Lin v. Holder

• Decision Date: 19 August 2014
• Docket Number: Docket No. 12–179–ag.
• Citation: 763 F.3d 244
• Parties: WEINONG LIN, Petitioner, v. Eric H. HOLDER, JR., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

763 F.3d 244

WEINONG LIN, Petitioner,

v.Eric H. HOLDER, JR., United States Attorney General, Respondent.

Docket No. 12–179–ag.

United States Court of Appeals, Second Circuit.

Argued: Feb. 6, 2014.

Decided: Aug. 19, 2014.

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.

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 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 likelihood that the Chinese government would know or care about Lin's activity in the United States.

II

Under the INA, an immigrant must apply for asylum within one year of arriving in the United States, or must show either “changed circumstances which materially affect the applicant's eligibility for asylum” or “extraordinary circumstances” that prevented him from applying. 8 U.S.C. § 1158(a)(2)(D). Importantly, the “changed circumstances” standard is more expansive than the standard applicable in cases involving motions to reopen, where only a change in “country conditions” will suffice to allow reopening. See Shao v. Mukasey, 546 F.3d 138, 146–48, 169 (2d Cir.2008); Jin v. Mukasey, 538 F.3d 143, 151 (2d Cir.2008) (“Unlike in the case of a successive asylum application filed under 8 U.S.C. § 1158(a)(2)(D), changed personal circumstances are insufficient to excuse an alien from the procedural requirements of a motion to reopen”).

Both the IJ and the BIA rejected Lin's contention that his CDPWU activism constituted “changed circumstances” that would increase his risk of persecution back in China. The BIA wrote: “[Lin's] joining the CDPWU party is a continuation of the same reason that [he] left China, and we therefore agree with the Immigration Judge that [Lin] failed to show that his joining the CDPWU ... constituted changed circumstances excusing the delay in filing his application.” CAR at 3–4. Because this position is in tension with Department of Justice (“DOJ”) regulations and prior BIA opinions, we grant Lin's petition for review and remand the BIA's judgment for reconsideration.

We decline to review the fact issues that bear on whether Lin should be granted asylum. While the BIA (expanding on largely inchoate and speculative comments by the IJ) purported to find facts that might have been decisive if found by the IJ, the BIA has no power to find facts. See8 C.F.R. § 1003.1(d)(3)(i). To the extent, therefore, that the BIA's alternate holding is based on its fact-finding, that constitutes reversible error. To the extent, instead, that the alternate holding might be based on fact-finding by the IJ, we note that when there is an error of law (or as here a substantial and potentially decisive question of law) “that might have colored the findings of fact,” it is permissible for us to remand. Acharya v. Holder, No. 11–4362–ag, 761 F.3d 289, 300–02, 2014 WL 3821132, at *9–10 (2d Cir. Aug. 5, 2014) (remanding because “the IJ committed numerous ‘combined legal and factual errors' in evaluating Acharya's claim that he was persecuted on the basis of his political belief ... [that] were not corrected on appeal before the BIA”). We do so here.

III

Contrary to the government's threshold argument, we plainly have jurisdiction to consider Lin's argument about “changed circumstances.” Though 8 U.S.C. § 1158(a)(3) strips this Court of jurisdiction to review agency determinations of fact in asylum cases, 8 U.S.C. § 1252(a)(2)(D) makes clear that we retain jurisdiction to review “constitutional claims” and “issues of law.” See, e.g., Liu v. INS, 508 F.3d 716, 720–22 (2d Cir.2007) (per curiam). Here, Lin is disputing the BIA's conclusion that his public political activity could not produce changed circumstances because it constituted a “continuation of the same reason” he left China. This argument concerns the meaning of “changed circumstances” under the INA. Because interpretive questions are “questions of law,” we have jurisdiction under § 1252(a)(2)(D) to consider Lin's argument. See, e.g., Shi Jie Ge v. Holder, 588 F.3d 90, 94–95 (2d Cir.2009).

To be clear, if Lin were arguing about how many times he protested outside the Chinese Embassy, or about whether the Chinese authorities were capable of accessing the pro-democracy articles he published online, then 8 U.S.C. § 1158(a)(3) might divest us of jurisdiction. But Lin is not challenging a finding of fact here; rather, he is challenging the BIA's categorical holding that, even if the facts about a person's objective circumstances change, when they are altered by actions driven by “the same reason” that led to a decision to emigrate, they cannot constitute changed circumstances. And that is manifestly a question of law. The IJ in this case acknowledged as much when he characterized the issue as “a question of legal interpretation.” CAR at 117. In 8 U.S.C. § 1252(a)(2)(D), Congress recognized our appellate jurisdiction over that kind of question.

IV

The INA's asylum provision states that an otherwise untimely asylum application “may be considered ... if the alien demonstrates ... the existence of changed circumstances which materially affect the applicant's eligibility.” 8 U.S.C. § 1158(a)(2)(D). To be eligible for asylum, an immigrant must show either that she suffered past persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion,” or that she has a “well-founded fear of persecution” on one of those bases in her home country. 8 U.S.C. § 1101(a)(42). In Lin's case, eligibility for asylum turns on whether he has a “well-founded fear” of political persecution. Thus, his application's untimeliness can be excused if he has demonstrated that “changed circumstances ... materially affect” the chances that he would suffer political persecution in China. 8 U.S.C. § 1158(a)(2)(D).

Lin argues that his new CDPWU membership and his criticism of the Chinese Communist Party, made on the CDPWU website and in public spaces, has produced just such...