Zhenhua Fu v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHENHUA FU, No. 12-73013
Petitioner, Agency No. A087-876-531
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Zhenhua Fu, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s (“IJ”) decision denying his application for asylum and withholding of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review factual
*
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).
findings for substantial evidence and questions of law de novo. Jiang v. Holder,
611 F.3d 1086, 1091 (9th Cir. 2010). We dismiss in part and grant in part the
petition for review, and we remand.
We lack jurisdiction to consider Fu’s CAT claims, which were raised for the
first time to the court. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
The IJ found that Fu was not credible, but noted that if Fu had been credible
the IJ would have found that he had suffered past persecution related to China’s
enforcement of its coercive population control program. The BIA assumed that Fu
was credible, but found that he had not shown past persecution on account of
“other resistance” to China’s coercive population control program. The BIA erred
in “making its own factual finding on the matter,” rather than remanding “the
factual inquiry to the IJ,” where the IJ decision neither relied on this basis nor
provided sufficient findings of fact to support the BIA’s determination. See
Brezilian v. Holder, 569 F.3d 403, 413 (9th Cir. 2009); Rodriguez v. Holder, 683
F.3d 1164, 1170 (9th Cir. 2012). Thus, we grant the petition for review and
remand Fu’s asylum and withholding of removal claims for further proceedings
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam).
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Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.
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