NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LIN XIE, et al

. ,

Petitioners,

v. ERIC H. HOLDER, JR., Attorney General,

Respondent. No. 10

- 72 550 Agency Nos. A099

- 449

- 123

A099

- 449

- 124

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 11, 2014 Pasadena, California
Before: HURWITZ and FARRIS, Circuit Judges, and FRIEDMAN, Senior District Judge. ** After arriving in the United States, lead petitioner Lin Xie and her husband, Jinzhu Pang, applied for asylum, withholding of removal, and relief under the

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36

- 3.

** The Honorable Paul L. Friedman, Senior District Judge, U.S. District Court for the District of Columbia, sitting by designation. 

# FILED

APRIL 29 2014
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Convention Against Torture based on China’s restrictive population contro l policies. An immigration judge (“IJ”) denied their application s , finding that Xie

was not a credible witness and had failed to satisfy her burden of proof. The Board of Immigration Appeals (“BIA”) adopted and affirmed the decision of the IJ, finding t hat the IJ’s adverse credibility determination was not clearly erroneous
and that the Xie had not sufficiently corroborated her claims. Xie and Pang petition for review. Because the IJ and the BIA erred by failing to properly
consider all of the evidence in the record , we grant the petition and remand for further proceedings

. A failure by the BIA to consider all relevant evidence in the record constitutes an abuse of discretion, V itug v. Holder , 723 F.3d 1056, 1064 (9th Cir. 2013) , and implicates the due process requirement of a full and fair hearing , Larita

- Martinez v. INS , 220 F.3d 1092, 1095

– 96 (9th Cir. 2000). We typically presume that the agency has considered all of the relevant materials in the record , regardless of whether it has discus s ed every piece of evidence submitted

. Id

. ; see
also Almaghzar v. Gonzales , 457 F.3d 915, 9 21

– 22 (9th Cir. 2006). “But, where there is any indication that the BIA did not consider all of the evidence before it ,

. . . the decision cannot stand.” Cole v. Holder , 659 F.3d 762, 771

– 72 (9th Cir. 2011). “Such indications include misstating the record and failing to mention highly probative or pote ntially dispositive evidence.” Id

. at 772.3

Here, there are clear indication s that the IJ and the BIA overlooked relevant
record evidence

. The IJ faulted petitioners for providing no evidence that they
were married or had a son born in China. In doing so, however, the IJ misstated
the record. T he IJ stated that the petitioners had failed to submit a mar riage
certificate and repeatedly questioned why a certificate was not provided

. In fact, petitioners’ marriage certificate is in the record. T he IJ also referred to a single household register booklet , which contain ed removable pages and was examined by the Department of Homeland Security’s Forensic Document Laboratory (“FDL”) on December 14, 2007

. The IJ omit ted any reference to a second household register booklet that was submitted by petitioners and examined by the FDL on January 29, 2007 , and which appears to have contained information about petitioners’ child born in China

. The perceived absence of corroborating evidence was a critical building block in the IJ’s adverse credibility determination , which the BIA affirmed without any disc ussion of the overlooked evidence

. U nder these circumstances, i t is appropriate to remand to the agency for reconsideration of petitioners’ claims in light of all the record evidence. 1

1 Because the certified administrative record appears to be incomplete, further clarification and development of the record may be necessary. For example, t he FDL reports show that petitioners submitted two distinct household register booklets in immigration court , and there is no evidence that either booklet was excluded or withdrawn

. T he record on appeal , however, appears to contain only the book let examined by the FDL on January 29, 2007 ; it d oes4

We also have considered petitioners’ argument that the IJ was required to find the lead petiti oner credible, and we find this argument unavailing. On remand, the IJ must revisit the question of Lin Xie’s credibility on the basis of the complete and accurate record, but the credibility determination, and the question of whether petitioners have met their evidentiary burden, is for the IJ to decide in the
first instance. See Soto

- Olarte v. Holder , 555 F.3d 1089, 109 3

– 9 6 (9th Cir. 2009)

. PETITION FOR REVIEW GRANTED; CASE REMANDED.

not contain the booklet examined by the FDL on December 14, 2007, and refer red to during the merits hearing

. In addition, the petitioners’ resident identification cards, which also were discussed during the merits hearing , do not appear in the certified administrative record.