BIA Holds That The Mere Continuation Of An Activity In The United States That Is Substantially Similar To The Activity From Which An Initial Claim Of Past Persecution Is Alleged And That Does Not Significantly Increase The Risk Of Future Harm Is Insufficient To Establish “Changed Circumstances” To Excuse An Untimely Asylum Application Within The Meaning Of INA §208(a)(2)(D).
On June 7, 2021, the Board of Immigration Appeals (BIA or Board) dismissed in part an appeal from a decision of the Immigration Judge (IJ) denying Respondent’s applications for asylum and withholding of removal and remanded the record for further proceedings. Respondent, a native and citizen of the People’s Republic of China, entered the U.S. in B-2 status in January 2012, overstayed, and filed an affirmative application for asylum and withholding in November 2013 based on religious persecution; he was placed in removal proceedings.
At his hearing before the IJ, Respondent testified that the Chinese police detained him twice in 2011 because he was caught, or was suspected of, publicizing Christian proselytizing materials. During the first arrest, he was held for 2 days and beaten with batons; during the second, he was hit and kicked. He subsequently hid in a relative’s house, then obtained a visa and came to the U.S. After his B-2 admission, Respondent emailed Christian religious materials to people in China and stated that in November 2013, his Christian “brother and sisters” in China warned him that the police had discovered one of his emails and were trying to catch him. He also stated that his wife told him the police had ordered her to report his return to them.
The IJ denied the asylum application because it was not filed within one year of Respondent’s arrival in the U.S. and he “did not demonstrate changed or extraordinary circumstances excusing the untimely filing.” She also concluded Respondent had not met his burden of showing that the harm he experienced rose to the level of “persecution” or that his fear of future persecution was objectively reasonable. On appeal, Respondent contended the IJ erred in finding he had not established changed circumstances exempting his asylum application from the 1-year filing deadline. He also challenged the ruling that he failed to prove past persecution on account of religion that would give rise to a presumption of future harm.
In initiating its analysis of the “changed circumstances” argument, the BIA first explained that INA §208(a)(2)(B) makes one ineligible for asylum unless he or she “demonstrates by clear and convincing evidence that the application had been filed within 1 year” of the applicant’s arrival. Under §208(a)(2)(D), untimely applications may be considered if the applicant proves the existence of changed circumstances which materially affect his or her religious persecution asylum eligibility. Further, changed circumstances under §208(a)(2)(D) may include, but are not limited to, changes in applicable U.S. law and activities the respondent becomes involved in outside the country of feared persecution “that place the applicant at risk.” Whether certain facts constitute “changed circumstances”, stated the decision, is a legal determination reviewed de novo.
Further, noted the Board, the Second Circuit Court of Appeals, where this case arises, has held that an untimely application can be excused if one demonstrates changed circumstances that materially affect the chances that he or she will suffer persecution. Accordingly, to qualify for this exception, concluded the opinion, the Act and regulations require that the applicant’s circumstances be changed, i.e., such circumstances “must be different in a significant way, which means they are qualitatively different.” Put another way, the changed circumstances “must be material to an applicant’s eligibility for asylum – not just a material fact or circumstance that might influence a decision-maker in some way.”
Here, Respondent’s religious persecution claim is based largely on past harm he suffered when he was detained and beaten in China after he was found to be distributing Christian proselytizing materials in 2011. He claims his activities in the U.S. constitute “changed circumstances” because the materials he emailed home “increased or renewed the police’s interest in him and increased the risk that he will be rearrested if removed to China. However, the IJ concluded that the police’s interest in Respondent predated his departure from China and continued after he left. Agreeing, the BIA found that Respondent’s activities in the U.S. did not constitute changed circumstances per §208(a)(2)(D).
Additionally, stated the opinion, the act of emailing Christian proselytizing messages to people in China from the U.S. is “substantially similar” to acts Respondent undertook in that country and therefore “represents a continuation of those religious activities without a significant change”. The Board concluded that Respondent’s present religious persecution claim remains premised on the same fear of the Chinese authorities he had before entering the U.S., “as well as the same protected ground”, and therefore does not set forth an adequate change in his particular circumstances. Nor does the record reflect that Respondent’s risk of persecution in China increased as a result of his email correspondence such that his new asylum claim based on his activity in the U.S. “is significantly changed from his claim of past harm.” The BIA also stated that, as the police’s interest in Respondent existed before his departure from China and continued afterward, he had failed to show that “their interest in him has either significantly increased or intensified as a result of his actions in the United States”. In sum, it held that the mere continuation of an activity in the U.S. that is substantially similar to one from which an initial claim of past persecution is alleged, and does not significantly increase the risk of future harm, cannot establish “changed circumstances” excuring an untimely asylum application under §208(a)(2)(D).
As to the withholding of removal claim, the Board noted that the IJ had concluded that Respondent’s treatment in China did not rise to the level of “persecution”. However she had only set forth “limited findings of fact and analysis in rendering this determination”. As a result, the decision found that further fact finding is required. Therefore, the record was remanded for the IJ to make further findings of fact and legal determinations, “considering precedential decisions from Second Circuit pertaining to” whether the harm Respondent experienced in China rose to the level of past persecution or whether he had met his burden to prove “a clear probability of future persecution on account of a protected ground under the Act”. If past persecution is found, ordered the BIA, the IJ must further assess whether DHS has rebutted the presumption of future religious persecution “by demonstrating that there has been a fundamental change in circumstances” or shown that Respondent can relocate to avoid such future harm and it is reasonable for him to do so. Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021).