                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 23 2010

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




                             FOR THE NINTH CIRCUIT



JINRONG YU,                                      No. 07-72285

              Petitioner,                        Agency No. A095-449-877

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

              Respondent.



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

                                                          **
                            Submitted November 16, 2010

Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Jinrong Yu, a native and citizen of China, petitions for review of an order of

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

immigration judge’s decision denying his application for withholding of removal

and relief under the Convention Against Torture (“CAT”). We have jurisdiction


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252. When the BIA cites Matter of Burbano, 20 I. & N. Dec.

872 (BIA 1994), and does not express disagreement with any part of the

immigration judge’s decision, the BIA adopts the immigration judge’s decision in

its entirety and we review that decision. See, e.g., Joseph v. Holder, 600 F.3d

1235, 1239–40 (9th Cir. 2010). We review factual findings for substantial

evidence. See, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th Cir. 2006).

We grant the petition for review and we remand.

      Yu credibly testified that Chinese authorities arrested and detained him for

five days because of his Falun Gong activities. During the detention, Yu received

one meal each day, and his captors beat him with an electric baton, resulting in

pain and injury that required medical attention. Yu also credibly testified that since

his departure from China, police have contacted his wife and threatened to arrest

him if he returns to China. The BIA found that Yu established a nexus between his

Falun Gong practice and his mistreatment by Chinese authorities, but did not

address whether Yu suffered past persecution. We remand for the agency to

consider that question in the first instance. See INS v. Ventura, 537 U.S. 12, 18

(2002) (per curiam).

      The BIA determined that Yu failed to establish eligibility for withholding of

removal because Yu’s family in China did not experience prolonged scrutiny or


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continuing harm on account of Yu’s practice of Falun Gong, as did the petitioner’s

family in Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004). Substantial evidence

does not support this determination. Yu, unlike the petitioner in Zhang, is not

similarly situated to his family members. See Zhao v. Mukasey, 540 F.3d 1027,

1031 (9th Cir. 2008) (“[T]he well-being of others who have stayed behind in a

country is only relevant when those others are similarly situated to the

petitioners.”).

       Accordingly, we grant the petition for review as to Yu’s withholding-of-

removal claim and remand. See Zhou v. Gonzales, 437 F.3d 860, 870–71 (9th Cir.

2006); Zhang, 388 F.3d at 718–21; see also Zhao, 540 F.3d at 1030 & n.3

(concluding, in the asylum context, that the petitioners were eligible for asylum

where they were arrested and physically abused during their detention, and where

authorities had identified them as Falun Gong adherents and had shown continuing

interest in them).

       We also grant the petition for review as to Yu’s CAT claim and remand for

the agency to reconsider the claim in light of all the evidence in the record,

including the country reports. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n.6

(9th Cir. 2010).

       PETITION FOR REVIEW GRANTED; REMANDED.


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