whether she meets an exception to the one year statutory bar before filing an asylum claim the immigration judge wrongly held in the border only affirmed on that the material worsening of an existing fear did not meet the change circumstances exception this court has jurisdiction over the issue here because it is a question of law not a question of fact and material worsening of any list did the immigration judge and you know by virtue of their review the board of immigration appeals today hold that as a matter of law or was a sort of a quasi materiality ruling which is if you read the ideas opinion it says that there are changed circumstances that give rise to an extent to excuse the failure and i'm paraphrasing here excuse the failure to file that that's a good question i would say that the board's opinion is not a model of clarity they seem to confuse the changed and extraordinary circumstances exceptional one point that we're not disputing page nine a page seven of her decision suggests that the issue here is that when there is a material worsening of an existing fear that that cannot constitute change  and there's some some factual detail before that's sort of a key passage i just don't know exactly what that means and i think it could be ready there's a materiality holding or could be held a possible reading of it as the reading you give to and what do we do with that that's a great question your honor  i would point to that there for us specifically in that sentence that seems to suggest as lawyers tend to talk that that's a legal conclusion not a factual one there's a couple of other points in the record  that the judge was looking at it from a legal question standpoint rather than a factual one there is in the addendum i believe it's page eighteen there is some of the testimony from the hearing it's the judge talking about how she's not sure about this particular point and she says it seems like it's another thing added on to fear she would already had that's a direct quote and not eight new fear  issue or arms i did the board of immigration appeals decision dismissed the appeal and remanded it only for background checks specifically the asylum application is  this that the the question of law here is a question of statutory and regulatory interpretation is it what can constitute change circumstances not whether the was able to provide that why why why but by way of clarification and i don't mean to interrupt again but that's i have to make this board i think that your argument that we have jurisdiction is a good one in the abstract and indeed i think most of the circuits all the ones that i've been able to rule are cases from agree with you but i'm just a little bit concerned about just one case of ours which if it says what i think it says what we course nature in the use of the word changed rather than new suggests that the material worsening of an existing fear can constitute and of course that's not a bright line requirement but it's something that can be considered in this case the immigration and we have really broad language in that when they were talking about change in circumstances for instance the way we articulate the standard under the statutory framework the decision whether such change circumstance exist is a discretionary judgment of the attorney general and then judge murphy's dissent which actually does not help your case here where she says that what the majority does is because it's a mix question of law in fact she says the mage or the way she characterized the majority the majority says there's no jurisdiction and it seems to me that the same thing applies here that this is at best a mixed question of one fact judge arnold you know was saying you know there could be a question a lot tied up in here but there's certainly a question of fact which is whether these facts you have asserted whether these facts you have alleged are a changed circumstances that is tied up in the legal question so what on earth do we do with it is certainly a question of distinguishing additions to prevail here i would point to a couple of things one there are actually two issues and gorm on there was a change circumstances exception and then there was the question of whether the immigration judge in the board commingled as to some extent the board question is what can the judge consider in examining the changed circumstances exception the judge here said i can't consider anything that's a material worsening of an existing fear if there's a new fear she said then i can but if it's a material worsening of an existing fear then i can't that's a statutory interpretation issue because the change circumstances exception is a list some non exhaustive criteria to be examined when when you're looking at that particular issue and and so because of that we're looking at a question of statutory interpretation alone where you don't think that's analogous to the materiality question that we are addressing i mean if you read the de as sort of a quasi materiality finding then you're directly under gore and that is perfectly that last line of the opinion yeah i i think the the distinguishing factor here is the judge posture in deciding the case so it's her initial statements at one of the master calendar hearings which as i read earlier seems to suggest that she didn't think she could do it the briefing that she left open and then was submitted by trial counsel that addressed that particular purely law as as petitioner contends it is or if it's some sort of mix question i think is reflected in that particular point as well in addition to some of the cases that have been discussed already other have addressed this particular point and found both jurisdiction and that that it's a question of law that can be reviewed and should be resolved in the favor of petitioner i won't read them all but of course fokker singh involved order from the ninth circuit she from the as as congress intended was to assist or excuse those who filed late because they had quote weak or nonexistent asylum claims prior to that point it would contravene the purpose of the statute to interpret changed circumstances to thank your honor may please the court i'm scott stewart on behalf of the attorney general in this case the immigration judge found that petitioner borate burka failed to demonstrate change circumstances that would excuse her late asylum application this court lacks jurisdiction to review that discretionary factual determination the petition should be dismissed i think the point of emphasis here your honor is that unlike cases where this corridor other courts have found jurisdiction in sort of analogous situations is that the immigration judge here found that the petitioners new fact the new fact that the petitioner cited was just not sufficient to meet the materiality threshold i think a number of features highlighted in the immigration judge's opinion bear out that this was a materiality discretion which is a discretionary factual determination rather than a legal determination first the immigration judge found it very significant that the the facts were very really quite stark and quite bad petitioner faced before you before she arrived in the united states she'd been subjected to female genital mutilation she'd been detained for three months she'd been raped beaten and kicked sounds quite continually according to her testimony during that time it was so bad that she considered it much longer her husband had to been detained twice for three months and then for six months he was beaten during that second detention he was already in hiding when she when she left the country and her brother was detained for what sounds like three months the only change that happened after she arrived in the country of significance is that she lost contact with in apparently her husband therefore disappeared you think that was a materiality fight with the government see you on this i got to tell you that i don't know what to make of the decision i think the big decision probably comes a little closer to making making a materiality type finding although it mischa's and mashes the extraordinary circumstances and changed circumstances together just a little bit so it's the government's view that this is like a materiality fine or what exactly what exactly is going on here it is that is materiality are finding your honor i say i really find a decision that i defend on appeal where it couldn't have been written more pristinely and clearly but i think i think again the context of that full paragraph of which you read kind of a key quote you know key closing sentence there is that things there was the disappearance but it really wasn't something that you know was so new and different that it as in the words of that might constitute a change in circumstance that cognizing that's cognized i think what the immigration judge is getting at there is materiality  emphasizes the significance of the credibility issue as to when the petitioners husband disappeared the only way that that sort of ends up being important is to kind of a factual determination about that the fact how that kind of shakes out in the material otherwise the opinion doesn't really you know that's the only place that really kind of gets salient sides to the factual weighing of whether there was a material change in circumstances i'd also have that you know a good way to contrast these from a lot of the cases that get prominence in the briefing here is the rule you sort of emerge with some other circuits have adopted is that you can't adopt a categorical rule that you you don't have materiality when somebody says you know petition you know what that case dealt with what if what if opposing counsel is right what if what this what the immigration judge in the b i combining the two really said was little you know changed circumstances the just just exacerbate existing fears just categorically as a matter of law do not count we don't consider those in an asylum application and therefore you cannot get relief under the changed circumstances exception where that would that then be a legal conclusion that we would have jurisdiction to review if that i know you describe the factual predicate but if that factual or predicate in this case is true your honor i think i would push back on that and i think and i don't think that this circuit has gone as far as say the ninth circuit for example in its willingness to kind of dive in to mix questions of law in fact which you know as exhibited by some of the ninth circuit's opinion really does not you know ends up in just kind of a re weighing of all the facts at the end of the day you know what ends up happening in a number of these one thousand circuit cases is you know you have a very cursory jurisdictional finding in the ninth circuit goes on to kind of weigh in delavan deeply as to whether you know as a matter you know as a matter of kind of what it's going to hold there have been you know material change circumstances so i think i'd push back and say it's very hard to divorce make this a purely legal determination and i think the court doesn't need to reach that issue here and doesn't need to quite go that far because you have here both legally and factories i mean that i think is a materiality issue the other thing i'd add and it is a i mean just not that or a few but this is a slippery slope both ways you realize that because there's very few just purely legal issues i mean just divorced from the facts right we apply a lot of facts and so one of the problems you're run into is every legal question has facts and every set of facts are going to be used in a legal question so i don't know how to figure out you know at what point that or where to draw that line i guess my point it cannot be the case that we have no jurisdiction to reveal anything and i can't think of a purely legal issue so is the government really arguing that we don't have your  anything no you're on i think you know the moon as yet you know cases one example you know the court you know concluded with pretty good ease that it had jurisdiction to review the meaning of admission in the immigration and nationality act it had immigration  process claim that would presume under the constitutional claims process naturally it had jurisdiction to review the scope of certain statutory relief the pure questions of law i think there will certainly be quite you know some hard questions at the margin but i think the pure questions of law the better the court is able to just tether to that is the most faithful way to go about and just give give the full effect to the real idea x tax tax i do acknowledge that there could be you know there can be some close questions but i think those coast question questions start to come when the court go court will sort a court starts going down the road of inviting review of mix questions of law where the facts are maybe undisputed but the court pretty soon find and the better the court hues to a pure questions of law approach which i think the seventh circuit for example hughes pretty closely to the kind of more administer bill and faithful to the real i d act things will be and the risk is if you go with the ninth circuit's approach then you're reviewing everything i mean almost everything anyhow there's there's a pretty pretty broad review in the answer to your honor that's right  going back to just how the court can kind of you know decide this case in a narrow way you know consistently with kind of the other cases cited in the opposite authorities many of those cases again go to you know factory goes from a situation you know it's sort of highlighted you know somebody who has a weak or nonexistent claim and goes to you know a plausible claim other cases like the horenstein go from talk about change circumstances that make somebody is application for asylum substantially stronger  publicized political activities or big deal the difference with all those cases is you know you don't you don't have a situation here where the claim was sort of weak or nonexistent or maybe decent and then it went from something substantially stronger whatever claim  petitioner here had she really had when she entered the united states that the disappearance of her husband was not a material change it was not much of a difference you know there were all those things that i already listed before and i think this is this goes back to what i said earlier about things in the immigration judge's opinion sort of bear out that this was a factual determination the immigration judge quite readily granted withholding of removal in this case despite there being you know a high standard for that and the court did so you know by focusing on  specifically on the female genital mutilation side of things and it didn't even need to get into you know a good number of other features that you know were set forth to to support the claim for relief so you look at that when you look at the emphasis on credibility regarding respondents testimony in her husband's disappearance what you come down to i think is a situation where unlike all these other cases where you have big events intervening you know in fact where you have you know a collapse of a peace agreement in senegal  you have an intervening election in my view and so on and so forth here you have just a substantially similar additional fact much like the court confronted government and you have a situation where it is a discretionary factual determination made by the immigration judge under which according this court's precedent and is properly interpreting the real id act this court lacks jurisdiction to review if there are no further questions your honor i would ask the   they mix and match here they say they also have some confusion between the two different exceptions but there's a line that says immigration judge found the respond experience past persecution ethiopia her husband and brother were also harmed and she was not prevented from finally an asylum application within one year of her entry into the united states now you may say that really gets in extraordinary circumstances but the next sentence also talks about change circumstances and talks about did not establish changed or extraordinary circumstances which indicated that finding might be relevant for both and so my question for you is this which it appears that what the what the b i a at least is saying is she could have filed within a year for all of the reasons you just stated the genital mutilation et she didn't do it nothing really all of all that significant has happened since then and so therefore we're not going to excuse your failure to file and use this term under either the changed or extraordinary circumstances exception what do we do with that it's a bit of a mouse to be frank typically when we talk about preventing someone from filing that's an extraordinary circumstance very and so the i think part of the reason why the board used exchanged and extraordinary there is because at the board appeal level position raised changed circumstances is the essential we did that was not extraordinary circumstances exception was not listed in the board level appeal at all and i so i don't know if it was a copy and paste problem or if they just decided to kind of throw it out there to cover all potential bases but i i don't think that the criteria that they discussed there is e asylum application i would your honor the this is a of course a problem a case for me it's not my primary area of practice one thing that i have learned though in my short time is that nothing surprises me anymore when it comes to immigration judge be hesitant to expect her to have a good understanding of the ins and outs of immigration law and i can i completely agree and completely understand i just make the point that if she could have filed early on was it impermissible for the b i a and particular to say well nothing all that significant happened certainly compared to the initial grounds and therefore we're going to deny under the changed circumstances exception i would say that that's a to the extent that they either expressly or implied lee view that is the appropriate analysis i would say that's wrong some of the cases that we've cited that my colleague mentioned manda boo g some of the other cases deal with situations where the board or the immigration judge seems to think what they're the application point asking for a ninth circuit scope here the all we're asking is that the legal standard be clarified not the case be remanded back to the immigration judge for reconsideration under the appropriate standard thank you very much thank you we thank the parties further argument and their briefing and the case is now submitted