Tongxing Mao v. Mukasey

MEMORANDUM ** Tongxing Mao, a native and citizen of China, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 . We grant the petition for review, and remand. The government did not waive its current contentions when it requested a remand to the BIA in Mao’s prior petition for review. See Li v. Keisler, 505 F.3d 913, 918-19 (9th Cir.2007) (order) (acknowledging that government should retain flexibility to voluntarily remand in order to correct prior actions that have been subsequently called into question by emerging case law). In the absence of an explicit adverse credibility finding by the IJ, the BIA erred by resting its denial of relief on Mao’s failure to provide corroborating evidence. See Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir.2000). In light of our conclusion regarding the issue of adverse credibility as determined by the BIA, Mao’s due process contention is moot. Accordingly, we grant the petition for review, and remand to the BIA for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002) (per curiam). PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.