Haiyan Chen v. Jefferson B. Sessions III
707 F. App'x 415
| 7th Cir. | 2018Background
- Chen, a Chinese national from Fujian, entered the U.S. unlawfully in 2004, later had two U.S.-born children, and was placed in removal proceedings in 2010.
- She applied for asylum, withholding of removal, and CAT protection, alleging fear of persecution for practicing Falun Gong and for violating China’s one-child policy.
- The IJ questioned timeliness because Chen filed asylum more than one year after arrival; he gave Chen opportunities to submit evidence and suggested administrative closure but ultimately denied asylum as untimely and denied withholding/CAT relief on the merits.
- On appeal to the BIA, Chen challenged the IJ’s merits findings (Falun Gong and opposition to the one-child policy) but did not meaningfully challenge the IJ’s ruling that her asylum application was untimely nor argue exceptions to the one-year bar.
- The BIA held Chen waived any challenge to the IJ’s timeliness ruling for failing to raise it before the Board and affirmed denial of withholding/CAT relief based on credibility and insufficient evidence.
- The Seventh Circuit denied Chen’s petition for review, holding she failed to exhaust administrative remedies by not raising the timeliness/exception arguments before the BIA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chen preserved challenge to IJ’s denial of asylum as untimely | Chen contends she raised timeliness indirectly and the BIA’s waiver rule is "standard-less" | Government/BIA: Chen waived the issue by not meaningfully raising it before the BIA | Court: Waiver; Chen did not exhaust administrative remedies and thus cannot seek review |
| Whether a single sentence in Chen’s BIA brief suffices to exhaust a timeliness exception | Chen: A sentence about changed caselaw and one-child policy implicates timeliness via exception | BIA/Gov: That sentence addressed merits, not the one-year filing rule or exceptions | Court: Not sufficient; brief was silent on IJ’s timeliness ruling or exceptions |
| Whether the BIA’s reliance on In re R-A-M- (footnote) is permissible | Chen: R-A-M- footnote creates no standards and is insufficient to support waiver finding | BIA/Gov: R-A-M- reflects ordinary waiver principle that issues not raised are waived | Court: R-A-M- application was sound; waiver doctrine applies |
| Whether failure to exhaust bars review of asylum eligibility | Chen: Seeks review despite not presenting exception arguments to BIA | Gov: 8 U.S.C. § 1252(d)(1) and exhaustion require presenting claims to BIA first | Court: Exhaustion required; petition for review denied |
Key Cases Cited
- Chen v. Holder, 715 F.3d 207 (7th Cir. 2013) (one-child policy enforcement can support asylum claims in some Fujian cases)
- Zheng v. Holder, 722 F.3d 986 (7th Cir. 2013) (Fujian province enforcement relevant to asylum determinations)
- Ni v. Holder, 715 F.3d 620 (7th Cir. 2013) (similar Fujian-related asylum precedent)
- Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (discusses waiver for unappealed IJ rulings)
- Halim v. Holder, 755 F.3d 506 (7th Cir. 2014) (issues not raised to the BIA are waived)
- Tian v. Holder, 745 F.3d 822 (7th Cir. 2014) (same waiver/exhaustion principle)
- Perez-Fuentes v. Lynch, 842 F.3d 506 (7th Cir. 2016) (failure to give BIA opportunity to address exceptions to one-year filing bar constitutes waiver)