Chun He Li v. John Ashcroft, Attorney General

ORDER

A judge sua sponte called for rehearing en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35(b). Accordingly, the sua sponte call for rehearing en banc is rejected.

The mandate shall issue in due course.

Dissenting from the Order Denying En Banc Review:

It is unfortunate that we did not grant en banc review. As Judge Noonan’s dissent from the panel opinion makes clear, 1 this was a strong case on the merits of Li’s asylum claim. Li violated China’s one-child policy, a form of persecution that Congress recognizes as a basis for asylum, by fathering three children. These undisputed core facts establish a claim for asylum that should have been impervious to inconsistencies not at its heart. See Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir.2002).

Li has every reason to fear officially-sanctioned persecution if returned to China. Following the birth of his second and third children, Li was fined substantially and his wife was sterilized. But the merits of this compelling case were never reached because Li was judged to lack credibility. Judge Noonan cogently describes the thin veneer underlying that determination:

378 F.3d at 967 (Noonan, J. dissenting).

That the IJ got it wrong factually and the panel accepted the result would be far *1074 less troubling and less worthy of en banc consideration were it not plain that, along the. way, two of our cardinal principles relating to…

396 F.3d 1073 Chun He LI, Petitioner v. John ASHCROFT, Attorney General, Respondent. No. 02-72689. United States Court of Appeals, Ninth Circuit. Filed February 2, 2005. Bruno J. Bembi, Esq., Hempstead, NY, for Petitioner. Regional Counsel, Laguna Niguel, CA, Ronald E. Lefevre, Chief Legal Officer, San Francisco, CA, Norah Ascoli Schwarz, Esq., Washington, DC, Cindy S. Ferrier, Los Angeles, CA, David V. Bernal, Attorney, Ernesto H. Molina, Jr., Earle B. Wilson, Esq., Washington, DC, for Respondent. Before: FARRIS, NOONAN, and RAWLINSON, Circuit Judges. 1 Dissent by Judge HAWKINS. ORDER 2 A judge sua sponte called for rehearing en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35(b). Accordingly, the sua sponte call for rehearing en banc is rejected. 3 The mandate shall issue in due course. 4 MICHAEL DALY HAWKINS, Circuit Judge, with whom Judges PREGERSON, THOMAS and PAEZ join, Dissenting from the Order Denying En Banc Review: 5 It is unfortunate that we did not grant en banc review. As Judge Noonan's dissent from the panel opinion makes clear, 1 this was a strong case on the merits of…