Thurgood Marshall U.S. Courthouse at 40 Foley Square
Thurgood Marshall U.S. Courthouse at 40 Foley Square (Bjoertvedt/Wikimedia)

A federal appellate court is seeking guidance from the Board of Immigration Appeals on the standards at play when a foreigner living in the United States seeks asylum based on political activities that occurred in this country.

The U.S. Court of Appeals for the Second Circuit sent the matter of Weinong Lin back to the Board of Immigration Appeals because of a legal error, but pleaded with the tribunal for a “careful precedential opinion” setting “some guidelines on how to judge similar cases in the future.”

Lin v. Holder, 12-179-ag, centers on a Chinese man who fled his homeland in 1999 because of what he described as “autocracy and corruption.”

Lin did not publicly express his anti-communist beliefs until late 2007 when he joined the China Democratic Party World Union (CDPWU), wrote essays denouncing the Chinese Communist Party and began participating in protests at the Chinese Consulate General’s Office in New York City and at the Chinese Embassy in Washington.

In 2008, Lin petitioned for asylum and protection under the Convention Against Torture, claiming that his recent political activism puts him at grave risk if he is removed to China. Lin’s bid for sanctuary came long after the one-year window of opportunity, raising a question of whether his public connection with the CDPWU and his anti-communist activities amounted to a change in circumstances that would extend the deadline for seeking asylum.

Immigration Judge Alan Vomacka denied Lin’s application and declared him removable, reasoning that the new facts did not create “a new reason for asylum, but another aspect of the same reason that the applicant always had to apply for asylum.” Vomacka also surmised that there is no likelihood that Lin would suffer persecution or torture if he is returned to China.

The Board of Immigration Appeals affirmed, setting up an appeal to the Second Circuit on the central issue of whether Lin’s political activity since 2007 could be considered a “changed circumstance” since it continued or extended the reasons why he left China in the first place.

At the outset, circuit judges Guido Calabresi (See Profile), Dennis Jacobs (See Profile) and Rosemary Pooler (See Profile) rejected the government’s contention that the Second Circuit lacked jurisdiction. The panel acknowledged that it lacks fact-finding review powers in an asylum case, but said this case presents an obvious question of law over which the court clearly has authority.

“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 article he published online, then 8 U.S.C. Section 1158 (a)(3) might divest us of jurisdiction,” Calabresi wrote for the unanimous panel. “But Lin is not challenging a finding of fact here; rather, he is challenging the [Board of Immigration Appeals'] categorical holding that, even if the facts about a person’s objective circumstance 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.”

On the legal question, the circuit said the conclusion by Vomacka and the appeals board “is in tension with a controlling [Department of Justice] regulatory interpretation of the asylum provision,” and “constitutes an unexplained, and therefore impermissible departure from prior agency precedent.”

Calabresi said Justice Department regulations make plain that activities of an asylum applicant outside of the homeland can constitute changed circumstances, but neither Vomacka nor the board mentioned the regulation in considering Lin’s petition.

“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,” Calabresi wrote.

The court said the immigrant judge and board failed “to consider whether, in a given case, a change in activity has increased the petitioner’s risk profile,” marking “an unexplained departure” from prior board decisions.

In remanding, the circuit said it would be “extremely helpful” if the board provided precedential guidance on a host of issues, including: what principles govern the assessment of an asylum bid when the petitioner “initiates or intensifies public opposition to the home regime” only after arriving in the United States; how the risk of persecution should be determined; and the degree to which the applicant’s sincerity is a factor.

“Synthesizing the complex strains that go into interpreting the statutory words ‘changed circumstances’ is anything but easy,” Calabresi wrote. “And the [Board of Immigration Appeals] is best-suited to do so in the first instance, keeping the regulatory goals of the [Department of Justice] in mind.”

The appeal was argued Feb. 6 by Gary Yerman of Manhattan for Lin and Margaret Kuehne Taylor of the Department of Justice in Washington, D.C. for the government.