                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 31 2013

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




                             FOR THE NINTH CIRCUIT



YUN LI,                                          No. 12-71304

               Petitioner,                       Agency No. A098-006-585

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

               Respondent.



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

                             Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Yun Li, 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 decision denying her application for asylum, withholding of removal, and

relief under the Convention Against Torture. Our jurisdiction is governed by 8


          *
             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).
U.S.C. § 1252. We review for substantial evidence factual findings, Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008), and de novo due process claims,

Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We deny in

part, grant in part, and dismiss in part the petition for review, and we remand.

      We reject Li’s contention that the BIA erred in not addressing the IJ’s denial

of her asylum application as time-barred. See Lata v. INS, 204 F.3d 1241, 1246

(9th Cir. 2000) (petitioner must show error and prejudice to establish a due process

violation); Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (the BIA did

not need to reach the merits of petitioner’s claim when a threshold determination

showed petitioner was ineligible for relief). Li has not exhausted her contention

that the IJ improperly acted as a prosecutor in questioning her about her entry into

the United States. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      Substantial evidence does not support the BIA’s adverse credibility finding

based on inconsistencies in Li’s testimony regarding her church attendance in the

United States. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.

2003) (minor inconsistencies that do not go to the heart of petitioner’s claim are

insufficient for an adverse credibility finding). Further, substantial evidence does

not support the BIA’s findings that it was implausible that Li was baptized on the

first day she attended church and implausible she did not know Auntie Li’s first


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name. See Joseph v. Holder, 600 F.3d 1235, 1245-46 (9th Cir. 2010) (adverse

credibility finding was improperly based on speculation regarding the petitioner’s

depth of knowledge and actions). Finally, the agency’s demeanor finding based on

Li’s response to a confusing question is not supported. See Arulampalam v.

Ashcroft, 353 F.3d 679, 685-87 (9th Cir. 2003) (demeanor finding must be specific

and cogent). Because none of the findings are supported, Li was not required to

produce corroborating evidence. See Joseph, 600 F.3d at 1246. Thus, we grant the

petition for review and remand Li’s claims on an open record, see Soto-Olarte v.

Holder, 555 F.3d 1089, 1093-96 (9th Cir. 2009), 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 DENIED in part; GRANTED in part;

DISMISSED in part. REMANDED.




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