Weinong Lin v. Holder
763 F.3d 244
| 2d Cir. | 2014Background
- Weinong Lin, a Chinese national, entered the U.S. in 1999 and applied for asylum in May 2008, asserting political-opinion–based fear of persecution.
- After arriving he privately held anti-communist views but only publicly engaged in political activism beginning in December 2007: joining the China Democratic Party World Union (CDPWU), publishing critical essays, and protesting at Chinese diplomatic missions.
- The Immigration Judge (IJ) found the activism were “new facts” but held as a legal matter that actions motivated by the same reasons that prompted emigration cannot constitute "changed circumstances" excusing an untimely asylum application; IJ also found weaknesses in corroboration but made no definitive credibility finding.
- The Board of Immigration Appeals (BIA) affirmed the IJ’s legal holding and, alternatively, asserted on de novo review that Lin failed to show a well‑founded fear of persecution — drawing factual inferences the IJ had not made.
- The Second Circuit granted review of the legal question whether post‑arrival political activity can qualify as "changed circumstances" under 8 U.S.C. § 1158(a)(2)(D), concluded the IJ/BIA erred as a matter of law and remanded for the BIA to reconsider under controlling regulation and precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post‑arrival political activity can constitute "changed circumstances" excusing an untimely asylum filing | Lin: membership and public activism in the U.S. are new objective activities that may increase risk and therefore are changed circumstances | Gov: activism stems from the same reasons that caused emigration, so it is not a new circumstance as a matter of law | Court: BIA/IJ erred; the issue is one of law and the BIA must reconsider because regulations treat outside‑the‑country activities as possible changed circumstances |
| Whether the BIA may make de novo factual findings the IJ did not make | Lin: BIA improperly made factual inferences beyond the IJ’s findings | Gov: BIA affirmed IJ and offered its own factual assessment | Held: BIA cannot make independent fact findings; its alternate factual conclusions are reversible error where they exceed its fact‑finding authority |
| Whether courts have jurisdiction to review BIA legal interpretation on "changed circumstances" despite limits on factual-review in asylum cases | Lin: statutory/regulatory interpretation is a question of law reviewable under 8 U.S.C. § 1252(a)(2)(D) | Gov: jurisdiction limited by 8 U.S.C. § 1158(a)(3) bar on factual review | Held: Court has jurisdiction to review legal questions about the meaning of "changed circumstances" |
| Whether BIA/IJ properly applied DOJ regulation recognizing that out‑of‑country activities can create risk | Lin: 8 C.F.R. § 1208.4(a)(4)(i)(B) supports treating U.S. political activity as a changed circumstance | Gov: relied on categorical rule excluding actions motivated by pre‑existing beliefs | Held: IJ/BIA failed to address controlling regulation and departed from prior agency decisions without explanation; remand required for BIA to apply regulation and precedent |
Key Cases Cited
- Shao v. Mukasey, 546 F.3d 138 (2d Cir.) (discussing limits on changed‑country‑conditions standard for reopening)
- Jin v. Mukasey, 538 F.3d 143 (2d Cir.) (distinguishing changed circumstances for asylum from motions to reopen)
- Shi Jie Ga v. Holder, 588 F.3d 90 (2d Cir.) (reversing impermissible BIA timing analysis regarding CDP membership versus public action)
- Liu v. INS, 508 F.3d 716 (2d Cir.) (jurisdiction to review questions of law in asylum cases)
- New York Pub. Interest Research Grp. v. Johnson, 427 F.3d 172 (2d Cir.) (agency must explain departures from precedent)
- Lecaj v. Holder, 616 F.3d 111 (2d Cir.) (objective‑reasonableness standard for well‑founded fear under changed conditions)
- Gonzales v. Thomas, 547 U.S. 183 (2006) (ordinary‑remand principle encouraging agency first‑instance resolution)