                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAY 24 2010

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

JIANGENG DONG,                                   No. 08-72943

             Petitioner,                         Agency No. A073-001-546

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

             Respondent.


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

                           Submitted October 8, 2009**
                              Pasadena, California

Before: PREGERSON, REINHARDT and WARDLAW, Circuit Judges.

       Jiangeng Dong, a native and citizen of the People’s Republic of China,

petitions for review of the Board of Immigration Appeals’ (“BIA”) June 11, 2008,

denial of his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252.

We review the BIA’s denial of a motion to reopen for abuse of discretion. Cano-

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We grant the petition for review

and remand.

      Although Dong’s motion to reopen was facially untimely, see 8 C.F.R. §

1003.2, the time limitation does not apply because Dong provided material and

previously unavailable evidence of changed circumstances arising in China that

could not have been discovered or presented at the previous hearing. 8 C.F.R. §

1003.2(c)(3)(ii). Dong provided the BIA with evidence that Chinese officials had

specifically ordered him to return and face punishment for illegal departure, and

that the punishment would include imprisonment. The BIA’s conclusion that

Dong did not establish changed circumstances was an abuse of discretion because

it was based on a factual finding about the nature of punishment he would face that

was not supported by the evidence, and an erroneous legal conclusion about the

significance of his anticipated punishment for illegal departure.

      The BIA clearly erred in finding that Dong “failed to submit adequate

evidence” that he would face future persecution and that evidence submitted was

“vague and does not demonstrate a likelihood that the respondent will be persecuted

on account of his illegal departure.” Unlike the petitioner in Matter of J-W-S-, 24 I.

& N. Dec. 185 (BIA 2007), Dong has provided specific and personalized evidence

indicating that the government had ordered him to surrender and “accept


                                           2
punishment” for his illegal departure, that the punishment would include

imprisonment, and that “[i]f he disobeyed” the government’s order to surrender, the

government “would punish him very severely,” meeting the threshold requirement

for a finding of a well-founded fear of persecution. Malty v. Ashcroft, 381 F.3d 942,

948 (9th Cir. 2004) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)).

Because these facts were not inherently unbelievable, the BIA was required to

accept them as true. Id. at 947.

      The BIA also found that even if Dong would face imprisonment for illegal

departure, such punishment would not constitute persecution. In so finding, the

BIA erroneously concluded that this case was controlled by Matter of Sibrun, 18 I

& N. Dec. 354, 358–360 (BIA 1983).1 The record shows that Dong fled China after

officials attempted to arrest and sterilize him following the birth of his second child,

because flight was the only way he could avoid forced sterilization. Therefore,

unlike in Sibrun, any punishment Dong faces for fleeing is inextricably intertwined

with punishment for refusing to undergo forced sterilization. See Rodriguez-Roman



      1
        To the extent that the government contends that we do not have jurisdiction
to consider whether the punishment Dong faces for illegal departure amounts to
punishment for refusal to undergo forced sterilization because Dong did not make
that argument before the BIA, we reject its contention. The issue was both
implicitly raised by Dong and implicitly considered by the BIA when it cited
Sibrun and Abedini v. INS, 971 F.2d 188 (9th Cir. 1992).

                                           3
v. INS, 98 F.3d 416, 430 (9th Cir. 1996) (“[A]n asylum applicant who left his

country because of his political opinions and who faces severe punishment for the

crime of illegal departure has established that he is subject to persecution on

account of political opinion . . . .”); Handbook on Procedures and Criteria for

Determining Refugee Status, ¶ 61 HCR/IP/4/ENG/REV.1 (Jan.1992) (“Where there

is reason to believe that a person, due to his illegal departure . . . [may be subject to]

severe penalties his recognition as a refugee will be justified if it can be shown that

his motives for leaving or remaining outside the country are related to [a protected

ground].”). Because Dong’s stated reason for leaving China is presumed credible,

the BIA’s conclusion that the punishment he faces for illegal departure would not

constitute punishment for his political opinions is not supported by substantial

evidence. Malty, 381 F.3d at 947.

      Dong also presented new evidence of his wife’s forced sterilization and her

subsequent detention and torture for her vocal critique of China’s family planning

policies. The BIA not only failed to consider the detention and torture of Dong’s

wife in denying his motion to reopen, but also misread Matter of J-S-, 24 I. & N.

Dec. 520 (A.G. 2008), in finding that Dong had failed to provide evidence of

changed circumstances. J-S- stands for only the limited proposition that 8 U.S.C. §

1101(a)(42) cannot be read to confer “automatic or presumptive refugee status on


                                            4
the spouses of persons who have been physically been subjected to a forced

abortion or sterilization procedure pursuant to a foreign government’s coercive

population program.” Jiang v. Holder, No. 08-73186 (9th Cir. May 17, 2010)

(quoting J-S-, 24 I. & N. Dec. at 521 (emphasis added)). Because the BIA “base[d]

its decision on an erroneous view of the law or a clearly erroneous assessment of

the facts,” Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996),

it abused its discretion in denying Dong’s motion to reopen.

      GRANTED; REMANDED.




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