                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 29 2012

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




                            FOR THE NINTH CIRCUIT



HUI LI,                                          No. 08-73048

              Petitioner,                        Agency No. A099-051-443

  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 October 19, 2012
                            San Francisco, California

Before: HAWKINS, N.R. SMITH,** and MURGUIA, Circuit Judges.

       Hui Li (“Li”), a native and citizen of China, seeks review of a Board of

Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”)




        *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
       **
        Judge N.R. Smith was drawn to replace Judge Betty Binns Fletcher. Judge
Smith has read the briefs, reviewed the record, and listened to the oral arguments that
were held on October 19, 2012.
denial of his application for asylum and withholding of removal. The IJ found that

Li lacked credibility.

      We express no opinion on the adverse credibility issue at this time because of

an intervening development: We were informed at oral argument that Li has

voluntarily left the United States and returned to China.1 Li’s departure has potential

legal ramifications for his case. Under IIRIRA, this court retains jurisdiction for

petitioners who are “excluded, deported, or removed” while their petition for review

is pending. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006)

(holding petitioner’s removal to Mexico did not strip this court of jurisdiction). Here,

Li was granted a temporary stay of removal. Despite this grant, Li left the United

States voluntarily (not through exclusion, deportation, or removal). We therefore

cannot determine whether Li’s asylum application survives his departure or whether

Li’s departure mooted or abandoned his petition for review. See 8 C.F.R. § 1208.8 (a)

(“An applicant who leaves the United States without first obtaining advance parole

under § 212.5(f) of this chapter shall be presumed to have abandoned his or her

application under this section.”).




      1
        Li’s counsel represents that Li returned to China “within the last year or so”
because his parents were gravely ill and ultimately passed away within three or four
months of one another.

                                           2
      Because the agency has not had the opportunity to evaluate the consequences

of this significant intervening development, we remand for the BIA to consider it in

the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam); see also

Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1170 (9th Cir. 2006) (remanding for BIA

to consider effect of minute order entered after BIA issued initial decision).

      REMANDED for further proceedings consistent with this disposition.




                                          3
