Jieting He v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIETING HE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-70775
Agency No. A205-551-211
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 21, 2022**
San Francisco, California
Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.
Jieting He (“He”), a native and citizen of China, petitions pro se 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
* 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
DEC 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of removal, and relief under the Convention Against Torture (“CAT”). We grant the
petition for review and remand for further proceedings.
He fled China in 2012 because she was an unmarried woman who became
pregnant in violation of China’s family planning policy and feared a forced abortion.
She has given birth to two children in the United States, remains unmarried, and
testified she would like to have more children. The IJ found her credible but denied
her claims because of the subsequent change in China’s one child policy:
According to the U.S. State Department Country Report, as of January
1, 2016, China ended its one child policy by raising the birth limit
imposed on its citizens from one to two children. . . . The respondent
seemed totally unaware of the fact that the one child policy had been
eliminated and was visibly affected by the news. . . . No evidence was
offered to the Court that would indicate why or how unmarried couples
would suffer or be treated in any manner differently than the couples
mentioned in the U.S. State Department Country Report.
The BIA adopted and affirmed the IJ’s decision, citing Matter of Burbano, 20 I&N
872, 874 (BIA 1994), reasoning:
The Immigration Judge did not clearly err in her factual finding that
China has ended its one child policy, and now allows its citizens to have
2 children and apply for permission to have a third child. As noted by
the Immigration Judge, the respondent did not offer evidence of why or
how an unmarried parent in her situation would suffer or be treated
differently than married couples as addressed in the country reports
contained in the record.
Both decisions misstate the record regarding a critical fact. The 2016
Department of State Human Rights Report in the record explicitly indicates that

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although the one child regulations for married couples have changed to allow two
children, the regulations pertaining to unmarried women have not: “Regulations
pertaining to single women and unmarried couples remain unchanged. Children
born to single mothers or unmarried couples are considered ‘outside of the policy’
and subject to the social compensation fee and the denial of legal documents. . . .”
An agency decision cannot stand if it did not consider all the evidence before
it, including “misstating the record and failing to mention highly probative or
potentially dispositive evidence.” Cole v. Holder, 659 F.3d 762, 771‒72 (9th Cir.
2011); see also Parada v. Sessions, 902 F.3d 901, 915‒16 (9th Cir. 2018)
(remanding to the BIA to “consider all relevant evidence”). Thus, we grant the
petition and remand He’s asylum, withholding of removal, and CAT claims to the
BIA for further proceedings consistent with this disposition. He’s removal is stayed
pending a decision by the BIA.
PETITION FOR REVIEW GRANTED; REMANDED.

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