Ming Chen, a political activist and citizen of the People's Republic of China, entered and stayed in the U.S. illegally. In 1998, Chen submitted an application for asylum and withholding of removal, but an immigration judge denied the application. Yet somehow, Chen managed to stay in the U.S. for another nine years ...
... until he resurfaced in 2011 to file a motion to reopen his removal proceedings.
Since Chen didn't meet the ninety-day deadline to file the motion (it was nine years later), the Board of Immigration Appeals stated something to the effect of: "um, no."
Chen petitioned the First Circuit to review the BIA's decision denying his motion. The case highlights the deadline exemption for removal proceedings.
(Spoiler alert: Don't wait nine years to file the motion.)
The Deadline Exemption
The question for the First Circuit panel was whether Chen qualified for a "changed country conditions" exemption to the hearing deadline. To qualify for the exemption, Chen's motion needed to be "based on changed circumstances arising in the country of nationality ... [that are] material and ... could not have been discovered or presented at the previous hearing." 8 C.F.R. § 1003.2(c)(3)(ii).
In this case, Chen needed to show changed country circumstances since 1998, the year of his last hearing. Chen told the BIA that he would face imprisonment if he returned to China because of his involvement in the China Democracy Party (CDP).
Chen's evidence of changed country conditions fell into two categories: 1) evidence that he has become a target of the government since he joined the CDP; and 2) evidence that since 1998 the Chinese government has cracked down on the CDP and pro-democracy groups more generally.
Changed Country Circumstances: Political Activism?
The court ruled that Chen's joining the CDP doesn't count as changed country conditions. Instead, the court said it only shows a change in Chen's personal circumstances. Political activism, the court explained, is a self-induced change.
A rule against self-induced changes, the First Circuit wrote, prevents aliens from repeatedly reopening their removal proceedings based on changes that are within their control.
Changed Country Circumstances: Government Crackdowns?
The court also rejected Chen's argument that the Chinese government has cracked down on pro-democracy groups like the CDP since 1998. The court determined the CDP was only a fledgling group back in '98, and the CDP leaders were immediately arrested.
The court held the 1998 "crackdown" against the CDP was, at most, an example of the Chinese government swiftly suppressing a newly organized group.
The take-away here is that an advocacy group's formation alone doesn't count as a changed country condition.
The BIA Bottom-Line
If you're scared to return to a country because of your political beliefs, follow your hearing deadlines.
For the deadline exemption to apply, any risks you face in your native country must be due to changes within that country, and not a personal decision like choosing to engage in political activism, even if the decision makes it truly dangerous for you to go back.
- Chen v. Holder (First Circuit Court of Appeals)
- 7th Cir. Reopens One-Child Appeal Based on Changed Conditions (FindLaw's Seventh Circuit)
- First Circuit Rejects Per Se Refugee Status (FindLaw's First Circuit Blog)