Fengshan an v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION DEC 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FENGSHAN AN, No. 08-70247
Petitioner, Agency No. A097-871-545
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2010 **
Before: GOODWIN, RYMER, and GRABER, Circuit Judges.
Fengshan An, 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 (“IJ”) decision denying her application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence. Li v.
Holder, 559 F.3d 1096, 1102 (9th Cir. 2009). We grant the petition for review and
remand.
An’s contention regarding translator errors fails because the proceedings
were not “so fundamentally unfair that [she] was prevented from reasonably
presenting [her case].” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)
(citation omitted).
An testified she was persecuted and fears future persecution because she
sheltered a North Korean refugee in her home. The IJ found An feared prosecution
and not persecution and the BIA affirmed on that basis. The agency, however, did
not have the benefit of our intervening decision in Li, 559 F.3d at 1099 (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). Accordingly, we remand to the BIA for further proceedings. See
INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
2 08-70247