when mr wong met his wife fell in love and married he was a citizen of china and she is citizen of the united states mr wong was an active pursuit of his asylum claim he was found credible with regard to that claim the couple was also found credible with regard to the i one thirty alien relative petition which she filed for him that means the us government acknowledged and affirmed that the couple couple married for love not for an immigration benefit we are here because the immigration judge found that the country conditions in china for members of the chinese democracy party were not sufficiently severe to support the objective prong of a well founded fear subjectively yes objective we know yet time has moved a judge's decision on country conditions is a snapshot in time country conditions conditions do change we are also here because there is no jurisdiction for mr wong to file an eye for eighty five application to adjust card why is that where they tell them that when they approve the i guess it's the one thirty and they tell them what they could what he didn't get as a response there but they told him he couldn't find an application for a change of status at that point why was there technically you can file it by sending the i forty five with the fee which is now upwards of twelve hundred dollars to us c i s but will be rejected because there's no form for that there's no jurisdiction when you moved to reopen why did you want to reopen wanted to reopen two things one is the asylum claim but at that time also reopened so that mr wang and his wife could receive mr wong specifically could understand i'm not i'm just confused so you we wanted to reopen so we could file an application for an adjustment of status and then you say there was no place for him to file and that it was not possible for him to do that and so there seems to be a conflict i just want to understand sure if the board were to reopen then it would go back down to the immigration court in the normal process for the judge to adjudicate the forty five green card he that he was subject to a final order deportations and that the problem yes and so therefore he unless he opened the removal proceedings there was nothing else he could do that's correct in fact at the time that i filed a motion to reopen he would had just a few weeks left under a motion that i filed in which the b a s decision said i should do when i had already done which was a motion to stay removal with the enforcement removal office of the h s so we were under the gun and we are most grateful to the ninth circuit for his decision in saying the holder because that's why we're here was one of the reasons we're here it was the second time in six years that this court held that the board does have authority to reopen proceedings of an alien who is under a final order of removal like mr wong in order to afford the alien an opportunity to pursue an adjustment of status the couple now have two children ages fo are also u s citizens mr one's wife was diagnosed with prenatal diabetes with the first child and this is ultimately spiraled into an insulin dependency as a type one diabetic you can't we open just on the basis of marriage and citizen children isn't that correct the board does have the authority to reopen at any time for adjustment so through but also i filed that motion to reopen twelve days after the saying case issued and i argued that the same case over rules matter of yet the board cited mary a matter of yari the old law to support this decision that the motion to reopen was untimely so unfortunately despite the continued pressured continued admonishment of this court to the board to reopen cases that's a statutory language the board can reopen cases at any time to allow just move status and that's the beauty of the immigration system as it was designed to integrate these processes but unfortunately board just refuses to do so well but i thought you were arguing change conditions and that therefore he should they should have are they should reopen on that basis yes that is part of the argument as well but the facts stand that i filed that motion to reopen twelve days after saying was was issued by this court so arguably that is a change in law you could also look at it as it's not as a change in law but just as a reinforcement of law the law that was there and that's why it's further frustrating that the board would deny saying matter of yari says we can't and talk about timeliness when they have every authority to do so to provide for family unity because i'm not sure i read the b i's or the same way you do ok last paragraph says we declined to exercise our soonest ponty thore rights that seems to suggest they had an awareness that they had the authority to exercise and they declined to do so in their discretion that that's a matter over which we lack jurisdiction well they didn't explain and they need to do that what because they say they did explain they said we find no exceptional situation warranting the exercise of such authority and they cited a case in which the j j matter jay jay case right in which i can't remember also suggested that this was untimely and that they were going to use their discretion but they didn't explain how this doesn't meet the idea of family unity in their statutory authority they're just acting as a rubber stamp authority and the fact that they cite matter of yari so sort of an attitude of this board to not really review the arguments before it and the compelling circumstances i do have a son with type one diabetes i know  firsthand the nature of the twenty four seven condition and stenger's for them for people with type one to live alone or without support so why is the board not using its authority to for family unity that is a goal under the law of immigration and nationality act but you know i recognize that this was a technical error what i'm concerned about is that country conditions and china have changed in this court could take judicial notice of those suits changes or could order the return of the b i a with  contingent on a filing of such an i five eighty nine or i forty five a technical flocke can be cured the dangers to mr wong should he be returned to china cannot so will he would do we send people  come to deep work yes they do they do take them and as we know if you would the judge you could take judicial notice of the fact that the wife of the chinese democracy party leader was recently arrested that the chinese democracy party has basically dead now there's no doubt democracy such as it is in china is is is it's there is no democracy and so i know that there needs to be some sort of fish and sea of the courts but when you have it takes years for things to wind through the courts country conditions in those countries do change and i would hate for a technical flaw in my part to in my haste to try to put something before the board before the temporary just stay of removal came about a few weeks later in the summer of two thousand and fourteen to be the reason that mr wong is back to china and tell me again what the technical made the board wanted me to have filed and i for i think five eighty nine application for asylum form i did file the supplemental material showing the changes in conditions but i did not attach that which i five eighty nine application for asylum but the the actual contents of the former already before the government before d h s is simply updating the biography which there where of their his wife and children their dates may please the court brand calling on behalf of the united states attorney general the board properly exercised its discretion in this case to deny mr wang's motion as both untimely and in the exercise of its broad discretion ultimately mr wong is well i guess i don't understand let's start with the changed country conditions because the board just deemed the petition here on what seems like an incredibly fine point of procedure right not not on the substance at all and i gather that once you take your one shot at following a motion to reopen and it gets tonight on whatever ground it's not like you get to come back and fix whatever problem that be i pointed out is that  wait you already have yes we have the initial application but nothing in the regulation that requires attaching an application to a motion to reopen is limited to only the first application or excuse me  application i would the cases that have talked about sort of procedural errors in the board's discretion to fix those have been applied in cases that are much more procedural nature for example somebody files and i went thirty but not the four eighty five but the asylum application is much more substantive because when you are claiming a change in country conditions it is incumbent upon you the applicant to show what your claim is whether or not it is the theme claim or the claim has changed whether or not your activities have changed such that it would put you in a different position because the agency has to be able to look at the claim as it stands today as compared to the claim that was originally adjudicated the application that the agency says he didn't file is that the application for asylum based on change country is that what she was saying in that he didn't file an application that show changed country conditions that is correct he didn't file the asylum application which he would be required to file even in the event of a reapplication nor did he file an affidavit well he did have a sile because the circumstances could have changed the claim could have changed and i would in this case really all we have in terms of what the asylum claim even is is the statements in the motion and attorney statements in a motion are not considered evidence we have we don't even affidavit from mr wong indicating that his claim is the same claim as the original claim and so the agency in applying the regulation which requires that the asylum application accompany the motion was following otherwise where this is more of a subset of claim that a procedural claim which got the purpose of the regulation which states very clearly that the motion shall be supported by affidavits and must be accompanied by the appropriate application for  supporting documentation can i ask you to clarify because i don't remember now along with the the motion to reopen on this particular ground did you say that position didn't present the kind of new evidence change country conditions there was some new evidence there were i believe three or four news articles that talked about sort of heightening of a crackdown on democratic new man in china so if you use your imagination perhaps the agency could have strung together but we really need the applicants statement that's what i don't understand i guess i understand a little bit better when the ground has changed entirely and i think we have a couple of cases in which that was true but where the basis for asylum is exactly the same and all the person is saying is that hey there are there's a change in the country conditions that basically make my claim my original claim that you denied stronger and here's the evidence to back that up i can't for the life of me think of a justification for denying someone their one opportunity to reopen because they didn't also file a revised asylum application that seems to me to make no sense so first i would just note that if you there are exceptions to both the temporal and numerical limitations so if he can show that there is a reason why that application was not submitted that could possibly justify or if since the time of the first filing is if advice as of reopen but this time provide the updated sound application everything that happens he would have to meet an exception of course the board would have would still have the authority to deny in the matter of discretion but the agency needed more here than simply news articles the underlying basis for the denial of asylum was that mr wong would not have come to the attention of the chinese authorities nothing in those news articles really explain how he would succeed on the new claim and while the agency did not get into that so this court cannot rely on that is critical that asylum at the cannes explains the contours of their claim because without showing i'm sorry without showing that it's difficult for the agency to make a reasoned decision and here all we have are news articles without any tether to mr wang individual and generally what can also happen is as i believe opposing counsel attempted you can file a joint motion with the agency which would exempt a motion from the temporal in numerical limitations on motions to reopen unfortunately the agencies declined to do so does not constitute an exception for the temporal limitation so because this motion was untimely the application or an attempt to adjust alone would be insufficient to require the board to reopen and i would also note that i think that the fact that we have the board statement here that they declined to exercise that there see was spontaneous already distinguishes this case from saying and from matter if you are in other cases where the board acted under a misapprehension of  put this case in mediation for quite a while to try to allow mr want to get a grant of prosecutorial discretion from the agency which they declined and so oftentimes there are indicators outside of the record that would cause an agency to overcome some of the negative factors and also are going to for years well none of them are on the record and so i don't want to go into that i don't think that it's properly before the court but at the time of that the prosecutorial discretion was denied that was based the rest of them are just asking questions like did you file within one year it's basically the same claim this updated country conditions were all submitted i want to go back to the issue of the board and their sue a spontaneous already  reason i filed a motion to reopen back in november of two thousand and fourteen had to specifically do to do with seeing the holder which this court indicated that it was the second time in six years that the  has found that the board is simply denying the reopening of cases when by not exercising their own authority and hiding behind the idea that things are untimely or as in this case citing overturned case law so you get the impression that the board isn't really looking even really looking substantively at these claims and what  was pretty strict orders not real well in the same case i think it does i think it says look you should reopen to allow people to adjust status i think that's very clearly stated and not to hide behind on timeliness or other matters but rather to move forward and allow for family unity i mean mr wong if he's operated afforded the opportunity to file for adjustment of status he has to be reviewed by an immigration judge like any other applicant he's just asking for that opportunity for that jurisdiction he's knocking on doors and none of them are available to him so thank you thank you appreciate the argument because just