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Matter of T-M-H- & S-W-C-, Respondents
Decided January 29, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien does not receive an automatic 1-year extension in which to file an asylum
application following “changed circumstances” under section 208(a)(2)(D) of the
Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2006).
(2) Under 8 C.F.R. § 1208.4(a)(4)(ii) (2010), the particular circumstances related to delays
in filing an asylum application must be evaluated to determine whether the application
was filed “within a reasonable period given those ‘changed circumstances.’”
FOR RESPONDENT: Nolan Cheng, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Todd Witten, Senior Attorney
BEFORE: Board Panel: FILPPU, PAULEY, and GREER, Board Members.
FILPPU, Board Member:
In a decision dated January 3, 2008, an Immigration Judge granted the
respondents asylum under section 208 of the Immigration and Nationality Act,
8 U.S.C. § 1158 (2006), and declined to decide their requests for withholding
of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (2006),
and protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988). The Department of Homeland Security
(“DHS”) has appealed from that decision. The record will be remanded to the
Immigration Judge.
The respondents are a husband and wife who are natives and citizens
of China. On appeal, the DHS first contends that the Immigration Judge erred
to the extent he determined that the respondents’ applications for asylum,
which were filed within 1 year of the birth of their second child, were filed
“within a reasonable period given those ‘changed circumstances.’” 8 C.F.R.
§ 1208.4(a)(4)(ii) (2010). The DHS concedes the truth of the facts set forth
by the respondents in their asylum applications but asserts that, as a matter
of law, our decision in Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007),Cite as 25 I&N Dec. 193 (BIA 2010) Interim Decision #3673
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precludes granting the respondents relief in this case. The respondents argue
that 1 year is a “reasonable period” within which to file an asylum application
based on “changed circumstances,” and they contend that the Immigration
Judge properly determined, based on the undisputed facts presented in this
case, that they have a well-founded fear of persecution as a result of their
violation of local Chinese family planning policies.
As an initial matter, the DHS does not identify any clear error in the
Immigration Judge’s findings of fact, and we find none. See 8 C.F.R.
1003.1(d)(3)(i) (2010). However, we disagree with the Immigration
Judge’s legal determination that the respondents satisfy an exception to the
1-year asylum filing deadline simply because their applications were filed
within 1 year of “changed circumstances” that materially affect their
eligibility for relief. Congress enacted the “changed circumstances” exception
in conjunction with the 1-year asylum application filing deadline in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C
of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”). See sections
208(a)(2)(B), (D) of the Act. However, the Act remains silent with respect
to precisely when an alien must file an asylum application in relation
to material “changed circumstances.” The regulations clarify that such
an asylum application must be filed “within a reasonable period given those
‘changed circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). Although the term
“reasonable period” is not defined in the Act or the regulations, some guidance
is provided in the Supplementary Information to the interim and final rules
implementing the provisions of the IIRIRA.
The “reasonable period” language was initially adopted based on public
comment regarding prior proposed interim regulations that would have
required an alien relying on “extraordinary circumstances” to file an asylum
application “as soon after the deadline as practicable given those
circumstances.” Inspection and Expedited Removal of Aliens; Detention and
Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures,
62 Fed. Reg. 10,312, 10,316 (Mar. 6, 1997) (Supplementary Information).
In addition, the Supplementary Information to the final regulations
implementing the provisions of the IIRIRA states the following with respect
to aliens possessing a valid immigration status:
Generally, the Department expects an asylum-seeker to apply as soon as possible after
expiration of his or her valid status, and failure to do so will result in rejection of the
asylum application. Clearly, waiting six months or longer after expiration
or termination of status would not be considered reasonable. Shorter periods of time
would be considered on a case-by-case basis, with the decision-maker taking into
account the totality of the circumstances.Cite as 25 I&N Dec. 193 (BIA 2010) Interim Decision #3673
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Asylum Procedures, 65 Fed. Reg. 76,121, 76,123-24 (Dec. 6, 2000)
(Supplementary Information). Further, a more general explanation, not
focused on aliens possessing a valid status, is provided regarding a “reasonable
period” following changed or extraordinary circumstances:
Certain commenters appeared to be confused about the amount of additional time
an applicant should receive in order to file an application when it has been determined
that a changed or extraordinary circumstance is present in a particular case. While
most understood that the finding of changed or extraordinary circumstances justifies
the tardiness being excused to the extent necessary to allow the alien a reasonable
amount of time to submit the application, some believed that the alien would
automatically receive one year from the date of the circumstance involved to file
a timely application. Although there may be some rare cases in which a delay of one
year or more may be justified because of particular circumstances, in most cases such
a delay would not be justified. Allowing an automatic one year extension from the
date a changed or extraordinary circumstance occurred would clearly exceed the
statutory intent that the delay be related to the circumstance. Accordingly, that
approach has not been adopted.
Id. at 76,124. Although the Supplementary Information is not binding, we find
it a useful tool in interpreting the regulations at issue. See generally
Wakkary v. Holder, 558 F.3d 1049, 1058 n.4 (9th Cir. 2009) (noting that
“prefatory language to a regulation, although often informative, does not have
the same binding force as do the regulations themselves”); see also
Fidelity Federal Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 158 n.13
(1982) (looking to a regulatory preamble to determine the administrative
construction of a regulation). As a result, we conclude that the Immigration
Judge improperly gave the respondents an automatic 1-year extension from the
date their second child was born without evaluating their filing delays
in relation to the particular circumstances involved. See generally
Wakkary v. Holder, 558 F.3d at 1057-59.
However, we draw no conclusion with respect to whether the respondents’
situation is akin to that of aliens whose immigration status is simply
terminated or expires, such that a delay of less than 6 months may
be reasonable under the circumstances, or whether it is one of those “rare
cases” involving changed or extraordinary circumstances in which a delay
of 1 year or more may be justified. In this regard, the Immigration
Judge’s decision contains insufficient findings of fact with respect to the
respondents’ specific circumstances for us to determine on appeal the
reasonableness of an almost 9-month delay for the female respondent, and
an almost 1-year delay for the male respondent, following the birth of their
second child. We therefore find it appropriate to remand the record to the
Immigration Judge. See 8 C.F.R. § 1003.1(d)(3)(iv).Cite as 25 I&N Dec. 193 (BIA 2010) Interim Decision #3673
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Thus, on remand, the Immigration Judge should make additional findings
of fact with respect to the particular circumstances involved in the delay of the
respondents’ applications and reconsider whether the respondents’ situation
warrants an exception to the 1-year asylum application filing deadline. In light
of the necessity for further proceedings regarding this threshold issue,
we decline to consider at this time the DHS’s contentions regarding the merits
of the respondents’ asylum applications.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new
decision.