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jurisdictionhearingasylumvisa
jurisdictionhearingasylumvisa

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Shi Jie Ge v. Holder

Facts

According to his Form I-589 Application for Asylum and Withholding of Removal, which was filed on March 10, 2004, Shi Jie Ge was born in Tianjin, China, on September 11, 1961. Ge, who remains a Chinese citizen, entered the United States on a six-month visa on May 1, 2000, and has never returned to China. His wife, whom he married in 1989, and his son, who was born in 1990, remain in China. Ge eventually came to reside in Queens, New York and, on July 28, 2004, he was served there with a Notice to Appear, which charged him with being a removable alien under Section 237(a)(1)(B) of the INA, in that he had remained in the United States beyond the expiration of his visa. In a September 3, 2004 hearing before the IJ, Ge admitted to the truth of this allegation.

According to his Form I-589 Application for Asylum and Withholding of Removal, which was filed on March 10, 2004, Shi Jie Ge was born in Tianjin, China, on September 11, 1961. Ge, who remains a Chinese citizen, entered the United States on a six-month visa on May 1, 2000, and has never returned to China. His wife, whom he married in 1989, and his son, who was born in 1990, remain in China. Ge eventually came to reside in Queens, New York and, on July 28, 2004, he was served there with a Notice to Appear, which charged him with being a removable alien under Section 237(a)(1)(B) of the INA, in that he had remained in the United States beyond the expiration of his visa. In a September 3, 2004 hearing before the IJ, Ge admitted to the truth of this allegation.

Issue

Whether the BIA properly applied the 'changed circumstances exception' to the one-year filing deadline for asylum applications.

Whether the BIA properly applied the 'changed circumstances exception' to the one-year filing deadline for asylum applications.

Rule

The INA provides that any alien who is physically present in the United States may apply for asylum as long as the application is filed within one year after the date of the alien's arrival in the United States, unless there are changed circumstances that materially affect the applicant's eligibility for asylum.

The INA provides that any alien who is physically present in the United States may apply for asylum as long as the application is filed within one year after the date of the alien's arrival in the United States, unless there are changed circumstances that materially affect the applicant's eligibility for asylum.

Analysis

The court determined that it had jurisdiction because the alien raised a valid question of law concerning the BIA's application of the 'changed circumstances exception' to the one-year filing deadline. The BIA erred by focusing exclusively on the date of the alien's enrollment as a member of the CDP and ignoring his later activities as a member of the CDP. The court found that Ge's involvement in activities that placed him at risk of persecution should have been considered in determining the timeliness of his application.

The court determined that it had jurisdiction because the alien raised a valid question of law concerning the BIA's application of the 'changed circumstances exception' to the one-year filing deadline. The BIA erred by focusing exclusively on the date of the alien's enrollment as a member of the CDP and ignoring his later activities as a member of the CDP.

Conclusion

The court granted the petition for review, vacated the decision of the BIA denying the alien's claims for asylum and withholding of removal, remanded the case for further proceedings, and affirmed the denial of relief under CAT.

The court granted the petition for review, vacated the decision of the BIA denying the alien's claims for asylum and withholding of removal, remanded the case for further proceedings, and affirmed the denial of relief under CAT.

Who won?

Shi Jie Ge prevailed in part as the court found that the BIA erred in its application of the law regarding the timeliness of his asylum application.

Shi Jie Ge prevailed in part as the court found that the BIA erred in its application of the law regarding the timeliness of his asylum application.

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