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The Ninth Circuit hold that the birth of a child outside the country of nationality is insufficient, on its own, to establish changed circumstances within the meaning of 8 CFR §1003.2(c)(3)(ii). Because Petitioners have provided insufficient independent support to excuse their second and untimely motion to reopen, the BIA did not abuse its discretion when it denied the motion

The Ninth Circuit held that the birth of children outside of the country of origin is a change in personal circumstances that is not sufficient to establish changed circumstances in the country of origin within the regulatory exception to the time and number limitations under 8 CFR §1003.2(c)(3)(ii). The court reiterated that both extra-circuit case law and a straightforward reading of the regulation's text suggest that childbirth alone is insufficient.

The court held that absent evidence of changed circumstances in Petitioner’s country, it must deny the petition for review. The court concluded that Petitioners provided insufficient supporting documentation to establish changed conditions in Petitioner’s country. The court noted that the two documents submitted with Petitioners' second motion to reopen were not persuasive. The first, a sworn statement from Petitioner wife, stated that one of her friends gave birth to three children in Holland and was forcibly sterilized when she returned to Petitioner’s country. The court found, however, that Petitioner wife gave no dates in her affidavit and so it was it was not sufficient to establish changed circumstances in the country of origin. The second document was an unauthenticated translation of a native document titled, "Must Knows About Marriage and Birth." The court noted that this document was dated prior to the issuance of the BIA's decision in Petitioners direct appeal from the IJ decision, and thus it was insufficient to establish changed circumstances in Petitioner’s country.

Based on the above reasoning, the court found the BIA did not abuse its discretion and denied the petition for review. However court finds that Petitioners can file a new asylum application under INA §208(a)(2)(C), which allows for the filing of multiple or untimely asylum applications based on a change in personal circumstances. As similar finding was also made in a Second Circuit concurring opinion cited in the footnote. The author notes that because Petitioners have been ordered removed, the asylum office would not have jurisdiction over their case and their only means of having a new asylum application considered is through a motion to reopen, a motion that in this case was denied.