Haiyan Chen v. Jefferson B. Sessions III

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued December 12, 2017 Decided January 4, 2018 Before WILLIAM J. BAUER, Circuit Judge KENNETH F. RIPPLE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-1797 HAIYAN CHEN, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A089-283-398 JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ORDER Haiyan Chen, a citizen of China, seeks review of an immigration judge’s denial of her asylum application as untimely. But Chen did not raise this argument before the Board of Immigration Appeals, and by not doing so, she failed to exhaust her administrative remedies. We therefore deny her petition for review. Chen, who is from China’s Fujian Province, was smuggled into the United States in 2004 and settled in Chicago with her husband. She has since had two children, a son in 2004 and a daughter in 2009. In 2010 the Department of Homeland Security initiated removal proceedings against Chen following her arrest at a casino. At an initial hearing No. 17-1797 Page 2 before an IJ, she conceded that she was present in the United States without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), but she applied for asylum, withholding of removal, and protection under the Convention Against Torture. At a hearing in 2014, Chen clarified that she was afraid to return to China because she feared she would be persecuted for practicing Falun Gong and violating China’s one-child policy. Early in the proceedings, the IJ expressed misgivings that Chen’s application for asylum could be timely because she had not applied within one year of her arrival, and he did not believe that she could demonstrate any changed or extraordinary circumstances to excuse the delay. The IJ went on to observe that given her lack of any criminal history and the fact that her two children were born in the United States, this case might fall within the Attorney General’s discretion and proposed that the government administratively close the case. The IJ then continued the hearing so that Chen could obtain additional evidence to excuse her untimely asylum application. At the next hearing in May 2016, Chen reiterated that she feared returning to China because the government would forcibly sterilize her and fine her steeply for having two children. The IJ observed that she had not produced evidence showing that she would face economic persecution if she returned to China. Chen’s counsel directed the IJ to our decision in Chen v. Holder, 715 F.3d 207 (7th Cir. 2013), which identified possible economic consequences that a violator of the one-child policy might face if returned to China. But the IJ emphasized that he did not have any evidence about Chen’s particular economic circumstances. He again recommended that her case be closed “without a final—without a negative decision,” adding that her case was “low priority” for the ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals