Yan Yang v. Barr

929 F.3d 26
Court of Appeals for the Second Circuit·Decided July 2, 2019·No. Docket 16-3478-ag; August Term, 2017·Published·Cited by 2 cases

Opinions

POOLER, Circuit Judge.

We are asked to determine whether the Immigration and Nationality Act's ("INA") exception for late filing applies only to changed circumstances underpinning a successful claim, or whether the changed circumstances permit an application for asylum on multiple bases, including bases that are unrelated to the changed circumstances. We hold that the plain language of the statute unambiguously permits an applicant to raise multiple claims in her asylum application, even if the changed circumstance relates only to one proffered basis for asylum. Accordingly, we grant the petition for review and remand the application to the Board of Immigration Appeals ("BIA") for the limited purpose of granting Yang's application for asylum.1

BACKGROUND

Yan Yang was born in China in 1973. In September 1992, Yang met her husband, Shen Zhonghua, while she was working in a garment factory in Shenzhen. On July 6, 1994, Yang and Zhonghua returned to his hometown of Wutong Town to register their marriage with the government. Yang and her husband were both required to submit to a mandatory physical examination at a hospital before the local government would register their marriage. This exam revealed that Yang was "pregnant without prior authorization" since she and Zhonghua were not yet married. Certified Administrative Record ("CAR") at 536. Yang was immediately forced to have an abortion.

Yang entered the United States on a tourist visa on June 3, 2002, but remained in the United States after her temporary visa expired and gave birth to her U.S.-citizen son in October 2004. In July 2012, Yang began attending a Christian church and was baptized into the church on September 23, 2012.

On her own initiative, prior to any removal proceedings, Yang affirmatively filed an application for asylum on October 17, 2012 on two bases: her forced abortion in China and her recent conversion to Christianity. Though asylum applications must be filed within one year of the applicant's arrival in the United States, 8 U.S.C. § 1158(a)(2)(B), applications may be filed beyond that deadline if the applicant can demonstrate "changed circumstances which materially affect the applicant's eligibility for asylum," 8 U.S.C. § 1158(a)(2)(D). Yang submitted her application over a decade after her arrival to the United States, but within one month of her conversion to Christianity.2

On December 11, 2012, however, she was served with a Notice to Appear charging her with removability for overstaying her visa. On March 11, 2015, the Immigration Judge ("IJ") denied her application for asylum. The IJ determined that the exception for "changed circumstances" applied only to Yang's religious asylum claim, *30effectively severing the application into its two separate claims. The IJ found that Yang was credible on all counts, but that there was insufficient evidence of persecution of Christians in China to grant the asylum application on that basis. The IJ did not consider Yang's asylum claim based on her forced abortion because the IJ determined that the claim was not timely filed, but the IJ found Yang's story credible and granted her withholding of removal on the basis of that claim. On September 20, 2016, the IJ's decision was affirmed in all respects by the BIA.

DISCUSSION

"When the BIA does not expressly adopt the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, this Court may consider both the IJ's and the BIA's opinions for the sake of completeness." Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal quotation marks omitted). Neither the IJ nor the BIA offered any substantive analysis of the question facing us in this appeal, namely, whether a changed circumstance affecting eligibility for one asylum claim renders the properly filed asylum application timely filed for all claims. Instead, both the IJ and the BIA assumed that the plain language of the statute barred the IJ from considering Yang's forced abortion claim. Yang argues to this Court, as she did before the BIA, that the plain language of the statute requires consideration of her full asylum application.

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Yan Yang v. Barr, 929 F.3d 26 (2d Cir. 2019).

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