JUNMING LI v. Holder
2011 U.S. App. LEXIS 18208
| 9th Cir. | 2011Background
- Li, a native and citizen of China, fears persecution and torture for practicing Falun Gong.
- Li fled China in 2004, later entering the U.S. through Mexico with his family's support; his entry involved a smuggler and a metal box welded to a car, exposed to desert heat for over forty minutes.
- The IJ granted withholding of removal and CAT relief, and denied asylum as an exercise of discretion due to the dangerous entry method.
- BIA affirmed the IJ and remanded under 8 C.F.R. § 1003.1(d)(6) for DHS background checks before withholding of removal could be granted.
- DHS background checks were completed; the IJ later entered an order granting withholding of removal, and Li filed a petition for review of the asylum denial.
- Court holds jurisdiction to review final order denying asylum notwithstanding the remand for background checks; petition for review is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA order. | Li argued jurisdiction exists despite remand. | Government contends remand creates non-final order lacking review. | Court has jurisdiction to review final denial of asylum. |
| Whether the BIA's denial of asylum was an abuse of discretion. | Li claims denial was unjust and based on unfair reasoning. | Holder argues BIA properly weighed totality of circumstances. | No abuse; BIA properly weighed favorable and unfavorable factors. |
| Whether the BIA properly balanced factors given Li’s dangerous entry method. | Li was a frightened 19-year-old; departure method should not bar asylum as policy. | BIA may deter dangerous entries and consider entry method as a factor. | The totality of circumstances supports denial of asylum. |
| Relation between withholding of removal and asylum denial on remand. | Denial of asylum tied to withholding outcome should not predetermine finality. | Remand solely for background checks; withholding outcome resolved separately. | Remand did not prevent final denial; Li's asylum denial reviewable. |
Key Cases Cited
- Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (final order defined by deportability determination; order of deportation)
- Pinto v. Holder, 648 F.3d 976 (9th Cir. 2011) (determines review of asylum decisions and related removability)
- Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (remand for CAT reconsideration not final if no relief granted; distinguishable facts)
- Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995) (jurisdiction when remand resolves nothing pending before Board)