CA2 on 'Changed Circumstances,' Asylum: Lin v. Holder

CA2 on 'Changed Circumstances,' Asylum: Lin v. Holder

"The statute states that an otherwise untimely asylum application “may be considered . . . if the alien demonstrates to the satisfaction of the Attorney General . . . the existence of changed circumstances which materially affect the applicant’s eligibility.”  8 U.S.C. § 1158.  While this language might admit of a range of permissible interpretations, cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the DOJ regulations interpret it to say that changed circumstances 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). Neither the BIA nor the IJ mentioned this regulation when considering Lin’s case.  More significantly, this regulation—indicating as it does that an applicant’s activities might spur an increased risk that constitutes changed circumstances—calls into question the categorical ruling in Lin’s case.  The opinions of the IJ and BIA state that the consistency of Lin’s anti-communist beliefs (unexpressed in China but potentially manifested in the United States) precludes him from arguing that his new actions provoked “changed circumstances.”  In doing so, the IJ and BIA fail to consider whether, in a given case, a change in activity has increased the petitioner’s risk profile.  In this respect, the opinions of the IJ and BIA decision mark an unexplained departure from prior BIA decisions. ...

We invite precedential BIA consideration of various unresolved issues that inhere in this case. ... They are: When a petitioner initiates or intensifies public opposition to the home regime for the first time after arrival in the United States, what principles govern the availability of a claim for asylum, what is an appropriate assessment of credibility as to such a claim, and what should guide us in determining the risk of persecution if such a claim is denied? To what extent if at all is the asylum statute concerned with sincerity in situations like these?  If sincerity is relevant, is there a presumption one way or another? ...

[A]fter correcting the IJ and BIA error as to whether Lin’s pro-democracy activism was something new, we remand the question of whether Lin adequately demonstrated, to the satisfaction of the Attorney General, and in accordance with regulation and precedent, that changed circumstances have resulted in an increase in his well-founded fear of persecution based on political opinion in China.  And we encourage the BIA to setforth, with the benefit of its institutional expertise, some guidelines on how to judge similar cases in the future." - Lin v. Holder, Aug. 19, 2014.  [Hats off to Gary J. Yerman!]