                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 03 2013

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT

ACHARA KRACHINGKLING,                             No. 09-71590

                Petitioner,                       Agency No. A070-088-989

  v.
                                                  MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

                Respondent.


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

                               Submitted June 6, 2013**
                                 Pasadena, California

Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.

       Lin Yang1 petitions for review from the BIA’s denial of his motion to

reopen. We grant the petition for review. Because the parties are familiar with the

history and facts of the case, we need not recount it here.

           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
           **
            Respondent’s unopposed motion to submit this case on the briefs was
granted. See Fed. R. App. P. 34(a)(2).
       1
       Yang explains that his “name was previously incorrectly put down by the
INS as ‘Krachingkling Achara,’” but his name is actually Lin Yang.
      We review the denial of a motion to reopen for abuse of discretion. Chang

Hua He v. Gonzales, 501 F.3d 1128, 1130 (9th Cir. 2007). “Because the BIA

expressly adopted the IJ’s decision under Matter of Burbano, but also provided its

own review of the evidence and the law, we review both the IJ and the BIA’s

decision.” Joseph v. Holder, 600 F.3d 1235, 1240 (9th Cir. 2010).

      In this case, the BIA abused its discretion in concluding that Yang’s motion

to reopen was time and number barred. There are exceptions to the numerical and

timeliness requirements if the applicant can establish “changed country conditions

arising in the country . . . to which removal has been ordered, if such evidence is

material and was not available and would not have been discovered or presented at

the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3)(ii). Yang submitted evidence and affidavits, accepted as true by the

agency, showing that the government had increased the use of forced sterilizations

and abortions in his hometown, and that two neighbors had undergone forced

abortions or sterilizations. The agency abused its discretion by accepting the

evidence as true, but rejecting it as non-specific. “[F]acts presented in affidavits

supporting a motion to reopen must be accepted as true unless inherently

unbelievable.” Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005). The

undisputed evidence was sufficient to clear the “hurdle” requiring Yang “to


                                           2
produce evidence that conditions had changed in China,” and it was an abuse of

discretion for the BIA to hold otherwise. See Feng Gui Lin v. Holder, 588 F.3d

981, 986 (9th Cir. 2009).

       The BIA also abused its discretion by offering alternative grounds for denial

without addressing Yang’s evidence. “While the Board has broad discretion in

ruling on a motion to reopen, it must show proper consideration of all factors, both

favorable and unfavorable, in determining whether to grant a motion to reopen.”

Toufighi v. Mukasey, 538 F.3d 988, 993 (9th Cir. 2008). Though the BIA does not

have to address every piece of evidence, it is required to consider the evidence “in

its entirety . . . and where its failure to do so could have affected its decision,

remand is appropriate.” Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007).

The BIA did not address any of Yang’s evidence, so its findings that “children

born abroad are ‘not counted’” and that Yang “need not return to his home village”

were not sufficiently supported. Indeed, the only evidence in the record is to the

contrary.

       Therefore, we grant the petition for review and remand to the BIA for

further proceedings.

       PETITION GRANTED; REMANDED.




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