Lin Quan v. Alberto F. Gonzales

428 F.3d 883 Lin QUAN, Petitioner, v. Alberto F. GONZALES, Respondent. No. 03-70630. United States Court of Appeals, Ninth Circuit. Submitted May 6, 2005. * Filed November 7, 2005. COPYRIGHT MATERIAL OMITTED Douglas G. Ingraham, Alhambra, CA, for the petitioner. Peter D. Keisler, Assistant Attorney General; John C. Cunningham, Senior Litigation Counsel; Norah Ascoli Schwarz, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before: O'SCANNLAIN and WARDLAW, Circuit Judges, and WHALEY, ** United States District Judge. WHALEY, District Judge: Petitioner, Lin Quan, and her husband, Linsheng Li, 1 natives and citizens of China, petition for review of the Board of Immigration Appeals' ("BIA") decision affirming an immigration judge's denial of her application for asylum. We have jurisdiction under 8 U.S.C. § 1252 . We review for substantial evidence. Abebe v. Ashcroft, 379 F.3d 755, 758 (9th Cir.2004). We grant the petition for review, vacate and remand. * Petitioner Quan's opening brief includes a request for independent…

dissenting.

I respectfully submit that the court has substituted its independent analysis of the record for that of the Immigration Judge (the “IJ”), and, in so doing, has exceeded its authority and intruded upon the proper role of the fact finder. Because I conclude that the IJ’s findings deserve greater deference than the majority accords them, I respectfully dissent from the decision to grant Lin Quan’s petition.

I

Where the BIA has summarily affirmed the decision of an IJ, we review the IJ’s decision as though it were the opinion of the BIA, see Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003), and we must accept the IJ’s finding of fact unless the evidence compels a contrary conclusion. See INS v. Elias-Zacarias, 502 U.S. 478 , 481 n. 1, 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). This is an extremely deferential standard of review: it is not enough that the evidence supports a contrary conclusion, that the panel would have weighed the evidence differently, id., or even that the panel is persuaded that the finding is incorrect; the evidence must be so over *891 whelming that not just the panel in question but “any reasonable adjudicator would be compelled to…

Petitioner, Lin Quan, and her husband, Linsheng Li, 1 natives and citizens of China, petition for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an immigration judge’s denial of her application for asylum. We have jurisdiction under 8 U.S.C. § 1252 . We review for substantial evidence. Abebe v. Ashcroft, 379 F.3d 755, 758 (9th Cir.2004). We grant the petition for review, vacate and remand.

I

Petitioner Quan’s opening brief includes a request for independent relief for Linsh-eng Li. The brief contends that the appeals of Quan and her husband, Linsheng Li, have been consolidated. Under Fed. R.App. P. 3(b)(2), “[w]hen the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals.” No such consolidation has occurred. Instead, the petition of Linsheng Li v. Ashcroft, Case No. 03- *886 70631, was dismissed on November 26, 2003, for failure to file an opening brief pursuant to Ninth Circuit Rule 42-1. No motion was filed to reopen the appeal. 2 Accordingly, the cases of Lin Quan and Linsheng Li have not been consolidated for appeal, and only the petition of Lin Quan is properly before this…