Ying Li v. Jefferson Sessions

FILED NOT FOR PUBLICATION JUL 02 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YING LI, No. 15-71145 Petitioner, Agency No. A099-966-855 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 5, 2018 Pasadena, California Before: W. FLETCHER, BERZON, and OWENS, Circuit Judges. Ying Li (“Li”), a native and citizen of China, petitions for review of a final order of removal by the Board of Immigration Appeals (“BIA”). The BIA denied Li’s applications for asylum and withholding of removal under the Immigration and Nationality Act (“Act”) and for protection under the Convention Against * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Torture (“CAT”). 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. §§ 1208.16-1208.18. The BIA determined Li was not credible as to her claim of past persecution under China’s population control policy. The BIA also determined that Li was not credible as to her claim of political persecution, and that, even if she were credible, she had not established past persecution on account of a protected ground. We have jurisdiction under 8 U.S.C. § 1252(b). We grant the petition and remand. We review asylum-related determinations, including credibility determinations, for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). In doing so, we consider whether the determination below is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We reverse only if the evidence compels a contrary conclusion. Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998). “[O]ur review ‘is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.’” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006). To establish eligibility for asylum based on past persecution, Li “must show: (1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and (3) is committed by the 2 government or forces the government is either ‘unable or unwilling’ to control.” Mengstu v. Holder, 560 F.3d 1055, 1058 (9th Cir. 2009) (quoting Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000)). Persecution under Population Control Policy The BIA failed to provide specific and cogent reasons for upholding the IJ’s adverse credibility finding as to Li’s forced abortion claim. See Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). The BIA and IJ based their adverse credibility findings, in part, on an inaccurate reading of the record. Del Valle v. INS, 776 F.2d 1407, 1412 (9th Cir. 1985). Li testified that, in 1986, after becoming pregnant a second time, her work unit ordered her to have an abortion. Li further testified that “cadres” forcibly took her from work and drove her to the hospital, where she was ...

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