*

On November 2, 2009, we granted Petitioner Hua Chen’s motion to waive oral argument.

Thus, the petition for review is submitted on the briefs and the record. See FED. R. APP. P. 34(f); CIR.

R. 34(e).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 22, 2009*

Decided December 23, 2009

Before

DANIEL A. MANION, Circuit Judge

DIANE P. WOOD, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 09‐1984

HUA CHEN,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

A070‐908‐061

O R D E R

Hua Chen, a citizen of the People’s Republic of China, petitions for review of an

order of the Board of Immigration Appeals denying his motion to reopen deportation

proceedings.  We deny the petition to the extent that we have subject‐matter jurisdiction.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

FED. R. APP. P. 32.1
No. 09‐1984 Page 2

Chen entered the United States without valid entry documents in 1990.  In 1993 he

applied for asylum, withholding of deportation, and protection under the Convention

Against Torture, claiming that he had a well‐founded fear of persecution if he returned to

China because he participated in pro‐democracy demonstrations in 1989 and then illegally

fled the country.  After numerous continuances and a change of venue, Chen’s application

was finally adjudicated in 2000.  The immigration judge denied all relief and issued a

deportation order.  The Board of Immigration Appeals affirmed the decision in 2002, but

Chen remained in the United States.      

In 2008 Chen filed a motion through counsel asking the Board to reopen his

deportation proceedings in light of what he characterizes as “new and previously

unavailable” evidence of changed country conditions.  See 8 U.S.C. § 1229a(c)(7)(C)(ii).  At

the time he filed this motion, Chen was in removal proceedings under a different name that

he apparently gave to police in Chicago after a traffic stop.  In the motion Chen alleges that

his girlfriend gave birth to their daughter in 1999 in violation of China’s family‐planning

policy, and that since 2007 he has practiced Falun Gong and participated in protests against

the Chinese government.  Chen also maintains that local officials in his hometown in Fujian

Province are now aware of his activities in America and want him to return to China so that

he can be punished.  

The materials Chen submitted with his motion include a child’s birth certificate,

photographs of himself participating in Falun Gong activities, and what purports to be a

notice from the village committee in his hometown ordering his parents to urge him to

return to China to receive punishment for fathering a child out of wedlock, practicing Falun

Gong, and applying for asylum.  The Board concluded that Chen had not met his burden of

establishing materially changed country conditions as would be necessary to avoid the 90‐

day deadline that ordinarily applies to motions to reopen.  See 8 U.S.C. § 1229a(c)(7)(C)(i),

(ii).  The Board noted that the father identified in the child’s birth certificate does not share

Chen’s name or date of birth (or the name Chen gave when he was detained in Chicago); the

Board also observed that Chen did not mention the child in 2000 when testifying before the

immigration judge.  In addition, the Board declined to consider the notice from the village

committee because it was not authenticated as required under 8 C.F.R. § 1287.6.  The Board

distinguished Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008), where we relied on the

petitioner’s submission of a letter from her hometown village committee—the authenticity

of which the government did not doubt—to hold that she had established changed country

conditions.  In contrast with Lin, the Board explained, the Department of Homeland

Security had not conceded the authenticity of Chen’s evidence.

In his petition for review, Chen challenges the Board’s conclusion that he did not

demonstrate a material change in country conditions.  This ruling is the kind of
No. 09‐1984 Page 3

determination that we lack jurisdiction to review except as to claims that the ruling rests on

a constitutional or legal error.  See Sharashidze v. Mukasey, 542 F.3d 1177, 1179 (7th Cir. 2008);

Kucana v. Mukasey, 533 F.3d 534, 538 (7th Cir. 2008), cert. granted, 129 S. Ct. 2075 (2009)

(argued Nov. 10, 2009).  Chen maintains that the Board abused its discretion by “failing to

consider significant evidence in the record.”

Chen principally argues that the Board erroneously refused to consider the village

committee notice because he failed to authenticate it as required by 8 C.F.R. § 1287.6.  This is

a question of law that we may entertain.  See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.

2008), cert. denied, 129 S. Ct. 737 (2008).  Lack of compliance with § 1287.6 is not a valid basis

for immigration courts to disregard relevant evidence unless there are additional reasons to

doubt its authenticity.  Castilho de Oliveira v. Holder, 564 F.3d 892, 897 (7th Cir. 2009); see also

Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir. 2006) (explaining that failure to authenticate

evidence “does not amount to presumptive proof of falsity”); Georgis v. Ashcroft, 328 F.3d

962, 969 (7th Cir. 2003) (noting that compliance with regulation is “not the only way” to

authenticate evidence introduced in immigration courts).  The Board did not cite the

discrepancies in Chen’s other evidence as a basis for doubting the authenticity of the notice,

so arguably the Board should not have disregarded it.  

But any error was harmless because the notice is not evidence of changed country

conditions.  In his brief to this court, Chen describes the notice as evidence that China’s

family‐planning policy is presently “being enforced more stringently” in his hometown, but

it says nothing of the sort.  The notice shows, at most, that Chinese officials want Chen to

return to China to face unspecified punishment, but their interest in him is based on his

“anti‐government activities in the U.S”—applying for asylum, having a child out of

wedlock, and participating in Falun Gong.  Chen applied for asylum in 1993 and allegedly

fathered a child in 1999.  He says that he began practicing Falun Gong in 2007, but it has

been banned in China since 1999.  See BUREAU OF DEMOCRACY, HUMAN RIGHTS & LABOR,

U.S. DEP’T OF STATE, CHINA: COUNTRY REPORT ON HUMAN RIGHTS PRACTICES (Feb. 2000),

available at http://www.state.gov/g/drl/rls/hrrpt/1999/284.htm.  Chen’s evidence does not

suggest that the Chinese government would view his conduct more harshly now than in

2002 when his asylum proceedings ended; he fears returning to China not because country

conditions have changed, but because his personal conditions have changed.  This is not a

legitimate basis for reopening Chen’s deportation proceedings.  See Cheng Chen v. Gonzales,

498 F.3d 758, 760 (7th Cir. 2007) (explaining that alien who remains in U.S. after being

ordered deported may not use “interval of unauthorized presence in the United States to

manufacture a case for asylum”); see also Joseph v. Holder, 579 F.3d 827, 834‐35 (7th Cir. 2009);

Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005).   
No. 09‐1984 Page 4

What is left is Chen’s contention that the Board erroneously focused only on the birth

of his child and did not evaluate whether his Falun Gong activities also constituted

evidence of changed country conditions.  But Chen is incorrect.  The Board addressed all of

his arguments in its order, and his opposition to the Board’s decision boils down to

disagreement with the weight that the Board placed on his evidence en route to its

discretionary decision to deny his petition—a challenge that we lack jurisdiction to

entertain.  See Huang, 534 F.3d at 621.  But we add—given the grant of certiorari in

Kucana—that if we had jurisdiction over this aspect of Chen’s petition, we would deny it on

the merits.  As discussed above, Chen provided evidence only of changes in his personal

circumstances, not the country conditions in China.  

Accordingly, we DENY Chen’s petition to the extent that it challenges the Board’s

refusal to consider his evidence for lack of authentication; we otherwise DISMISS the

petition.