Lin v. Holder, No. 12-179 (2d Cir. 2014)
Annotate this CasePetitioner, a native and citizen of China, appealed the BIA's affirmance of the IJ's declaration that his petition was untimely. At issue was whether political activity first undertaken in the United States amounts to "changed circumstances" for purposes of the asylum provision of the Immigration and Nationality Act (INA), 8 U.S.C. 1158. Petitioner argued that his new China Democratic Party World Union (CDPWU) membership and his criticism of the Chinese Communist Party, made on the CDPWU website and in public spaces, had produced such changed circumstances because officials in China can see his public words and affiliation, and they may persecute him for them. The court concluded that the IJ and BIA have committed an error of law on the changed circumstances issue where their conclusion is in tension with a controlling DOJ regulatory interpretation of the asylum provision and their decision constitutes an unexplained, and therefore impermissible, departure from prior agency precedent. Accordingly, the court granted the petition for review and remanded for further proceedings.
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