiss in part, deny in part, and
grant in part the petition for review, and we remand.
We lack jurisdiction to consider Zhang’s contentions as to an imputed or
actual political opinion because he failed to raise them before the agency. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to review claims not presented to the agency).
The record does not compel the conclusion that Zhang applied for asylum
within a reasonable period of any extraordinary circumstances as to excuse the
untimely filing of his asylum application. See 8 C.F.R. § 1208.4(a)(5); Husyev v.
Mukasey, 528 F.3d 1172, 1181-82 (9th Cir. 2008) (364-day delay in filing after
cessation of extraordinary circumstances was not reasonable).
Substantial evidence supports the agency’s denial of CAT relief because
Zhang failed to show it is more likely than not he will be tortured by or with the
consent or acquiescence of the government if returned to China. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
As to withholding of removal, the BIA determined that Zhang failed to
establish past harm rising to the level of persecution on account of his Christian
religion. In doing so, the BIA erred by making factual findings in the first instance
regarding whether his past harm constituted a “significant deprivation” of his
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rights, practices, or day-to-day life. See Vitug v. Holder, 723 F.3d 1056, 1063-64
(9th Cir. 2013) (BIA erred in making factual findings about past events in the first
instance). Thus, we grant the petition for review and remand Zhang’s withholding
of removal claim to the agency for further proceedings consistent with this
disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; DENIED in part;
GRANTED in part; REMANDED.
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