Junming Li v. Eric H. Holder Jr.
| Decision Date | 13 July 2011 |
| Docket Number | No. 07–71027.,07–71027. |
| Citation | 656 F.3d 898,11 Cal. Daily Op. Serv. 11349,2011 Daily Journal D.A.R. 13490 |
| Parties | JUNMING LI, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
William Kiang, Esq., Kiang & Kiang, San Gabriel, CA, for petitioner Junming Li.Jeffrey S. Bucholtz, Mark C. Walters, Thomas B. Fatouros, Department of Justice, Washington, D.C., for respondent Eric H. Holder.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A099–626–516.Before: FERDINAND F. FERNANDEZ, PAMELA ANN RYMER, and RICHARD C. TALLMAN, Circuit Judges.
Junming Li, a native and citizen of China, petitions for review of a decision of the Board of Immigration Appeals (BIA). The BIA affirmed the immigration judge's (IJ) decision denying asylum in the exercise of discretion. The Board balanced the likelihood of persecution and its severity against the negative factors in the record and agreed with the IJ that Li's method of entry into the United States—being concealed in a metal box that was welded to the bottom of a car and driven across the border in the desert heat—was so dangerous that asylum should be denied.
The only issue on appeal before the BIA was the IJ's decision to deny asylum, which the BIA affirmed. However, because the IJ had also granted relief in the form of withholding of removal (and, alternatively, the Convention Against Torture (CAT)), the BIA remanded pursuant to 8 C.F.R. § 1003.1(d)(6) to allow the Department of Homeland Security (DHS) to complete background checks required before withholding of removal can be granted.
Li appeals the BIA's decision related to the denial of asylum. After Li filed his appeal with us, DHS successfully completed the background checks and the IJ signed and filed a one-page standardized form confirming that withholding of removal had been granted. The form also indicates that appeal from that order was waived.
We conclude that we have jurisdiction despite the BIA's limited remand pursuant to § 1003.1(d)(6), and we deny the petition for review.
Li, a citizen of China, fears persecution and torture by Chinese officials for practicing Falun Gong, a spiritual exercise. Other practitioners of Falun Gong have been beaten, interned in labor camps, and hospitalized involuntarily. Li's persecution led him to flee China in November 2004, along with his mother and older brother, and join his father in Mexico. Li's father had temporary immigrant status in Mexico that allowed him to work at a restaurant there, which enabled Li to attain a visa and live with his family. However, in 2006, Li's father lost his job and, as a result, Li could no longer live in Mexico.
When he inquired into obtaining asylum, Li was advised that Mexico does not grant asylum to Chinese applicants and returns them to China. He was also warned that if he attempted to walk across the border and seek asylum in the United States, he might be deported.
Li's father agreed to pay a smuggler $5,000 to take Li across the United States border. The smuggler placed Li into a small iron box that was welded to the bottom of a vehicle. Once inside the box, Li was unable to extricate himself without assistance and had no means of communicating with the driver; he could not turn over or see outside of the compartment except for occasional glances at the road below. Li remained in the box for more than forty minutes as the driver transported him across the California desert at a time of year when temperatures often exceed 100 degrees Fahrenheit, though it is unclear from Li's testimony what time of day he was traveling.
The IJ determined that Li was credible and granted withholding of removal and alternative relief under the CAT. The IJ also found that Li was eligible for asylum, which provides greater benefits than the other forms of relief, but denied asylum as an exercise of discretion because the method of Li's entry was so dangerous, “to grant asylum in this case would encourage other individuals ... to enter the United States by risking their lives by cramming themselves into these boxes.” The court emphasized that because Li had received withholding of removal and alternative relief under the CAT, he would have adequate protection from persecution, even without asylum.
The BIA agreed and stressed that Li had been aware he could simply walk to the United States and request asylum, yet he chose to avoid detection by employing a dangerous approach. The Board noted that Li was young and did not have a spouse or child that might be affected by denial of his asylum application. It also found significant that in agreeing to be smuggled in such a dangerous manner, Li had placed himself in a more dangerous position than he would have faced if he had been deported to China, and that he was not compelled to leave Mexico, where he had never seriously pursued asylum. The BIA further reasoned that because Li had received withholding of removal, removal was not a direct consequence of the IJ's discretionary denial of asylum. After dismissing the appeal, the BIA remanded pursuant to 8 C.F.R. § 1003.1(d)(6) for the purpose of allowing the DHS to complete background investigations required before a petitioner may actually receive withholding of removal. On March 19, 2007, Li filed a petition for review of the BIA's dismissal of his appeal on the asylum question. On September 15, 2008, after Li had been cleared through background checks, the IJ entered an order confirming that withholding of removal had been granted.
Our review is confined to the BIA's decision except to the extent the BIA incorporated the IJ's decision. Santos–Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir.2008). The BIA incorporated the IJ's factual findings, including his determination that Li is credible. We therefore accept Li's testimony before the IJ as true. Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000). Questions of law are reviewed de novo. Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988).
Where a grant or denial of asylum is based on the exercise of discretion, that decision is reviewed for abuse of discretion. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). When exercising discretion, the BIA must consider both favorable and unfavorable factors. Gulla v. Gonzales, 498 F.3d 911, 917–19 (9th Cir.2007); see also Matter of Pula, 19 I. & N. Dec. 467, 473 (B.I.A.1987) (). The BIA abuses its discretion if its decision is “arbitrary, irrational, or contrary to law.” Lopez–Galarza v. INS, 99 F.3d 954, 960 (9th Cir.1996) (internal quotations and citations omitted).
We must first determine whether we have jurisdiction to review the BIA's order dismissing Li's challenge to the IJ's decision denying asylum. The Government argues that because the BIA remanded the case to the IJ for the completion of DHS background checks, the order of removal is not final, depriving us of jurisdiction. While we have exercised jurisdiction over BIA determinations involving remands under certain circumstances, see, e.g., Castrejon–Garcia v. INS, 60 F.3d 1359 (9th Cir.1995), we have not explicitly addressed whether jurisdiction exists after the BIA affirms denial of relief, but remands pursuant to 8 C.F.R. § 1003.1(d)(6) for completion of background checks that are required before alternative relief may be granted. We conclude that in such a situation, we have jurisdiction to review the decision denying relief.
We have jurisdiction to review final orders of removal or deportation. 8 U.S.C. § 1252; see also Alcala v. Holder, 563 F.3d 1009, 1016 (9th Cir.2009) (). An order is “final” when the BIA affirms the order or when the period in which the alien is permitted to seek review of the order expires. 8 U.S.C. § 1101(a)(47)(B). The terms “order of removal” and “order of deportation” are for these purposes interchangeable, Lolong v. Gonzales, 484 F.3d 1173, 1177 n. 2 (9th Cir.2007) (en banc), and mean the alien has been found “deportable” or has been ordered deported. 8 U.S.C. § 1101(a)(47)(A).
We have recognized that Lolong, 484 F.3d at 1177; see also Pinto v. Holder, 648 F.3d 976, 979–81 (9th Cir.2011). However, the Supreme Court has explained that the term “final order” includes “all matters on which the validity of the final order is contingent.” INS v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (internal quotations and citations omitted). Thus, if an order that would otherwise be final for purposes of jurisdiction depends in part or in whole on an unresolved matter, we do not review it.
The regulation requiring background checks as a prerequisite to granting relief from removal places limits on when the BIA may issue a final decision granting that relief. Where background checks are required but have not yet been completed, the BIA must either issue an order remanding the case to the IJ with instructions to allow the DHS to complete the background checks, or provide notice to both parties that the case is on hold pending completion of the background checks. 8 C.F.R. § 1003.1(d)(6)(ii); see also In Re Alcantara–Perez, 23 I. & N. Dec. 882, 883 (B.I.A.2006).
The BIA's order remanding the case is not a final order....
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