Chang Tao Zhang v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHANG TAO ZHANG,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-74491
Agency No. A098-473-279
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and, OWENS, Circuit Judges.
Chang Tao Zhang, 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 decision denying his application for asylum and withholding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 31 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings. Guo v. Ashcroft, 361 F.3d
1194, 1203 (9th Cir. 2004). We grant the petition for review and remand.
In rejecting Zhang’s claim that extraordinary circumstances excused his
untimely filed asylum application, the BIA listed reasons Zhang did not provide,
made reference to “exceptional circumstances” rather than “extraordinary
circumstances,” and did not directly address whether the immigration consultant’s
actions or inactions constituted an extraordinary circumstance. See e.g., Viridiana
v. Holder, 646 F.3d 1230, 1238 (9th Cir. 2011) (immigration consultant fraud
constitutes an extraordinary circumstance). Thus, because it appears the BIA
applied the wrong legal standard and did not consider record evidence, we vacate
the BIA’s finding that Zhang did not establish extraordinary circumstances.
Further, as to withholding of removal, substantial evidence does not support
the BIA’s determination that Zhang’s mistreatment did not rise to the level of
persecution. See Guo, 361 F.3d at 1203 (totality of the circumstances including
physical harm during one and a half day detention coupled with threats compelled
finding of past persecution). Thus, we conclude the harm Zhang suffered in China

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was sufficiently severe to constitute persecution.
In light of these conclusions, we grant the petition for review as to Zhang’s
asylum and withholding of removal claims, and we remand to the agency for
further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S.
12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.

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