please the court my name is ted chandler i was appointed by the court is pro bono counsel for the petitioner monthly fee and with me is peter kong also pointed program counsel and i'd like to reserve united states citizens the fact that the fetus married to a u s citizen and has children who are u s citizens is relevant both to the adjustment of status claim as well as the asylum and withholding claim  withholding claim as it is set out in the briefs it's based on well established president so what i would like to do is start with the adjustment status claim which is or is not an issue that i've found in any published opinion in this court it's a little bit more unique so turning to the vastness that is claimed the attorney general has taken the remarkable position this court has no choice but to split up to be family insensitive back to iran and simply not true this court does not have to split up this family nor should it mr to fiji has been approved i want thirty views a petition based on his bonafide marriage to united states citizen and that's normally he would be eligible for an applied to fiji but this court should reverse that ruling and remand with respect to the ninety day deadline because on remand once the ten year bars out of the way there's every reason to believe that the department of homeland security will exercise it of the absence of evidence is itself evidence if he had paid the five hundred dollars bond the attorney general should have a record of that in a should be in the record so in other words the fact that there is no evidence in the  i haven't seen a lot of records this is my first record so i can't tell you whether it's normally in there but it should be in there if the government's going to use x factor against the alien and also there is a prima fascia case in the sense that even after that statement his attorney came back and asked the immigration judge to set aside the bond because the attorney told the immigration judge that if he was in financial trouble and then again after that in the record is declaration by to be saying that he didn't have enough money to pay one hundred  case that an alien is not going to have the five hundred dollars at hand to pay within five to five thousand five days  and they actually granted and just in a status to an alien in very much a similar situation as to feed me who had married shortly after applying for asylum pending the appeal and dashed d h s s has a policy that in its discretion it will be assessed will consider factors as to whether or not they believe the alien merits an exercise favorable discretion but in this case is every reason to believe that the h s would all a fight christian that he was he was simply using that as a means to stay in the country even if they'd made that your contention is that in the petition to reopen the the agency must look at both new  evidence and old evidence and reconsider and that if they whether they do or not you may appeal to or seek review in this court of that ultimate conclusion that if that is your position my time think that the great you say that this change circumstance has to be a circumstance in the country and therefore the fact that he now has more children all that may not be relevant but what about the question of whether escape the ninety day bar which is not just the regulations it's by statute in congress explicitly put that in there because they were tired of the way motions to reopen coming in they wanted finality in the process well he could he is or i think that he's asylum claim has already been actually before the board when they made their decision and the actual decision of the board the board stated that they did not find that these conditions this supposed new evidence that was brought before them evidence of any materially change country conditions that affect his claim then follow up by stating and to the extent that this would be evidence regarding his christian conversion claim we think that the i j a found that he had not converted and that was their finding but i think it's important to note that the board looked at all the new evidence and if you look at the record and compare what evidence was actually before the i j a at the initial asylum hearing and subsequently before the board on this motion to reopen there are no changes country conditions if you just opposed to through yes it's well known that iran's human rights record is abysmal that was stated in the initial evidence that was before the i j a and the settled policy of the agency is to simply disregard that bar and look to the current circumstances of the the petitioner you are the only the ten year bar that treated as mandatory jurisdictional much like the thirty day deadline for petitions for review subsequently as case law developed this was in the so called going policy case it's found that yes the ninety day bar is not it's never been argued by counsel at any stage of this litigation that there's an equitable claim and in fact neither in anything that has been filed in this court before the board or the immigration judge has any reason for the five hundred day delay outside of the record we did do a search and we could not find evidence that he paid the bar but the important thing is that this was never exhausted before the board and the only evidence that's in the administrative record which is what we got to potentially admissable into the country and be able to apply for awful permanent resident or some form of relief my understanding is that he could see any number of types of relief now he could never seek to reopen the proceedings of the board because once that ninety day window any any kind of relief at all is that your suggestion that during the ninety days to seek reconsideration of the ten year ban is suspended in other words if he come in within the ninety days and  e determination that's in the statute and there's no way to ever involve that even after the ten years runs right that's what you're telling us on a motion to reopen that's right you're either there or anything but yes but it has to be a motion to really