Li v. Holder

Where the BIA denies relief and remands pursuant to 8 C.F.R. § 1003.1(d)(6) for background checks required for alternative relief, the Ninth Circuit has jurisdiction to consider an appeal of the final order denying relief.

Junming Li, a citizen of China who feared persecution for his spiritual practices, fled China to join his father in Mexico. After Li lost his legal status in Mexico, he hired a smuggler and entered the U.S. in a small metal box welded to the bottom of a car. The Immigration Judge (IJ) granted Li withholding of removal and alternative relief under the Convention Against Torture. Despite finding Li eligible for asylum, the IJ exercised his discretion and denied asylum to deter other potential asylum seekers from using such perilous methods of entry into the United States. The Board of Immigration Appeals (BIA) agreed and dismissed the appeal. The BIA remanded pursuant to 8 C.F.R. § 1003.1(d)(6) to allow the Department of Homeland Security (DHS) to conduct background checks before Li could receive withholding of removal. Li filed a petition for review of the BIA’s dismissal of his appeal on the issue of asylum. The Ninth Circuit rejected the Government’s argument that the Court lacked jurisdiction because the order of removal was not final due the case being remanded to the IJ for DHS background checks. The Court held that it has jurisdiction to consider an appeal of an order denying relief where the BIA remands for background checks required for alternative relief. Central to the holding was the possibility that the Court may “have to review denials of relief that flow from the results of background checks separately from denials affirmed in the initial appeal.” However, the Court denied Li’s petition for review of the BIA’s discretionary denial of asylum, because the BIA properly considered the totality of Li’s circumstances. DENIED.