events subsequent to his administrative appeal namely a automobile accident that rendered him at essentially gave him very serious medical conditions that continue to this day including hit see very serious head trauma yes the board to find that this evidence should allow him to stay in the united states and be granted asylum on the basis of other serious harm right yes your honor now you seem to concede in your brief that the the court  typically lacks jurisdiction to review the decision of order on a motion to reopen sue a spot and i didn't see anything in your briefing to indicate that the supreme court's decision it can i had changed your mind about that you're you're still agreeing with the government am i correct that under our preceden we would ordinarily just not have jurisdiction to hear this at all is that right yes that is correct the supreme court's decision actually reserved a decision on this was pumping motions and most of the act of two thousand and five in this case there are legal questions that are raised by the board's decision what's the precise legal question that if we were to agree with you we got your stiction we sent this back to the board fear anymore but who was persecuted in the past to obtain them silent based on having other serious harm if they return to their country the board's decision says that  didn't show that it was relevant to his fear of persecution which doesn't make sense in light of the very specific language of the regulation that says he can retain you can obtain a  based on other serious harm and it doesn't say other serious harm related to his fear of prosecution at all is it is it is one fair reading of the board's opinion that it did look at the other harm and just decided this was an enough i mean they ran the board ran through a series of things saying that you  know it doesn't look like this is an exceptional circumstance that were they when they talked about under the circumstances could we read them as having included his health issues as the circumstances well they would say health issues but they seem to be under the mistaken belief that a person cannot get asylum if it's not relevant to their fear of persecution which is their finding that there's no exceptional circumstances come directly after that doesn't reference you know any sort of finding that he wouldn't be able to go for asylum even if they considered the medical evidence as as an other serious if returned to our being and they seem to think he's asking for some sort of humanitarian relief that the board doesn't have jurisdiction to give which is completely contrary to what he actually asked the board to find in it and it's a kind of humanitarian relief right it is humanitarian relief but it's a humanitarian relief that the board does have jurisdiction to to to give to him as opposed to one where he's just saying please don't send you know the country so that mean going forward  any instance or any time that someone has a serious medical condition that has come about while they're here regardless of what their status is that this is going to be a basis for if they separate past persecution and no longer have a well founded fear of persecution due to for instance an albanian case it's because of a very serious change in the governmental structure where know the health is so you're saying the health condition is irrelevant unless there is  sufficient evidence pastor city he was fact he was he was well he was assumed to have suffered past persecution already by the board but they said do the change of country conditions in   any applicant came to the board from a country that had a medical system that could provide medical care not to the standard the united states this is an argument available to that person and that's not really the problem it's not it's not that it's not to the standard very few countries have medical care to this and the united states it's that there's are absolutely approach it's been it's been you know it's been documented by numerous non government agencies that they just have no medical care to help this person that's that would be most true of most of africa so that means anytime we have any and anyone in that position who can make a similar showing that the medical care or medical system is in crisis or not able to provide legitimate  services that that should be a critical concern i would say if they did suffer past persecution and that may no longer have a fear and they do have very serious medical conditions not just you know a standard or a person with no real serious medical history a person that has very very serious medical conditions and we should note that he's not being a burden on the u s government he he he went to court and he won a a a judgment that he has private medical care in the united states and you know it i think if a person under that circumstances would be sent back to a country for instance albania princeton's countries in west africa that have very poor medical systems that person should be entitled to asylum if they sever past persecution it's a it's a very material form of relief and  the board as as well congress won to make sure the person who suffered past persecution and would suffer if they were returned to their country whether past persecution or other harm should be allowed to stay in the united states if if the board decide should i mean you're going to the heart of the discretion that the board exercises are just so well this court does have jurisdiction over that one discretionary issue the all the most discretionary issues  exercises discretion that is whether it was a good idea to let mr plume you stay here or not based on medical condition but your argument was that the board misunderstood its own authority that is that the could thought it couldn't consider his medical issues as other serious harms and those to me are very different questions if your argument is hey send this back because the board just messed up about its own authority it said he couldn't review this that his medical history was irrelevant and that's not true because under other serious harms it could be relevant that's one question if your argument is hey substandard medical care in albania jurisdiction to consider here or did they say he didn't qualify well what they did what did they say as you understand it i understand what they said was his medical conditions do not count because they're not relevant to us here persecution and that just is contradictory to to the regulation and i don't know i think  case back for the board to make that determination in the first instance of you know this explains why you know it seems so contradictory to the two to do the right so i may please the court my name is just use and i represent the attorney general this is a case involving the board of immigration appeals denial of an untimely motion to reopen reconsider where mr clooney sought to reopen proceedings based on  put the microphone in front of you oh yes your honor is that better your honor yes i am mr plummy initially sought asylum from albania based on his catholic faith and his support of the democratic party maybe maybe it could get you distort there with the the question of the posed by your opponent namely that the board seems to have said that they'd say your health care is irrelevant to your your your persecution claim and they rightly point out we never said it was that's not our argument why why is the petitioner wrong when he injuries that mr clooney incurred in the united states do not directly relate to his fear of persecution in albania and his point is i never said they do that's not my argument so if the board is right in saying that they're saying so what and i'm kind of left wondering so what they never made that argument their pitch was there's another basis in the law which the b i a never addressed there's the other serious harms point under eight four twelve thirteen b one three little it's big and that's the thing we're talking about and they never addressed that and they just didn't get it and they need to address that why is that argument wrong what's wrong with that argument well i think the board did address the argument i think in saying that this is not relevant to severe persecution what the board was saying was do any aging between its authority to reopen an untimely motion to reopen based on a change in country conditions which is which it denied based on his failure to share change country conditions and its authority or its ability to open reopen proceeding sue respond based on this change in personal circumstances which is not recognized as a basis for reopening under the i and a the board has recognized that it has the authority to reopen sue a spontaneous a stunt this what the but where where in this opinion or in this decision that they acknowledge we understand you're making another serious harm argument and looking at that argument we just don't think you're right we don't think that differentials and health care conditions in albania in the united states qualify you to make this argument and that you'll suffer other serious harm within th discretion we have to exercise we deny you can you point me to anything that even remotely says that the decision well the board in this case recognized his injuries stated that he another avenue for relief here and terms of humanitarian assign are humanitarian parole and are deferred action before da chats and thus under those circumstances he did not present an exceptional situation that would warrant  reopening in this case because he had other avenues relieved of relief to seek rather than humanitarian asylum before the board which is a more extraordinary form of relief or krantz affirmative benefits to the say that they don't have jurisdiction to do i couldn't understand why they were saying as they were saying that they didn't regard themselves as having jurisdiction over this claim whatever medical problems he might have or some other reason why removal would create hardship to the ailing and d h as under its own the united states and i believe that humanitarian parole and deferred action do not grant to that route to permanent residence or or citizenship through that that they don't grant any other affirmative rights at the end they would have united states aside from simply deferring removal for a time although i would be happy to present additional briefing on the issue of humanitarian parole in deferred action if case was asking for exceptional exceptional relief he was asking the board to reopen proceedings notwithstanding the fact that he was not statutorily eligible to reopen proceedings based on these and yuri's i don't think anybody's confused about the problem we're having here early som hamel speak for myself is to read this paragraph in the board's decision what it says is respondents concerns about his future here of care are not relevant to his persecution claim and the petitioner says i never said they were you goes on to say what judge stapleton just quoted to you about the board saying you should have gone to d h s when it comes to humanitarian parole that's for d h s it's not within our jurisdiction and the implication is we've got nothing to do with this that's at least implied there and of course that's not so there's humanitarian asylum there's a specific regulatory provision that provides for it the petitioner says i told him what i wanted i told him the regulatory provision i was approaching the munder i wanted them to be to be considered under that they never considered me under that they said two things that are irrelevant it doesn't have to do with persecution irrelevant the h s has some analogous thing you could ask for irrelevant i'm asking you the ira for something you can do under a specific regulation that gives you authority and you never addressed it now that's the question i think we're wrestling with how do we deal with a board decision that doesn't address the petitioners argument well in this case your honor the board specifically said that under the situation under the circumstances given by petitioner that he failed to establish an exceptional situation which would warr reopening the other two statements of the board have to be read in that context as i said first of all the statement that this isn't relevant to his claim of persecution the board with sending off its argument this is not relevant to his claim of changing country conditions this is something that he's not asking for reopening based on a statutory right to reopening but based on our own sue was fine to authority reopen them let me ask this i understand that you're so suggesting that we could read under the circumstances to mean we've considered the circumstances we understand what you're asking for and we just deny i understand your argument that that's happening can you point to anything in the language of the decision though that indicates we we get it we know the you're asking for relief under the other serious harms provision of humanitarian asylum and we're exercising our discretion because there are things in this paragraph that indicate that maybe they didn't get it or is there anything that indicates that they did get it i would note that the board cited its own decision a matter of j j signing the part of that decision that states that  not file a timely motion to reopen at both of those stages the board could have considered this and he's not claiming they did he's not saying i was timely i think  understand his point to be not hey i did this the right way to for a motion to reopen i was on time it's just the question of the whether the board actually address oregon or not so that's why i'm asking you can you point  something in the board's decision self that we could look through and say yes they did understand it they just didn't agree that it was exceptionally well in this case i think had the board simply said without the prior to sentences had just put in the third sentence we don't find exceptional as an exceptional situation right that there wouldn't necessarily be an argument here vat it didn't consider this there would be no indication here neither of the two statements that the board gave that this is you know this is not relevant to this claim of persecution which is factually correct and the statement that he has these other avenues of relief which the board doesn't have jurisdiction over but which which he could still see legal deficiency this is a the board simply saying under it's under its discretion we don't find an exceptional situation and the board has broad discretion of the court  recognized that it doesn't have jurisdiction over that and that no that doesn't really answer the question i was asking you that the board did not say we understand this claim and theirs is not enough to support it but either didn't address it or say we did we don't have jurisdiction you got to go elsewhere would we have jurisdiction to send it back we're further proceedings and i'm going to ask you a particular comment if you can on my mood which is the second circuit case last year that's your problem for the proposition that we do yours diction even though i'm not entirely prepared to discuss that issue today unfortunately your honor again i would be happy to submit supplemental briefing on that issue if the court deems it necessary in this case but i have not familiarize myself with that particular case in this instance you're had all right and i see i'm out of time if the court has no further questions no thank you as well i would just like to note that we do concede that the motion is out of time we know that and you know we know we're asking porn exceptional formerly for the board but what my client what mr pull me all the yes was please consider please please basically begging the board please consider about giving me an asylum based on this and the board essentially punted on that on the issue based on this medical care in albania which gives rise to that he would suffer other serious harm if he was returned to albania and i would like to note that the government wants to suggest that the first sentence of the paragraph in which they talk about mr pliny's medical condition not having any relevance the government would submit that the report is talking about change country conditions but the board already had to conditions this other paragraph it has nothing to do with change can do there's no suggestion that they were continuing on with this especially in light of the later sentences talking  about humanitarian parole and deferred action which are temporary forms of relief which you can seek before the agency but they are temporary he was seeking asylum which is essentially permanent and i want to make sure i understand so medical condition and the dearth of medical care in albania that is the other serious harms yes even though some back there have been he would not be able to receive the cognitive therapy that he requires and he would not be able to receive the surgery that he required to remove glass from a school and also to fix a broken vertebrae in his back it just does not have the capacity to provide that sort of be back to completely normal especially with the with the serious head condition the cognitive impairment which requires essentially permanent the