Aimin Yang v. Eric Holder, Jr.
760 F.3d 660
| 7th Cir. | 2014Background
- Aimin Yang, a Chinese national, entered the U.S. in 1998, later married U.S. citizen Feng (Deirdre) Prestin (marriage ended in divorce); DHS initiated removal proceedings in 2003.
- Yang applied for asylum, withholding of removal, and CAT relief based on Falun Gong persecution; he filed asylum in 2007 (untimely).
- In 2011 Yang married U.S. citizen Feng Li, who filed an I-130 for him; USCIS issued a Notice of Intent to Deny alleging Yang’s prior marriage was sham, Yang/Li sent rebuttal evidence by overnight delivery but USCIS lost the materials and denied the I-130 for lack of response.
- Li appealed the I-130 denial to the BIA; the BIA remanded the I-130 to the District Director after finding USCIS had received the submission. The remand remained pending.
- At Yang’s final merits hearing, the IJ denied asylum, withholding, and CAT relief, and refused a continuance pending resolution of the I-130 (citing alleged sham second marriage and timing of Li marriage). The BIA affirmed those rulings; Yang petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum / exceptions to 1-year bar | Yang: changed or extraordinary circumstances excuse late filing based on Falun Gong persecution and events | DHS: asylum untimely; Yang failed to prove changed or extraordinary circumstances | Court: No jurisdiction to review factual findings on changed/extraordinary circumstances; affirmed denial on jurisdictional grounds |
| Withholding of removal (more-likely-than-not standard) | Yang: past mistreatment in China and risk from Chinese awareness of U.S. Falun Gong activities justify withholding | DHS: evidence insufficient that Chinese authorities know of or would punish Yang; also Yang failed to comply with biometrics requirement | Held: IJ/Board did not abuse discretion; independent denial valid based on failure to update biometrics; withholding denied |
| CAT relief | Yang: risk of torture on return to China | DHS: record does not show likelihood of torture | Held: Denial affirmed; factual record insufficient to show CAT protection needed |
| Motion for continuance pending I-130 adjudication | Yang: USCIS negligence lost rebuttal materials; continuance warranted under BIA Hashmi factors because petition was prima facie approvable and delay caused by government | DHS/IJ: continuance denied—claimed prior marriage shown to be sham and Li marriage timing undercuts request | Held: Denial was abuse of discretion; IJ relied on non-reasons and ignored USCIS’s loss of petitioner’s evidence; petition for review granted and case remanded for further proceedings on continuance/I-130 coordination |
Key Cases Cited
- INS v. Stevic, 467 U.S. 407 (Sup. Ct.) (establishes "more likely than not" standard for withholding of removal)
- Umezurike v. Holder, 610 F.3d 997 (7th Cir. 2010) (failure to comply with biometrics can independently justify denial; vague excuses insufficient)
- Calma v. Holder, 663 F.3d 868 (7th Cir. 2011) (standard of review for continuance denials; Board’s guidance on continuances)
- Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (denial based on non-reason is abuse of discretion)
- Mabasa v. Gonzales, 455 F.3d 740 (7th Cir. 2006) (REAL ID Act limits judicial review of certain asylum-time-bar determinations)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir.) (treating changed/extraordinary circumstances as factual questions outside REAL ID Act review)