Shi Jie Ge v. Holder (2d Circuit, December 2, 2009)
Petitioner entered the U.S. from China in May 2000, and in 2001, while in the U.S., he joined the China Democracy Party (CDP). Petitioner's work included the clandestine recruitment of party members within China. In 2003 his membership was revealed to government authorities in China after an individual he recruited was arrested. In October 2003, Petitioner's wife - who still resided in China - was visited by Chinese police officials who urged her to encourage Petitioner to return to China. Petitioner filed his application for asylum in March 2004. He argued that he was subject to an exception to the one-year deadline because his CDP membership only became known to Chinese authorities in 2003. The IJ rejected Petitioner's claim, and he appealed. The BIA also rejected Petitioner's one-year arguments, finding that even if his CDP membership did constitute a changed circumstances, Petitioner still had waited nearly 3 years since he joined before filing for asylum. The BIA also rejected Petitioner's reliance on Tun v. INS, 445 F.3d 554 (2d Cir. 2006), finding that while in that case it was shown that the Burmese government conducted extensive intelligence gathering and surveillance on groups of Burmese expatriates active against the Burmese government in the U.S., there is no indication that the Chinese government tracks expatriate political activists.
On appeal, the 2d Circuit found that Petitioner had raised a valid question of law concerned the BIA's application of the "changed circumstances exception" to the one-year filing deadline, promulgated at 8 CFR 208.4(a)(4)(i)(B). The court found that the Board had legally erred in looking to the date Petitioner joined the CDP as the only changed circumstance and agreed with Petitioner that the plain terms of the reg define changed circumstances far more broadly. Rather, the reg entitled Petitioner to consideration of his contention that it was events taking place after he joined the CDP that placed him at risk of persecution should he return to China.
The 2d Circuit also rejected the Board's reading of Tun v. INS, noting that the Board's reading would make a grant of relief contingent upon a showing that the country to which he is to be returned has such extensive monitoring activities beyond its borders that it can be assumed the authorities are aware of the petitioner's activities while living abroad. Rather, as recently discussed in Hongsheng Leng v. Mukasey, 528 F.3d 135 (2d Cir. 2008), a well-founded fear of persecution can be based on a showing that the authorities are either aware of his activities or likely to become aware of his activities after his return.
PFR granted, remanded to permit Petitioner to present add'l evidence as to the Chinese government's likely future awareness of hsi involvement with the CDP, and for the IJ to determine whether Petitioner had made a substantial showing of (1) a well-founded fear of persecution because (2) the Chinese government is likely to become aware of his membership in the CDP after his return to China.
Atty for Petitioner: David S. Kim (Matthew L. Guadagno, KErry W. Bretz, and Jules E. Coven, on the brief), Bretz & Coven, LLP, New York, NY.