                                                                           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                             NOT FOR PUBLICATION                           MAR 14 2014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


ZHENHUA FU,                                      No. 12-73013

               Petitioner,                       Agency No. A087-876-531

  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.

       Zhenhua Fu, a native and citizen of China, petitions for review of the Board

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

judge’s (“IJ”) decision denying his application for asylum and withholding of

removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review factual


          *
             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).
findings for substantial evidence and questions of law de novo. Jiang v. Holder,

611 F.3d 1086, 1091 (9th Cir. 2010). We dismiss in part and grant in part the

petition for review, and we remand.

      We lack jurisdiction to consider Fu’s CAT claims, which were raised for the

first time to the court. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      The IJ found that Fu was not credible, but noted that if Fu had been credible

the IJ would have found that he had suffered past persecution related to China’s

enforcement of its coercive population control program. The BIA assumed that Fu

was credible, but found that he had not shown past persecution on account of

“other resistance” to China’s coercive population control program. The BIA erred

in “making its own factual finding on the matter,” rather than remanding “the

factual inquiry to the IJ,” where the IJ decision neither relied on this basis nor

provided sufficient findings of fact to support the BIA’s determination. See

Brezilian v. Holder, 569 F.3d 403, 413 (9th Cir. 2009); Rodriguez v. Holder, 683

F.3d 1164, 1170 (9th Cir. 2012). Thus, we grant the petition for review and

remand Fu’s asylum and withholding of removal claims for further proceedings

consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)

(per curiam).




                                           2                                     12-73013
   Each party shall bear its own costs for this petition for review.

   PETITION FOR REVIEW DISMISSED in part; GRANTED in part;

REMANDED.




                                       3                               12-73013
