Liying Qiu v. Sessions
870 F.3d 1200
| 10th Cir. | 2017Background
- Petitioner Liying Qiu, a Chinese national and unregistered (house) church Christian, previously applied for asylum/withholding; IJ denied in 2011 and BIA affirmed in 2013.
- Petitioner filed a motion to reopen in December 2015 claiming changed country conditions: a marked escalation in Chinese government persecution of Christians in 2014–2015 and new direct threats to her family.
- Evidence submitted included NGO reports, a 2015 U.S. Commission on International Religious Freedom report describing unprecedented/"most egregious" post-2014 abuses (church demolitions, targeting of house churches), and State Department material.
- Petitioner also submitted a sworn statement from her mother describing a May 2015 police raid, detention, beatings, seizure of Christian materials, and medical records documenting bruises.
- The BIA denied the motion to reopen as untimely, finding Petitioner failed to show changed country conditions and rejecting the mother’s statement as unreliable and irrelevant.
- The Tenth Circuit held that the BIA abused its discretion, remanding for further consideration (granting the petition).
Issues
| Issue | Qiu's Argument | Government's Argument | Held |
|---|---|---|---|
| Timeliness / motion to reopen based on changed country conditions | Evidence shows significant post-2011 deterioration in treatment of Christians; no time limit applies if conditions changed materially | BIA: petitioner failed to show conditions worsened since 2011, so motion is untimely | Court: BIA abused its discretion; record showed substantial evidence of worsening conditions and BIA gave no rational explanation |
| Whether a significant increase in persecution can be a "material" changed country condition | A substantial increase in persecution is a material change warranting reopening | Implicit: past repression existed; therefore new evidence is cumulative/irrelevant | Court: a significant increase is material; BIA must assess such evidence (aligning with other circuits) |
| Reliability of mother’s statement (unsworn / prepared for litigation) | Mother’s statement is sworn and supported by medical records; timing/preparation for litigation does not make it per se unreliable | BIA: statement unreliable because unsworn and prepared for litigation | Court: BIA erred—statement was sworn; cannot reject solely because created for litigation; timing alone insufficient to deem unreliable |
| Relevance of mother’s incidents to Qiu’s fear of future persecution | Mother’s persecution in China is directly relevant to Qiu’s risk if removed to same locale | BIA: incidents are "not similarly situated" because they occurred in China not the U.S., thus irrelevant | Court: rejecting relevance on that basis is nonsensical; mother’s experiences in China are directly relevant to Qiu’s risk if returned |
Key Cases Cited
- Maatougui v. Holder, 738 F.3d 1230 (10th Cir. 2013) (standard of review for BIA denial of motion to reopen)
- Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004) (agency abuse-of-discretion when decisions lack substantial evidence or legal basis)
- Paul v. Gonzales, 444 F.3d 148 (2d Cir. 2006) (significant worsening of persecution bears on likelihood of future persecution; BIA must consider)
- Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005) (BIA abused discretion by treating evidence of accelerating deterioration as merely cumulative)
- Shu Han Liu v. Holder, 718 F.3d 706 (7th Cir. 2013) (BIA must consider evidence that persecution of Christians worsened since original hearing)
- Chandra v. Holder, 751 F.3d 1034 (9th Cir. 2014) (BIA abused its discretion when failing to assess evidence of deteriorated conditions)
- Jiang v. U.S. Attorney Gen., 568 F.3d 1252 (11th Cir. 2009) (BIA improperly discounted recent increased enforcement of China’s one-child policy)
- Yu Yun Zhang v. Holder, 702 F.3d 878 (6th Cir. 2012) (courts should not dismiss letters/statements as unreliable solely because unsworn or written for litigation)
- Zuh v. Mukasey, 547 F.3d 504 (4th Cir. 2008) (courts have relied on unsworn statements in asylum adjudications; requiring sworn/notarized statements may be untenable)