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

356 F.3d 1153 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 September 16, 2003. Filed January 29, 2004. COPYRIGHT MATERIAL OMITTED Robert B. Jobe (argued), Law Office of Robert B. Jobe, San Francisco, CA, and Michael P. Karr, Michael P. Karr & Associates, Sacramento, CA, for the petitioners. Greg D. Mack (argued), Alison R. Drucker and Russell J.E. Verby, U.S. Department of Justice, Washington, DC, for the respondent. Dr. John Aird, Silver Spring, MD, amicus curiae in support of petitioners. On Petitions for Review of an Order of the Board of Immigration Appeals. Agency Nos. Asg-wql-kil, Akx-kje-bmu. Before: SCHROEDER, Chief Judge, PREGERSON, REINHARDT, T.G. NELSON, KLEINFELD, HAWKINS, THOMAS, GRABER, WARDLAW, PAEZ, and CLIFTON, Circuit Judges. Opinion by Judge MICHAEL DALY HAWKINS; Dissent by Judge KLEINFELD. MICHAEL DALY HAWKINS, Circuit Judge: 1 In this fact-intensive case, we examine the reach of congressional efforts to ease immigration asylum requirements for individuals affected by China's population control policies. In 8 U.S.C. § 1101…

Opinion by Judge MICHAEL DALY HAWKINS; Dissent by Judge KLEINFELD.

In this fact-intensive case, we examine the reach of congressional efforts to ease immigration asylum requirements for individuals affected by China’s population control policies. In 8 U.S.C. § 1101 (a)(42)(B), Congress made clear that individuals forced to undergo abortion or sterilization *1156 would be deemed to have been persecuted on account of political opinion. At issue here is the application of another category of asylum-seekers covered by this statute: those persecuted for “other resistance” to those policies. Id. Specifically, we must determine whether a young woman who announced her opposition to government population control policies and is thereafter subjected to a forced gynecological exam and threatened with future abortion, sterilization of her boyfriend, and arrest satisfies this latter category. Because we determine that she does, we grant the petition for review of Xu Ming Li (“Li”) and remand the petition of Xin Kui Yu (“Yu”) for further consideration in light of the grant to Li.

FACTS AND PROCEDURAL HISTORY

Li and her boyfriend, Yu, lived in a rural village in the province of Fujian, China.…

dissenting:

I respectfully dissent.

If the Supreme Court speaks, and lower courts do not hear it, does it make law? Last year, in INS v. Ventura, the Supreme Court chastised us for failing to defer properly to the BIA in an asylum case. 1 Summarily reversing us, the Court said we “committed clear error” and “seriously disregarded the agency’s legally mandated role.” 2 Before that, in INS v. Aguirre-Aguirre, the Supreme Court unanimously reversed us for failing “to accord the required level of deference” to the BIA in a case involving withholding of removal. 3 *1162 And before that, in INS v. Elias-Zacarias, the Supreme Court reversed our asylum decision because we failed to apply correctly the substantial-evidence standard and defer to the BIA. 4 Yet today we make the same mistakes.

There are two things wrong with the majority opinion. Proeedurally, it makes the initial decision instead of remanding to the INS on whether what we determine to be persecution was on account of resistance to a coercive population-control program. This is an issue the BIA did not reach and has not yet decided. Ventura requires us to remand so that the BIA can make the initial decision on this point…