                               NOT FOR PUBLICATION                                  FILED
                                                                                    APRIL 29 2014
                       UNITED STATES COURT OF APPEALS
                                                                                MOLLY C. DWYER, CLERK
                                                                                  U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


LIN XIE, et al.,                                        No. 10-72550

               Petitioners,                             Agency Nos. A099-449-123
                                                                    A099-449-124
  v.

ERIC H. HOLDER, JR., Attorney General,                  MEMORANDUM*

               Respondent.



                        On Petition for Review of an Order of the
                               Board of Immigration Appeals

                          Argued and Submitted April 11, 2014
                                 Pasadena, California


Before: HURWITZ and FARRIS, Circuit Judges, and FRIEDMAN, Senior District
Judge.**
       After arriving in the United States, lead petitioner Lin Xie and her husband,

Jinzhu Pang, applied for asylum, withholding of removal, and relief under the


       *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.

       **
                The Honorable Paul L. Friedman, Senior District Judge, U.S. District Court for
the District of Columbia, sitting by designation.
Convention Against Torture based on China’s restrictive population control

policies. An immigration judge (“IJ”) denied their applications, finding that Xie

was not a credible witness and had failed to satisfy her burden of proof. The Board

of Immigration Appeals (“BIA”) adopted and affirmed the decision of the IJ,

finding that the IJ’s adverse credibility determination was not clearly erroneous

and that the Xie had not sufficiently corroborated her claims. Xie and Pang

petition for review. Because the IJ and the BIA erred by failing to properly

consider all of the evidence in the record, we grant the petition and remand for

further proceedings.

      A failure by the BIA to consider all relevant evidence in the record

constitutes an abuse of discretion, Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir.

2013), and implicates the due process requirement of a full and fair hearing,

Larita-Martinez v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000). We typically

presume that the agency has considered all of the relevant materials in the record,

regardless of whether it has discussed every piece of evidence submitted. Id.; see

also Almaghzar v. Gonzales, 457 F.3d 915, 921–22 (9th Cir. 2006). “But, where

there is any indication that the BIA did not consider all of the evidence before it,

. . . the decision cannot stand.” Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir.

2011). “Such indications include misstating the record and failing to mention

highly probative or potentially dispositive evidence.” Id. at 772.


                                           2
       Here, there are clear indications that the IJ and the BIA overlooked relevant

record evidence. The IJ faulted petitioners for providing no evidence that they

were married or had a son born in China. In doing so, however, the IJ misstated

the record. The IJ stated that the petitioners had failed to submit a marriage

certificate and repeatedly questioned why a certificate was not provided. In fact,

petitioners’ marriage certificate is in the record. The IJ also referred to a single

household register booklet, which contained removable pages and was examined

by the Department of Homeland Security’s Forensic Document Laboratory

(“FDL”) on December 14, 2007. The IJ omitted any reference to a second

household register booklet that was submitted by petitioners and examined by the

FDL on January 29, 2007, and which appears to have contained information about

petitioners’ child born in China.

       The perceived absence of corroborating evidence was a critical building

block in the IJ’s adverse credibility determination, which the BIA affirmed without

any discussion of the overlooked evidence. Under these circumstances, it is

appropriate to remand to the agency for reconsideration of petitioners’ claims in

light of all the record evidence.1


       1
                Because the certified administrative record appears to be incomplete, further
clarification and development of the record may be necessary. For example, the FDL reports
show that petitioners submitted two distinct household register booklets in immigration court,
and there is no evidence that either booklet was excluded or withdrawn. The record on appeal,
however, appears to contain only the booklet examined by the FDL on January 29, 2007; it does

                                               3
       We also have considered petitioners’ argument that the IJ was required to

find the lead petitioner credible, and we find this argument unavailing. On

remand, the IJ must revisit the question of Lin Xie’s credibility on the basis of the

complete and accurate record, but the credibility determination, and the question of

whether petitioners have met their evidentiary burden, is for the IJ to decide in the

first instance. See Soto-Olarte v. Holder, 555 F.3d 1089, 1093–96 (9th Cir. 2009).

       PETITION FOR REVIEW GRANTED; CASE REMANDED.




not contain the booklet examined by the FDL on December 14, 2007, and referred to during the
merits hearing. In addition, the petitioners’ resident identification cards, which also were
discussed during the merits hearing, do not appear in the certified administrative record.

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