                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 07 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MIN LUN ZHANG, AKA Bong Djie Lie,                No. 08-71941

              Petitioner,                        Agency No. A078-867-732

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

              Respondent.



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

                       Argued and Submitted March 4, 2013
                              Pasadena, California

Before: HAWKINS, THOMAS, and HURWITZ, Circuit Judges.

       Min Lun Zhang (“Zhang”), a native and citizen of China, petitions for

review of a final order of the Board of Immigration Appeals (“BIA”) affirming the

denial of his applications for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). We deny the petition in part, grant it in

part, and remand to the BIA for further proceedings.


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

      Substantial evidence supports the BIA’s adverse credibility determination as

to Zhang’s claims for asylum and withholding of removal based on his wife’s

forced sterilization by Chinese population control officials. See Don v. Gonzales,

476 F.3d 738, 741 (9th Cir. 2007) (quoting Thangaraja v. Gonzales, 428 F.3d 870,

874 (9th Cir. 2005)) (stating that this Court may reverse an adverse credibility

finding only if “no reasonable factfinder could have reached the agency’s result”).

Specifically, the IJ properly relied on Zhang’s failure to mention his wife’s forced

sterilization in his airport interview and his initial asylum application and Zhang’s

inconsistent statements concerning his wife’s going into hiding during her second

pregnancy. Zhang was afforded an opportunity to explain the inconsistencies,

which went to the heart of his population control-based claims. Singh v. Gonzales,

439 F.3d 1100, 1105 (9th Cir. 2006).

                                          II

      Neither the IJ nor the BIA made an adverse credibility determination as to

Zhang’s claim of religious persecution founded on his Falun Gong practice.

Therefore, we presume that his testimony in support of that claim was true. Cole v.

Holder, 659 F.3d 762, 770 (9th Cir. 2011).




                                           2
      Substantial evidence supports the agency’s determination that Zhang did not

sustain his burden of proof to establish past persecution on account of his Falun

Gong practice, given only two police visits to his house without harm to him or his

family. Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th Cir. 2006).

      The remaining question, then, is whether Zhang has established a well-

founded fear of future persecution absent the presumption afforded by a finding of

past persecution. After the BIA decision in this case, we decided Zhao v. Mukasey,

540 F.3d 1027 (9th Cir. 2008), which involves similar issues. Because the BIA did

not have an opportunity to conduct its analysis in light of Zhao, we remand

Zhang’s religious persecution claim for asylum and withholding of removal to the

BIA for its analysis in the first instance. We remand on an open record to permit

both the government and the petitioner to supplement the record and to assert any

additional arguments they wish to make.1

                                         III




      1
         On appeal, for example, Zhang suggested that the persecution of Falun
Gong followers constituted “pattern and practice” discrimination. The government
argued that enforcement of the Falun Gong ban varied widely among the regions of
China. We leave these questions for consideration by the BIA in the first instance,
in its discretion.

                                           3
      Zhang has waived any challenge to the agency’s denial of CAT relief by

failing to raise the issue in his brief before this Court. Yan Liu v. Holder, 640 F.3d

918, 926 n.5 (9th Cir. 2011).

      Each party should bear its or their own costs.




      D ENIED IN P ART, G RANTED IN P ART, AND R EMANDED.




                                           4
