good morning your honour's my name is teresa salazar and i represent the petitioner the board in this case abused its discretion and exceeded its co its scope of review first it and recently delayed considering mismatch appeal for almost seven years and then it took administrative notice the passage of time and as an afterthought it appears that they indicated in light of present country conditions however the board did not indicate which particular facts it was stated administrate of notice of or how those particular get taken up again what's wrong with that result well because most miss the us had already met her burden by the year two thousand because that's what the board found that she had a well founded fear of persecution and in all likelihood they she would have been granted relief there were no adverse factors to to deny her to grant to merit a grad denial of her asylum applications on the basis of discretion  in cases such as your clients i believe the boy did have discretion to take administrative notice but all the cases all the circuit cases the cases from the circuit and other circuits actually address the board taking administrative notice of particular facts and actually explaining in each case where the board with those facts are not legislated and beyond dispute actually explaining why it is that those facts make the applicants  fear no longer well founded and that's not what happened in this case it appears the board just kind of hoped that the changing conditions due to the passage of time would have affected her application did the board really preserve the rights of your client remain on the case as the board did for further proceedings is that is the problem that they didn't give the i j a specific instructions or they failed to interpret what they that could range the very long range well if you were to allow the board broad discretion to let to mainland based on the passage of time i think that they should also be required to do it in cancellation  remove all cases where a substantial amount of time has passed and so come stances of course have changed and will affect the applicant and they don't always do it in such circumstances give me your in indicate internal management directive and the board doesn't always follow them and it appears that the regulations contemplate that the board will not always be able to meet that because it doesn't allow an applicant to complain about on about may two thousand and six that's when they also issued a new charging document against her husband but we did not receive a decision on the nicad application and i had an opportunity to discuss with the government attorney prior to starting the argument and he indicated there was a decision on the niqab the suspension application for the husband for within the year two thousand and five we were not aware of that decision and of course if we were we would have obviously done something about only has ninety days from the board decision in the board's decision was issued in august two thousand and four i just want to go back to your first argument what are you saying the b a should have done once it found that she met th consideration of any discretionary factors that would affect her eligibility and not to allow the government to to have a second bite at the apple mainly to be litigate her entire application all over had any effect on the board's determination that miss machado establish that she had a well founded fear based on country conditions which existed some years ago i take it the government can scenes of the b r c a deter  i need to bring up an issue which isn't in the brief and it's a jurisdictional issue and it relates to whether or not ms machado exhausted her administrative remedies with respect to this case and  you ever stop to think that we might entertain and twenty a j letter or of suggest a supplemental brief in light of newly discovered circumstances anything like that your honor i just realize the argument yesterday so i wasn't able to do that i'm happy to submit a twenty j letter a supplemental brief if you like and if you if you like me to talk about the are going briefly now i'm happy to do that  but the argument is that she did not exhaust properly exhaust because the the order that she says is ultra vires was issued in two thousand the board's regulations provide only thirty days to file a motion f reconsideration she raised this issue to the board for the first time in two thousand and four in her motion for reconsideration of the board's aug two thousand and four order denying her appeal of the immigration judge's decision remand i think it is certainly arguable if not successfully argue are arguable that if she would have raised that issue in who her direct appeal of the immigration judges decision on that she might have exhausted but she didn't do that she only raised two issues to the board in her appeal she argued that the immigration judge erred in failing to accord her a presumption of a well founded fear and she argued that the immigration the board didn't have occasion to consider it therefore when she filed her motion for reconsideration the board properly deny rejected that assertion because the board's regulations require that a motion have jurisdiction however even if the court did have jurisdiction the result would not change the basis for the petitioners argument is that she had a mature right to asylum as soon as the  account of the protective factors that was as is the right to the board's discretion and the board clearly believed that they needed more facts to determine whether or not the attorney general's discretion should be favorably so much time had elapsed i mean another words the reason why country conditions may have changed six years later is because it took so long for the it i mean it's a catch twenty two i don't know i don't think it is a catch twenty two i mean i don't know whose fault it is i mean they obviously have lots needed to send it back to make sure that an exercise of discretion would be made only in the scene ario where the full picture was known and that's all they did they remanded to the immigration judge with specific instructions to make that determination and he did she was not entitled to a grant of asylum solely based upon the board's initial finding and the board quite properly in accordance with his regulations which we cite in our brief that allow them to remain and for the fact finding each of the what they did so was it remained a test for further fact finding i mean that's my record i think start all over again and i'm sure that established that she had a well founded fear of persecution all over again no only in light of the immigration judges charge was to determine what country conditions were now and the term and whether or not country conditions she had a well founded fear in light of today's country conditions or back in two thousand and four conditions that the board did not obviously did not disturb its finding that based upon one nine hundred ninety four ninety six conditions she had a well founded fear well in the state of this record if we were simply about the second round was it seemed to me that the b i he was backing away from its determination in two thousand i don't think they were they weren't at all they were just saying we find she has a well founded fear based on country conditions in ninety six and i can't exactly that in ninety six and ninety six but i mean they didn't say that specifically but it certainly inferential that because they had to exercise their discretion again they knew based upon all the cases they hear regarding all salvador that there have been a sea change in el salvador they couldn't find her tell us anything about the husband's application yes your honor the second issue is because the statute precludes the car relief to individuals who have persecuted others and d h s found that mr ms machado's husband was a persecutor of others and then they referred the matter i guess to i'm happy to look it up and provide supplemental briefing if the court pleases with respect to the second issue again we think it's moot because of the justice decision but even if it weren't moo terminations of than a car application as the board indicated and as we certainly discussed in our brief their regulations provide for specific time periods obviously as the court is well aware and opportunity to do that at the time because the government didn't raise it before and i would also disagree or reiterate that the boy did not remember and for discretion only a green man did for consideration of be submitted for decision and we will hear argument