Where the BIA conducted its own analysis of the petitioner’s political asylum, withholding of removal and relief under Convention Against Torture claim, and where the BIA did not expressly adopt the IJ’s decision, this court will review the decision of the BIA alone.
This court reviews the agency’s legal conclusions de novo and its factual findings, including adverse credibility determinations, under the substantial evidence standard.
In order to be considered a refugee and therefore eligible for asylum, the INA provides that the petitioner must show that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or that he has a well-founded fear of persecution on such grounds should he be ordered to return to his native country. A well-founded fear is a subjective fear that is objectively reasonable. A fear is objectively reasonable even if there is only a slight, though discernible, chance of persecution.
The INA provides that any alien who is physically present in the United States or who arrives in the United States may apply for asylum so long as the alien demonstrates by clear and convincing evidence that the asylum application has been filed within 1 year after the date of the alien’s arrival in the United States. The statutory provision at 8 U.S.C. Section 11518(a)(2)(D), however, provides for an exception to the one-year timeliness deadline on the basis of changed circumstances which materially affect the applicant’s eligibility for asylum. Pursuant to 8 C.F.R. Section 208.4(a)(4)(i)(B), changed circumstances include activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk.
The INA mandates that, for the most part, no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely. This court does, however, retain jurisdiction to review constitutional claims and questions of law.
The Government’s contention that the petitioner is merely quibbling about factual findings is without merit. When the petitioner is challenging the BIA’s finding of his joining the China Democracy Party in the U.S. as the only “changed circumstance” which might allow him to avail himself of the one-year filing deadline exception to a political asylum application, the petitioner has raised a valid question of law.
The BIA’s erroneous application of the changed circumstances exception to the one-year filing deadline of political asylum application constitutes a legal error because it is a misapplication of the plain terms of the regulation. Although federal court owes deference to BIA’s interpretation of its own regulations, interpretation that is plainly erroneous is not controlling.
Where the petitioner joined the China Democracy Party in 2001, but, at the direction of the party leadership, did not engage in any political activities publicly until approximately March of 2003, and where the petitioner discovered for the first time that his activities with China Democracy Party were revealed to the Chinese government in October 2003 when he learned through his family that a fellow China Democracy Party member he recruited was arrested by the Chinese authorities, it was events taking place after he became a China Democracy Party member which have placed him at risk of persecution should he be returned to China that trigger the date for the petitioner’s invocation of the changed circumstances exception.
This court agrees with the petitioner’s contention that by focusing exclusively on the date of his enrollment as a member of the China Democracy Party, the BIA ignored the plain terms of the regulation, which define “changed circumstances” far more broadly. The petitioner has demonstrated that the BIA committed legal error by effectively holding that the only activity cognizable under the “change circumstances” exception regulation was the act of his clandestine enrollment in the China Democracy Party. By taking no notice of the petitioner’s later activities as a member of the China Democracy Party, acts which the petitioner contends amounted to a public declaration of his membership in an organization banned by the Chinese government, the BIA ignored the plain terms of the regulation and improperly made party membership alone the trigger date for the petitioner’s invocation of the changed circumstances exception.
The petitioner has raised a valid question of law concerning whether the BIA properly applied this Court’s holding in Tun v. INS, 445 F.3d 554 (2d Cir. 2006), in determining that he had not proffered sufficient evidence that he would face persecution should he be returned to China.
It is not the standard that this court adopted in Tun v. INS, 445 F.3d 554 (2d Cir. 2006) that a grant of the political asylum relief is to be contingent upon a showing that the country to which the petitioner is to be returned conducts such extensive monitoring activities beyond its borders that it can be assumed that the authorities have become aware that his involvement with a banned organization while living abroad.
To demonstrate that a political asylum applicant’s fear of future persecution is well founded, he or she must establish that his or her putative persecutor is, or could become, aware of his or her possession of the disfavored belief or characteristic. An applicant for political asylum can make this showing in one of two ways: first, by offering evidence that he or she would be singled out individually for persecution; and second, by proving the existence of a pattern or practice in his or her country of nationality of persecution of a group of persons similarly situated to the applicant and establishing his or her own inclusion in, and identification with, such a group. Put simply, to establish a well-founded fear of persecution, in the absence of any evidence of past persecution, an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities.
Thus, this court’s decision in Tun v. INS, 445 F.3d 554 (2d Cir. 2006) does not require a petitioner to demonstrate that authorities in the country to which he is to be returned are possessed of an awareness of his involvement in a banned organization prior to his return. Rather, a petitioner may also demonstrate a well-founded fear of future persecution by demonstrating that his involvement in a banned organization may become known after his return.
This court finds remand is proper here to reopen the record to permit the petitioner to present additional evidence as to the Chinese government’s likely future awareness of his involvement with the China Democracy Party. On remand, the IJ should determine whether the petitioner has made a substantial showing of 1) a well founded fear of future persecution, because 2) the Chinese government is likely to become aware of his membership in the China Democracy Party after his return to China.
Even assuming arguendo that the petitioner’s contention that the agency violated due process because the IJ initially made an oral ruling granting withholding of removal, but at a later hearing reversed this decision without explanation is with merits, this court finds that any injury suffered as a result should have been cured because the petitioner has been afforded the requisite full and fair opportunity to litigate the merits of his withholding of removal claim before the BIA and this court.
The petitioner’s contention that the BIA erred by completely failing to consider his claim for relief under the Convention Against Torture is without merit. There is no reason for this court to disturb the BIA’s finding that the petitioner failed to make any argument before it regarding the Convention Against Torture relief, and that the claim could therefore be considered as having been abandoned.
This court grants the petition for review, vacates the decision of the BIA denying the petitioner’s claims for asylum and withholding of removal, and remands the case for further proceedings consistent with this opinion. The denial of relief under CAT is affirmed.
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