In
Shou Yung Guo v. Gonzales,
In Shou Yung Guo, we remanded, so that the BIA could determine the veracity of the documents, and if they were valid, consider their effect on Guo’s petition. Id.
The present case, which involves two of the three documents discussed in Shou Yung Guo, raises the following questions, in addition to the veracity of the documents: (1) whether a petitioner who submits only the 2003 decisions, but not the Q & A Handbook, has presented sufficient evidence of the allеged policy discussed in Shou Yung Guo; (2) whether the alleged policy discussed in Shou Yung Guo might constitute evidence of “changed country conditions,” even if they only provide previously unavailable evidence of a pre-exist-ing policy; and (3) whether a petitioner whose children were born in the United States after he had been ordеred to depart may rely on that potential evidence of changed conditions.
We answer the first question in the affirmative, and decline to rule on the second and third at this stage in the proceedings. The petition for review is granted, and the case is remanded tо the BIA for further proceedings.
BACKGROUND
Petitioner Fong Chen, a native and citizen of the People’s Republic of, China, asked the BIA to reopen its June 29, 1995 order, which had affirmed the January 31, 1995 decision of Immigration Judge (“IJ”) Patricia A. Rohan denying the petitioner’s application for asylum and withholding of removal. In re Fong Chen, A 72 483 714 (B.I.A. June 29, 1995), aff'g No. A 72 486 714 (Immig. Ct. N.Y. City Jan. 31, 1995). The BIA denied Chen’s motion as untimely. In re Fong Chen, No. A 72 483 714 (B.I.A. Feb. 27, 2006).
Chen is from Changle City, in the Fuji-an Province of China. His motion to reopen — which he filed over ten years after the BIA’s and IJ’s denial of his application for asylum and withholding of removal— stated that “he is now married, is the рarent of two United States citizen sons, and fears that he will suffer persecution in his country for violating China’s population control law.” Specifically, on June 5, 2002, several years after he was ordered to depart but while he was still in the United States, Chen was married. He then hаd two children, one on December 26, 2003, and the other on August 25, 2005.
In order for his untimely motion to reopen to be considered, see 8 C.F.R. § 1003.2(c)(2), Chen was required to show, through evidence that was not available or obtainable at the previous hearing, a change in country circumstances arising in China, see 8 C.F.R. § 1003.2(c)(3)(ii). The BIA, in denying Chen’s motiоn, found that Chen had failed to make such a showing, because (1) his alleged changed personal conditions did not meet the requirements for an untimely motion to reopen filed under 8 C.F.R. § 1003.2(e)(3)(ii); and (2) while Chen had submitted, in support of his motion, corroborative documents — including the 2003 decisions — and affidavits of three female relatives who claimed to have been sterilized in China for having violated the family planning policies, this *182 evidence would, at most, only establish “the ‘continued’ implementation of policies rather than a material change in policies.”
DISCUSSION
Chen now petitions this court for review of the BIA’s order denying his untimely motion to reopen. We review such a denial for abuse of discretion.
Twum v. INS,
Following the BIA’s denial of Chen’s untimely motion to reopen, this cоurt, in
Shou Yung Guo,
I
In his untimely motion to reopen, Chen submitted copies of the 2003 decisions. But he did not also submit a copy of the Q & A Handbook. Nonetheless, we conclude that Chen’s case is controlled by our holding in Shou Yung Guo.
While the 2003 decisions do not appear to announce that the penalty in Change City is in fact sterilization—as only the Q & A Handbook does—those 2003 decisions do “reflect! ] the adoption of a
new policy
in Changle City,” namely, that “foreign- born children would be counted in deter- mining viоlations of the one-child policy.”
Shou Yung Guo,
Accordingly, we hold that the 2003 docu- ments,even without the Q & A Handbook, are sufficient to present to the BIA the same alleged policy discussed in Shou Yung Guo. II Petitioner’s position is that the Shou Yung Guo.
II.
Petitioner's position is that the Shou Yung Guodocuments are reаl—a question that is currently before the BIA in the cases in which the government has con- sented to a remand. Petitioner, however, because he sought reopening over ten years after his initial asylum application was denied, must also show that there has been a сhange in country conditions. That is, Chen must show that the Shou Yung Guo documents are not only real, but also constitute evidence of a new policy in Changle City. And the BIA, in denying Chen’s untimely motion to reopen, con- cluded simply that “[although [Chen] al- motion to reopen, concluded simply that “[although [Chen] al *183 leges that conditions in China have changed, [he] point [sic] to the ‘continued’ implementation of policies rather than a material change in policies.”
The basis for the BIA’s holding is unclear from this language. On the one hand, in concluding that Chen “failed to show mаterially changed conditions in China,” the BIA cited, among other cases,
Jian Xing Huang v. INS,
Accordingly, it may be that the BIA simply concluded that the evidence, including the Shou Yung Guo documents, did not establish a change from a policy of opposing forced sterilizatiоn to one of requiring it in Chen’s circumstances.
On the other hand, the BIA’s holding could be constimed as not being critical of Chen’s argument that there is a policy of forced sterilization in China, but that to the extent there is such a policy, it has been in effect since the BIA dismissed his appeal in 1995; and, as such, Chen failed to show that conditions in China have changed. But even if the policy reflected in the
Shou Yung Guo
documents is a longstanding one, it might, nonetheless, be possible that the finding of these documents (assuming, yet again, that they are real) constitutes the equivalent of changed country conditions, notwithstanding the date of their issuance. This is so because they might vary the perception of the State Department, upon which the immigration courts rely, which would warrant reopening under 8 C.F.R. § 1003.2(c).
2
In
Norani v. Gonzales,
for instance, we noted that recent repоrts, both by the State Department and the press, “describefd] a sharply deteriorating human rights situation” in Iran,
Indeed, this court and the BIA routinely rely on the State Department and the press in assessing the situation in foreign countries. It wоuld make little sense to distinguish between the “actual” changed situation and the situation as we have come to perceive it to be, on the basis of sometimes long delayed information that has only recently percolated up from our sources.
But we need not determine whether the
Shou Yung Guo
documents mаy establish “changed country conditions” even if they reflect a longstanding policy. In accordance with
Gonzales v. Thomas,
Ill
Even if the documents are determined to be valid, and even if they are held to establish changed country conditions in the above sense, there arises the question of whether petitioner’s motion to reopen could have been denied on the ground that his children were born
after
he had been ordered to depart. The panel in
Shou Yung Guo
appears to have left this question open.
See Shou Yung Guo,
The government argues to us that our holding in
Wang v. BIA,
This question apрears to be an open one. And because the agency has yet to address it, we. decline to consider it now.
See INS v. Orlando Ventura,
CONCLUSION
The petition for review is Geanted, and the case is Remanded to the BIA for further proceedings. *186 Petitioner Dante T. Colaianni, Jr. (“Co-laianni”) seeks review of a March, 29, 2002 order of the Board of Immigration Appeals (“BIA” or “Board”) affirming the December 12, 2001 decision of Immigration Judge (“IJ”) Adam Opaciuch denying Colaianni’s claim that he is a United States citizen and therefore not subject to rеmoval proceedings. In re Dante Thomas Colaianni, No. A 17 570 672 (B.I.A. Mar. 29, 2002), aff'g No. A 17 570 672 (Immig. Ct. Fishkill, NY, Dec. 12, 2001). Colaianni originally filed this case as a petition for writ of habeas corpus in the United States District Court for the Western District of New York. The district court transferred it here as a petition for review under the REAL ID Act of 2005 § 106(c), Pub.L. No. 109-13, 119 Stat. 231, 311.
Notes
. See id. at 113 (" ‘[W]here either parent remains a Chinese national and citizen with no permanent residence overseas, any child of such a couple ... is deemed a Chinese national and shall not be treated as [a] foreign national or citizen for domestic administrative purposes.' ” (quoting alleged 2003 decision of Changle City Family-Planning Administration)); id. ("[N]o exception or waiver shall be applicable to Chinese nationals and citizens who engage in reproductive behavior *181 overseas in violation of family-planning regulations as enforced in his or her area of residence of household registration in China.... Such Chinese nationals and citizens shall be subject to family-planning enforcement upon resettlement in China.” (quoting alleged 2003 decision of Fujian Province Department of Family-Planning Administration)).
. It might also warrant reopening under § 1003.2(a) (permitting the BIA sua sponte to reopen or reconsider "at any time”).