Hui Li v. Eric H. Holder Jr. , 489 F. App'x 186 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUI LI, No. 08-73048
Petitioner, Agency No. A099-051-443
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 19, 2012
San Francisco, California
Before: HAWKINS, N.R. SMITH,** and MURGUIA, Circuit Judges.
Hui Li (“Li”), a native and citizen of China, seeks review of a Board of
Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”)
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
Judge N.R. Smith was drawn to replace Judge Betty Binns Fletcher. Judge
Smith has read the briefs, reviewed the record, and listened to the oral arguments that
were held on October 19, 2012.
denial of his application for asylum and withholding of removal. The IJ found that
Li lacked credibility.
We express no opinion on the adverse credibility issue at this time because of
an intervening development: We were informed at oral argument that Li has
voluntarily left the United States and returned to China.1 Li’s departure has potential
legal ramifications for his case. Under IIRIRA, this court retains jurisdiction for
petitioners who are “excluded, deported, or removed” while their petition for review
is pending. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006)
(holding petitioner’s removal to Mexico did not strip this court of jurisdiction). Here,
Li was granted a temporary stay of removal. Despite this grant, Li left the United
States voluntarily (not through exclusion, deportation, or removal). We therefore
cannot determine whether Li’s asylum application survives his departure or whether
Li’s departure mooted or abandoned his petition for review. See 8 C.F.R. § 1208.8 (a)
(“An applicant who leaves the United States without first obtaining advance parole
under § 212.5(f) of this chapter shall be presumed to have abandoned his or her
application under this section.”).
1
Li’s counsel represents that Li returned to China “within the last year or so”
because his parents were gravely ill and ultimately passed away within three or four
months of one another.
2
Because the agency has not had the opportunity to evaluate the consequences
of this significant intervening development, we remand for the BIA to consider it in
the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam); see also
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1170 (9th Cir. 2006) (remanding for BIA
to consider effect of minute order entered after BIA issued initial decision).
REMANDED for further proceedings consistent with this disposition.
3