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Keywords

asylum
hearingmotionasylum

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Qui Yun Chen v. Holder

Facts

The petitioner entered the United States in 1997 and applied for asylum in 2007, claiming that upon the birth of her second child, local authorities in her Chinese village ordered her to report for sterilization. She argued that without undergoing sterilization, she would be unable to register her children, which would deny them access to public services. The BIA dismissed her claims, stating that her children being born abroad exempted her from sterilization threats, despite evidence to the contrary.

She testified at the hearing before the immigration judge that shortly after the birth of this child the local authorities in the Chinese village from which she comeswho may have learned of the birth from her parents' having, as is customary, thrown a party to celebrate itordered her (via a letter to her father) to report within five days for sterilization; and that when she didn't report, the authorities revoked her village registration.

Issue

Did the petitioner demonstrate a well-founded fear of persecution in the form of forced sterilization if she returned to China?

Did the petitioner demonstrate a well-founded fear of persecution in the form of forced sterilization if she returned to China?

Rule

An asylum application is timely if the applicant shows 'changed circumstances which materially affect the applicant's eligibility for asylum,' even if these changes are not in the country of feared persecution.

Unlike a motion to reopen a removal proceeding following a final order of removal, an asylum application is still timely after the one-year deadline has passed if the applicant demonstrates 'changed circumstances which materially affect the applicant's eligibility for asylum,' 8 U.S.C. 1158(a)(2)(D) , even if they aren't changed circumstances in 'the country of feared persecution.'

Analysis

The court found that the BIA had failed to adequately consider the evidence presented by the petitioner, including the Robert Lin document, which indicated that sterilization was mandatory for violators of the one-child policy. The court noted that the BIA's reasoning was flawed as it ignored the implications of the petitioner's children being U.S. citizens and the potential consequences of her not being sterilized upon return to China.

The BIA also refused to give any weight to letters from the alien's family although were doubtless authentic. Considerable uncertainty about the application of the one-child policy, and about the sanctions for violating it when a second or subsequent Chinese child was born abroad, remained.

Conclusion

The court vacated the BIA's order and remanded the case for further proceedings, emphasizing the need to consider all relevant evidence regarding the risks the petitioner faced.

The order was vacated and the case was remanded.

Who won?

The petitioner prevailed because the court found that the BIA had not properly considered the evidence of potential forced sterilization and the implications of the one-child policy.

The petitioner prevailed because the court found that the BIA had not properly considered the evidence of potential forced sterilization and the implications of the one-child policy.

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