   12-179-ag
   Lin v. Holder

                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                   August Term, 2013

              (Argued: February 6, 2014              Decided: August 19, 2014)

                                 Docket No. 12-179-ag


                                   WEINONG LIN,

                                          Petitioner,

                                            – v. –

                ERIC H. HOLDER, JR., United States Attorney General,

                                       Respondent,


Before: JACOBS, CALABRESI and POOLER, Circuit Judges.

      Appeal from a Board of Immigration Appeals decision affirming an Immigration

Judge’s declaration that, inter alia, Petitioner’s application for asylum was untimely.

Petitioner argued that his recent turn to public political activism had produced “changed

circumstances” that excused untimeliness pursuant to 8 U.S.C. § 1158(a)(2)(D), but the

Immigration Judge held that because Petitioner’s activism reflected views he had when he

emigrated, the activism did not constitute “changed circumstances.” We conclude that this

decision was erroneous, and we REMAND for reconsideration.


                                  GARY J. YERMAN, New York, NY, for Petitioner.

                                  MARGARET KUEHNE TAYLOR (Stuart Delery and
                                  David V. Bernal, on the brief ), United States Department
                                  of Justice, Washington, DC, for Respondent.


                                      1
CALABRESI, Circuit Judge:

      This case concerns whether political activity first undertaken in the United


States amounts to “changed circumstances” for purposes of the asylum provision of


the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158. Weinong Lin, a


native and citizen of China who entered the United States as a non-immigrant in


1999, avows that he fled China because of his experience with “autocracy and


corruption” there, Appellant’s Br. at 5, that he harbored private anti-communist


political beliefs when he left China, but that he did not publicly express those views


until December 2007, when he joined the China Democratic Party World Union


(“CDPWU”), wrote essays for the CDPWU website criticizing the Chinese


Communist Party, and began attending group protests at the Chinese Consulate


General’s Office in New York City and at the Chinese Embassy in Washington.




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                                           I



      On May 20, 2008, Lin petitioned for (i) asylum under § 208 of the INA, 8


U.S.C. § 1158, (ii) withholding of removal under § 241(b)(3) of the INA, 8 U.S.C. §


1231(b)(3), and (iii) protection under the Convention Against Torture (“CAT”)


pursuant to 8 C.F.R. § 1208.16(c)(2). The Department of Homeland Security


responded by charging Lin with the very removability that he had preemptively


asked the government not to prosecute. After a hearing in October 2009,


Immigration Judge (“IJ”) Alan Vomacka denied Lin’s application for relief and


declared him removable. The IJ acknowledged that Lin’s membership in and his


activities with the CDPWU, and the publicity concerning those activities, “are new


facts” and “new activity,” but ruled as “a question of legal interpretation” that these


new facts were not “a new reason to apply for asylum, but another aspect of the


same reason that the applicant always had to apply for asylum.” Certified


Administrative Record (“CAR”) in A089-266-864, at 79. Having made that ruling,




                                           3
which precluded relief, the IJ went on to see no “probability of persecution or


torture” because the activities are far removed from China, entailed no destruction of


property that might provoke an interest in persecution, involved critical articles that


were nevertheless “relatively calm and based in reasoned criticism,” would be


unlikely to attract the notice of Chinese authorities, and involved protest


photographs from which identification of Lin “might be possible” but “would not be


easy.” Id. at 83, 84. Further, the IJ expressed the view, based on the scrupulous


photographic records that the CDPWU made of its protest activities, that the group


seems more devoted to documenting its activity than on having an effect. The IJ


found “no evidence of an actual link” between the CDPWU and the Chinese


Democratic Party (“CDP”) group that was oppressed in China, id. at 87, or that any


member of the CDPWU “has ever been persecuted or prosecuted in China,” id.



      As to Lin’s credibility, the IJ found there was “an issue” that was, however,


“difficult to resolve in a comprehensive way,” id. at 88, even though there seemed to




                                           4
be no “major discrepancies or inconsistencies in [Lin’s] testimony concerning his


activities with the [CDPWU],” id. at 89, and “his answers on that subject appear[ed]


to be consistent,” id. In the end, the IJ did not resolve competing insights and made


no credibility finding. The “real weakness” of Lin’s case was found to be lack of


corroboration “concerning events in China,” which is not a ruling that bears on


issues of law concerning Lin’s claimed vulnerability for acts done in this country. Id.


at 90.



         In affirming, the Board of Immigration Appeals (“BIA”) agreed with the IJ on


the point of law. The BIA went on to rule that, “[e]ven assuming for the sake of


argument that the respondent established changed circumstances, upon our de novo


review,” Lin did not show a well-founded fear of persecution on an enumerated


ground. Id. at 3. However, in agreeing with the IJ, the BIA drew inferences that the


IJ did not draw concerning the likelihood that the Chinese government would know


or care about Lin’s activity in the United States.




                                           5
                                           II



      Under the INA, an immigrant must apply for asylum within one year of


arriving in the United States, or must show either “changed circumstances which


materially affect the applicant’s eligibility for asylum” or “extraordinary


circumstances” that prevented him from applying. 8 U.S.C. § 1158(a)(2)(D).


Importantly, the “changed circumstances” standard is more expansive than the


standard applicable in cases involving motions to reopen, where only a change in


“country conditions” will suffice to allow reopening. See Shao v. Mukasey, 546 F.3d


138, 146-48, 169 (2d Cir. 2008); Jin v. Mukasey, 538 F.3d 143, 151 (2d Cir. 2008)


(“Unlike in the case of a successive asylum application filed under 8 U.S.C. §


1158(a)(2)(D), changed personal circumstances are insufficient to excuse an alien


from the procedural requirements of a motion to reopen”).




                                           6
      Both the IJ and the BIA rejected Lin’s contention that his CDPWU activism


constituted “changed circumstances” that would increase his risk of persecution back


in China. The BIA wrote: “[Lin’s] joining the CDPWU party is a continuation of the


same reason that [he] left China, and we therefore agree with the Immigration Judge


that [Lin] failed to show that his joining the CDPWU . . . constituted changed


circumstances excusing the delay in filing his application.” CAR at 3-4. Because this


position is in tension with Department of Justice (“DOJ”) regulations and prior BIA


opinions, we grant Lin’s petition for review and remand the BIA’s judgment for


reconsideration.



      We decline to review the fact issues that bear on whether Lin should be


granted asylum. While the BIA (expanding on largely inchoate and speculative


comments by the IJ) purported to find facts that might have been decisive if found by


the IJ, the BIA has no power to find facts. See 8 C.F.R. § 1003.1(d)(3)(i). To the


extent, therefore, that the BIA’s alternate holding is based on its fact-finding, that




                                            7
constitutes reversible error. To the extent, instead, that the alternate holding might be


based on fact-finding by the IJ, we note that when there is an error of law (or as here


a substantial and potentially decisive question of law) “that might have colored the


findings of fact,” it is permissible for us to remand. Acharya v. Holder, No. 11-4362-ag,


2014 WL 3821132, at *9-10 (2d Cir. Aug. 5, 2014) (remanding because “the IJ


committed numerous ‘combined legal and factual errors’ in evaluating Acharya’s


claim that he was persecuted on the basis of his political belief . . . [that] were not


corrected on appeal before the BIA”). We do so here.




                                            III



       Contrary to the government’s threshold argument, we plainly have jurisdiction


to consider Lin’s argument about “changed circumstances.” Though 8 U.S.C. §


1158(a)(3) strips this Court of jurisdiction to review agency determinations of fact in


asylum cases, 8 U.S.C. § 1252(a)(2)(D) makes clear that we retain jurisdiction to



                                             8
review “constitutional claims” and “issues of law.” See, e.g., Liu v. INS, 508 F.3d 716,


720-22 (2d Cir. 2007) (per curiam). Here, Lin is disputing the BIA’s conclusion that


his public political activity could not produce changed circumstances because it


constituted a “continuation of the same reason” he left China. This argument


concerns the meaning of “changed circumstances” under the INA. Because


interpretive questions are “questions of law,” we have jurisdiction under §


1252(a)(2)(D) to consider Lin’s argument. See, e.g., Shi Jie Ga v. Holder, 588 F.3d 90,


94-95 (2d Cir. 2009).



      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 articles he published online, then 8 U.S.C. § 1158(a)(3)


might divest us of jurisdiction. But Lin is not challenging a finding of fact here;


rather, he is challenging the BIA’s categorical holding that, even if the facts about a


person’s objective circumstances change, when they are altered by actions driven by




                                            9
“the same reason” that led to a decision to emigrate, they cannot constitute changed


circumstances. And that is manifestly a question of law. The IJ in this case


acknowledged as much when he characterized the issue as “a question of legal


interpretation.” CAR at 117. In 8 U.S.C. § 1252(a)(2)(D), Congress recognized our


appellate jurisdiction over that kind of question.




                                           IV



      The INA’s asylum provision states that an otherwise untimely asylum


application “may be considered . . . if the alien demonstrates . . . the existence of


changed circumstances which materially affect the applicant’s eligibility.” 8 U.S.C. §


1158(a)(2)(D). To be eligible for asylum, an immigrant must show either that she


suffered past persecution on the basis of “race, religion, nationality, membership in a


particular social group, or political opinion,” or that she has a “well-founded fear of


persecution” on one of those bases in her home country. 8 U.S.C. § 1101(a)(42). In



                                           10
Lin’s case, eligibility for asylum turns on whether he has a “well-founded fear” of


political persecution. Thus, his application’s untimeliness can be excused if he has


demonstrated that “changed circumstances . . . materially affect” the chances that he


would suffer political persecution in China. 8 U.S.C. § 1158(a)(2)(D).



      Lin argues that his new CDPWU membership and his criticism of the Chinese


Communist Party, made on the CDPWU website and in public spaces, has produced


just such changed circumstances because (he contends) officials in China can see his


public words and affiliations, and they may persecute him for them. The BIA and IJ


rejected this contention. They concluded that political activism undertaken in the


United States based on beliefs that motivated the decision to emigrate do not, as a


matter of law, produce a change in circumstances.



      The IJ, while acknowledging that Lin had engaged in “new activity” that was


relevant, focused inquiry on the fact that Lin’s activity was “motivated by the same


general dislike, dissatisfaction, and unwillingness to put up with the government of



                                          11
China” that he left unexpressed in China, but that motivated him to emigrate in the


first place. CAR at 117. The IJ conceded that he was “not positive that the analysis


[he] set out is correct”—perhaps an invitation to the BIA to clarify matters for future


cases. Id. at 118. But the BIA adopted the IJ’s analysis in a one-judge, non-


precedential decision.



      In weighing Lin’s petition for review, “[w]e examine de novo questions of law


and applications of law to undisputed fact.” Mahmood v. Holder, 570 F.3d 466, 469


(2d Cir. 2009). Because the BIA has “adopt[ed] the [IJ’s] reasoning and offer[ed]


additional commentary, we review the decision of the IJ as supplemented by the


BIA.” Id. (internal quotation marks omitted).



      For a number of reasons, the IJ and BIA seem to us to have committed an


error of law on the changed circumstances question. First, their conclusion is in


tension with a controlling DOJ regulatory interpretation of the asylum provision.


Second, their decision constitutes an unexplained, and therefore impermissible,



                                          12
departure from prior agency precedent. See New York Pub. Interest Research Grp., Inc. v.


Johnson, 427 F.3d 172, 182 (2d Cir. 2005).



       The statute states that an otherwise untimely asylum application “may be


considered . . . if the alien demonstrates to the satisfaction of the Attorney General . .


. the existence of changed circumstances which materially affect the applicant’s


eligibility.” 8 U.S.C. § 1158. While this language might admit of a range of


permissible interpretations, cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,


467 U.S. 837 (1984), the DOJ regulations interpret it to say that changed


circumstances include “activities the [asylum] applicant becomes involved in outside


the country of feared persecution that place the applicant at risk,” 8 C.F.R. §


1208.4(a)(4)(i)(B). Neither the BIA nor the IJ mentioned this regulation when


considering Lin’s case. 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. The opinions




                                             13
of the IJ and BIA state that the consistency of Lin’s anti-communist beliefs


(unexpressed in China but potentially manifested in the United States) precludes him


from arguing that his new actions provoked “changed circumstances.” In doing so,


the IJ and BIA fail to consider whether, in a given case, a change in activity has


increased the petitioner’s risk profile.



              In this respect, the opinions of the IJ and BIA decision mark an unexplained


departure from prior BIA decisions. See New York Pub. Interest Research Grp., Inc., 427


F.3d at 182. Most directly, in In re Jin Wei Gao, an unpublished (and therefore non-


precedential) decision, the BIA stated that “the fact that the respondent may now be


active in the CDP in the United States is a change in personal circumstances.”1 A079


692 001, 2008 WL 5025147, at *1 (BIA, Oct. 29, 2008). That non-precedential


opinion lacks the weight of a published opinion, see Rotimi v. Gonzalez, 473 F.3d 55,
                                                            
1
 The CDP, a political organization that “used to exist” in China and whose
members were targeted by the Chinese government, is distinct from the CDPWU.
CAR at 87. The IJ expressed deep skepticism that the CDPWU has ever had any
relationship at all with any former members of the CDP. Id. There is also a “Chinese
Democratic Party” active in the United States, but there is no evidence in the record
“about how people involved in this group were treated if they returned to China.” Id.
at 4. 

                                                               14
57 (2d Cir. 2007) (per curiam), but its conclusion regarding CDP activity seems to


follow directly from principles expressed in In re C-W-L-, which explained that


“changed circumstances” under § 1158(a)(2)(D) refers to “changes in objective


circumstances relating to the applicant,” 24 I. & N. Dec. 346, 352 n.9 (BIA 2007)


(emphasis added); cf. Shi Jie Ge, 588 F.3d at 94-96 (holding that the BIA


impermissibly considered the timeliness of an asylum application in relation to the


applicant’s date of joining the CDP, rather than his date of public action, which might


have put him at risk of persecution). This interpretation of “changed circumstances,”


alongside the regulation, makes the IJ’s and BIA’s categorical rejection of Lin’s


petition due to his unchanging subjective antipathy towards the Chinese Communist


Party untenable under existing BIA rulings. There may be ways to read the statute to


support a subjective inquiry, but the BIA has not presented us with them, so we


express no view. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).2



                                                            
2
     The
      BIA’s treatment of so-called “second child” cases also undercuts the decision in
the case before us. In those cases, the BIA has concluded that the birth of a second

                                                               15
              The IJ drew an analogy between Lin’s situation and a situation in which an


applicant points to “each new battle” in a civil war as evidence of changed country


conditions. CAR at 118. Just as every individual battle does not amount to changed


country conditions, every decision made by Lin does not, according to the IJ,


produce changed personal circumstances. The analogy is, however, flawed. While


Lin’s reasons for action stem from beliefs that have persisted over years, his actions


themselves were new.3



              We invite precedential BIA consideration of various unresolved issues that


inhere in this case. See Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 116 (2d Cir. 2006).


They are: When a petitioner initiates or intensifies public opposition to the home


regime for the first time after arrival in the United States, what principles govern the



                                                                                                                                                                                               
                                                                                                                                                                                               
child constitutes a relevant change in personal circumstances when it increases the
likelihood that an asylum applicant will be persecuted under Chinese family
planning laws. See In re T-M-H- & S-W-C-, 25 I. & N. Dec. 193 (BIA 2010). The key
thing in the second child cases is not any change in the parent’s intentions or beliefs,
but rather the objective event that has led to an increased likelihood that the
applicant now possesses a “well-founded fear of prosecution.” 
3
  Indeed, he filed for asylum “five or six months” after becoming politically active.
CAR at 114.

                                                                                            16
availability of a claim for asylum, what is an appropriate assessment of credibility as


to such a claim, and what should guide us in determining the risk of persecution if


such a claim is denied? To what extent if at all is the asylum statute concerned with


sincerity in situations like these? If sincerity is relevant, is there a presumption one


way or another? We note that when considering motions to reopen, any and all


arguments regarding changed personal circumstances are insufficient. See, e.g., Yuen


Jin v. Mukasey, 538 F.3d 143, 151-52 (2d Cir. 2008). We also note that claims of


latter-day political awakening resemble those of newfound religious conscience,


which can be “easy to manufacture.” Y.C. v. Holder, 741 F.3d 324, 338 (2d Cir. 2013).


But the sincerity problem has not been a reason to disregard or discount all (or even


most) religious conscience claims. See, e.g., Ehlert v. United States, 402 U.S. 99, 103


(1971) (stating that “those whose views are late in crystallizing” cannot be “deprived


of a full and fair opportunity to present the merits of their conscientious objector


claims”).




                                            17
      While some immigrants who espouse pro-democracy views may be making a


bid to stay in the country for economic or family reasons, others may be sincerely


“respond[ing] . . . to an inward mentor.” United States v. Kauten, 133 F.2d 703, 708


(2d Cir. 1943) (discussing conscientious objection). And, significantly, motivations


may well be mixed. As to such circumstances too, guidance by the BIA, in a careful


precedential opinion, would be extremely helpful.



      The same is true in assessing the relationship of sincerity to the risk of


persecution if claims of this sort are denied. Here, too, the BIA may do well to look


to the types of considerations that have shaped its (and our) jurisprudence regarding


changed country conditions. In that area of inquiry, individualized assessment takes


on a central role, and has tended to favor investigation of the “objective[]


reasonable[ness]” of an applicant’s fear of future persecution based on changed


country conditions, not his sincerity. Lecaj v. Holder, 616 F.3d 111, 117 (2d Cir. 2010)


(stating that “speculative anxiety, however sincere,” did not count as well-founded




                                           18
fear). Additionally, the role of fact-development is central to that inquiry, as it


undoubtedly is to this one. See Shou Yung Guo v. Gonzales, 463 F.3d 109, 114-15 (2d


Cir. 2006).



       Synthesizing the complex strains that go into interpreting the statutory words


“changed circumstances” is anything but easy. And the BIA is best-situated to do so


in the first instance, keeping the regulatory goals of the DOJ in mind. See Gonzales v.


Thomas, 547 U.S. 183 (2006) (per curiam) (discussing ordinary remand rule); INS v.


Ventura, 537 U.S. 12 (2002) (per curiam) (same). For this reason, after correcting the


IJ and BIA error as to whether Lin’s pro-democracy activism was something new,


we remand the question of whether Lin adequately demonstrated, to the satisfaction


of the Attorney General, and in accordance with regulation and precedent, that


changed circumstances have resulted in an increase in his well-founded fear of


persecution based on political opinion in China. And we encourage the BIA to set




                                            19
forth, with the benefit of its institutional expertise, some guidelines on how to judge


similar cases in the future.




                                   CONCLUSION



       We GRANT the petition for review and REMAND the judgment to the BIA


for further proceedings consistent with this opinion.




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