                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 14 2013

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




                            FOR THE NINTH CIRCUIT



CHUN LI,                                         No. 10-72748

              Petitioner,                        Agency No. A079-811-143

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

              Respondent.



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

                      Argued and Submitted February 5, 2013
                               Seattle, Washington

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

       Chinese national Chun Li petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) denial of

withholding of removal, protection under the United Nations Convention Against

Torture (“CAT”), and cancellation of removal. We have jurisdiction under




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
8 U.S.C. § 1252(a)(1), and we deny the petition in part, grant it in part, and remand

for further findings.

      Withholding of removal requires a petitioner to show that it is “more likely

than not” that he will face persecution on account of a protected ground in his

home country. See Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (per

curiam). A petitioner claiming a fear of sterilization in China because of children

born overseas must provide evidence of how family-planning officials treat

overseas births. See Feng Gui Lin v. Holder, 588 F.3d 981, 985–89 (9th Cir. 2009)

(crediting a prior BIA decision that rejected the argument that American-born

children trigger Chinese family-planning laws). Li gave no evidence he would be

subjected to forced sterilization in China as a result of his two American-born

children. The BIA’s finding that Li’s fear of persecution was not objectively

reasonable is therefore supported by substantial evidence.

      Because Li failed to establish a clear probability that he would be forcibly

sterilized if returned to China, we do not address whether sterilization amounts to

torture as required for CAT relief, and we uphold the BIA’s denial of Li’s request

for CAT relief. See Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009);

see also Zhang, 388 F.3d at 721–22.




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      For his claim for cancellation of removal, Li was required to establish his

continuous presence in the United States from May 1997 to May 2007. See 8

U.S.C. § 1229b(b)(1)(A). The IJ concluded that Li was present in the United

States in February of 1997, in September of 1999, and from mid-2000 onward, but

was not satisfied with the evidence of Li’s continuous presence between those

dates. The BIA adopted the IJ’s findings, expressing dissatisfaction with the

evidence of Li’s presence from February 1997 through September 1999.1

Specifically, the BIA was concerned about evidence suggesting that Li had

reentered the United States in 1999.

      Substantial evidence does not support the BIA’s finding that Li was

ineligible for cancellation of removal because he had not been continuously present

in the United States for the requisite ten-year period. See Cole v. Holder, 659 F.3d

762, 770 (9th Cir. 2011) (stating the standard for substantial evidence review). Li

testified that he entered the United States in February 1997 and has not left. Li’s

wife testified that she met Li in May 2000 and that Li has been in the United States



      1
        Because the BIA conducted an independent review of the record, we
primarily address whether the record compels a finding that Li was present from
February 1997 to September 1999, the period of its expressed concern. See
Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009). But, because the BIA
specifically mentioned the evidence of reentry, we consider that as well.


                                          3
since they met. A friend of Li’s sister testified that she saw Li in New York City in

February of 1997 and that she and her husband shared a house with Li in

Washington State for about three years beginning in September 1999. This friend

testified that during the time she lived with Li in Washington she “[b]asically, []

saw him everyday.” And, although Li’s sister did not testify live, she provided a

declaration stating that Li lived with her in New York City from about March 1997

until they both moved to Washington in 1999. The declaration also states that Li

has lived in Washington since 1999 and that “[h]e has never traveled outside of the

U.S.” The IJ did not make an adverse credibility determination as to any witness.

Li’s testimony, the testimony of his sister’s friend, and the declaration from Li’s

sister compel the conclusion that Li was continuously present in the United States

from 1997 to 1999.

      Li explained that the evidence of reentry relied upon by the government was

the result of a scrivener’s error and translation miscommunications. See Abovian v.

I.N.S., 219 F.3d 972, 979, as amended by 228 F.3d 1127 and 234 F.3d 492 (9th

Cir. 2000) (stating that mistranslations and miscommunications are not sufficient

to support an adverse credibility finding). Li also explained inconsistencies in his

testimony.




                                           4
      We deny Li’s petition for review of the BIA’s decision as to withholding of

removal and CAT relief. But we grant his petition in part and remand for further

findings on whether Li satisfies the other requirements for cancellation of removal.

      Because this is a mixed judgment, each party will bear its own costs.

      Petition for review DENIED in part, GRANTED in part, and

REMANDED for further proceedings consistent with this disposition.




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