the new evidence is the coming in to back in two thousand and one of the party that was was pro persecuting the party to which mr charter belonged is that correct yes your honor that's the bangladesh national party a that because i think i understand where you're going there is face law but i actually didn't see that as an issue until this morning there is case law dealing with when you bring a motion to  reopen based on one new evidence and the cases that i've seen all bring it say that if it's brought it's all if it wasn't available to actual hearing before the immigration judge then it's appropriate to bring it in you that's to for the for asylum to the board doesn't require that he that the applicant actually demonstrate conclusively that he even would be eligible for asylum and only requires that that if the facts that they've raised together with the facts that are already in the case are sufficient to show that it would be worthwhile to develop the issues further the other the seem to be t standards that seem to collide are they different the reasonable likely her good standard which seems to be closer to the merits and then the concept of worthwhile to develop the issues further are they the same i think the i think the board sees them as the same i think the reasonable likely reasonable likelihood as i see it is that you know that there's a reasonable likelihood that you can establish eligibility not not actual not actually be granted asylum but just to establish eligibility for asylum you know just if i say as i see it if if there is a rift it would be worthwhile to develop the issue obviously you like that stamp yes i can't blame you for that yes if the problem that i have with what you're saying is that this case wasn't just a case where the  board of immigration appeals ruled against your client but it went to the third circuit and the third circuit found that it was insufficient evidence to warrant asylum and that seems to me to make more pointed than show new evidence it really would change things and as i understand what you're arguing it's just new evidence take everything into consideration a the court of it i'm not saying i agree with the original opinion but well i think we're bound by well as far as it goes i mean there is new evidence in the records not just that the b worked persecuting essentially its political opponents even more than it did the first time that it was in power he says in a form that is more intensive and predatory i mean i think it's interesting that and i'll ask your  and it's almost i don't think the board should be able to insulate itself from judicial review simply by saying we don't see anything in the record that would cause us to change our mind but  was not attacked because because of the general disruption in the in the in the society he they told them they were going to kill they were going after his brother you're proceeding only circumstances when combined with what was previously in the record that gives you a reasonable likelihood of prevailing but dr adams did mention that that charges are fabricated against and against people against it to tie a party members of the us but isn't the key thing for you that you have the return to power of a party that previously had done persecuting yes and according to the if you believe what stated in the adams affidavit that this party is is going double time or more strongly than before  getting rid of its opponents and you couple that with the brothers affidavit that they are specifically looking for this individual could be could be looking for this individual if he returned because of his prior position the   that he was being prosecuted for participating in a violent act not being persecuted and the court of appeals firm that said that there was evidence and that being concerned about prosecution is against your own decisions that are directly on point so clearly as has happened here and say that you're now you're being consistent we don't know if it is directly on equals changed country circumstances one we don't know what this individual hussein's position was we don't know what type of person mr sardars what position that he have so it was a secretary of some sort but that sounds like also he had as he had some sort of official position he wasn't just a member and we don't know anything about the other individual we don't know but that's it seems from that decision they were doing equity never had his chance in court is to short it did but at any rate which we shouldn't be i at least have addressed this opinion that considered the inconsistency if there was one or explain away a lack of inconsistency if you look at their opinion he did maybe not to the court satisfaction but they specifically mentioned he was found in absentia which they differentiate now i mean in the current opinion for mr schardt are explain why all of a sudden they're saying that his situation is well specifically they found situation is not appreciably different from the dangers faced by all his countrymen whereas if you read haas and you would say if someone's a j p official and this has occurred then that's we're hearing were we hearing on about the motions in great detail but often times the court's decision is we've considered it no we're not going to change our opinion here but what about moral support and part of this is communication i mean if you're going to if you want deference and you're going to go against something that just a few years ago you decided albeit in a not precedential case don't you at least have to explain it a little bit but see she was doing america trips with one member board decision which didn't get reviewed and just like in a criminal trial if you are multiple defendants and each goes before a different panel the evidence may come out a little bit differently and two can be acquitted one is convicted are you know it happens are well let's we i think we get your point on that is that worth really arguing if i can just add one thing we also have a case called filter where we as a court have said that the reemergence of prior party the dead persecution is a changed country circumstance and that's something that we really do need to take a look at because if you read mr adams affidavit very clearly this isn't a new circumstance this is been ongoing since that but post ninety eight was that july of ninety i think was the i j a decision what mr empty came back to two thousand one hundred ninety eight and after ninety eight which ever p is a little bit more aggressive in a form that is more intensive and predatory a consistent pattern of abuse political persecution for holding the j p s political opinions perpetrated by the dea and you want to look at  opinion if it drew the line that you're drawing i probably would say ok now you give the benefit of doubt but what it says is the respondent has not adequately demonstrated that his situation appreciably different from the dangers faced by all his countrymen so that he has not shown that it's anything other than the same old turbulence that there was before but in fact the adam's affidavit if you if you b the fact that he is j and j p official which is your rule that i mean it's fact found and you have the adams affidavit and his brother's affidavit the b i n a is saying something that appears to be contrary to evidence that they have before them and it's one thing not to explain away you have a hoss in case but it's another to say something it seems to be totally contradictory from evidence that is before them that you can refer to what we do with that well i don't know that's exactly yeah what's your name and what's not accurate then take a look at the adam's affidavit clearly bangladesh is the most corrupt country in the world everyone in because the concern i have picking up with judgement else point is why didn't the b i a least address the relevant evidence that was given in favor of change circumstances noted in the adams contrary to law this court has to uphold now it is the government's position that a lot of this evidence if not all it all it does is document that conditions  one there wouldn't yes there are bad conditions but he wouldn't have been persecuted by virtue of being a member of the j p party by the party however with the reemergence of the b n p in two thousand and one it's a pretty good pretty good idea that he will be persecuted for being a past operative of the j p party and then on top of that his brothers affidavit says yeah then it looks like that they would they would target him you have to address that i mean even if you disagree with it even if you exercise in the spinal that we exercise our discretion not reopen you've got to address it well again we  it's the same old story right but he says it's a new phase even against the backdrop of previous history of political violence which now i mean and if the standard is that it be worthwhile to develop the issues further at a plan a rehearing on reopening an but what we're saying to you is when you when you take solid evidence well put together in two affidavits and you don't even address them or mention them how can that be considered to be rational or let's take this from the way let's go back to the original decision from this court compare that decision and the fact pattern in that decision to the adams affidavit and you'll see nothing's new it's the same thing though i think i was on that was so i believe i was on the panel net and the prior case that this is very different this is a host of new information that wasn't even consider the only new information on possible new information that the b n p has come back in to come back into power come back into power and that they are intensifying their efforts to deal with their opponents if you if you take a look at the original testimony from just a short you know a test of our intensify new efforts even way back when as was the awami league i understand it's terrible but it's no different than what was happening that's with the b i was looking at that's what they meant when they said everyone in bangladesh faces the same situation if you want justice you bribe the cops that's just the way it is if you're not in power if you're a journalist if you're a hindu if you're a christian you have some difficulties it's a terrible place but technically when you look at that anyone in bangladesh except possibly the prime minister would be entitled to a silent was everyone else is at the bottom of the hea and doesn't get the same type of rights we get here that's not the test test is the be a look at the original decision looked at everything else that was submitted to them and said it's not enough and the issue is was there an abuse of discretion just that it's not the case that a decision is arbitrary only if it's irrational decision the decision that doesn't take into consideration the facts that are presented is also considered is arbitrary