The Use of Discretion to Deny a Truly Desperate Asylum Seeker who is Eligible for Relief: Li v. Holder

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

Junming Li, a native and citizen of China, petitioned 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. In the Ninth Circuit’s words, “[t]he 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.” (emphasis added).

There was no dispute that Li established a well-founded fear of persecution on account of religion by Chinese officials for practicing Falun Gong. Other practitioners of Falun Gong have been beaten, interned in labor camps, and hospitalized involuntarily.

While some might view the way that Li entered the United States as corroborating his very real fear of persecution, the IJ “denied relief as an exercise of discretion due to the dangerous nature in which Li entered the United States. 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.

Here is the Ninth Circuit’s reasoning:

“Li argues that it is unfair to deny him asylum for the sake of teaching others a lesson. He emphasizes that at the time he crossed the border, he was a frightened nineteen-year-old, and argues that “[a] desperate person in his situation should not be blamed for apparent unreasonable behavior.” Li also contends that 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. at 474.

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). Otherwise there would be no meaning behind the power to exercise a discretionary denial. In dismissing Li’s appeal, the BIA considered Li’s specific circumstances, including the positive and negative factors associated with asylum. For example, in addition to Li’s method of entry, the BIA considered the likelihood and severity of persecution against Li if he returned to China; that other relief had been granted; that Li did not have family members who would lose their legal status as a result of his denial of asylum; that Li was not compelled to leave Mexico; that his departure from Mexico was not triggered by an impending threat to him or his freedom; and that he was aware that he could walk to the United States and seek asylum, but in an attempt to avoid detection chose a significantly more dangerous method. The BIA concluded, after considering “all the circumstances of this case,” that the IJ did not abuse his discretion in denying Li’s asylum application.

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. Li’s method of entry was egregious and he is protected from persecution through other forms of relief. Because the BIA’s decision does not appear arbitrary, contrary to law, or irrational, there was no abuse of discretion. We therefore deny the petition.”

KJ