                                                                                 FILED
                            NOT FOR PUBLICATION                                  APR 22 2014

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



                            FOR THE NINTH CIRCUIT


MING LI,                                         No. 10-72899

              Petitioner,                        Agency No. A088-587-915

  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 April 11, 2014
                            San Francisco, California

Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.

       Petitioner seeks review of the order of the Board of Immigration Appeals

(“BIA”) summarily affirming the denial of his application for asylum. We grant

the petition in part and remand to the BIA for reconsideration in light of our

decision in Nai Yuan Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010), which we

decided after the immigration judge (“IJ”) issued her decision and which the BIA


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
did not address. We dismiss for lack of jurisdiction petitioner’s claim for relief

under the Convention Against Torture (“CAT”).

      The facts in Jiang were similar to those here. In Jiang, we held that the

petitioner, whose putative spouse had been subject to a forced abortion, had

established past persecution on the ground of “other resistance” to a coercive

population control program under Matter of J- S-, 24 I. & N. Dec. 520 (Att’y Gen.

2008). Jiang had not supported or acquiesced in his wife’s forced abortion, and he

and his wife had engaged in other acts reflecting “defiance” of the population

control policy, including cohabitation without being eligible to marry under

Chinese law. Jiang, 611 F.3d at 1094–95. The record in this case contains

facts—including the fact that petitioner had to be physically restrained while

family-planning officials took his wife to the hospital for a forced abortion, and the

fact that petitioner and his wife married and had a child when they were underage,

in violation of family-planning regulations—that may constitute “other resistance”

under Jiang. Cf. He v. Holder, No. 09-73516, slip op. at 8 (9th Cir. April 16,

2014) (holding that “grudging compliance,” rather than “‘overt’ and persistent

defiance,” does not constitute “other resistance”). We therefore remand to the BIA

to reconsider, in light of our decision in Jiang, whether petitioner engaged in




                                          2
“other resistance” to a coercive population control program in China, and, if so,

whether he suffered persecution on account of that resistance.

      Petitioner also seeks reversal of the IJ’s denial of withholding under the

CAT. However, because petitioner did not present any argument in his brief

before the BIA regarding the CAT claim, he has not exhausted that claim and we

lack jurisdiction to consider it. 8 U.S.C. § 1252(d); Zara v. Ashcroft, 383 F.3d 927,

930–31 (9th Cir. 2004).



      PETITION DISMISSED in part and GRANTED in part; REMANDED.

             Costs against the government.




                                         3
                                                                             FILED
Ming Li v. Holder, No. 10-72899 (San Francisco - April 11, 2014)             APR 22 2014

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

BYBEE, J., concurring:

      I concur only to note that I have serious questions whether our opinion in

Nai Yuan Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010), in which we recognized

the authority of the Attorney General’s opinion in Matter of J- S-, 24 I. & N. Dec.

520 (Att’y Gen. 2008), is in fact consistent with the Attorney General’s decision.

Because the BIA should have an opportunity to consider this case in light of Nai

Yuan Jiang and Matter of J- S-, I concur fully in the disposition.
