Linmei Cao v. Mukasey

MEMORANDUM ***

Linmei Cao and her husband Yihua Zhou, 1 natives and citizens of the People’s Republic of China, petition for review of a decision of the Board of Immigration Appeals (“BIA”) upholding a decision of an Immigration Judge (“IJ”) denying their applications for asylum, withholding of removal, and relief under the Convention against Torture (“CAT”). 2 We have jurisdiction under 8 U.S.C. § 1252 (a). We grant the petition and remand for further proceedings.

*727 Where, as here, the BIA conducted an independent review of the record and provided its own grounds for affirming the IJ’s decision, we review the BIA opinion rather than the IJ’s decision. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). Because the BIA explicitly found Cao’s testimony credible, her testimony is deemed true without further corroboration. See Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir.2000).

Review of the BIA’s decision to deny applications for asylum or withholding of deportation is for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). Under the substantial evidence standard, we reverse only if “any reasonable adjudicator would be compelled…

concurring in part and dissenting in part.

I agree with the majority that the BIA correctly concluded that the IJ did not violate Petitioners’ due process rights by taking on a prosecutorial role. However, I find that substantial evidence does support the BIA’s finding that the Petitioners failed to demonstrate past persecution and therefore respectfully dissent as to that issue.

After the BIA reversed the IJ’s adverse credibility finding and accepted all of Cao’s testimony as true, the BIA nevertheless found that Cao had failed to demonstrate past persecution. “Our review of the BIA’s determination that an applicant has not established eligibility for asylum is highly deferential.” Gu, v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992)). When reviewing for substantial evidence, we *729 must uphold the BIA’s determination unless the evidence in the record compels a contrary conclusion. Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.2007) (emphasis added). We may not reverse the BIA “ ‘simply because we disagree with its evaluation of the facts....’” Aruta v. INS, 80 F.3d 1389, 1393 (9th…