NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-3155

_____________

YU GAO,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

On Petition for Review of a Decision and Order of

the Board of Immigration Appeals

(BIA No. A077-341-025)

Submitted September 23, 2011

Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges.

(Filed: October 18, 2011)

____________

OPINION

____________

CHAGARES, Circuit Judge.

Yu Gao petitions for review of a decision by the Board of Immigration Appeals 

(―BIA‖) denying her motion to reopen her removal proceedings. For the reasons set forth 

below, we will deny the petition. 
2

I.

Gao is a citizen of the People’s Republic of China and a native of Chang Le City 

in the Fujian Province. She entered the United States illegally on October 13, 2000 and 

was detained at the airport by the former Immigration and Naturalization Service

(―INS‖). INS subsequently issued her a Notice to Appear to answer charges of 

removability pursuant to 8 U.S.C. § 1182(a)(4)(A), as an arriving alien likely to become a 

public charge, and 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien lacking a valid visa, travel, 

or identity document. At a hearing before an immigration judge on February 15, 2001, 

Gao conceded that she was removable as charged. Shortly thereafter, she filed a

defensive application for asylum and related relief, alleging past persecution and a fear of 

future persecution based on her parents’ violation of China’s coercive family planning

policies. She also asserted that she would be persecuted upon her return to China because 

she departed from the country illegally. On February 25, 2003 the immigration judge 

denied Gao’s applications for relief. The BIA affirmed the decision on April 15, 2004 

and this Court denied her petition for review.

On October 4, 2006 Gao filed her first untimely motion to reopen her removal 

proceedings before the BIA. She sought asylum based on her impending violation of 

China’s family planning policy, as she had given birth to one child already and was 

pregnant with a second. The BIA denied the motion on March 16, 2007. It explained 

that an alien ordinarily may file only one motion to reopen, which must be filed within 90 

days of the final administrative order. See 8 C.F.R. § 1003.2(c)(2). The BIA 

acknowledged that the limits on the timing and number of motions to reopen an alien is 
3

permitted to file can be set aside on the basis of changed country conditions, 8 C.F.R. § 

1003.2(c)(3)(ii), but concluded that Gao had demonstrated only changes in her personal 

circumstances, which were insufficient to excuse the untimeliness of her motion. This 

Court denied her petition for review of that decision on April 23, 2008.

On October 13, 2009 Gao filed the present motion — her second untimely motion 

to reopen her removal proceedings — this time alleging that she would face persecution 

upon her return to China because she had committed a violation of China’s family 

planning policy while living in the United States and because she actively practiced 

Christianity. Gao attached an affidavit explaining that she had given birth to two children 

in the United States since her arrival. She stated that she had received reports from her 

family indicating that the Chinese government has recently increased the use of forced 

abortions and sterilizations to punish such violations of its policies. As an example, she

recounted the story of one friend who was forced to undergo sterilization and pay a fine 

in February of 2009. Gao’s affidavit also explained her fear of persecution based on her 

religious practices. She stated that she first learned about Christianity when she was 

detained upon arrival in the United States and that she has attended a Baptist Church 

since that time. She alleged that friends had told her of recent efforts by the Chinese 

government to increase its suppression of Christian activities in underground and house 

churches. Specifically, she recounted the story of one friend who claimed to have been 

arrested, detained, and beaten after attending an underground church gathering. 

Gao submitted extensive documentation along with her motion to reopen, in an 

attempt to demonstrate changed country conditions and a well-founded fear of 
4

persecution. This documentation included, among other things, descriptions of China’s 

family planning policies, the 2009 Annual Report of the Congressional-Executive 

Commission on China, the 2008 United States Department of State Country Report for 

China, the 2008 United States Department of State International Religious Freedom 

Report for China, various news articles discussing China’s policies on population control 

and Christianity, and a notice allegedly issued by the Chang Le City Family Planning 

Bureau stating that the birth of Gao’s second child in the United States is not in 

accordance with the regulations of the National Family Planning committee. In addition, 

Gao submitted letters from her father and a friend claiming that they had undergone 

forced sterilization, as well as a letter from the friend who claimed that he was arrested, 

detained, and beaten after attending a Christian gathering at an underground church.

On July 1, 2010, the BIA denied Gao’s motion to reopen, finding that it

―exceed[ed] both the time and number limitations for motions to reopen ,‖ Appendix 

(―App.‖) 2, and that Gao failed to establish changed country conditions sufficient to 

excuse such untimeliness. The BIA found that the birth of Gao’s second child and her 

practice of Christianity in the United States constituted changes in her personal 

circumstances, not changes in country conditions. Moreover, the BIA concluded that 

there was nothing in the record to suggest that Gao would, in fact, face persecution upon 

her return to China. 

In its written opinion, the BIA identified all of the documents that Gao submitted 

in support of her motion before determining that little weight could be placed on the 

official documents from China because Gao ―failed to establish [their] authenticity . . . in 
5

any manner.‖ App. 3. The BIA also noted that some of the other documents submitted 

as evidence of changed country conditions had already been thoroughly considered and 

rejected in Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010), Matter of S-YG-, 24 I. & N. Dec. 247 (BIA 2007), Matter of J-H-S-, 24 I. & N. Dec. 196 (BIA 2007), 

Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), and Matter of C-C-, 23 I. & N. Dec. 

899 (BIA 2006).

With regard to the possibility of future persecution, the BIA concluded that the 

evidence indeed reflected that China would regard Gao’s children as Chinese nationals, 

but did not indicate that Gao will be subject to involuntary sterilization as a result. The 

2008 State Department Country Report indicates that China relies on economic 

incentives and coercive measures to enforce its family planning policies, and Gao did not 

show that such economic harm would amount to persecution. The BIA further concluded 

that the evidence demonstrated that China allows the practice of Christianity. Though it 

recognized that some leaders of underground or house churches have reportedly been 

harassed and detained, it found no evidence to suggest that Gao herself would be subject 

to any treatment rising to the level of persecution or torture because of her religious 

practices. 

Based on the foregoing, the BIA concluded that Gao failed to meet her burden to 

prove that reopening was warranted based on changed country conditions. It therefore

denied her motion to reopen as untimely. This petition for review timely followed.
6

II.

The BIA properly exercised jurisdiction over this action pursuant to 8 C.F.R. § 

1003.2(c). We have jurisdiction pursuant to 8 U.S.C. § 1252. 

We review the denial of a motion to reopen for abuse of discretion. Guo v. 

Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). ―We will not disturb the BIA’s decisions 

unless they are found to be arbitrary, irrational, or contrary to law.‖ Zheng v. Att’y Gen., 

549 F.3d 260, 265 (3d Cir. 2008).

Generally, an alien may file only one motion to reopen and must do so ―no later 

than 90 days after the date on which the final administrative decision was rendered.‖ 8 

C.F.R. § 1003.2(c)(2); 8 U.S.C. § 1229a(c)(7)(A), (C)(i). These limitations do not apply, 

however, to motions that rely on evidence of ―changed circumstances arising in the 

country of nationality . . . if such evidence is material and was not available and could not 

have been discovered or presented at the previous proceeding.‖ 8 C.F.R. § 

1003.2(c)(3)(ii). 

III.

Gao asserts that the BIA abused its discretion in denying her motion to reopen

because it selectively considered the evidence in order to find that Gao failed to establish 

changed country conditions. We disagree. To begin, we cannot conclude that the BIA 

abused its discretion in holding that neither the birth of Gao’s children nor her conversion 

to Christianity constitutes a change in country conditions. Rather, these events merely 

establish that her personal circumstances have changed. See Liu, 555 F.3d at 148.

Moreover, to the extent that Gao relies on an alleged change in the enforcement of 
7

China’s policies on family planning and Christianity, she still must demonstrate that her 

violations of these policies would likely result in her persecution upon return to her home 

country, in order to prevail on a motion to reopen. See Matter of S-Y-G-, 24 I. & N. Dec. 

at 251-52. After a thorough review of the evidence, we cannot conclude that the BIA 

abused its discretion in finding that she had not so demonstrated.1 

In short, we are persuaded that the BIA took adequate account of the evidence 

submitted in support of Gao’s motion to reopen and reasonably concluded that Gao has 

not demonstrated changed country conditions sufficient to excuse the untimeliness of her 

motion to reopen. Accordingly, we hold that the BIA did not abuse its discretion in 

denying Gao’s motion to reopen.

IV.

For the foregoing reasons, we will deny the petition for review.

 

1 As evidence of changed circumstances in China, Gao presented some official 

documents from China, including a notice purportedly issued by the Family Planning 

Office in Chang Le City. Gao failed to authenticate these documents in any manner. See

8 C.F.R. § 287.6. While we have held that failure to authenticate under § 287.6 does not 

warrant ―per se exclusion of documentary evidence, and a petitioner is permitted to prove 

authenticity in another manner,‖ Gao’s failure to authenticate her evidence undermines its 

evidentiary value. Chen v. Gonzales, 434 F.3d 212, 218 n. 6 (3d Cir. 2005). We, 

therefore, conclude that the BIA’s decision to accord little weight to the official Chinese 

documents was reasonable. We similarly conclude that the BIA was reasonable in 

relying, in part, on past decisions to reject Gao’s argument that returning to China with 

two foreign-born children would result in her persecution. See Liu v. Att'y Gen., 555 

F.3d 145, 149–50 (3d Cir. 2009).