Fu Xu v. Eric H. Holder Jr. , 362 F. App'x 747 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FU HUA XU, No. 08-73971
Petitioner, Agency No. A097-870-312
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Fu Hua Xu, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration
judge’s decision denying her application for asylum, withholding of removal, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
KAD/Research
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252. We review for substantial evidence, Li v. Holder, 559 F.3d
1096, 1102 (9th Cir. 2009), and we grant and remand the petition for review.
The BIA concluded that Xu failed to establish eligibility for asylum because
she failed to demonstrate persecution on account of an enumerated ground. The
BIA, however, did not have the benefit of our intervening decision in Li, id., which
holds that substantial evidence did not support the BIA’s finding that the petitioner
was a mere criminal subject to prosecution when the petitioner violated no Chinese
law, but instead came to the aid of refugees in defiance of China’s unofficial policy
of discouraging aid to refugees. We therefore remand for the BIA to reconsider its
denial of Xu’s application for asylum, withholding of removal, and CAT in light of
this decision.
PETITION FOR REVIEW GRANTED; REMANDED.
KAD/Research 2 08-73971