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Guest Post: Minyao Wang, The BIA’s Ruling in Matter of D-G-C- and Chinese Asylum Applications

By immigrationprof

Minyao Wang, The BIA’s Ruling in Matter of D-G-C- and Chinese Asylum Applications

Last month, the Board of Immigration Appeals issued a precedential decision in Matter of D-G-C-, 28 I & N Dec. 297 (June 7, 2021).  The decision on its face involved only an exception to the statutory one-year deadline to apply for asylum.  But it was also the Board’s belated and partial response to the invitation of the Second Circuit for a precedent on how to adjudicate the claim of an applicant who did not meet the criteria for asylum on leaving his or her country but then engaged in a qualifying activity after arriving in the United States.  Until the legal standard is further clarified, such “sur place” asylum claims will be decided inconsistently.

In Weinong Lin v. Holder, 763 F. 3d 244 (2d Cir. 2014), the U.S. Court of Appeals for the Second Circuit reviewed the asylum application of a Chinese man who did not express any anti-communist political belief during his time in China, but upon overstaying his visa joined a dissident political group in New York City.  The applicant wrote Internet essays critical of the Chinese Communist Party.  He also participated in protests in front of the Chinese consulate in Manhattan and the Chinese embassy in Washington.  The Second Circuit remanded the case to the Board for further consideration.  While not discounting genuine cases of “latter-day political awakening,” the court observed that Mr. Lin’s application raised difficult legal and policy questions that should be addressed in the first instance by the Board:        

  • What is an appropriate assessment of credibility as to such a claim?
  • What should guide adjudicators in determining the risk of persecution if such a claim is denied?
  • To what extent if at all is the asylum law concerned with sincerity in a situation like this?
  • If sincerity is relevant, is there a presumption one way or another?
  • What standard should be used to distinguish an economically motivated applicant from one “respond[ing] … to an inward mentor?”

Id. at 250 (quoting from a case on conscientious objection to military conscription). 

At the time of Weinong Lin, the Second Circuit, the Executive Office for Immigration Review and U.S. Citizenship and Immigration Services all faced a historic deluge of Chinese asylum applications.  Many of those applicants sought to stay permanently on the grounds that “they have taken up the pro-democracy cause since their arrival in the United States.”  YC v. Holder, 741 F. 3d 324, 338 (2d Cir. 2013).  The Second Circuit expressed skepticism because “pro-democracy claims may be especially easy to manufacture.  Any Chinese alien who writes something supportive of democracy (or pays for such writing to be published in his or her name) and publishes it in print or on the Internet may in some cases do so principally in order to assert that he or she fears persecution.”  Id.  The Second Circuit further noted that given the huge population of China, it would be impossible for the United States to let in every Chinese person who did not wish to live under totalitarian communism, no matter how much it sympathized with the universal wish to escape to a democratic country.  Id. (citing Mei Fun Wong v. Holder, 633 F.3d 64, 68-69 (2d Cir. 2011)).

The Board never took up the Second Circuit’s invitation in Weinong Lin to issue a published decision to guide immigration judges and asylum officers in similar cases.

The applicant in Matter of D-G-C- materially differed from the applicant in Weinong Lin in that he was already persecuted in China on a protected ground.[1]  He was detained and abused twice by Chinese police for disseminating information about Christianity.  But after entering the United States, he failed to apply for asylum within the one-year deadline.  He argued that he merited a “changed circumstances” exception, see INA § 208(a)(2)(B), because (i) while in the United States he emailed Christian proselytizing literature to people in China, and (ii) Chinese law enforcement continued to search for him.  But the Board construed the exception very narrowly, holding that “the alleged change must be significant such that it materially affects an applicant’s asylum eligibility.”  28 I &N Dec. at 301.  In the view of the Board, the applicant’s religious conduct on U.S. soil is “substantially similar to the actions he undertook in China and represents a continuation of those religious activities without a significant change.”  Id.  This was not sufficient to excuse his late filing.[2]  Id. 

It appears that had the applicant sent emails from the U.S. to China calling for (by way of example) democratic elections or an end to press censorship, his late application would have been excused because it entailed a different activity.  But it is not clear how such an application would have fared on the merits, because the pertinent questions raised in Weinong Lin remain unanswered.

Given its atrocious human rights record, China will remain a top source country for asylum applications for the foreseeable future.  There is little doubt that adjudicators will continue to confront the issues flagged in Weinong Lin.  For example, I know a large number of Chinese students, who, after failing to win a spot in the annual H1B visa lottery, immediately submitted an asylum application based on recent political activities undertaken in the United States in opposition to the Chinese government.

I want to close on a comparative law perspective.  The United Nations’ Handbook on Procedures and Criteria for Determining Refugee Status expressly provides that an asylum claim can be established by conduct undertaken in the country of asylum application.  Consistent with this guidance, courts in the United Kingdom have held that an asylum claim cannot be rejected on the basis that the activities were undertaken on British soil in bad faith to enhance the applicant’s claim.  On the other hand, Australia has decided by legislation that “sur place” conduct cannot generally sustain an asylum grant.

 

ENDNOTES

[1] It appears likely that on remand the D-G-C- applicant will be granted, based on this past persecution, withholding of removal, a lesser form of protection that does not lead to American citizenship. 

[2] Many observers have criticized this holding as unduly restrictive. 

KJ

 

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