Yu Xia Zhou v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YU XIA ZHOU,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-72795
Agency No. A089-989-701
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Yu Xia Zhou, a native and citizen of China, petitions for review 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”). Our
FILED
MAR 13 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings, applying the standards governing adverse credibility
determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,
1039 (9th Cir. 2010). We grant the petition for review and we remand.
Zhou testified she had two forced abortions in China. The agency denied
her claims because it found Zhou was not credible, and she failed to present
sufficient corroborating evidence.
The agency found a discrepancy between Zhou’s asylum application and
testimony that she worked for her employer from 1994 until 2008 and a letter from
her employer indicating she would be terminated in 2003. Substantial evidence
does not support the agency’s determination, because Zhou did not have an
opportunity to explain this perceived discrepancy. See Don v. Gonzales, 476 F.3d
738, 741 (9th Cir. 2007) (“[T]he IJ must provide a petitioner with a reasonable
opportunity to offer an explanation of any perceived inconsistencies that form the
basis of a denial of asylum.”) (internal quotation marks and citation omitted).
The agency also found Zhou was initially evasive and unresponsive during
cross-examination. The record does not support the agency’s determination. See
Shrestha, 590 F.3d at 1045 (describing examples of unresponsive testimony); see
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Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011) (agency’s adverse credibility
finding not supported under the “totality of circumstances”).
Finally, the agency deemed Zhou not credible because it found Zhou failed
to present her husband as a witness to corroborate her claims. However, the
agency did not address Zhou’s explanations at her hearing or her argument on
appeal regarding why her husband failed to testify on her behalf. See Shrestha,
590 F.3d at 1044 (the IJ should consider a petitioner’s explanations); Sagaydak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (the agency is “not free to ignore
arguments raised by a petitioner”). Accordingly, we grant the petition for review
and remand Zhou’s asylum, withholding of removal, and CAT claims, on an open
record, for further proceedings consistent with this disposition. See INS v.
Ventura, 537 U.S. 12, 16 (2002) (per curiam); Soto-Olarte v. Holder, 555 F.3d
1089, 1095-96 (9th Cir. 2009).
PETITION FOR REVIEW GRANTED; REMANDED.
11-72795 3

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