good morning your honors may please the court randall steinberg for the petitioner i'd like to reserve two minutes at the end for a rebuttal this is a case about when water turns to ice or when there's a staggering increase in the number of violent murders of women in guatemala become material rather than incremental in order to prevail on a motion to reopen a petitioner has to show two things one changed country conditions and two a prime aphasia case for relief regarding change country conditions the ninety day limit to file a motion to reopen will not apply if the motion is based on changed conditions the evidence is material wasn't available and could have been discovered at the first hearing and here miss tovar was denied asylum in one thousand nine hundred five she percent or whatever the number is increase over a period of time because the b i e s decision imply that your client should have filed a motion to reopen earlier given given that that was given that there was already a high level of violence at one point he continued increase i know you take issue with the immaterial and incidental and i think i think that's that's a good point but i'm trying to figure out whether the motion might still be untimely material change something conditions i believe to be i did think it was untimely i'm not sure that they thought it was untimely because the record of book violence was increasing but what i wanted to point out about that is that we got a motion to reopen based on change concrete country conditions congress never imposed any time limit for a route but i guess is it really true so let's assume that a change country condition is apparent in two thousand and five can you wait until two thousand on the same point i think the judge wrote was inquiring on i was wondering if this data showing the three hundred eighty eight percent increase in violence against women that just become available shortly before she found to reopen or was the data a year by year available to her from some published source and was the record tell us on that from what i remember in the record the record the part of the record that shows the four hundred percent or three hundred  eighty eight percent increase shows that shows that by ten years it didn't break it out it wasn't mike my question to you is whether the record tells us if after five years for example incrementally and then say well now the aggregate amount is is a big change i don't believe the record showed anything you're by you're not from what i remember seeing you're on i think the record does show year by year numbers but what it doesn't show i think is the question judge gould is asking which was was there was this information available to her earlier in some sort of published form before before two thousand and nine i think which is the last still find a motion on timely because even even if country conditions change they change they've been they have been changed for such a long period of time that your client wasn't diligent in pursuing a motion i believe that that's within their disk discretion to do but what i was saying was she has shown a primer facia case for relief she doesn't have to prove that she actually warrants relief the standard is whether the new facts been held no i agree and i think she does have a form of fish a case based on her membership in a social group and the social group is women from guatemala threatened with death if they returned to guatemala and were threatened by their abusers who were present in the record at one eighty seven it says femicide describes the gender motivated killing of a woman and we believe that the use of the term shows that the group of women from guatemala is socially distinct also at record one thirty three it says of the killings which include frequent rape in mutilation before murder and the pain they cause qualifies as femicide as torture that's found a record one thirty three is any of that before what's it is any of that before  i believe so it was and it was in the record well and to be i i didn't say we're turning you down because you haven't established a prime official case of of anything to be a stage which you haven't done is shown change country conditions that's for sure that's the only issue that's in front of us right well yes but we believe that the b i abused its discretion by not focusing on a want to perform official case well but if it if we send it back it would focus on that it might rule against you might rule in your favor but that's an argument you make them not us ok well regarding the change country conditions i would think that saying we have to decide two issues in your favor would be something you would oppose but i hear you saying that we have the side that issue and you're famous well but this might have been lots of good reasons for turning down motion to reopen as on time earlier because she wasn't part of a social group because she hadn't made a prime official case or maybe those wouldn't have been good reasons but with a b i said is that there's been no material change in the level of violence against women during the relevant time period and four hundred percent seems like tiriel change to me so why why isn't that finding now supported by not supported by substantial evidence if you will what the board found is that that specific statistic the increase in femicide rate was incremental what they did is they looked at that in terms of the entire population a population of fourteen million people so we're taught i mean homicide ra time it's increased twenty percent fifty percent one hundred percent why wasn't this immaterial change in in the in the situation that a woman returning to this country would face because of the board is looking at that statistic among all the other that's presented and when you read all the different articles in the background documentation regarding the situation and what amala becomes readily apparent that the violence against women while certainly regrettable in terrible has been going on for a long time but the board didn't say filed this same claim i want to say that she's eligible for asylum but she was she could have done as she could have filed the same claim that in one thousand nine hundred five because the violence against women was prevalent prevalent in guatemala at that tell prevalent very prevalent according to the documentation albeit incrementally although that wasn't if that wasn't what to be rested it's finding the right but i'm just looking at the record evidence here and at the end of the day this is a factual determination by the board and then i think question sort of gets the issue of how do you determine what's incremental and i what four hundred percent over the relevant ranks me in untutored way as well as a big change it's four times as bad as it used to be well is that is that a factual finding or is that a legal conclusion well i think it's there's looking at the facts as a whole to determine whether this meets the materiality requirement for change country conditions i mean you could say you know one year one person could be murder in the next three or four people could be murdered and that would be a four hundred percent increase but in the was an exercise of discretion so before you ask the question lock yourself into something just make sure you consider all three possibilities and we may be reviewing a legal conclusion for abuse of discretion i don't have i just i kozinski focuses on my question how do we review the board's determination with what kind of everybody's board's determination of the abuse of discretion standard that's well established law the question here is whether the board abused its discretion and whenever we're looking at whether or not the board abused its discretion what we're looking at is whether the board's decision was in some way arbitrary capricious or con but isn't it also an abuse of discretion to apply the wrong legal standard it would be that would be the contrary to law portion but it doesn't mean the board didn't apply an incorrect legal standard here it appropriately determined that the motion to reopen was untimely there's no dispute about that it appropriately noted that there was a potential exception to the temporal bar for materially change country conditions in and it applied the record evidence to in determining that the evidence of this record did not demonstrate the material change country conditions that were needed that's not good law that's not what i counsel yes just cool device get their job just a simple question yes does the record answer the question i asked your colleague there is was this femicide data available year by year in some published form so that she could have looked at the issue and presented it earlier there was a just collected then came out shortly before she fell to rio the record doesn't tell us one way or the other whether these statistics were available  but i don't think it's relevant to this analysis anyway because the board didn't make a finding that didn't deny the motion on the basis that the evidence was previously available the board simply denied the motion on the basis that petitioner did not demonstrate change country conditions so what your honor is talking about would go to a separate finding that the board didn't make but to answer your question directly it's not clear from the record whether these statistics were available previously i suspect that they were but i can't the record doesn't indicate one way or the other ok thanks that answers your is there a percentage increase in your view that would be an abuse of discretion i mean or put it differently is it is always the board looks at the numbers and concludes that there are material in significant  our job is done i don't know that there it's not like a social security grid i don't know that there is one specific answer that a certain percentage would always make meet the definition of change a country commissions is always has to be done on a case by case basis and that's that's the board's job when they're looking at the record evidence i don't know that well but i guess i'm asking is do we it's long as the board applied to correct legal standard yes and then no matter what conclusion it reaches with respect to the increase in the country we must defer to it as long as it's not arbitrary or depreciates as long as it's really it's reasoned and supported by the record evidence yes that under the abuse of discretion standard that would be within the board's discretion there's also the separate issue the rich how do  make the decision as to whether it  capricious well i guess the court would look to whether or not the board appropriately consider the evidence whether it i mean i don't know i'm not exactly sure what you're asking me well but you're answering judge kozinski question the same sort of same way i worry about your answer to mine which is it doesn't really matter what the number is it could be ten thousand percent as long as the board looked at the evidence carefully and reached a conclusion that can't be our our review is not that limited is it well i mean i don't think the court room supplants it's its analysis of the facts for the board if it's it's not akin to a stand what the board is analyze the facts i mean the facts are not in dispute everybody agrees that yes stand on the statistics violence against women or femicide increased three hundred  eighty eight percent that's really the only relevant factor here because i don't i don't see petitioners presenting i the any other evidence in support of her claims her boyfriend went back but she knew that already or a better partner so what conclusion  we reach from that do we say well the board didn't think three hundred percent was a lot so we shouldn't either or if that's the case then what's the limit of what do we have any role in reviewing at all i mean the only role i know respect to we don't know the specific percentage of what of her specific you know what the specific i mean in that context we know the general percentage i don't know the general percentage no i don't think it's what we do know the number of women killed that's what the record e don't know what in terms of percentages but we do have facts in the record that would be indicative of the likelihood of persecution for example the evidence in the record says that the majority of the violence towards women guatemala occurs from adolescence to age thirty and petitioner was born likelihood of overall persecution the only basis for the board's decision in this case was the specific finding that there were no change country conditions so that i think your honest question is getting to a separate question  justify a grant for asylum a certain amount of persecution i think the supreme court said one in ten or something yes you know so for example if there is a ten percent chance of being prosecuted eleven percent chance o twelve percent chance or twenty percent chance or fifty percent chance that's enough assuming there are other all the other requirements of persecution are met then something in that range somewhere about one in ten would be enough to asylum right yes so it matters whether these numbers have gone from somewhere below ten percent or somewhere above ten percent or whether they are somewhere in the low single digits or whether they are you know they're gone from twenty percent to thirty percent it matters because that affects directly the likelihood that you're going to have an asylum claim viable asylum claim not necessarily your honor because for example there to be a situation where it's possible that an alien could meet the ten percent threshold back in one thousand nine hundred five and again meet the ten percent threshold in this current situation that's not relevant to the analysis of change country conditions the only thing we're looking at a change country conditions  is the time bar could bar potentially somebody who was previously eligible for asylum from applying for asylum now you've just got yourself a hole because i mean what you're saying is it might not matter if it went from somewhere above ten to somewhere higher than that but i think implicitly arguing that is one for if you went from below one in ten to above one in ten then that would be a material change if it was  upper double digit range of little things that seem to make a difference isn't it and how can we judge how can we judge abuse of discretion if we don't think the boys looked at that well i mean the board did look at it in this you know it was it didn't do the board didn't say no if you focus on what you actually said he's asking the board didn't say even after all these increases the level of violence against women doesn't reach the level of persecution it doesn't reach the ten percent or whatever threshold it simply said it hasn't materialised changed and that that seems to be wrong it may still be that the board could have turned down this application on any number of grounds but it didn't say it didn't say even now the threshold where it would give rise to a persecution quite well i think with the board was saying was that it was a material to her prior ability to apply for this if a claim for relief back in one thousand nine hundred five so it's related to her if we were to dig in the records and find that i know it's not there but let's say we were to dig and find evidence that it went from persecution that would be that would be demonstrating the petitioner had a prima went from not having a prima facia case of asylum to having a prima facie case of asylum the board in this case did not make a prima facie determination all it said was all it needed was a determination that the country conditions had significantly changed since the time of her previous marriage hearing that's the only decision of the board made what you're talking about most a lot of lying isn't that long if the likelihood of persecution has gone from below th given by the supreme court and increased to above that why wouldn't terminations that it's not material wouldn't why wouldn't that be an abuse of discretion used to be you were not subject to prosecution because like you who goes too low you've just gone over because why wouldn't the determination be abuse of this question because the change that we're looking for when we're looking at a changing to country conditions is the conditions at the time of the hearing versus the conditions now and what your honor's analysis is sort of suggesting that somehow blending the prima facia and analysis into the analysis of change country are going to show us no no no no you know just look that change conditions i got turned down the last time because the likelihood of being prosecuted was too low it was below what the supreme court said is now i've got new numbers and the numbers show that's now more than one in ten so therefore there's shane's in the changed much here because it standard for determining whether a condition is it's again it's an abuse of just discretion standard the board has a wide latitude of discretion in determining whether or not to grant or deny emotionally open and for when the i mean it's a fair it's a case by case analysis of the board has to determine what to evaluate the likelihood it's not again it's not like a summary judgment motion is like akin to a motion to reopen for a new trial and  into the prima facia eligibility when you're talking about percentages you're talking about the aliens likelihood under a prima facia case for relief and this is just an analysis of the country conditions at the time of the hearing versus the time now and when the board is looking at it all they're looking at is it is it material enough such that it's worthwhile for developing honor of you that's an issue of the board's discretion and again i wish i had a better answer for you than it has to be done on a case by case basis but that's what the board does every day looks at the evidence on a case by case basis and does that so that's your best chance so we'll just have to go with ok mr robbins let me ask you a question you don't have to answer if the government and i think this to me this appears to be a case that might be amenable to mediation i don't want to requires too willing parties i just ask that you the other side discuss whether or not this is such a case you don't have to answer it ok thank you very much for timers ok of three hundred eighty eight percent increase in murders of women in guatemala is a significant increase it's a significant material and how do you know that increasing of an increase if it's still below the threshold of what the supreme court has murder is murder is one form of abuse but there are others there's the record to help us knowing whether the rate of abuse of women in guatemala changed over this time period and what into what level it reached this is really something suggesting that one third of the married women or women in relationships in guatemala are subject to some sort of abuse but i don't know whether that changed over the relevant time period is really the thing in the record that gets the issue judgments he's been asking about i don't remember you need to show a material change is that your burden so if it's absent doesn't that count against your client no your honor because we're focusing on femicide in the murders of women that's the there with that was the except by measuring against the power fisher case how can you tell whether or not it's much here i'll change without showing that look there's been a change would there's been a change but you still don't have a cough is a case or not is no point to reopening because the board completely ignored evidence of a material change but now the answer to this question is that the board could find that but that's not what it found right so it may well be that your claim fails that you can't prove that any of this arises to the appropriate level of persecution that that's the question is whether you've shown a material change in country conditions how do would be enough to make your prime official case for relief there are two separate issues aren't they yes i agree and again i think that the prime officially case is something that can be made on remand but a three hundred eighty eight percent increase out if you know you've got to show something this prosecution prosecution is one in ten chance if you if you're not anywhere close so that's why does it matter there's been i mean there's been an increase why is that kind of increase material presented evidence and why do you get a make over i believe we have what have you presented that shows that you are now in the range of prosecution what have you shown that says well ok this  well there's also another issue that i didn't get to when i was doing my regular argument is that there's also the presence of her former husband well but she knew about that more well before she father  know he was of we're going to say that that that can't be and a material change in country conditions that's occurred within a reasonable time of but it was a change in country conditions since her first hearing in one nine hundred ninety five and again congress didn't oppose any time limits on filing a motion to reopen based on change country conditions so i would say that his his presence there is a wait until two thousand and fifty to file an application based on his presence there i don't think she should wait until two thousand and fifty but there's no prohibition against waiting till that's absent the increase in statistical femicide in the country  would his presence alone be a change country condition i think it's a factor you know that's not what i'm asking or sorry i'm asking let's assume you don't have any statistics and all you had was the was the bed husband was sent back there and he was a terrible person was it would his presence alone be a change country condition i think it could be because he threatened to kill her if he if she returned to guatemala changed condition in the country it's it's a change circumstance your honor ok ok thank you thank you