                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                      MAY 31 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 CHANG TAO ZHANG,                                  No.    13-74491

              Petitioner,                          Agency No. A098-473-279

    v.
                                                   MEMORANDUM*
 LORETTA E. LYNCH, Attorney General,

              Respondent.

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

                               Submitted May 24, 2016**

Before:        REINHARDT, W. FLETCHER, and, OWENS, Circuit Judges.

         Chang Tao Zhang, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for asylum and withholding


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings. Guo v. Ashcroft, 361 F.3d

1194, 1203 (9th Cir. 2004). We grant the petition for review and remand.

      In rejecting Zhang’s claim that extraordinary circumstances excused his

untimely filed asylum application, the BIA listed reasons Zhang did not provide,

made reference to “exceptional circumstances” rather than “extraordinary

circumstances,” and did not directly address whether the immigration consultant’s

actions or inactions constituted an extraordinary circumstance. See e.g., Viridiana

v. Holder, 646 F.3d 1230, 1238 (9th Cir. 2011) (immigration consultant fraud

constitutes an extraordinary circumstance). Thus, because it appears the BIA

applied the wrong legal standard and did not consider record evidence, we vacate

the BIA’s finding that Zhang did not establish extraordinary circumstances.

      Further, as to withholding of removal, substantial evidence does not support

the BIA’s determination that Zhang’s mistreatment did not rise to the level of

persecution. See Guo, 361 F.3d at 1203 (totality of the circumstances including

physical harm during one and a half day detention coupled with threats compelled

finding of past persecution). Thus, we conclude the harm Zhang suffered in China




                                         2                                    13-74491
was sufficiently severe to constitute persecution.

      In light of these conclusions, we grant the petition for review as to Zhang’s

asylum and withholding of removal claims, and we remand to the agency for

further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S.

12, 16-18 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                          3                                   13-74491
