FILED
                             NOT FOR PUBLICATION                            JAN 20 2010

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




                             FOR THE NINTH CIRCUIT



 FU HUA XU,                                      No. 08-73971

               Petitioner,                       Agency No. A097-870-312

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

               Respondent.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

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

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

judge’s decision denying her application for asylum, withholding of removal, and



          *
             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).

KAD/Research
protection under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252. We review for substantial evidence, Li v. Holder, 

, 1102 (9th Cir. 2009), and we grant and remand the petition for review.

       The BIA concluded that Xu failed to establish eligibility for asylum because

she failed to demonstrate persecution on account of an enumerated ground. The

BIA, however, did not have the benefit of our intervening decision in Li, 

that substantial evidence did not support the BIA’s finding that the petitioner

was a mere criminal subject to prosecution when the petitioner violated no Chinese

law, but instead came to the aid of refugees in defiance of China’s unofficial policy

of discouraging aid to refugees. We therefore remand for the BIA to reconsider its

denial of Xu’s application for asylum, withholding of removal, and CAT in light of

this decision.

       PETITION FOR REVIEW GRANTED; REMANDED.




KAD/Research                              2                                    08-73971