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7th Cir. Reopens One-Child Appeal Based on Changed Conditions

By Robyn Hagan Cain on April 29, 2013 | Last updated on March 21, 2019

Ji Cheng Ni has been in the U.S. since 2001, despite the fact that an Immigration Judge ordered him removed in 2003. Ni has two children, and argues that he should get a second shot at removal proceedings based on China’s one-child policy.

Last week, the Seventh Circuit Court of Appeals agreed.

Ni claims that he will faced forced sterilization under the one-child policy if he returns to his home in Fujian Province. Under 8 U.S.C. § 1101(a)(42)(B) -- a statute enacted to pave the way for asylum for victims of China's coercive population control policies -- the U.S. considers forced sterilization to be persecution. In Ni's case, however, the Board of Immigration Appeals (BIA) denied Ni's motion to reopen his case because his evidence was not sufficient to establish a change in circumstances or country conditions."

Though the Seventh Circuit has regularly upheld the BIA's refusal to grant relief in similar proceedings involving the Fujian Province in recent years, the difference in this case was that the BIA "failed meaningfully to address documents bolstering Ni's assertion that conditions in China have changed for the worse." The appellate court noted that Ni's evidence indicates that family planning officials in and around the province have recently launched a crack-down on those who flout the one-child policy.

When you consider that locality-specific evidence of coercive enforcement measures is necessary in a one-child policy asylum claim, that was a pretty big oversight.

Since the BIA failed to announce its decision in terms sufficient to enable the Seventh Circuit to perceive that it had "heard and thought and not merely reacted," the appellate court granted Ni's petition.

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