Xin He v. Loretta E. Lynch ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
XIN YU HE, No. 12-71648
Petitioner, Agency No. A099-666-095
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 7, 2015
Pasadena, California
Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.
Petitioner Xin Yu He petitions for review of the Board of Immigration
Appeals’ (“BIA”) order dismissing his appeal of the Immigration Judge’s (“IJ”)
decision denying his claim for asylum and withholding of removal. We have
jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the case to the BIA to reassess He’s jurisdictional argument under the Trafficking
Victims Protection Reauthorization Act of 2008 (“TVPRA”).
1. He argues that the TVPRA divests the IJ of jurisdiction over his
asylum application. The TVPRA gives “unaccompanied alien children”1 the right
to have their asylum applications reviewed in the first instance by a United States
Citizenship and Immigration Services (“USCIS”) asylum officer. 8 U.S.C. §
1158(b)(3)(C). The parties agree that if He was under eighteen years old when he
filed his asylum application on January 17, 2007, then he qualifies as an
unaccompanied alien child for purposes of the TVPRA. If, as He claims in his
asylum application and on appeal, he was born on August 27, 1989, then he
qualifies. But if, as the IJ found, He was born on August 27, 1987, then he does
not qualify. Thus, our review turns on the BIA’s determination of He’s birth date.
The BIA’s decision, however, drew two inconsistent conclusions, each of
which supports a different birth date. First, the BIA concluded that He “became 18
years old in August 2007, and therefore the TVPRA was not applicable to his case
on its effective date.” This statement indicates that He was born in 1989. As the
government now recognizes, contrary to the BIA’s legal conclusion, the TVPRA
provision applies to individuals who were unaccompanied alien children at the
1
See 6 U.S.C. § 279(g).
2
time they applied for asylum, even if they turned eighteen years old before the
TVPRA’s effective date. See Mazariegos-Diaz v. Lynch, No. 11-73581, 2015 WL
3372247, at *1 (9th Cir. May 26, 2015); USCIS, Implementation of Statutory
Change Providing USCIS with Initial Jurisdiction over Asylum Applications Filed
by Unaccompanied Alien Children 2-3 (Mar. 25, 2009), available at
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Me
moranda/2009/uac_filings_5f25mar09.pdf. It follows that He would qualify for
the TVPRA’s jurisdictional provision were he born in 1989, as the BIA stated.
In the same paragraph, however, the BIA affirmed the IJ’s factual finding
that He was born in 1987. Because we cannot reconcile these statements as to He’s
date of birth, and because He’s date of birth is critical to resolving his jurisdictional
claim, we remand the matter to the BIA to reassess whether He qualifies as an
unaccompanied alien child for TVPRA purposes.
2. At the hearing before the IJ, He presented a notarial birth certificate, a
national identification card, and a middle school graduation certificate to establish
that he was born in 1989. The IJ did not explicitly discredit these documents, but
instead relied solely upon the government’s I-213 form to find that He was born in
1987. On remand, the BIA should review the IJ’s factual findings about He’s age
for clear error, 8 C.F.R. § 1003.1(d)(3)(i), keeping in mind our well-established
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rule that IJs “cannot selectively examine evidence in determining credibility, but
rather must present a reasoned analysis of the evidence as a whole.” Ai Jun Zhi v.
Holder, 751 F.3d 1088, 1091 (quoting Tamang v. Holder, 598 F.3d 1083, 1093
(9th Cir. 2010)). Alternatively, the BIA may remand the matter to the IJ for further
proceedings.
3. Because we cannot evaluate He’s threshold jurisdictional argument on
the present record, we do not address the merits of He’s religious persecution
claim.
GRANTED and REMANDED.
4