Yunxin Cao v. Jefferson Sessions , 701 F. App'x 606 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 7 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YUNXIN CAO, No. 12-70080
Petitioner, Agency No. A089-810-900
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 13, 2017
Honolulu, Hawaii
Before: FISHER, PAEZ, and NGUYEN, Circuit Judges.
Yunxin Cao, (“Cao”), a native and citizen of China, petitions for review of
the Board of Immigration Appeals’ (“BIA”) determination that Cao was not
entitled to asylum because he had not provided sufficient “reliable, probative
evidence to corroborate material aspects of his claim.” The BIA affirmed, without
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
adopting, the Immigration Judge’s (“IJ”) decision to deny asylum on the same
basis. We have jurisdiction under 8 U.S.C. § 1252. Reviewing de novo, we
conclude that the BIA erred as matter of law in failing to provide Cao notice of the
corroborating evidence required and an opportunity to provide such evidence or
explain why it was not reasonably available. Mendoza-Pablo v. Holder, 667 F.3d
1308, 1312 (9th Cir. 2012).
1. When an IJ determines that an applicant for asylum presented insufficient
evidence to corroborate his claims, the agency must provide the asylum seeker
notice of the required evidence and an opportunity to provide such evidence or
explain why it is not reasonably available. See 8 U.S.C. § 1158(b)(1)(B)(ii); Ren v.
Holder, 648 F.3d 1079, 1090 (9th Cir. 2011) (interpreting § 1158(b)(1)(B)(ii) to
mean that “an IJ must provide an applicant with notice and an opportunity to either
produce the evidence or explain why it is unavailable before ruling that the
applicant has failed in his obligation to provide corroborative evidence and
therefore failed to meet his burden of proof.”); see also Zhi v. Holder, 751 F.3d
1088, 1094-95 (9th Cir. 2014) (upholding Ren’s procedural requirements).
Here, the BIA rejected Cao’s claim because he failed to provide sufficient
evidence to corroborate his claim. Specifically, the BIA faulted Cao for failing to
provide “birth certificates, identification cards, or school or hospital records to
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establish the birth, identity, or paternity of the children; [and] hospital records for
his wife to establish an IUD insertion or removal, the birth of the second child, or
the claimed sterilization.” The IJ had similarly criticized Cao, without giving any
continuance or opportunity to gather such evidence or explain why it was not
reasonably available.
2. The government argues that Cao waived his challenge regarding the lack
of notice and opportunity to provide corroborating evidence. We disagree. Cao
sufficiently exhausted the argument because he argued before the BIA that the IJ
erred in requiring corroborating evidence and questioning his credibility. See Zhi,
751 F.3d at 1094 n.5 (holding that with a similar argument, the petitioner
“challenged the IJ’s overall credibility determination and denial of his claims for
asylum and withholding of removal. The ‘notice’ requirement is a sub-part of that
overall determination, and we therefore have jurisdiction over this issue.”).
3. The government also argues remand is unnecessary because the BIA
held, in the alterative, that Cao failed to establish “past persecution or a well-
founded fear of future persecution on account of ‘other resistance’” to China’s
coercive population control policies. The BIA, however, based this conclusion at
least in part on the lack of corroborating evidence. Accordingly, the BIA’s legal
error under Ren and Zhi was not harmless.
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4. As a result of this legal error, we grant the petition and remand.
Bhattarai v. Lynch, 835 F.3d 1037 (9th Cir. 2016) (remanding for failure to
provide notice and opportunity in violation of Ren and Zhi). On remand the
agency should provide Cao with notice of the evidence it requires to corroborate
his claims, and a meaningful opportunity either to provide that evidence or explain
why it cannot reasonably be obtained.
Petition GRANTED and REMANDED.
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