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Junming Li v. Eric H. Holder Jr

September 1, 2011

JUNMING LI, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A099-626-516

The opinion of the court was delivered by: Tallman, Circuit Judge:

FOR PUBLICATION

OPINION

Submitted July 13, 2011*fn1 Pasadena, California

Before: Ferdinand F. Fernandez, Pamela Ann Rymer, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

16685

OPINION

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.

I

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 ...


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