                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 28 2011

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




                           FOR THE NINTH CIRCUIT


DEQI LI,                               )      No. 07-72799
                                       )
      Petitioner,                      )      Agency No. A099-333-730
                                       )
      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 June 15, 2011
                            San Francisco, California

Before:      FERNANDEZ and BYBEE, Circuit Judges, and SINGLETON,**
             District Judge.

      Deqi Li, a native and citizen of China, petitions for review of the Board of




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable James K. Singleton, Senior United States District Judge for
the District of Alaska, sitting by designation.
Immigration Appeals’ denial of his application for asylum,1 withholding of

removal,2 and Convention Against Torture relief.3 We grant the petition and

remand.

      The BIA decided this case by determining that it would uphold the

Immigration Judge’s finding that Li lacked credibility. We do owe special

deference to credibility determinations,4 but in this instance the BIA committed an

error of law.5 The BIA declared that it upheld the IJ’s determination that Li was

not credible, but the IJ did not make an “explicit” determination to that effect.6 See

8 U.S.C. § 1158(b)(1)(B)(iii). Where no explicit determination has been made, as

a matter of law there is no adverse credibility decision. See Huang v. Mukasey,



      1
          8 U.S.C. § 1158.
      2
          8 U.S.C. § 1231(b)(3).
      3
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, Treaty Doc. No. 100–20,
1465 U.N.T.S. 85 implemented at 8 C.F.R. § 1208.18.
      4
      See Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010); Malkandi v.
Holder, 576 F.3d 906, 917 (9th Cir. 2009).
      5
      See Edu v. Holder, 624 F.3d 1137, 1142 (9th Cir. 2010); Brezilien v.
Holder, 569 F.3d 403, 411 (9th Cir. 2009).
      6
        The IJ did state that she “did not know what to believe,” but that is not an
explicit determination regarding credibility. See Karapetyan v. Mukasey, 543 F.3d
1118, 1123 n.4 (9th Cir. 2008).

                                          2
520 F.3d 1006, 1007–08 (9th Cir. 2008) (per curiam); Mansour v. Ashcroft, 390

F.3d 667, 671–72 (9th Cir. 2004); Aguilera-Cota v. INS, 914 F.2d 1375, 1383 (9th

Cir. 1990); see also Tijani v. Holder, 628 F.3d 1071, 1074, 1080 (9th Cir. 2010).

Because the BIA’s decision turned on a credibility “finding” that the IJ did not

make,7 we will not consider other issues.8

       Therefore, we grant Li’s petition and remand so that the BIA can address the

IJ’s denial of relief in the first instance, or, if it is so advised, remand to the IJ for a

credibility finding. See INS v. Orlando Ventura, 537 U.S. 12, 16–17, 123 S. Ct.

353, 355–56, 154 L. Ed. 2d 272 (2002); Huang, 520 F.3d at 1008.

       Petition GRANTED and REMANDED.




       7
           See 8 C.F.R. § 1003.1(d)(3)(i); Huang, 520 F.3d at 1008.
       8
       For example, we will not consider the merits of the question of whether Li
presented sufficient corroborative evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii);
Aden v. Holder, 589 F.3d 1040, 1045 (9th Cir. 2009). Nor will we consider
whether he had sufficient notice that he must do so.

                                              3
