Gong Geng Chen v. Holder, 444 F. App'x 305

Chen, a native and citizen of the PRC, illegally entered the United States in April 1993 and filed an asylum application later that year alleging religious persecution, later claiming political opinions.
Removal proceedings were instituted; Chen conceded removability and sought asylum, withholding of removal, and CAT protection; he testified about family planning and a second child, with conflicting testimony on policy constraints.
An IJ issued a written decision on July 10, 2007 denying all requested relief.
Chen appealed to the BIA seeking remand to consider worsened conditions for unofficial churches; the BIA dismissed the appeal and denied remand in July 2009; he voluntarily dismissed a subsequent petition for review in November 2009.
In January 2010, more than 90 days after the BIA order, Chen filed a motion to reopen arguing changed personal circumstances (birth of a second child) and changed country conditions (enforcement via forced sterilization and fines); the BIA denied the motion as untimely and unsupported.
Chen petitions for review, challenging the BIA’s denial of the motion to reopen.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the motion to reopen was timely under the changed-country-conditions exception.	Chen argues the 90-day limit does not apply due to new facts and changed conditions.	Chen failed to show a material change and the evidence was not new or unavailable.	No abuse; changed-conditions claim insufficient to excuse untimeliness.
Whether Langqi Town documents were properly authenticated and considered.	Documents show new enforcement practices and should be considered despite authentication issues.	Documents were unauthenticated and insufficient to show change in policy.	BIA did not abuse discretion; documents not authenticated and not showing change.
Whether Sapio Report and CEEC materials establish material change warranting reopening.	Sapio and CEEC materials indicate harsher enforcement of family planning since 2007.	Sapio is not controlling and CEEC reports do not show a material change since 2006.	BIA did not abuse discretion; materials did not establish material change.

Wei v. Mukasey, 545 F.3d 1248 (10th Cir. 2008) (limits on motion-to-reopen timing; changed-country-conditions exception)
Galvez Pineda v. Gonzales, 427 F.3d 833 (10th Cir. 2005) (abuse-of-discretion standard; reasoned BIA decisions)
Yuk v. Ashcroft, 355 F.3d 1222 (10th Cir. 2004) (State Department country-conditions reports as probative evidence)