The Use of Discretion to Deny a Truly Desperate Asylum Seeker who is Eligible for Relief: Li v. Holder | ImmigrationProf Blog – Law Professor Blogs Network | Kevin R. Johnson |09/01/11

The Ninth Circuit issued an interesting asylum opinion, in LI v. HOLDER, written by Judge Richard C. Tallman, joined by Judges Ferdinand F. Fernandez and Pamela Ann Rymer.

Junming Li, a native and citizen of China, was denied asylum by an immigration judge. He petitioned for review of the decision to the Board of Immigration Appeals (BIA). Mr. Li argued that: (1) it is unfair to deny him asylum for the sake of teaching others a lesson and (2) the BIA’s decision does not comply with Matter of Pula, which states that “the danger of persecution should generally outweigh all but the most egregious of adverse factors.” 19 I. & N. Dec. 467,  474. The BIA affirmed the immigration judge’s (IJ) decision denying the asylum application in the exercise of discretion.

The Ninth Circuit’ reasoned that though Li established a well-founded fear of persecution on account of religion by Chinese officials for practicing Falun Gong (and that other practitioners of Falun Gong have been beaten, interned in labor camps, and hospitalized involuntarily), the IJ did not abuse its discretion when it denied relief/asylum due to the dangerous nature in which Li entered the United States. Li’s method of entry into the United States was being concealed in a metal box that was welded to the bottom of a car and driven across the border in the desert heat. The IJ explained that the purpose of denying Li’s application was to deter others seeking asylum from employing such perilous methods.” The BIA affirmed. Because the BIA’s decision did not appear arbitrary, contrary to law, or irrational, the Ninth Circuit court determined that there was no abuse of discretion.

While there is a sense of unfairness in singling out Li for the purpose of sending a message to other potential asylum seekers, the BIA is not required to grant asylum to every qualified applicant.  See INS v. Cardoza- Fonseca, 480 U.S. 421, 428 n.5 (1987).

In considering Li’s appeal, the Ninth Circuit viewed the lower court record to determine whether the BIA properly considered the totality of circumstances and weighed the relevant positive and negative factors when considering whether to dismiss Li’s appeal. See Matter of Pula, 19 I. & N. Dec. at 473.

For full article see The Use of Discretion to Deny a Truly Desperate Asylum Seeker who is Eligible for Relief: Li v. Holder from ImmigrationProf Blog – Law Professor Blogs Network by Kevin R. Johnson, Dean and Professor of Law and Chicana/o Studies, and Mabie-Apallas Public Interest Law Chair, Univ. of California, Davis, School of Law

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About vinhsu

Center City Philadelphia General Practice Law Firm with emphasis on Criminal Defense, Family Law, Immigration, Real Property, and Wills/Trusts/ Estate Planning. Licensed in Pennsylvania and New Jersey.
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