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Lin v. Holder

United States Court of Appeals, Second Circuit

August 19, 2014

WEINONG LIN, Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General, Respondent,

Argued February 6, 2014

Appeal from a Board of Immigration Appeals decision affirming an Immigration Judge's declaration that, inter alia, Petitioner's application for asylum was untimely. Petitioner argued that his recent turn to public political activism had produced " changed circumstances" that excused untimeliness pursuant to 8 U.S.C. § 1158(a)(2)(D) , but the Immigration Judge held that because Petitioner's activism reflected views he had when he emigrated, the activism did not constitute " changed circumstances." We conclude that this decision was erroneous, and we REMAND for reconsideration.

GARY J. YERMAN, New York, NY, for Petitioner.

MARGARET KUEHNE TAYLOR (Stuart Delery and David V. Bernal, on the brief), United States Department of Justice, Washington, DC, for Respondent.

Before: JACOBS, CALABRESI and POOLER, Circuit Judges.

OPINION

Page 245

CALABRESI, Circuit Judge

This case concerns whether political activity first undertaken in the United States amounts to " changed circumstances" for purposes of the asylum provision of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1158. Weinong Lin, a native and citizen of China who entered the United States as a non-immigrant in 1999, avows that he fled China because of his experience with " autocracy and corruption" there, Appellant's Br. at 5, that he harbored private anti-communist political beliefs when he left China, but that he did not publicly express those views until December 2007, when he joined the China Democratic Party World Union (" CDPWU" ), wrote essays for the CDPWU website criticizing the Chinese Communist Party, and began attending group protests at the Chinese Consulate General's Office in New York City and at the Chinese Embassy in Washington.

I

On May 20, 2008, Lin petitioned for (i) asylum under § 208 of the INA, 8 U.S.C. § 1158, (ii) withholding of removal under § 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and (iii) protection under the

Page 246

Convention Against Torture (" CAT" ) pursuant to 8 C.F.R. § 1208.16(c)(2). The Department of Homeland Security responded by charging Lin with the very removability that he had preemptively asked the government not to prosecute. After a hearing in October 2009, Immigration Judge (" IJ" ) Alan Vomacka denied Lin's application for relief and declared him removable. The IJ acknowledged that Lin's membership in and his activities with the CDPWU, and the publicity concerning those activities, " are new facts" and " new activity," but ruled as " a question of legal interpretation" that these new facts were not " a new reason to apply for asylum, but another aspect of the same reason that the applicant always had to apply for asylum." Certified Administrative Record (" CAR" ) in A089-266-864, at 79. Having made that ruling, which precluded relief, the IJ went on to see no " probability of persecution or torture" because the activities are far removed from China, entailed no destruction of property that might provoke an interest in persecution, involved critical articles that were nevertheless " relatively calm and based in reasoned criticism," would be unlikely to attract the notice of Chinese authorities, and involved protest photographs from which identification of Lin " might be possible" but " would not be easy." Id. at 83, 84. Further, the IJ expressed the view, based on the scrupulous photographic records that the CDPWU made of its protest activities, that the group seems more devoted to documenting its activity than on having an effect. The IJ found " no evidence of an actual link" between the CDPWU and the Chinese Democratic Party (" CDP" ) group that was oppressed in China, id. at 87, or that any member of the CDPWU " has ever been persecuted or prosecuted in China," id.

As to Lin's credibility, the IJ found there was " an issue" that was, however, " difficult to resolve in a comprehensive way," id. at 88, even though there seemed to be no " major discrepancies or inconsistencies in [Lin's] testimony concerning his activities with the [CDPWU]," id. at 89, and " his answers on that subject appear[ed] to be consistent," id. In the end, the IJ did not resolve competing insights and made no credibility finding. The " real weakness" of Lin's case was found to be lack of corroboration " concerning events in China," which is not a ruling that bears on issues of law concerning Lin's claimed vulnerability for acts done in this country. Id. at 90.

In affirming, the Board of Immigration Appeals (" BIA" ) agreed with the IJ on the point of law. The BIA went on to rule that, " [e]ven assuming for the sake of argument that the respondent established changed circumstances, upon our de novo review," Lin did not show a well-founded fear of persecution on an enumerated ground. Id. at 3. However, in agreeing with the IJ, the BIA drew inferences that the IJ did not draw concerning the ...


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