                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              OCT 26 2017
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HUINAN LIN,                                      No.   12-74203

              Petitioner,                        Agency No. A088-290-414

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                      Argued and Submitted October 12, 2017
                                Honolulu, Hawaii

Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

      Huinan Lin (“Lin”) petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of her asylum and withholding of removal claim. We

have jurisdiction under 8 U.S.C. § 1252, and we grant in part, deny in part, and

remand to the BIA.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review factual findings, including findings that an alien has failed to

establish eligibility for asylum or withholding of removal and adverse credibility

findings, for substantial evidence. Singh v. Holder, 753 F.3d 826, 830 (9th Cir.

2014). “Where the BIA issues its own decision but relies in part on the

immigration judge’s reasoning, we review both decisions.” Flores-Lopez v.

Holder, 685 F.3d 857, 861 (9th Cir. 2012). The BIA’s finding of ineligibility for

relief will be reversed only if the evidence “compels” the reversal. Tang v.

Gonzales, 489 F.3d 987, 990 (9th Cir. 2007). “Whether an immigration

proceeding violates an alien’s due process rights is a purely legal issue and is

reviewed de novo.” Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009)

(citation omitted).

      First, Lin’s opening brief does not specifically challenge or discuss the

BIA’s finding that she failed to show a well-founded fear of future persecution in

China based on the fact that she has two children, one of whom was born in the

United States. Accordingly, Lin has waived any challenge to this finding. See

Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).

       Lin also argues that using her husband, Huomin Cao’s (“Cao”) asylum

application and transcript violated her Fifth Amendment right to a full and fair

hearing because she was not given the opportunity to produce Cao’s testimony or


                                           2
to review the materials from his immigration proceedings. However, Lin never

presented this claim to the BIA. Further, the error was procedural, given that the IJ

could have adjourned the hearing to provide the Petitioner an opportunity to

produce her husband’s testimony and to review the evidence the government

introduced. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Thus,

Lin’s due process claim is unexhausted such that the panel lacks jurisdiction to

address it. Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013).

      Finally, the BIA’s adverse credibility determination was not supported by

substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”)

rationale, used omissions and discrepancies in Cao’s asylum application and

testimony in his own immigration proceedings to find Lin not credible. See Bao v.

Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for

assuming Bao’s account was fabricated and her husband Zheng’s was the correct

account of facts). The IJ found that nothing in Lin’s demeanor detracted from her

credibility, yet rejected all of Lin’s explanations, even when she stood by her own

version of events. We conclude that the overall reliance on Cao’s asylum

application and prior testimony was arbitrary.

      As Lin argues, the totality of the circumstances compel that she should be

deemed credible. Because neither the BIA nor the IJ made an adverse credibility


                                          3
finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual

allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.

2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to

have the abortion performed. Qin Lin stated that she took care of Lin two days

after the abortion while she was crying, pale, and weak. See Shrestha v. Holder,

590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore

evidence that corroborates the alien’s claim). The 1999 Country Conditions Report

notes that forced abortions and sterilizations occurred despite China’s official

policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the

evidence in her case, Lin provided documentation from Jiangjing Town Hospital

showing that she had an abortion on December 27, 2000. Lin also provided a

notice addressed to her to report for IUD and pregnancy checks from the Cangxi

Village Committee. The notice stated that if she did not report to the Family

Planning Office, she “will be punished pursuant to relevant Family Planning

Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in

Hawaii showed that Respondent’s second IUD was removed on September 15,

2008. The Government did not object to the submission of these copies and there

was nothing in the record to “support a finding that the documents [were] not

credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding


                                          4
documentary support credible where “there was no opposition to the introduction

or challenge to the authenticity of these documents by the INS,” even where the IJ

found the documents unbelievable). Because the documentation and Qin Lin’s

testimony are credible, they corroborate her past persecution claim, i.e., that she

had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at

1040–41.

      After a reversal of an adverse credibility determination, “[w]e must now

decide whether we determine eligibility for asylum and withholding of removal or

whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As

set forth above, this Court finds credible Lin’s claim that she was forced to abort

her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim

of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to

withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the

totality of circumstances, there is no “reasonable prospect from the administrative

record that there may be additional reasons upon which the IJ or BIA could rely” to

find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th

Cir. 2009).

      In sum, we grant the petition in part and hold that Lin is entitled to

withholding of removal as a matter of law. In addition, since Lin is statutorily


                                           5
eligible for asylum, we remand to the BIA so that the Attorney General may

exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489

F.3d. at 992. We deny the petition in part as to the due process violation claim and

challenge to the IJ’s finding of fear of future persecution.

      The parties shall bear their own costs on appeal.

      GRANTED IN PART, DENIED IN PART, and REMANDED.




                                           6
