New BIA Decision on Well Founded Fear

by Jason Dzubow

On March 26, 2010, the Board of Immigration Appeals issued a published decision in Matter of H-L-H- & Z-Y-Z, 25 I&N Dec. 209, Interim Decision # 3676 (BIA 2010).  In that case, the IJ granted asylum to a couple from China who feared persecution / forced sterilization.  DHS appealed.  The Board sustained the appeal and ordered the couple removed to China.  Some key points from that decision:

While the Immigration Judge’s findings of fact are reviewed under the “clearly erroneous” standard, the question whether the facts are sufficient to establish that the respondent has a well-founded fear of persecution upon return to China is a legal determination that we review de novo.

Determining whether a fear of what may happen in the future is well founded essentially involves predicting future events, and “it is impossible to declare as ‘fact’ things that have not yet occurred.” … We therefore review de novo the question whether the respondent has carried her burden of establishing a well-founded fear [of future persecution].

In order to determine, under de novo review, whether specific facts are sufficient to meet a legal standard such as a “well-founded fear,” the Board has authority to give different weight to the evidence from that given by the Immigration Judge…. This authority is critical to permit the Board to determine whether the facts as found by the Immigration Judge meet the relevant legal standard….

State Department reports on country conditions, including the Profiles of Asylum Claims & Country Conditions, are highly probative evidence and are usually the best source of information on conditions in foreign nations.

The Board seems to have discounted letters and news articles that did not accord with the State Department reports on China.  While it is understandable that the BIA would give significant weight to reports from the U.S. government, it seems a bad precedent to minimize evidence that may be more specific to the asylum seekers’ circumstances.

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BIA Rules on Asylum Filing Deadlines

by Jason Dzubow

In a published decision, the BIA has reversed an Immigration Judge’s ruling that an application for asylum filed within one year of “changed circumstances” was timely.  The IJ granted asylum to a couple from China who feared persecution based on the Chinese government’s coercive family planning policy.  The couple filed for asylum within one year of the birth of their second child.  The IJ found that the couple’s asylum application was filed within a reasonable period of the changed circumstances and granted relief.  In Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193, Interim Decision # 3673 (BIA 2010), the Board reversed, holding:

[W]e disagree with the Immigration Judge’s legal determination that the respondents satisfy an exception to the 1-year asylum filing deadline simply because their applications were filed within 1 year of “changed circumstances” that materially affect their eligibility for relief.

The Board noted that asylum applications must be filed within a “reasonable period” of the changed circumstances.  Normally, such reasonable period cannot exceed six months.  The BIA remanded with instructions for the IJ to determine whether the “respondents’ situation warrants an exception to the 1-year asylum application filing deadline.” 

If passed into law, the Refugee Protection Act would eliminate the one-year filing deadline and might modify the “reasonable period” examined here.

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BIA Asylum Cases to Watch

by Jason Dzubow

AILA reports on two significant asylum cases pending before the BIA:

In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases. Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief [available to AILA members only] demonstrates that this standard does apply to withholding cases. At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard. Unfortunately, AILA is not alone as amicus. The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief [ed. note: we cannot comment on the quality of the FAIR brief, since it is not available on the internet].

Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici. There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases. At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits. For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.

Given the glacial pace of the BIA, don’t expect a decision any time soon on these cases.

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