Xu Ming Li Xin Kui Yu v. John Ashcroft, Attorney General

Opinion by Judge WALLACE; Partial Concurrence and Partial Dissent by Judge PAEZ.

Xu Ming Li and Xin Kui Yu petition for review of the Board of Immigration Appeals’ (Board) decision to deny their applications for asylum and withholding of removal under both 8 U.S.C. § 1231 (b)(3)(A) and Article 3 of the United Nations’ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention), opened for signature February 4, 1985, S. Treaty Doc. No. 100-20, at 20 (1988), 23 I.L.M. 1027, 1028 (1984). The Board had jurisdiction under 8 C.F.R. § 3.1 (b)(2) and § 240.53. We have jurisdiction over these timely filed petitions under 8 U.S.C. § 1252 (a) and 8 C.F.R. § 208.18 (e). We deny the petitions.

I.

Xu Ming Li, born on February 26, 1979, was raised in a village within Fu Chow City, Fujian Province, People’s Republic of China. After graduating from the Chinese equivalent of junior high school in 1995, she lived at home with her parents, where she helped with household chores.

Xin Kui Yu was raised in the same village as Xu Ming Li. By the time of an August 10, 1999 hearing before the Immigration Judge (IJ), he was twenty-two years old. Xin graduated…

312 F.3d 1094 Xu Ming LI; Xin Kui Yu, Petitioners, v. John ASHCROFT, Attorney General, * Respondent. No. 00-70157. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 12, 2002. Filed December 5, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Michael P. Karr, Sacramento, CA, for the petitioners. Greg D. Mack and Russell J.E. Verby, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. INS Nos. Aau-ram-svr, Axi-ojc-tif. Before: WALLACE, KOZINSKI and PAEZ, Circuit Judges. Opinion by Judge WALLACE; Partial Concurrence and Partial Dissent by Judge PAEZ. WALLACE, Senior Circuit Judge. 1 Xu Ming Li and Xin Kui Yu petition for review of the Board of Immigration Appeals' (Board) decision to deny their applications for asylum and withholding of removal under both 8 U.S.C. § 1231 (b)(3)(A) and Article 3 of the United Nations' Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention), opened for signature February 4, 1985, S. Treaty Doc. No. 100-20, at 20 (1988), 23 I.L.M. 1027, 1028 (1984). The Board had jurisdiction under 8 C.F.R. § 3.1 (b)(2)…

concurring in part and dissenting in part.

As noted by the majority, we are the first circuit to consider the meaning of the clause “other resistance to a coercive population control program” in section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”), 8 U.S.C. § 1101 (a)(42). Because Petitioner Xu Ming Li (“Li”) resisted when Chinese officials forcibly examined her “private parts” to determine whether she was pregnant and threatened her with forced abortion and sterilization, I am compelled to conclude that she qualifies for asylum under section 601, and therefore respectfully dissent from the majority’s opinion as it relates to Li. I concur however with the majority’s conclusion regarding Xin Kui Yu (“Yu”), but for different reasons.

I: Li’s Petition

A. Asylum,

To be eligible for asylum under section 601, an applicant who has not been forced to abort a pregnancy or to undergo involuntary sterilization, but who has resisted a coercive population control program, must establish ■ persecution or a well-founded fear of persecution on account of such resistance. Once established, however, such persecution is deemed to be on account of…