the evidence presented and decide which is more compelling instead what we are challenging is the manner in which the b i a way the evidence or more accurately stated the manner in which the b i had the client to consider mr rose evidence that he presented the reasons provided by the they were about five or six of them and time permitting i'll go through them you're talking about their opinion right i mean it was before them but you're talking about how they dealt with it in the opinion yes your honor yes and it's our position that they didn't in fact weigh the evidence and decide which was more compelling but in fact the client to consider the evidence for a variety of reasons first they declined to consider a challenge to the two thousand and seven profile upon which it based a lot of its factual conclusions  the reasons for decline to consider the challenge the two thousand and seven profile stated by the b i was in fact that there has been over traction by the state department or clarification by the state department of that profile yet this runs directly in the face mass is there any evidence that you can point to even in terms of what you put in that's there's forced sterilization when the children are foreign born i couldn't find any well there your i there was first there was the statement of the individual i believe in pages four seventy three four seventy seven who in fact was deported from the united states but all that was that was the and the only one was who was young one was i guess what from judging province yes your honor because i'm looking at i mean for example the document that i you know you really honed in on was the congressional executive commission of china on china the report and i'm looking through this and i find just saying province mentioned once and it talks there about a system for providing cash rewards if you have the one child policy and it goes and so that's eighteen of the  that's the two thousand and nine dollars so we don't have any evidence that that's happening in this particular province and even in those a team we don't have any evidence that the it's you're having for sterilization with regard to parents of children born abroad yes or there's two related issues one being whether or not there's a distinction between children born abroad and children born or when a child in fact i would know the board in this instance concedes that the evidence indicates that children born abroad to chinese nationals who don't have permanent residence overseas are still counted for the purposes of the one child family planning policy that issue was in fact conceded technically submitted to subject to a fine that's that was the board's finding yes but with respect to whether there the children would be treated differently because they were born in the united states as opposed to being born in china that issue was was accepted by the board that in fact they  there has been no actual weighing of the evidence that we've presented because before declined to consider our evidence the second point is that the two thousand and nine profile indicates that the forced sterilizations i believe the word that the use or course of family play in practice is commonplace on page nineteen with respect to jailing provinces pacifically we have presented evidence relating to zhang province outside of the two thousand and nine profile which is the affidavit of the individuals who were returned to china in fact subjected to the one child family planning policy as well that's one that's one anecdotal piece of evidence but i mean that could be isolated  but you've got this report which doesn't seem to incriminate this particular province at all other than to reward people for quote good behavior close quote and you know i wouldn't i wouldn't assert that this is where quoting there is no universal consensus and whether forced abortions and sterilizations are still used to implement family planning policy yes that's so but and again the question is in this case did the board while there's undoubtedly there is  conflicting information in the record our position however is that ford did not simply wave these two conflicting pieces of information that exist in the record and decide that in this instance the balance tipped in favor of the government as opposed to in favor of the her c v in the record which shows extensive travel and research in china she's devoted his or her entire life to the study of china she's a professor at a university in chinese language as well as chinese history she has been published numerous times are two separate reports in this instance the difference is that the court's addressing the more frequently the aired affidavits and the board is free to weigh the two countervailing pieces of evidence and choose which one it finds more credible instance they did not weigh the assertions of dr soppy go and find the state department profile to be more credible instead they simply decline to credit her expert her as an expert and therefore consider can consider her counsel why don't you tell the panel what evidence in the record you've cited one piece of evidence namely that the court just summarily concluded that dr sop you know is not an expert what other markers  signals in the record you have to tell us that this is a junkie since that will you case because i remember luke broccoli there wasn't a whole lot of analysis there in this we just need some confidence that the board understood happened headed what was before it yesterday and i would also assert that it's similar to the case from two thousand and four in this court which is that there's a misapplication of the legal standards as opposed to an issue of addressing the weighing of the evidence and that's are you can go address after a few of the facts and then i'd like to say on that legal to the additional evidence that we presented for example our printouts from official chinese government web pages dealing with province with respect to the enforcement of the family planning policy in fact that's discussed by the doctor soppy i believe in pages seventy three to seventy five of the record where they there was a q and a by the prevention of authorities posed to on the official chinese government website or official provincial government website asking what do i do in this search situation and the response from the officials was your child must be sterilized in addition there were various tallon regulations and admittedly not from  absolute requirement that there is no opportunity those regulations provide that ferrets of foreign born children should be forcibly sterilized no they do not and but again your honor that we are creating a distinction in chinese law where  such distinction exists and in fact has been acknowledged by the board in this instance of the child children would be treated the same for the purposes of counting for the purposes of the one pile them one child family planning policy i see that my time's up good morning may it please the court katie as well as for the attorney general just briefly i just want to recount the procedure here because this is an alien who entered in one thousand nine hundred two fraudulent lee yeah actually that and it leads to a question wh do we look to nine hundred ninety four or two thousand and seven as to when there were changed as to whether there were country conditions i'm not sure i believe in of the third circuit's law that we do looked mighty ninety four i learning i would say your concession save me a lot of time i i do think that it's not an issue that makes a difference here i think that the record amply supports you know that there's no change in country condition since pre one thousand nine hundred four pre two thousand seven you know we have in one thousand nine hundred one account in the record it's actually one of the more graphic accounts of a forced abortion in china that's been submitted by the alley in which occurred in one thousand nine hundred one so you know there's actually evidence in the record to show that things have gotten quite a bit better in that respect and as the the judges have already noted there's really no evidence in the record pointedly showing that this petitioner has the threat of being sterilized in china so  right well i mean i would disagree i would say that this is a fairly lengthy board decision as far as board decisions go they specifically noted particular evidence that was in the record this court and virtually every other circuit it isn't is not going to be adequate  case right here's all things and they provided you know they obviously are not going to discuss you know eight hundred pages in detail they do pick out certain things to discuss they discuss the sakyo report this court very recently within the past year or so has has considered the sappier report and has considered what the whether this exact determination of the board was proper and it's held that it was on the third circuit the circuit the seventh the tenth may eleventh have all considered  a report and these are all unpublished decisions but they all arrive at the same conclusion so the board did did give an absolute and the conclusion is that the board did not abuse its discretion in making the determination that it you know it could could overvalue the the state department report what so i guess my answer to your question would be that this is a case that is in line with the circuits recent determinations and pretty much the exact same issue this this there's just no personalised evidence in this record there's a lack of personal affidavits even to show where the even potentially tangentially relevant evidence comes from these accounts that we've been discussing of these two gentlemen who were removed to china have appeared in other cases and other circuits and this is only in here shown has made no showing that he has any connection to where these documents came from or how they were entered into or i'm not sure it  involves is a form upon which our decision turns in any way but i have to ask you because from an equitable standpoint the seems terribly unfair i mean yes what are we doing here i mean we do have is there something is terribly terribly unfair about where the government is treating this particular individual and those that might be similarly situated well i mean i would i would make a couple  i mean i don't see well i don't know that i think like typical case i think we we in my office we see many of these types of cases and there is a broad spectrum of you know in fact the h s is reconsidering many cases and you know there's something prestigious in many this this is a situation where he's been here in this country he's had a final order of removal while his initial proceedings were pending he had two children he could have raised this claim ten years ago he could have race it before the board made its decision on the merits he chose not to and he even moved to reopen seven years after the board the original board decision and didn't even raise this claim i mean he basically waited ten years and it's sort of a last ditch effort to to stay in this country and unfortunately he's here in contravention of law you know whether it's sympathetic or not that that's the fact so you know we have to we have to carry out the law here population control policy does now it does not so it was such a big thing and i realize a lot of you know five hundred plus pages of come in since th it wasn't a big issue in ninety four at the hearing it wasn't even a big issue thirteen years later on the first the motion to reopen that makes it very difficult to say that w it looks like what's happening is you've got someone who's desperate to stay here and he's looking for any reason possible but it clearly wasn't foremost in his mind at any time prior to two thousand and nine it is certainly possible that you have an individual who is desperate to say and will do anything possible to be able to remain and remain legally with his us and family that does not necessarily change the fact that he still may have a well founded fear of future persecution nor does it change the fact that the board has an obligation to consider the evidence that he presented in this instance under the law under the statute provided requires the board to make a determination of whether or not there has been change country conditions and whether he's demonstrated prima fashion eligibility for relief in this instance while the board listed the documents and then provided the reasons for declining to reopen they were absent a retraction they yet provided no explanation of why they were declining credit her as an ex as an expert they said some of the documents were incomplete but they're not provide a citation for why this can be a basis to deny a motion to reopen where the portions of length the u s government reports that were omitted were totally irrelevant to the claim so in the only portions that were included were the ones that related to the family planning policy in the board and explain why these documents need to be complete and finally they said these documents  and previously unavailable because they go back to two thousand and two as the government conceded in as the law provides the relevant question is whether they were new and previously are available at the time of the prior hearing those are the entire reasons for the a declining to consider mr was heavens that does not constitute a consideration or an evaluation of whether there's been change country and even if we were to remain for some reason say that they didn't consider these sufficiently do you really think there's any chance he has a prevailing there yes i would say that that he does have a chance of prevailing in fact i have seen i'll be it in limited instances i have seen the b i a reopen under similar be considered any of this on the merits in this case already it's my position that the guy has not consider the merits of the evidence presented the again the reasons provided were all legally flawed and they were not factually based and they have the obligation of the very least to consider the evidence the substance of the evidence and explain why the two thousand and seven profile or whatever other evidence they want to point to is more persuasive than the evidence that we cite to in our motion and they have not done that and that's all we're seeking before this court all right thank you thank you thank you to both counsel for well presented arguments misty and was sounds like you need to go home get better good luck thank you