Gao v. Ashcroft , 56 F. App'x 807 ( 2003 )

MEMORANDUM^***

Petitioner Juan Nong Gao, a native of the Republic of China, petitions for review of two decisions of the Board of Immigration Appeals (BIA): (1) the decision affirming the Immigration Judge’s denial of her application for asylum, withholding of deportation and protection under the Convention Against Torture, and (2) the denial of her motion to reopen and/or to reconsider. Because Gao’s removal proceedings commenced after April 1, 1997, we have jurisdiction pursuant to INA section 242(a)(1), 8 U.S.C. § 1252(a)(1). See Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub. L. 104-208, Div. C, 110 Stat. 3009-546, § 309(a) (Sept. 30,1996).

As pointed out by government counsel, this case must be remanded to the BIA for two reasons: First, having failed to find any inconsistency relating to Gao’s claim that she was forced to abort her first pregnancy, the BIA did not consider whether Gao had suffered past persecution. Section 101(a)(4) of the INA states that “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, ..., shall be deemed to have been persecuted on account of political opinion.”

Second, the BIA relied unduly on the country conditions report to the exclusion of specific direct testimony. That testimony, which was not found to be incredible, concerned particular circumstances not addressed in the country conditions report— e.g., why Gao feared sterilization even though her region allows two children, and the effect of two violations of China’s family planning policy. See, e.g., Chand v. INS, 222 F.3d 1066, 1076-77 (9th Cir. 2000).

We remand these consolidated cases to the BIA for reconsideration consistent with this disposition.¹

PETITION FOR REVIEW GRANTED; REMANDED

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . We are "not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach [our] own conclusions based on such an inquiry. Rather, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” INS v. Ventura, - U.S.-,123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002) (internal quotations, citations and emphasis omitted).