Quan v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIN QUAN,  No. 03-70630
Petitioner,
v.  Agency No.
A75-684-401
ALBERTO F. GONZALES,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2005*
Pasadena, California
Filed November 7, 2005
Before: Diarmuid F. O’Scannlain and
Kim McLane Wardlaw, Circuit Judges, and
Robert H. Whaley,** United States District Judge.
Opinion by Judge Whaley;
Dissent by Judge O’Scannlain
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Robert H. Whaley, United States District Judge for
the Eastern District of Washington, sitting by designation.
15169
QUAN v. GONZALES 15173
COUNSEL
Douglas G. Ingraham, Alhambra, California, for the peti-
tioner.
Peter D. Keisler, Assistant Attorney General; John C. Cun-
ningham, Senior Litigation Counsel; Norah Ascoli Schwarz,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, Department of Justice, Washington, D.C., for
the respondent.
OPINION
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 immi-
gration 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 inde-
pendent relief for Linsheng Li. The brief contends that the
appeals of Quan and her husband, Linsheng Li, have been
1
The record is unclear as to whether Quan’s husband’s name is phoneti-
cally spelled Linsheng “Li” or Linsheng “Lin.” We use “Li” because that
is the spelling employed on Quan’s asylum application.
15174 QUAN v. GONZALES
consolidated. Under Fed. R. App. P. 3(b)(2), “[w]hen the par-
ties 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 Lin-
sheng Li v. Ashcroft, Case No. 03-70631, was dismissed on
November 26, 2003, for failure to file an opening brief pursu-
ant 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 peti-
tion of Lin Quan is properly before this court.
II
The Respondent argues that the Court should refuse to con-
sider the Petitioner’s opening brief because it fails to cite to
the 896-page administrative record, in violation of Fed. R.
App. P. 28(a)(9)(A), which provides that the appellant’s brief
must include “citations to the authorities and parts of the
record on which the appellant relies.”
[1] We are sympathetic to the Respondent’s argument.
“[W]hen an appellant has approached our rules with such
insouciance that we cannot overlook its heedlessness, we have
not hesitated to strike an appellant’s briefs and dismiss the
appeal.” Dela Rosa v. Scottsdale Mem’l Health Sys., Inc., 136
F.3d 1241, 1243 n.1 (9th Cir. 1998) (citations and quotations
omitted); see also Mitchel v. General Elec. Co., 689 F.2d 877,
878 (9th Cir. 1982) (dismissing case where appellant failed to
cite to excerpts of record).
[2] Because we have conducted our own independent
review of the administrative record, we do not find it neces-
sary to impose sanctions in this case. We do, however,
admonish counsel of record that “attorneys should accept the
2
The Petitioner refers to a “Motion for Relief from Dismissal for Failure
to Prosecute and to Consolidate Petitions,” but no such motion was ever
filed. Petr.’s Opening Br. at 2.
QUAN v. GONZALES 15175
responsibility of presenting an appeal of professional quality,
which necessarily includes full compliance with the rules of
court for the Ninth Circuit.” Dela Rosa, 136 F.3d at 1244.
III
[3] The IJ issued an adverse credibility finding, citing
numerous bases, falling into roughly five categories: (1) the
date Quan began practicing Christianity; (2) the date Quan
told her husband she was practicing Christianity; (3) where
Mr. Li resided during his father’s illness; (4) Quan’s arrest;
and (5) her release on bond. The IJ’s adverse credibility find-
ing must be supported by “a legitimate articulable basis to
question the petitioner’s credibility, and must offer a specific,
cogent reason for any stated disbelief.” Guo v. Ashcroft, 361
F.3d 1194, 1199 (9th Cir. 2004) (citations and quotations
omitted).
[4] First, the IJ found that Quan’s testimony about first
“joining Christianity” in 1996 was not credible, because her
husband testified that he told Quan about his Christian beliefs
at the time of their marriage.3 Because Mr. Li never testified
that his wife began practicing Christianity prior to 1996 (at
most, he stated she believed in Jesus Christ at an earlier date),
there was no true inconsistency. While the testimony may
have been unclear, “unclear testimony may not serve as sub-
stantial evidence for an adverse credibility finding when an
applicant is not given the chance to attempt to clarify his or
her testimony.” Guo, 361 F.3d at 1200 (citing He v. Ashcroft,
328 F.3d 593, 602 (9th Cir. 2003)).
[5] Second, the IJ noted a discrepancy between Quan’s
account that she informed her husband of her home church
3
We do not address the claim in the Respondent’s brief that the Petition-
er’s father was imprisoned for 24 years for being Christian. This conten-
tion is unsupported by the record, and was not relied on by the IJ in
making his credibility determination.
15176 QUAN v. GONZALES
participation in early or late July 1996, and Mr. Li’s testimony
that he remembered learning of her participation at his
father’s funeral on August 25, 1996. Mr. Li stated that he did
not notice his wife’s participation at an earlier date because he
was busy with work and was often away from home.4 Even
assuming that the IJ was correct in finding that there was a
discrepancy regarding the timing of her participation in the
home church, the discrepancy was only of one to one-and-a-
half months. “[M]inor discrepancies in dates that . . . cannot
be viewed as attempts by the applicant to enhance h[er]
claims of persecution have no bearing on credibility.”
Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986); see
also Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.
1986) (reversing adverse credibility determination based on
“trivial errors” about date the petitioner joined a paramilitary
group).
[6] Third, the IJ found that Quan’s testimony was not credi-
ble because she testified that her husband was living at “her
father-in-law’s home” while Mr. Li testified that he was stay-
ing “at his brother’s share at the hospital.” The record, how-
ever, is devoid of any reference to Mr. Li staying “at his
brother’s share at the hospital,” as noted by the IJ. Even if an
inconsistency were deemed to exist, it did not go to the heart
of the asylum claim. See, e.g., Kebede v. Ashcroft, 366 F.3d
808, 811 (9th Cir. 2004) (finding testimony regarding the
petitioner’s brother’s place of residence was minor and based
on witnesses’ difficulties with English). There is no dispute
that Mr. Li was not residing at his home during his father’s
illness, and this is the only issue marginally relevant to
Quan’s claim.
4
The IJ’s opinion does not weigh the significant fact that Quan’s hus-
band was in America from mid-April 1996 through June 1996, or the fact
that from June 1996 through August 25, 1996, he did not live at home.
The IJ’s opinion merely states that “the fact that the respondent’s husband
was going back and forth to the United States during this time frame, does
not diminish this implausible conduct.” This conclusory statement does
nothing to address the evidence.
QUAN v. GONZALES 15177
[7] Fourth, the IJ found that Quan’s testimony that her
home was raided and she was arrested after participating in so
few meetings was not plausible. The IJ explained that
[i]n a country the size of China, for a person to be
so unlucky to have just joined a small group of seven
or eight according to her testimony, conduct four
secret meetings in homes not always her home, and
then be arrested is highly improbable and at a mini-
mum implausible. Furthermore, the fact that she
explained that the local committee was with the
arresting officials does not diminish this implausibil-
ity.
We find that this conclusion was not supported by the record.
Quan testified that she attended ten meetings, not four, and
that of these meetings, five were held at her home. Moreover,
the IJ’s finding that due to the “size of China” Quan would
not be found and arrested after five months of participation in
a home church is speculation. An inference of a country’s
police capabilities cannot be drawn merely from its geograph-
ical size. See Guo, 361 F.3d at 1199 (“Conjecture and specu-
lation can never replace substantial evidence as the basis for
an adverse credibility finding.”) (citations omitted). Further,
the IJ’s disregard of the presence of a member of the Neigh-
borhood Committee, Ms. Jian, at Quan’s arrest was not sup-
ported by coherent reasons. Quan’s testimony that she
personally knew Ms. Jian, that Ms. Jian was affiliated with
the Chinese government, and that Ms. Jian knew where she
lived, directly impacted the plausibility of her arrest. The IJ,
however, did not provide a coherent reason for disregarding
these facts. See id.[8] Finally, the IJ focused on Quan’s account of where her
mother obtained the 3,000 RMB needed for her bail on Octo-
ber 27, 1996. Quan testified that her mother made the with-
drawal from her savings bank on Sunday, October 27, 1996.
The IJ found it implausible that banks in China would be open
15178 QUAN v. GONZALES
seven days a week. There is no evidence in the record that
Quan’s mother’s savings bank was not open on Sunday. For
the IJ to come to this conclusion, he had to assume facts not
in evidence. See id.5
[9] For the above reasons, we find that the IJ’s adverse
credibility finding was not supported by substantial evidence.
Because we find that the IJ’s adverse credibility finding is not
supported by substantial evidence, we accept Quan’s testi-
mony as true for the purposes of the remaining analysis. See
Wang v. Ashcroft, 341 F.3d 1015, 1023 (9th Cir. 2003).
IV
[10] The IJ found that Petitioner Quan failed to demon-
strate that she was persecuted by Chinese authorities. To dem-
onstrate eligibility for asylum, an applicant must establish
“either past persecution or a well-founded fear of present per-
secution on account of [a protected ground].” Mejia-Paiz v.
INS, 111 F.3d 720, 723 (9th Cir. 1997) (quotations omitted);
8 U.S.C. § 1101(a)(42)(A). We review the IJ’s determination
for substantial evidence. See INS v. Elias-Zacarias, 502 U.S.
478, 481-84 (1992).
5
Moreover, publicly available information indicates that banks in China
are typically open on Sundays. See TravelChinaGuide.com, http://
www.travelchinaguide.com/essential/business-hour.htm (“Hospitals, post
offices, banks, monuments and museums are usually open seven days a
week from 8:30 or 9:00 a.m. to 6:00 p.m.”) (emphasis added); see also id.,http://www.travelchinaguide.com/essential/tibet/money.htm (stating that
some branches of the Bank of China are open on Sundays).
In its footnote, the dissent entirely misses the point of the availability
of the information obtained by these simple internet searches. In his oral
decision, the IJ explicitly referred to Quan’s “implausible testimony that
the banks were open on Sunday.” We do not use the search results to
establish one way or the other whether Quan’s mother’s bank was open
on that particular Sunday. Rather, this information merely underscores our
position that any finding on the question of the bank’s hours could only
be based upon conjecture and speculation, impermissible bases under our
controlling law. See Guo, 361 F.3d at 1199.
QUAN v. GONZALES 15179
The IJ’s factual findings overlook or significantly under-
state the treatment Quan endured. The IJ stated that the Chi-
nese authorities “pulled [Quan’s] hair” while she was in
detention; however, Quan testified that her interrogator
“pulled [her] head and kept shaking [her] head and push [her]
head.” Quan described her treatment as a “beat[ing].”
[11] The IJ also found that Quan’s electrocution with a rod
was not sufficient to present a case of persecution, because
she did not report any resulting “medical attention or sus-
tained injury.” Using an electrically-charged baton on a pris-
oner, however, may constitute persecution, even when there
are no long-term effects and the prisoner does not seek medi-
cal attention. See Guo, 361 F.3d at 1198 (officer used
electrically-charged baton to subdue petitioner and held his
arms and kicked his legs causing him to fall); see Mihalev v.
Ashcroft, 388 F.3d 722, 730 (9th Cir. 2004) (reviewing the
findings of Guo and noting that “[t]here is no suggestion in
Guo that the petitioner was significantly injured as a result of
being hit in the face seven or eight times and beaten with a
plastic pole”). Moreover, the record demonstrated that Quan
did suffer sustained injury from the electric shock. She testi-
fied that as a result of her treatment, she experienced a severe
headache, was very dizzy, had blurry vision, was perspiring,
and was barely conscious. She testified that upon returning
home, she was paralyzed with fear, and suffered a severe
headache and weakness.
[12] The IJ’s opinion also omits discussion of Quan’s testi-
mony that she was fired from her job as a result of her reli-
gious association. See Popova v. INS, 273 F.3d 1251, 1258
(9th Cir. 2001) (finding that applicant was persecuted on
account of religion where she was “threatened by police offi-
cers at [her place of employment], who said she would be
fired if she did not change her [Christian] name”).
[13] Accordingly, the record compels a finding that Peti-
tioner Quan suffered past persecution.
15180 QUAN v. GONZALES
V
[14] After finding that the Petitioner was not credible and
did not experience past persecution, the IJ went on to find that
the Petitioner did not have a well-founded fear of future per-
secution. To qualify for asylum based on the well-founded
fear of future persecution, the applicant’s fear “must be both
subjectively [genuine] and objectively reasonable.” Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (alteration in
original) (quotations and citations omitted).
[15] Upon a finding of past persecution, the Petitioner is
presumed to have a well-founded fear of future persecution on
account of her religious beliefs. Mamouzian v. Ashcroft, 390
F.3d 1129, 1135 (9th Cir. 2004). The government may rebut
this presumption by showing “by a preponderance of the evi-
dence that country conditions have changed or that relocation
is possible,” thus putting into question the petitioner’s well-
founded fear. Id. Where the government has failed to argue,
either in its submissions to the IJ or in its briefs before this
panel, for the existence of changed country conditions, we
need not remand to the IJ but, rather, may determine on our
own that the presumption is not rebutted and, therefore, that
the Petitioner is eligible for asylum. Ndom v. Ashcroft, 384
F.3d 743, 756 (9th Cir. 2004) (suggesting that, under such cir-
cumstances, it would be “exceptionally unfair” to give the
government another opportunity to present such information);
Baballah v. Ashcroft, 367 F.3d 1067, 1078 & n.11 (9th Cir.
2004) (same). We so hold.
The IJ did not apply the “past persecution” presumption
but, instead, made independent findings that Petitioner failed
to demonstrate a well-founded fear of future persecution. We
review the IJ’s decision on a substantial evidence standard.
Mamouzian, 390 F.3d at 1135 (citing Khup v. Ashcroft, 376
F.3d 898, 904 (9th Cir. 2004)).
The IJ’s opinion radically misconstrued the standard of
“well-founded fear of future persecution.” There is no
QUAN v. GONZALES 15181
requirement that the Petitioner show that “every single” prac-
ticing Christian in her home country is persecuted as a matter
of “pattern and practice.” No applicant would be able to meet
this standard. This court has held that a petitioner need only
show a subjective fear of persecution that is objectively rea-
sonable; and “even a ten percent chance of persecution may
establish a well-founded fear.” Khup, 376 F.3d at 904.
[16] “In general, an alien satisfies the subjective component
of the well-founded fear test by testifying credibly about his
fear of future persecution.” Mamouzian, 390 F.3d at 1136.
The Petitioner testified that, even after her departure from
China, the police continued to monitor her communications
with her father, and that she feared she would “be locked up
and beaten” if forced to return. The IJ did not make any
adverse credibility findings about the Petitioner’s testimony
on this issue. Indeed, the IJ found that “the co-respondent is
a Christian and is attempting to pursue that religion in the
United States.” Therefore, her testimony regarding her fear of
future persecution is sufficient to establish her claim on this
ground.
Moreover, the record compels a finding that the Petitioner’s
fear of future persecution is objectively reasonable. As the IJ
noted, the record demonstrates that there have been “crack-
downs on Christians in China.” The Government authorities
who detained the Petitioner conditioned her release from
prison on her ceasing all “anti-government” Christian reli-
gious association. If she chose to participate again in home
church gatherings, she faced revocation of her bail, and future
detention. Furthermore, the Petitioner testified that after she
sent home Christian pamphlets, the Government searched her
father’s home and accused her of participating in “anti-
revolution[ary] activities abroad” and attempting to “assist the
foreign elements to stir up the agitation.” Based on these
accusations, the Petitioner faces an objectively reasonable
possibility of future persecution should she return to China.
15182 QUAN v. GONZALES
[17] Based on a full review of the record, we find that a
reasonable fact-finder would be compelled to conclude that
Quan has shown sufficient evidence of past persecution and
a well-founded fear of future persecution. We do not address
Quan’s entitlement to withholding of removal or relief under
the Convention Against Torture because Quan did not raise
these issues in her brief to this court. See Martinez-Serrano v.
INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (holding that issues
not raised in the appeal brief are deemed abandoned).
[18] We grant the petition for review, vacate and remand
so that the Attorney General may exercise his discretion as to
whether to grant asylum relief. See Sael v. Ashcroft, 386 F.3d
922, 930 (9th Cir. 2004).
PETITION FOR REVIEW GRANTED; VACATED
AND REMANDED.
O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully submit that the court has substituted its inde-
pendent 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 (1992). This is
QUAN v. GONZALES 15183
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 overwhelming that not just the panel
in question but “any reasonable adjudicator would be com-
pelled to conclude the contrary.” 8 U.S.C. § 1252(b)(4)(B)
(emphases added). The law and the Supreme Court are
unequivocal on this point. See id.; Elias-Zacarias, 502 U.S. at481 n.1 (“To reverse the BIA finding we must find that the
evidence not only supports that conclusion, but compels it.”).
A
The majority discusses some of the implausibilities and
inconsistencies on which the IJ based his adverse credibility
finding and purports to show how the implausibilities are con-
jectural and how the inconsistencies can be explained. On
some points the majority is persuasive, but, given the
extremely deferential standard of review that we must apply,
enough evidence remains, in my view, to support the IJ’s
finding.
In particular, Quan’s account of how her mother was able
to obtain 3,000 RMB to procure her release from detention is
accepted at face value by the majority despite contrary evi-
dence in the record. Quan testified that her mother was able
to withdraw the money from her savings bank on a Sunday,
but Quan’s husband repeatedly testified that such banks are
closed on Sundays. It is not accurate, therefore, to say that
“[i]n order for the IJ to come to [his] conclusion, he had to
assume facts not in evidence,” maj. op. at 15178.1 The IJ
1
Ironically, it is the majority’s analysis which relies on facts not in evi-
dence. The majority’s reliance on a website of unknown reliability to
establish that “banks in China are typically open on Sundays,” maj. op. at
15178 (emphasis added), is a novel—and, I would respectfully suggest,
misguided—application of the doctrine of judicial notice. See Fed. R.
15184 QUAN v. GONZALES
explicitly found that the contradictory testimony of the
husband—who had every reason to corroborate his wife’s
story and no reason to undermine it—cast substantial doubt
on Quan’s credibility. This sort of weighing of evidence is
emphatically the prerogative of an IJ and the fact that the
apparent inconsistency affects a key aspect of Quan’s allega-
tion of persecution should make it an unassailable basis for an
adverse credibility finding.
Quan’s testimony was also confused and incomplete with
respect to the number and dates of the prayer meetings that
she attended, and the timing of her confession of her belief in
Jesus Christ to her husband. The majority attempts to down-
play the significance of the latter point by labeling it as a
minor discrepancy in dates. As the majority characterizes it,
the one month difference between the date when Quan claims
to have told her husband about her Christian practice and the
date that her husband claims to have learned of it is of no
import, but the IJ had good reason to view it otherwise. What
concerned the IJ was the fact that, although Quan attributed
her mother’s recovery from illness to her new practice of
Christianity, she appears to have withheld this information
from her husband—who was sympathetic to Christianity—
throughout the course of his own father’s illness. The time
between July and August, 1996, therefore, was not insignifi-
Evid. 201(b) (“A judicially noticed fact must be one not subject to reason-
able dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determi-
nation by resort to sources whose accuracy cannot reasonably be ques-
tioned.”).
More importantly, this “evidence” fails to undermine the IJ’s adverse
credibility determination. Even assuming these dubious sources establish
the veracity of the petitioner’s statement, the IJ relied on inconsistencies
between the petitioner’s testimony and her husband’s in making a credibil-
ity determination — a fact independent of the bank’s actual operating
hours. The IJ needed to consider only the petitioner’s testimony—not facts
outside the record—to support this conclusion.
QUAN v. GONZALES 15185
cant. That month marks an important change in circum-
stances: it is the difference between Quan informing her
husband of her newfound faith in the healing power of Chris-
tian prayer while her husband’s father was still alive and tell-
ing him at his father’s funeral. In the case of a meaningful
inconsistency such as this, it is the IJ’s duty to consider the
first-person testimony before him and to resolve the evidenti-
ary confusion either for or against the petitioner. This the IJ
did, and, because his conclusion is reasonably supported by
evidence in the record—namely, the testimony of Quan’s
husband—we are not entitled to disturb it.
The majority’s justifications of its own interpretations of
this and other inconsistencies are reasonable, but so too is the
IJ’s scepticism, which should not be supplanted unless it is
wholly conjectural or has no basis in the record. Because
there is genuine confusion and inconsistency in the record on
these points, and because the IJ’s conclusions are supported
by evidence in the record, it simply cannot be said that the
evidence compels reversal. I would, therefore, affirm the IJ’s
adverse credibility finding and deny the petition.
II
The IJ also found that a single detention, for less than one
day, during which Quan had her hair pulled, was shaken, and
was poked once with an electric prod in her shoulder/neck
area did not rise to the level of persecution.
Given the inconsistent thresholds for finding persecution
applied by different panels of this court, it is not surprising
that the majority is able to cite a case in which we held that
similar facts amounted to persecution. See Guo v. Ashcroft,
361 F.3d 1194 (9th Cir.). In that case, however, the petitioner
was detained for a day and half (more than 50% longer than
in this case), was struck twice in the face, kicked in the stom-
ach, and ordered to do push-ups until he collapsed. By con-
trast, in other cases we have held that a single detention,
15186 QUAN v. GONZALES
during which the petitioner was beaten, did not compel a find-
ing of persecution because the petitioner did not require medi-
cal attention. See, e.g., Prasad v. INS, 47 F.3d 336, 339 (9th
Cir. 1995).
The majority argues that the lingering physical and mental
symptoms about which Quan testified and the fact that she
lost her job because the police visited her workplace support
a finding of persecution. That may be so, but the fact that
Quan did not testify that she required medical treatment,
which was an important factor in our holding in Prasad, that
she claims to have heard, second-hand, that she had lost her
job but never bothered to confirm the report, and that,
although her husband worked at the same company, nobody
ever told him that she had been fired. On the basis of this evi-
dence it was reasonable for the IJ to find that Quan had not
been persecuted.
Because I do not believe that an IJ’s decision should be
overturned merely because the reviewing panel disagrees with
it or can point to a plausibly analogous case from our abun-
dant and inconsistent precedent, and because the evidence in
this case does not compel a finding of persecution, I would
affirm the IJ’s decision and deny the petition.
III
Finally, Quan and her counsel, Mr. Douglas Ingraham, are
fortunate that this petition was not dismissed for failure to
abide by Fed. R. App. P. 28(a)(9)(A), which requires a brief
to contain “citations to the . . . part of the record on which the
appellant relies.” See also Ninth Circuit Rule No. 28-2.8.
Given the limited resources of both the government and this
court, it was irresponsible of Quan’s counsel to shift the bur-
den of sifting through almost 900 pages of administrative
record onto the government and this court to find the facts on
which Quan bases her argument. In De la Rosa v. Scottsdale
Memorial Health Systems, Inc., 136 F.3d 1241, 1243 (9th Cir.
QUAN v. GONZALES 15187
1998), we “declare[d] that this habit of noncompliance must
end” and we have, on at least two occasions, struck briefs and
dismissed appeals for failure to comply with this basic
requirement. See Mitchel v. General Electric Company, 689
F.2d 877, 878 (9th Cir. 1982); N/S Corporation v. Liberty
Mutual Insurance Company, 127 F.3d 1145, 1146 (9th Cir.
1997).
The majority concedes the technical deficiencies of the
brief and admits that it is “sympathetic to the Respondent’s
argument [that the brief be struck and the case dismissed],”
maj. op. at 15174, but concludes that dismissal is not neces-
sary “[b]ecause we have conducted our own independent
review of the administrative record.” Id. at 15174. With all
due respect to the majority’s commendable diligence, that is
beside the point. Opposing counsel, or, as in this case, the
court, will often be able to compensate for a party’s shortcom-
ings, but doing so involves a waste of limited time and
resources. The rules governing the form and content of appel-
late briefs are not merely hortatory; they must be obeyed, and,
when they are not, the consequences should be real. Mr.
Ingraham should consider himself exceedingly fortunate that
the only consequence of his inadequate performance in this
case is a verbal admonishment. He should not expect to
escape so lightly in the future.