A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, September 11, 2014

Political activities in the U.S. held to be "changed circumstances" for asylum application

A person who harbored dissenting views of his government came to the United States.  About eight years later, he started to become politically active in expressing his opposition to his government. This person argued that these activities in the United States constituted "changed circumstances" under asylum law, which should excuse his late filing of his asylum and related applications. The United States Second Circuit Court of Appeals agreed and ruled in his favor in a recent decision. (Lin v. Holder, 8/19/14).

One-year deadline for asylum application
The U.S. immigration law generally only allows a foreigner to apply for political asylum within one year of his or her entry into the United States.  There are some exceptions to this general rule. For example, if a person is seriously ill or disabled, then the deadline can be excused.  Another exception is a showing of changes in circumstances in his case.

Changed circumstances as an exception
Generally speaking, changed circumstances such as changes in country conditions or changes in the law are valid basis for late filing of one's asylum application.  There are other changes in circumstances that may also be eligible.  In the case of Lin, his claim of changed circumstances is based on the activities that he took part after his arrival to the United States.  According to Lin, he harbored dissenting views of the government before he left China in 1997.  However, he did not do anything to publicly express his political views until after he arrived in the U.S.

In December 2007, Lin joined an organization called China Democratic Party World Union (“CDPWU”). He also wrote essays for the CDPWU website criticizing the Chinese Communist Party. Finally, he participated in group protests at the Chinese Consulate General’s Office in New York City and at the Chinese Embassy in Washington.

Immigration Judge and BIA did not find changed circumstances
Lin's case was heard by an immigration judge (IJ) in New York, who found that the recent expression of his long-held views of the Chinese government did not constitute changed circumstances. According to the IJ, these new activities did not constitute a new reason to justify asylum. The judge also believed that Lin's activities were relatively mild and so far removed from China.  There was little chance that the Chinese government would take note of Lin's activities and punish him. The BIA agreed with the judge's decision.

Second Circuit held Lin's U.S. activities constituted changed circumstances
Lin appealed the case to the Second Circuit Court of Appeals. The Second Circuit held that the IJ and BIA decisions were wrong as a matter of law.  Their decisions are inconsistent with the regulation, which interprets changed circumstances to include “activities the [asylum] applicant becomes involved in outside the country of feared persecution that place the applicant at risk,” 8 C.F.R. § 1208.4(a)(4)(i)(B).

Secondly, their decisions are also inconsistent with BIA decisions dealing with "second child" issues.  In those cases, applicant's giving birth to a second child was recognized as changes in personal circumstances which would increase the likelihood of persecution.  See In re T-M-H- & S-W-C-, 25 I. & N. Dec. 193 (BIA 2010). These applicants are similar to Lin in that their viewpoints did not change but their actions expressing their viewpoints changed.

The Second Circuit left the question of whether or not Lin should be granted asylum to the IJ and BIA. It also invited the BIA to issue more binding decisions relating to this important issue.

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