Fourth Circuit Reverses Denial of MTR for Changed Circumstances

The Fourth Circuit has reversed the denial of a motion to reopen filed by a grantee of withholding of removal, when the motion is premised on new instances of persecution that could suffice to toll the one-year filing deadline for asylum. Citing its prior decision in Zambrano, the court noted that “we held that ‘[n]ew facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past.’ Garcia Hernandez contends the September 2018 murder of his brother falls within the type of changed circumstances discussed in Zambrano.”

The full text of Garcia Hernandez v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201678.P.pdf

BIA Construes Changed Circumstances Exception to Asylum Filing Deadline

The Board of Immigration Appeals has determined that an applicant who merely continues 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 has not established changed circumstances that would excuse an untimely asylum application.

“The activity the respondent engaged in while in the United States— emailing Christian proselytizing messages to people in China—is substantially similar to the actions he undertook in China and represents a continuation of those religious activities without a significant change. The fact that the respondent continued his proselytizing activities after he entered the United States (albeit through a different medium) does not support a finding of changed circumstances since it was this very activity (proselytizing) in China that led him to leave his country originally. The respondent does not allege that he became involved in new activities related to Christianity in the United States; nor does his activity in this country raise a claim for asylum under a separate protected ground or on the basis of a newly articulated claim of future persecution. On the contrary, the respondent’s present claim remains premised on the same fear of the Chinese authorities he possessed prior to coming to the United States, as well as the same protected ground, and therefore does not adequately set forth a change in the respondent’s particular circumstances. Further, while the emails the respondent distributed may have generated renewed interest from the authorities, the record does not reflect that the respondent’s risk of persecution in China increased as a result of his email correspondence such that his claim to asylum, based on his activity in the United States, is significantly changed from his claim of past harm. In essence, it is the same claim he could have made during the 1-year period after he entered the United States.”

The full text of Matter of D-G-C- can be found here:

https://www.justice.gov/eoir/page/file/1401876/download

Second Circuit Finds that Changed Circumstances Arising After Filing of I-589 can Toll One Year Filing Deadline

The Second Circuit has determined that changed circumstances arising after the filing of a Form I-589 can still be used to invoke an exception to the one-year filing deadline for asylum. “Our reading of § 1158(a)(2)(D) and these other provisions of the INA persuades us that Congress did not intend to bar the agency from considering 7 the asylum application of an applicant who shows changed circumstances that 8 first arise after the application is filed, and did not require that the changed 9 circumstances even relate to the delay in filing. To the contrary, Congress clearly 10 contemplated that the agency could consider a change in circumstances such as 11 the one alleged here at several stages in an applicant’s proceedings—even when 12 the change bears no relation to the reason for the delay, and even as late as a 13 motion to reopen a final order of removal.”

The full text of Ordonez Azmen v. Barr can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/22/doc/17-982_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/22/hilite/8/22/hilite/

Fourth Circuit finds that Reinstatement Bar Prohibits Asylum Even with Changed Circumstances

The Fourth Circuit has found that the reinstatement provision bars the granting of asylum to a petitioner, even if the grounds for asylum arose after the entry of the original removal order.

The full text of Lara-Aguilar v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/161836.P.pdf

Fourth Circuit Construes Changed Circumstances for One-Year Filing Deadline

The Fourth Circuit has determined that new facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance.  An applicant need not demonstrate that he did not have a valid asylum claim prior to the changed circumstance.

The full text of Romero Zambrano v. Sessions can be found here:

http://www.ca4.uscourts.gov/opinions/162131.P.pdf