may please the court my name is harmon date i am here today representing the petitioner how tim zack car i will be highlighting three major three or four major legal errors made by the f b i and it is at the bottom of page four of the decision administrators record page six the board denied the motion to reopen in order to apply for asylum or withholding of removal that was silent on cap and the motion to reopen is based on ca that's why there's such a limited scope of review it's just legal that's the reason you're only looking at legal issues yes that's the it's the limited limited scope of review it's a jurisdictional roadblock traced a shoe is his is the issue you're i made a determination with regard to a change of circumstances the is it or isn't it yet well that yes to be a i mean in other words if there were no change of circumstances you would need to be able to bring the and it was denied because there's a lack of change of circumstances where it was denied there's two motions to be are you decided on two and you in the first right the first yes on the first motion that was denied by the immigration judge which was appealed to the b i a and they essentially agreed with the immigration judge that you know although that there is a change in country conditions that it was not  i did not prefer present sufficient evidence to demonstrate that the government of iraq would acquiesce in the respondents torture that sounds like facts for the yes and that's where the first motion you agreed the first motion we have no jurisdiction well no because it's not sufficiently articulated it's just scant legal reasoning and there's case law that says scant legal reasoning with respect to  there's not enough in there to provide meaningful review so you know there's just so you are saying and we can review the absence of sufficient evidence to find a fact as a legal issue and see the problem having yes it's there's there's jurisdictional blocks left right and center on this it's very difficult to but what i what i'm just trying to present at least for the first but the second motion that's what i referred to at the beginning and just to clarify any confusion while this appeal was pending with the b i a that's when the second motion was filed so that's why the the b a's decided on arguably it isn't even before  cat they addressed asylum or withholding of removal that's the first the first mistake and then the second one is that and that's three paragraphs two or three paragraphs above there  are six where they're saying it's essentially the same evidence and that is the same evidence in the first motion as the second motion and that's a legal error they ignored the evidence a r one eighty two a r two did fail to address cat and that's what we were seeking with the b i so we're down to the only issue you have for us really the only legal issue is that they've failed to address in so many words the cat decision in their denial of reopening is that right i'm just trying to get the nature of the limited issue you're raising yes that is one limited issue but a major one i think that that's a strong one i have just two or two or three more  convention claim so that's that's arguably a factual issue i mean in a sense any issue that we address a legal issue but it's a legal issue that falls around whether you hav understand your honor but that's the that's the what that case stated there was one more could you address in your short time the the motion based on the fact that your client didn't show up yes your honor sponsor to it basically says he had good reasons not to show up which is not the same as saying he showed up well murray didn't know about yes we take issue with the characterization that he's a fugitive ice immigration and customs enforcement knows where he is he has a why don't they show up yet he had a nearly perfect attendance record he missed one in only one reporting date and opposition have sonny i know you raise it in your opposition that he missed it on purpose because he didn't want to be arrested that was a that was a misquote by his attorney former attorney he didn't say that to her that he's that well nobody wants to get arrested obviously but that wasn't the  not showing i think the confusion was he was trying to find a safe third country to go to but regardless if you could have a second opportunity in a second appointment notice you know we ask if they can't not show up well that's the thing stay has been granted by the eastern district court nation that's another reason why should a showed up yes i mean he is under that in some extent the courts protection from removal at this point to have the opportunity to file why not show up i mean that that's just seems to cut against you that he had some sort of duty that he had some sort of assurance that nothing bad would happen to him not that that makes any difference see how that cuts in his favor  i just think i think it's premature he should have the opportunity to rectify this at least give him a chance to show up i asked that of course counsel that my son let myself as counsel be allowed to be with him  trying to avoid than the than that's that's not a good reason you know and that's not his concern is just mine i'm just saying give him another chance even if the other issue he just missed one date out of seven years of perfect attendance i'm saying is just one time and he's not on the  he he would you know if you could just get another date that's all he wasn't provided another date or another notice to attend to that just in the in the in the last the other thing is if this case did i ask that the court provide instructions to the b i a to clarify why they are approving some of these motions to reopen the ins christians going to iraq saying that they are in danger and why they're denying others the it's a flip of the coin you know it depends with our decision on the merits of fact whether he continues to have relief under this preliminary injunction  yeah i mean this decision yes the if i'm understanding the question correctly say there's this injunction out there own you know that it's in the record but i understand from briefing before us in this case or some other case that if we were to decide that he should be removed and have a final decision in that regard the polling the then the preliminary injunction would no longer apply is that true or not i think that's  respect to counsel not evidence to suggest that the prior tourney misunderstood where's that information coming from to suggest that you just fear so much you didn't want to show up where is that evidence coming from all that sounds persuasive me except for the fact that you say it's discretionary and the underlying purpose of it is not to waste judicial resources on somebody who necessarily be affected by our decision but all these judicial resources have been squandered because the government maybe not you personally didn't bother to tell us that he didn't show up absolutely so it's sort of want to say clean hands but it's sort of strange to run us and run you an opposing counsel on everybody through all of this if in fact we have a doctrine out there if we know what's going on right your honor undeniably neither the government nor petitioner who is the one you  one there's a possibility of removal when actually the order could take a fact he doesn't show up undeniably the government regrets having to file at this late date unfortunately department homeland security department  have a perfect system of communicating we work our best to do that our office better if you want this kind of relief absolutely on or we need to do a better job at that and we are in fact today talking department homeland and you're literally pounding the desk i will have departed homeland security and my management listened to that under molly aren't we have a system which we learn of agency decisions the board decisions there is no perfect system for department homeland security we are attempting to figure that out part of the interesting part about it is a court may have to spend more resources because bitches sure has filed a third motion reopened with the board and if that were not yet him because if he claims that he can't be removed the why not show up if you want to address the merits or whatever legal issues correct obviously this court has recognized just on monday in szabo and in is the divorced a cat and the very conclusion no it was incorrect except when you look at the entire decision the board says very clearly the only thing you're eligible for is cat and the first motion reopen was denied by the rebel i would like to respectfully submit that you know it is a valid point that the government's not really coming to the court with clean hands in this situation i would submit their gaming the system in the sense of finding their motion to dismiss on fugitive this on title meant right before all argument it's clearly it's just a tactical move if the government wanted to attack on what seems to be against their interests yes it's certainly makes them less likely to succeed on it so how was it tactical yes and i think that's you know i just wanted to highlight that tremendous traditional resources on lehrer not a tactical yes and not just and my client has spent resources to do this and i've spent time and resources to prepare for this and it would have been you know i think much better to represent that the you know the that argument up at the  very onset so in the end i disagree with opposing counsel's characterization that the entire decision of the board of immigration appeals has to do with cap that's that's not that's not the  case the first half of it is dealing with the first motion to reopen and it's only once you get to a r six page four of the decision the second half of that page where they're doing the legal analysis on the second motion to reopen so the second motion to reopen they're at the you know they're doing an asylum analysis of the second last paragraph he fears persecution in iraq because he's a christian that's a more of an asylum ish analysis that there's nothing here to show that the board actually put its mind on the second motion to catch and that's a that's a legal error that this court house have jurisdiction and it's i think would be very difficult for the court to review unless the board clears this up is this mistake and if it is reminded i just ask that you know that the board also clear up why they are granting some motions to reopens for christian caledonians going to iraq and denying others there's a lot at stake here christians the court may be able to take you dish on notice that christians are being targeted tortured killed crucified in iraq my client has a tattoo of jesus and other religious symbols on his arms you know he's he's he's done his time he was  after nineteen years he's a he's a good clean person now i don't think he deserves the death sentence and that's those are my you undertake that he'll show up the next time he gets a notice i i was he push him to go if we just have some direction from opposition i think i can very well convince yes his car his friends is the christians are still in detention arbitrarily just waiting for their vi emotions to be adjudicated it's you know they're spending six months a year in there but hopefully that's not the fate of my client and i i will undertake to go with them into my past and i'm there i'm confident he will thank you thank you piers thank you counsel court call the next case