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Ninth Circuit Allows Chinese Immigrant to Seek Asylum

club-2492011_640-300x166The Ninth Circuit Court of Appeals ruled to allow Song Lin, a Chinese immigrant escaping his native country’s “coercive population measures,” to reapply for asylum in the United States. The decision overturns the Bureau of Immigration Appeals’ earlier denial of his first application on the grounds of timeliness and “unqualified persecution.”

China has a strict One-Child Policy prohibiting couples from having more than one child, with violators facing severe penalties. After Lin and his wife married and gave birth to a child under the legal age in China, the couple decided to have another baby and sought a doctor’s assistance to remove an intrauterine device (IUD) inserted by the government. A cousin posed as Lin’s wife to clear the required physical exams.

The Chinese government eventually became aware of the situation and forcibly Mrs. Lin after she had delivered the second child. Lin and his wife were also sanctioned for their “early marriage” and the birth of an additional child. They were told to pay hefty fines under threat of having their home destroyed.

This was the story Lin told the immigration court and the Board of Immigration Appeals. Lin’s appeal, however, was deemed insufficient for a claim of asylum as Lin lacked documentation to prove detention or physical harm. He had also supposedly failed to file a motion to reopen on time and prove that his attorney’s ineffectiveness was the cause for such tardiness.

The Ninth Circuit panel, consisting of Raymond Fisher, Richard Paez, and Jacqueline Nguyen, however, disagreed, writing in a July 14 memo, “To demonstrate prejudice, a petitioner need only show that ‘the performance of counsel was so inadequate that it may have affected the outcome of the proceedings.”

The panel also found that “Lin has demonstrated that he has a plausible ground for relief, and the BIA abused its discretion in concluding otherwise.”

The Ninth Circuit also disagreed with the BIA’s ruling in his first hearing that Lin had not suffered persecution, writing, “Physical abuse and detention are not the only conduct that rises to the level of persecution. … Persecution may be emotional or psychological, as well as physical. As a result, BIA abused its discretion in concluding that Lin failed to demonstrate a plausible claim of persecution simply because he was not detained or physically harmed.”

The Ninth Circuit panel agreed to grant Lin’s petition for review, remanded further proceedings to the BIA, and halted Lin’s impending deportation.

If you, or a loved one, are facing deportation and need a legal team to appeal the decision, don’t hesitate to talk to the legal team of the Lyttle Law Firm to discuss your options. Call our offices today to schedule a consultation with immigration attorney Daniella Lyttle.

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