should preclude review of every change circumstance a termination that does not involve a question of your statutory interpretation it's our position there for the of students your decision should acknowledge foremost the continuing viability arm have changed from a non sexual harm on this record there is no harm you know has changed to a non statutory ground which would which would not have formally qualified or for relief to a statutory ground which presently would muslim brotherhoods her security motives have recently changed from a non story statutory ground based upon her grasp of lifestyle the statutory ground based on our expression of political opinion the government aims of page six  egypt were based on both refusal to curtail her opinions and her address the government's attention as regards how it feels like knowledge is not what this ramadan testified to whether subsequent hearing and more importantly immigration judge oprah do you think of her testimony i think it's on page eighty nine and ninety when she says she faced problems mostly from islamic groups first of all because i'm female second because i don't adhere to the teachings of review under the real i d act and specifically section twelve fifty two a tooky and then talk a little bit about why we think change or extraordinary determinations fall within that scope of review our position is under the we set forth in our police that in a compas it is constitutional claims here are questions of statutory construction and regulatory construction and the application of law to fact so basically all legal claims but not historical fact the terminations what some people might call a primary or storage of facts and certainly not discretionary determinations but we do believe that application of lot of facts and regulatory claims sincere discussed a claim a case a cardi which dealt with a regulatory claim it mentioned application a lot of factors fall within the traditional scope of this review and i think more importantly postin sieur this court in the same case like the second circuit and wang like the third circuit post real idea kamar has specifically said that the application of lot of facts falls within the traditional scope of k b s review and i think there's no question i think even the government concedes in this court in this footnote it's an original solicitor general to respond to our brief as well and to coordinate its response response here and that remains pending that's been pending for a while and i think most of the other cases now that have followed have simply cited ramadan in china and without a lot of independent analysis and we're not aware of any of those cases sort of getting very full everything or doing the full analysis and i think so it's sort of stem from this court's decision and that's why i think it's important that we that we be able to give you sort of our view of the full scope of review here and the reason i think if you look at the same case from two thousand and three in this court that is a classic application of the law to fact that was  immigration judge cited the correct legal standard which is more likely than not to be tortured under cap it found the historical facts there was no dispute about the historical facts the who what and where but then this court said applying that more likely than not standard to th that application a lot of fact task if you are viewable starkly in hay vs otherwise would raise serious suspensions cause problems and i think that's one of the other things that's going on is there maybe wiggle room on the term question of law courts have always had trouble first argument democrat first republican ones changed circumstances ones not or ones xstrata i think that's so arbitrary that would be to crossfire lation or if there was a curse a rule laid down by the immigration judge a coup in the former country can never constitute change circumstances i think that would be a pure question of law but application of lot of facts whether the facts meet the change or extraordinary circumstances whether that's sufficient i think that would always be reviewable and i think to be clear i think that i discretionary in fact because what this court has said are discretionary claims or claims that have a subjective element to it that are sort of like a hardship hardship characterised for something along those lines and this court specifically in  that the mere inclusion of the phrase to the satisfaction would not make something discretionary i don't think this has the quality of the attorney general of the idea or immigration judge making value judgments like like have been require found that the provision is discretionary and just to give you some examples of what is happening out there are when you when you're a star you are dealing with when you're dealing with the concept of change circumstance do to review is there hardship or are the positive equities greater than the negative the negative factors things where there's really no way to apply law i think here there is the fact that it's been fleshed out in regulatory standards shows citing the correct legal standard in the front of their opinion so they're acknowledging that if there's extraordinary circumstances something can be wrong you can you can have an exception for the one year then they're going on to say we know mental disability or or post traumatic stress disorder can make up an extraordinary circumstance then they find historical facts and then the routinely not finding that they meet that standard but what we're seeing so for example were have seen cases over and over the person's been rape and torture for years comes to this country maybe there are a minor and these are all cases xanthus which we can provide you and after fourteen fifteen months finally gets to apply an immigration judge finds facts saying well you we're going to the grocery store and you're on your own you're taking care of your kid can't you apply for a slot so effectively what the immigration judge is requiring is full incapacitation of the person when the statutory language only says is or is the circumstance directly related to not being able to apply  we were to accept the argument the real id embrace the notion of application that give us an example of a hypothetical change circumstance case that we could not review i think in our view if the if the immigration judge for example in this case reading other cases were to say you know to find a fact that says this person was persecuted on behalf on her speech and she was disputing whether she was parked near future any historical fact of who what when and where which i think happens a fair amount i don't think that you would have to review that but where the immigration judge is saying well those facts don't rise to the level of a change circumstance or don't rise of a stronger sort of this i think if you don't review what those standards are not going to get flushed out there are affected we're going to be guided in just that kind of case that post traumatic stress disorder or there is there maybe there's not a coup but there is some i mean you know it's a little difficult with the actual concession you know i guess what i feel like and what's what maybe the elephant in the room to some extent is our view is that there it's too hard i mean i think that there may be lines to may please the court brian virally have the attorney general's respond to the court has granted rehearing limited to the issue of petitioner ramadans case and i'd like to begin by really kind of focusing on the case for the court instead of some of these broader issues that have been raised by democrats the salient facts as to change circumstances are not under spewed here agency never rule on what the motive was for any of the person for it for the threats that ms ramadan experienced and never held that she did not satisfy any motive the sole basis of the agency's decision was she had not been persecuted she did not demonstrate the appropriate threshold of probability for persecution in fact in evaluating give me any evaluating the question whether change circumstances were presented to the immigration judge noted on page  should provide the state separately but the immigration judge noted that he was assuming the possibility that her claim was a particular social claim and the basis for his conclusion that there was no change circumstances wise that her activities that there was he said she said she said i would deem that this description of what has occurred to her in the united states does not constitute changed circumstances because her was starting with a yes or no would you please rephrase the question i don't have hit the k is the attorney general's argument you're here on behalf of the attorney general correct yes is your argument that the result in this ramadans reasons for not i think we all understand those i guess my question is could we have easily as you know has not written this opinion and say that even if we were to accept the argument that one factual determination so they're taking it from the opposite point of view this thing all right we're going to adopt and can see that the factual determination is made by the i j now the question is plying the regulation the statute does that co no jurisdiction i don't hear their argument being quite that direct that's not the complete argument that that's my argument is the reason for not addressing the particular argument that they're making here this is not a you have a case where it's indisputable that the i j a and the b s a simply applied the wrong period of time they analyzed changed circumstances before the time expired we have jurisdiction over that circumstances that occurred during expletive time don't measure up we say well you analyze the wrong period of time i mean it would seem to be an application of  fact over which you would say i think we don't have jurisdiction if it depends on the construction of the phrase change circumstances with a basis that he's doing the statute in such a  the factual elements of the claim and view the legal aspect and it's difficult for me to address the case because i've had no prior knowledge of it but it sounds like the sort of thing where whether the argument was seeking was challenging that determination in cases where the question was whether the alien had actually applied within a year this court found that it had  from adopting the construction of a statute that would preclude answering questions and it's something that's that's that's very closely tied to the language of the statute this particular i just i don't i don't particular statute this is the best way to answer the statute in substance sets a one year time period for applying for asylum but that one year time period is  not without exceptions congress authorized the attorney general in some instances to consider a late father application where it appears to be justified congress created indicated that there were basically still is considered for withholding of removal and will have their their removal withheld if it's to any country where it's more likely than not they'll be that that they may be mistreated on account of grounds within the statute and these are all important considerations and considering whether there's the suspension cost issue the issue of whether a question of law or a a i'm sorry the issue of the application of law to fact doesn't necessarily rais and their language at page three o two is the three zero one through to the absolute minimum the suspension clause protects the red has it existed in seven hundred eighty nine and they go through a series of examples of what the looked like at that time and they say the issuance of the rip was not limited to challenges to the jurisdiction of the custodian but encompassed detentions based on errors of law including the erroneous application or interpretation of general's interpretation of a pure question of law in other words the question of construction of a statute that didn't have that was not tied to the circumstances of the specific case and that's a distinction that is testament of the argument would require us to consider evidence in this case it was a palestinian consider evidence regarding the nature of the violence in the west bank to determine whether as a matter of fact palestinians have become targets of violence on the basis of their nationality and political views because this claim relies on contesting these sorts of factual determination rather than on statutory construction or a constitutional claim we lecture stiction in this case the sixth circuit joined the other circuits including this one that have ruled uniformly that a change circumstances claim is predominantly factual and discretionary let me ask you to at the end of the day basically you're saying there's very little role for courts at all marching the interplay of the yes i think is the answer the interplay of the various d effectively in body the separation of powers between the executive and congress and the courts and those are important factors in the court's review of these immigration cases so when congress passed the following filed with the appropriate court of appeals in accordance with this section that they may have to restrict to the jurisdiction that existed prior to the in the act with real id no your hon jurisdiction over challenges to removal orders and ensured that questions of law unconstitutional frames would be addressed or would be could be addressed when properly one does not occur or how does that if you're going to be real idea doesn't change the court's jurisdiction to review constitutional challenges that you see things like that in this court and other courts have recognized that there is no settled that the fact that an agency just or administrative decision maker cannot just ran a particular remedy doesn't excuse or doesn't doesn't make exhaustion of the requirements futile there's a recent supreme court case a well under the regulations it would be submitted the i j a or to the board whichever is appropriate in addition the court has authority under the hobbs act to direct the hearing if one has not been held  requires an independent evidence tree presentation you say that they have to make that evidentiary presentation even though it's irrelevant to the climb to the b i or the i j whether forfeited and then when you raise up to permit the review of these kinds of questions that it does require though that they be presented at the at the agency so that the opportunity is made for the agency to make the correct in regard to my client's a particular clay case i entirely agree with the government that we are just fighting this case focused solely on the question of whether the gravity of threatening harm is materially changed however if if the government their argument the petition for rehearing will be taken under advisement