The 8th Cir held that the birth of a child in the US is not a change in the country conditions so as to justify an untimely motion to reopen. The CtApp also addressed the documents found persuasive in Shou Yung Gou, 463 F.3d 109, 114-15 (2d Cir. 2006) - but found that the Board's decision in Matter of J-W-S-, 24 I&N Dec. 185, 192 (BIA 2007), was a reasonable one. In dicta, the CtApp said that it wasn't the BIA which had issued a boilerplate finding, "It is Lin who has submitted a “boilerplate,” untimely motion to reopen and a carelessly argued petition for judicial review, no doubt for the reasons of delay that have caused these motions to be viewed with disfavor, by Congress as well as by the courts." Ouch!
The 8th Cir refused to consider most of the Petitioner's arguments, because he didn't file a Petition for Review from the initial BIA decision, only from the denial of reconsideration. Upheld the BIA's reasoning in denying reconsideration.
The 8th Cir found that arguments that IJ mis-analyzed were not colorable because they were at heart an attack on IJ's discretion, and because an alien has no due process rights to discretionary relief.
The 8th Cir held that an affidavit regarding increased enforcement of population control measures in Chinese village did not show "change" in country circumstances, because there was no evidence in record of prior pop. control efforts, and because mother's affidavit could be discounted due to prior exaggerations.
The 8th Cir denied the Govt motion for summary dismissal. The Court noted that even though some waiver aspects are discretionary, it has jurisdiction over legal claims relating to discretionary determinations, and particularly the appropriate legal standard for the decision. It also found the fact that marriage fraud would trigger a permanent bar to work in favor of review.
Eighth Circuit 
