major issue in this case which is if selene had been decided in the mean time i guess my inclination would be to say the board didn't abuse its discretion and not finding a material change but we have a case that says there has been a material change in conditions in indonesia over this period of time with respect to christians and that on a showing not very different than your client made that it was the same exact  the other is the evidence presented here is identical to that as in something but the with the exception is saying there's you know one family member went to church the other one is too afraid to go to church but they both expressed danger they both expressed fear so what should we do with your case should we send it back to the b i and say which after all didn't have the benefit of silly right so in came down in the mean time you take a look at this case in light of sale regional we move the proceedings and they didn't they they failed to look at this in light of the favorite group as well so they missed two things here but we are seeking is that we just send it back opportunity to analyze it in light of solem but if we were to send it back for it to be a to take a look at slim and analyze it in the first instance do we distinguish between the asylum in the withholding claims there would you not well it's it's similar very similar in fact to multi the government argues that it's just the continuation but as a multi we were showing that it's not merely a continuation think we're saying things were awful in two thousand and six and they're still awful so you haven't shown a material change and that misses the point that's exactly it we don't disagree that things were awful things have always been awful but you get to a point report which i think was not available back at the time your client first applied you'd have a difficult time showing the material changing conditions were enjoyed but as you know with the duration of time issues getting progressively worse and you know specifically we were able to show upsurge in my articles that we were able to show increased violence we're able to show that the indonesian government fails to protect the religious minorities that they're in fact protecting radical militant groups and that the officials are now actively partaking in the destruction churches rather than just sitting back and letting it happen take it back to judgments question yes isn't the appropriate thing for us to do is to send this back to b and say reconsider all this in light of so we we normally don't tell the b i hate must grant a motion to reopen indeed and so lame the court didn't either the court just said your decision so far was not based on substantial evidence take it back isn't that what we should be doing i think we do meet and surpass substantial evidence so you may well but doesn't it be how you get the first crack at that once we tell them that the that there's a new legal frame there's a that they looked at under the wrong legal framework or at least that our legal framework changed i always say to reverse an agency or vacate what they've done based on a decision that's come in the meantime that they haven't seen and if you're right you convince them we have shown that it's qualitatively different so again if we go back to multi judge reinhart stated that there were two relevant points in time the first is the circumstances and the country at that time of the previous hearing and then the circumstances in the country at the time of the motions will reopen and if you take a look at these two times it's qualitatively different it's not just that it was bad the same time period that was at play can and i know you i'm not sure the methodist of my point is i'm not sure the member adds anything to suing him ok it's it's exactly the same facts are so lame and the court says it will remain for that reason that there i'm and i keep i don't measure you can address them there's three member states come out the other way they're not presidential either and one of the reasons i struggle struggle with this this is a lame case the i'm not sure there's any material distinction between the motion to reopen and saleman the motion to reopen here in terms of the motion they look pretty much the same my guess is they were filed by the same people and so and and so when the panel says this is substantial evidence that meets the prime aphasia standard for a motion to reopen and the on the on both prongs change country conditions and and persecution by focusing on change country conditions if selenium says there's change country divisions between two thousand and six and two thousand and thirteen and we're looking in this case between two thousand and eight and two thousand and thirteen for the same group of indonesian christians selenium which is that the original proceeding in selenium was based on a completely different based on no i understand i don't know but i understand that point and normally i think that would be a good distinction so lame so we didn't present any evidence in two thousand and six of persecution of christian because he wasn't a christian at that point or she i don't remember who it was the difficulty is that that's not what the court of appeals says since only it doesn't say hey the reason to be a erred is it didn't compare it to conditions at the time because you didn't it's sad as this is evidence that you submitted shows change country conditions in indonesia since two thousand and six and if we're stuck with that decision whether it's right or wrong i don't get around it well judge your words i guess i would say two things first i would say that i don't i would not regard that statement as part of the holding insulting him that this court now as a matter of law must conclude there a change country conditions in indonesia in that time period and all future cases and i think that's why although they're not presidential and that's not really binding here the meme dispose go both ways when i was here what i'm reading from suing him analyze them to the correct standard substantial evidence demonstrates that sometimes motion to reopen meets the change country conditions exception this is the same motion so i guess that would lead to my second point deterrence that in salim you didn't have in saline the delta was one hundred percent between the first proceeding in the second proceeding because the basis for relief had changed so all the evidence was essentially new evidence right and so under the it's almost as though it was a brand new proceeding because the petitioner was giving in and i understand it to stay and it's a it's a it's a it's a good for i struggled with the same issue myself but if in fact country conditions have changed based on the application that celine submitted from two thousand and six to two thousand and thirteen how can we reach a conclusion that they didn't change from two thousand and eight to two thousand there because i interviewed change for one person but not for another well i guess structure once i have two two points one broad and one specific to this case on a broad level i don't think you can divorce that statement in salema from the analytical framework in which it was made so in saline you had a whole new basis so i think the bar was lower for the petitioner to with respect to whether country well the so the legal standard for a motion to reopen is based on the difference between the new evidence and the old evidence essentially and in that case because the basis for relief had changed the prior proceeding was much less relevant than here i think the prior proceeding really went through everything we're talking about today in great detail actually came to this court and was affirmed on the same basis the petitioner has brought to us today and so that gets me to my second point which are which which is i think proceeding this petitioner presented pretty extensive evidence in the first proceeding of various forms of i understand yes but then i go back to selenium right where the decision says there's a real showing of changing conditions really over the last several years there that you know it's always been bad but it's gotten really much worse over the last several years and so again it's it that it's an analysis of evidence but it's the same evidence we have here why aren't we bound by that analysis of the evidence i guess what i would say your honor is for the reasons i've given i think of this if this court did that that would at the very least be an extension of selenium into a situation like this where it's really the same basis for withholding that was what so if you're right about that why shouldn't we give the b i the first shot at this it wasn't aware of so him at the time of the decision why don't we send it back to them and say we've had an intervening decision reconsider the motion to reopen in light of that i think if the court concludes that that was a holding in selenium and that it's binding then i think that would be an appropriate result i just disagree i disagree that that was the holding in saline and i disagree that was binding i guess  t one other reason and i take your point that it seems a strange case and you can of course everything you're submitting is new because you weren't a christian back at the time and so you didn't put in any evidence of it and then tim and i would we i read that as being the kind of central i do think you still need to find that this petitioner has shown sufficient particularized good that was exactly the question i was going to ask you so what's the difference between going to church and being afraid and not going to church because you're afraid because that's the that's the case the be a end this court have already considered this petitioners representation that they were afraid to go to church and that bad things that happened in church i mean if i could just quickly walk through the evidence that was considered in the first proceeding petitioners admitted evans evidence that there were bomb threats against her church that's a day or three sixty four there were anti christian riots in one thousand nine hundred eighty eight in which a friend of hers was raped in their building when the building she lived in was burned down that's a day or three sixty five there was an armed attack by radical muslims on a hospital  christians who did not flee had been beheaded that's in our three sixty five there she was harassing her food stall and people were spreading rumors that she served pork so it kind of destroyed her business that's an error three sixty five so that was all in the first proceeding and that was all considered by the insufficient for relief and then this court in the petition for review from that proceeding upheld that is supported by substantial evidence including and i and my colleague mentioned the disfavor group analysis including under the disfavor group analysis and the line from this course it's a meme despoiled but it's this case i think it's relevant was and i'm quoting substantial evidence also supports the agency's finding that even under a disfavored group analysis leno failed to establish a risk of individual lives harm sufficient to demonstrate a wealth and i think that's why i said later your colleague and i it's worse now right and i guess what i would say judge here with us is that the distinction between this and selenium is that in selling him it was he was considering the evidence sort of tabula rasa because the board had never considered it before and i think that had significant  do we do though going back to your point if we were three members of this that would be an extension of solem i don't quite understand that point maybe you can articulate your again because what we're doing is we're looking at a limb on a century the exact same grouping  saying another panel has said that the conditions have substantially the theory did in recent years i don't understand why it's an extension of slim to say well this guy's in the same situation have to be a taken a certainly just one so so i guess just taking this to sort of a big picture perspective motions to reopen are disfavored of course because it's a second bite at the apple it's a cloud of all attack on the original proceeding etc so that the analysis in a motion to reopen is always about the delta between the first proceeding in the second proceeding what's different what's new and so i think judge when that even if another panel has concluded that there were never there was a change in country conditions that doesn't that doesn't free future panels from the need to still perform o they really didn't look carefully enough back to the way things really were in two thousand and six because if they had and it only looked at you know the evidence what they would have found was things were exactly the same back in two thoughts well i guess your honor i would have to if i may i'm over my time but if i may have to go have you know the the i j decision in this case was and i think twenty five written down somewhere twenty eleven or twenty twelve twenty a lot i think in this panel's decision was in two thousand and twelve so some of this evidence that we're talking about in saline had been factored in but i don't think so it's not that saline is wrong it's that saline was performing a different analysis because in saline the difference was one hundred percent if all that evidence was essentially new because the basis for relief a change in this case you still have to compare the original proceeding to this proceeding and conclude that the petitioner has presented a manual to mask the evidence that is material qualitatively different and not available in the prior proceeding and so unless the court finds that the petitioners carry that burden i don't think you can grant the motion reopen or send it back to be on the your claim is that it was available in the prior proceeding and took it into account and made its decision based on that and that therefore the because it was starting from scratch that is i think that is essentially what i'm saying that he and i mean not all of the evidence that celine considered would have been available to this petitioner because you know celine came out in twenty sixteen and  the petitioners original proceeding was you know there's a lot of your decision was in twenty thirteen but yes that's that is essentially i'm saying much of the evidence that underlie under lay the opinion in saline was available before and i just don't think that  say that the court doesn't need to perform the basic with open analysis of comparing the prior evidence to the current evidence it just makes an observation about what's going on in indonesia a holding if the court concluded based is there any doubt in looking at the news that condition think have been great for some time and so i'm not i'm just not equipped to opine on whether it's just i think that the government's position is if they've gotten worse they haven't gotten materially worse i think the government's position is that the evidence in this case doesn't show that doesn't show that they've got to truly work for purposes of a motion to reopen the sort of further questions thank you thank you religious minorities in indonesia so we weren't going from one hundred you know from zero to one hundred percent but rather they were the court took that limited evidence that was presented back in two thousand and six and terrible record doesn't put in very good evidence the other one makes a really good record put in lots of evidence of persecution some time later they both come back with the same evidence on a motion to reopen their motions to reopen or identical for one of them it's quite different evidence that was there before the other one it's pretty close to the evidence that was there before it is one of them when the other one who's no i don't think that to be the case you know i think we have to follow available at the time do we say well gee your evidence really is materially different guy who did a bad job the first time but the guy did it good job the first time you haven't it's just not materially different right so i think that's where the court can make  a judicial influence or the court can look at the state department reports and irrespective of what was submitted or not submitted the court can make that determination i don't think it's binding just on what was mooted at the first time when it wasn't i think but that's the framework and now it's not just to make make a comparison between the initial decision and the motion to reopen right what's what's interesting is that generally we don't take judicial notice of the facts and proceedings in another case but but you know in immigration arena with regard to country proportion you do see cases kind