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Seventh Circuit Vacates BIA Denial of Asylum Decision for Chinese National

Many immigrants come to the United States seeking asylum for political or religious reasons. As a veteran immigration attorney, I have represented many of these beleaguered parties and retain avid interest in the rulings of the courts regarding asylees. In the case of Shu Liu vs. Holder, the petitioner was a Chinese national who entered the U.S. in 2001 when she was 18. She petitioned for asylum on the basis that she would be persecuted for refusing to marry a Communist Party official. In 2004, her petition was denied and a deportation order was issued.

Liu remained in the U.S. and eventually converted to Christianity in 2011. She then re-applied for asylum, but in this case, based her petition upon grounds of religious persecution. The Board of Immigration Appeals once again denied her application, which prompted Liu to appeal to the Seventh Circuit Court of Appeals. The Seventh Circuit found the reasoning of the BIA flawed and vacated their denial.

The BIA based their decision primarily on the fact that conditions had not changed in her home country but only in her personal circumstances. On this basis the BIA posited that the decision made earlier by immigration authorities should not be revisited. The Court of Appeals found, however, that the religious conversion would inspire persecution from Chinese authorities and should provide cause for re-consideration.

One of the primary principles cited in the decision was that of the Chenery doctrine, which prohibits attributing unfounded causes to the prior decision of an agency. In this case the 2004 decision by immigration officials to deny asylum was based on conditions of petitioner and home country at that time. That decision did not preclude reconsideration if personal conditions were altered. The Court of Appeals found that a personal change could be grounds for a different decision if it might have had bearing during the initial proceedings.

Furthermore, the Seventh Circuit found that the argument that conditions had not changed in China between 2002 and 2012 as untenable. The petitioner presented first hand evidence from friends in China that Christians were persecuted for their beliefs and proselytization. The Court pointed to the evidence presented by the appellant and published reports that conditions had worsened for Christians in China since 2002. It was also pertinent that the appellant had a reasonable fear of persecution which had grown since the initial decision.

The primary lessons of Shu Liu v. Holder are that altered personal conditions may impact the asylum decision of U.S. immigration authorities if they correspond with a greater chance of persecution. In this case, the religious conversion of the appellant did present a greater risk of persecution, which should be considered by the BIA.

As an immigration lawyer in Austin, I often represent clients who face persecution for their political or religious beliefs. Hopefully, I can provide my clients with the outcome they desire, but even if that is not possible initially, circumstances may change enough that, at some point in the process, asylum is granted. If you or someone you know is seeking asylum and would like legal representation, please call my office at (512) 215-5225.

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