                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JUL 7 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


YUNXIN CAO,                                      No.   12-70080

              Petitioner,                        Agency No. A089-810-900

 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 June 13, 2017
                                Honolulu, Hawaii

Before: FISHER, PAEZ, and NGUYEN, Circuit Judges.

      Yunxin Cao, (“Cao”), a native and citizen of China, petitions for review of

the Board of Immigration Appeals’ (“BIA”) determination that Cao was not

entitled to asylum because he had not provided sufficient “reliable, probative

evidence to corroborate material aspects of his claim.” The BIA affirmed, without



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
adopting, the Immigration Judge’s (“IJ”) decision to deny asylum on the same

basis. We have jurisdiction under 8 U.S.C. § 1252. Reviewing de novo, we

conclude that the BIA erred as matter of law in failing to provide Cao notice of the

corroborating evidence required and an opportunity to provide such evidence or

explain why it was not reasonably available. Mendoza-Pablo v. Holder, 667 F.3d

1308, 1312 (9th Cir. 2012).

      1. When an IJ determines that an applicant for asylum presented insufficient

evidence to corroborate his claims, the agency must provide the asylum seeker

notice of the required evidence and an opportunity to provide such evidence or

explain why it is not reasonably available. See 8 U.S.C. § 1158(b)(1)(B)(ii); Ren v.

Holder, 648 F.3d 1079, 1090 (9th Cir. 2011) (interpreting § 1158(b)(1)(B)(ii) to

mean that “an IJ must provide an applicant with notice and an opportunity to either

produce the evidence or explain why it is unavailable before ruling that the

applicant has failed in his obligation to provide corroborative evidence and

therefore failed to meet his burden of proof.”); see also Zhi v. Holder, 751 F.3d

1088, 1094-95 (9th Cir. 2014) (upholding Ren’s procedural requirements).

      Here, the BIA rejected Cao’s claim because he failed to provide sufficient

evidence to corroborate his claim. Specifically, the BIA faulted Cao for failing to

provide “birth certificates, identification cards, or school or hospital records to


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establish the birth, identity, or paternity of the children; [and] hospital records for

his wife to establish an IUD insertion or removal, the birth of the second child, or

the claimed sterilization.” The IJ had similarly criticized Cao, without giving any

continuance or opportunity to gather such evidence or explain why it was not

reasonably available.

      2. The government argues that Cao waived his challenge regarding the lack

of notice and opportunity to provide corroborating evidence. We disagree. Cao

sufficiently exhausted the argument because he argued before the BIA that the IJ

erred in requiring corroborating evidence and questioning his credibility. See Zhi,

751 F.3d at 1094 n.5 (holding that with a similar argument, the petitioner

“challenged the IJ’s overall credibility determination and denial of his claims for

asylum and withholding of removal. The ‘notice’ requirement is a sub-part of that

overall determination, and we therefore have jurisdiction over this issue.”).

      3. The government also argues remand is unnecessary because the BIA

held, in the alterative, that Cao failed to establish “past persecution or a well-

founded fear of future persecution on account of ‘other resistance’” to China’s

coercive population control policies. The BIA, however, based this conclusion at

least in part on the lack of corroborating evidence. Accordingly, the BIA’s legal

error under Ren and Zhi was not harmless.


                                            3
      4. As a result of this legal error, we grant the petition and remand.

Bhattarai v. Lynch, 835 F.3d 1037 (9th Cir. 2016) (remanding for failure to

provide notice and opportunity in violation of Ren and Zhi). On remand the

agency should provide Cao with notice of the evidence it requires to corroborate

his claims, and a meaningful opportunity either to provide that evidence or explain

why it cannot reasonably be obtained.



Petition GRANTED and REMANDED.




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