                                                                           FILED
                             NOT FOR PUBLICATION                           MAR 14 2014

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



                             FOR THE NINTH CIRCUIT


CHANGJUN WANG,                                   No. 11-72451

               Petitioner,                       Agency No. A088-271-050

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

               Respondent.


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

                             Submitted March 10, 2014**

Before:        PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

       Changjun Wang, a native and citizen of China, petitions pro se for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal of the

immigration judge’s denial of his motion to reconsider the denial of his application

for asylum, withholding of removal, and protection under the Convention Against


          *
             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).
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for

abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311

F.3d 960, 964 (9th Cir. 2002), and review for substantial evidence factual findings,

Jiang v. Holder, 611 F.3d 1086, 1091 (9th Cir. 2010). We grant in part and deny

in part the petition for review, and we remand.

      Wang’s wife was subjected to two forced abortions, in 1988 and 1991. After

Wang protested the second abortion, he was arrested, detained, and kept in a stress

position for 24 hours without food or water. Beyond the fact that the BIA does not

appear to have considered the first abortion in evaluating past persecution,

substantial evidence does not support the BIA’s finding that the second abortion

and the mistreatment Wang personally experienced did not rise to the level of past

persecution. See Jiang, 611 F.3d at 1095-96 (mistreatment including petitioner’s

detention and girlfriend’s forced abortion). Thus, the BIA abused its discretion in

dismissing his appeal of the IJ’s denial of his motion to reconsider. See Cano-

Merida, 311 F.3d at 964 (stating the standard for abuse of discretion). In light of

this conclusion and the possibility of a presumption of future fear, we do not

address the BIA’s finding that Wang failed to establish an independent claim of

future persecution.




                                          2                                      11-72451
      The BIA did not abuse its discretion in dismissing the appeal with respect to

Wang’s CAT claim as Wang failed to establish it is more likely than not he would

be tortured at the instigation of or with the acquiescence of the government if

returned to China. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

      Thus, we remand Wang’s claims for asylum and withholding of removal to

the BIA for further proceedings consistent with this disposition. See INS v.

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

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW GRANTED in part; DENIED in part;

REMANDED.




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