                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 08 2010

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




                              FOR THE NINTH CIRCUIT



 GANG LI,                                         No. 06-70866

               Petitioner,                        Agency No. A075-708-870

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

               Respondent.



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

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Gang Li, 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, withholding of removal,



          *
             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).

KV/Research
and relief under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252. We review due process claims de novo, Larita-Martinez v.

INS, 220 F.3d 1092, 1095 (9th Cir. 2000), and we grant the petition for review.

       Li contends the agency violated his right to due process by holding removal

proceedings in the absence of his retained counsel. At the time of the decisions,

the IJ and BIA did not have the benefit of our decision in Hernandez-Gil v.

Gonzales, 476 F.3d 803, 808-09 (9th Cir. 2007) (concluding that the IJ denied

petitioner’s statutory right to counsel where the IJ did not take reasonable steps to

ensure the right to counsel was honored, and that the denial of petitioner’s statutory

right to counsel prejudiced him). We therefore remand for the agency to consider

Li’s claims in light of our intervening case law.

       PETITION FOR REVIEW GRANTED; REMANDED.




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