                                                                           FILED
                             NOT FOR PUBLICATION                             DEC 13 2010

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




                              FOR THE NINTH CIRCUIT



FENGSHAN AN,                                     No. 08-70247

               Petitioner,                       Agency No. A097-871-545

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

               Respondent.



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

                             Submitted December 6, 2010 **

Before:        GOODWIN, RYMER, and GRABER, Circuit Judges.

       Fengshan An, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration

judge’s (“IJ”) decision denying her application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We have


          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence. Li v.

Holder, 559 F.3d 1096, 1102 (9th Cir. 2009). We grant the petition for review and

remand.

      An’s contention regarding translator errors fails because the proceedings

were not “so fundamentally unfair that [she] was prevented from reasonably

presenting [her case].” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)

(citation omitted).

      An testified she was persecuted and fears future persecution because she

sheltered a North Korean refugee in her home. The IJ found An feared prosecution

and not persecution and the BIA affirmed on that basis. The agency, however, did

not have the benefit of our intervening decision in Li, 559 F.3d at 1099 (substantial

evidence did not support the BIA’s finding that the petitioner was a mere criminal

subject to prosecution when the petitioner violated no Chinese law, but instead

came to the aid of refugees in defiance of China’s unofficial policy of discouraging

aid to refugees). Accordingly, we remand to the BIA for further proceedings. See

INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




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