Jinrong Yu v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JINRONG YU,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-72285
Agency No. A095-449-877
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Jinrong Yu, a native and citizen of China, petitions for review of an order of
the Board of Immigration Appeals (“BIA”) dismissing his appeal from an
immigration judge’s decision denying his application for withholding of removal
and relief under the Convention Against Torture (“CAT”). We have jurisdiction
FILED
NOV 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

-2-
under 8 U.S.C. § 1252. When the BIA cites Matter of Burbano, 20 I. & N. Dec.
872 (BIA 1994), and does not express disagreement with any part of the
immigration judge’s decision, the BIA adopts the immigration judge’s decision in
its entirety and we review that decision. See, e.g., Joseph v. Holder, 600 F.3d
1235, 1239–40 (9th Cir. 2010). We review factual findings for substantial
evidence. See, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th Cir. 2006).
We grant the petition for review and we remand.
Yu credibly testified that Chinese authorities arrested and detained him for
five days because of his Falun Gong activities. During the detention, Yu received
one meal each day, and his captors beat him with an electric baton, resulting in
pain and injury that required medical attention. Yu also credibly testified that since
his departure from China, police have contacted his wife and threatened to arrest
him if he returns to China. The BIA found that Yu established a nexus between his
Falun Gong practice and his mistreatment by Chinese authorities, but did not
address whether Yu suffered past persecution. We remand for the agency to
consider that question in the first instance. See INS v. Ventura, 537 U.S. 12, 18
(2002) (per curiam).
The BIA determined that Yu failed to establish eligibility for withholding of
removal because Yu’s family in China did not experience prolonged scrutiny or

-- 2 of 3 --

-3-
continuing harm on account of Yu’s practice of Falun Gong, as did the petitioner’s
family in Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004). Substantial evidence
does not support this determination. Yu, unlike the petitioner in Zhang, is not
similarly situated to his family members. See Zhao v. Mukasey, 540 F.3d 1027,
1031 (9th Cir. 2008) (“[T]he well-being of others who have stayed behind in a
country is only relevant when those others are similarly situated to the
petitioners.”).
Accordingly, we grant the petition for review as to Yu’s withholding-of-
removal claim and remand. See Zhou v. Gonzales, 437 F.3d 860, 870–71 (9th Cir.
2006); Zhang, 388 F.3d at 718–21; see also Zhao, 540 F.3d at 1030 & n.3
(concluding, in the asylum context, that the petitioners were eligible for asylum
where they were arrested and physically abused during their detention, and where
authorities had identified them as Falun Gong adherents and had shown continuing
interest in them).
We also grant the petition for review as to Yu’s CAT claim and remand for
the agency to reconsider the claim in light of all the evidence in the record,
including the country reports. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n.6
(9th Cir. 2010).
PETITION FOR REVIEW GRANTED; REMANDED.

-- 3 of 3 --