morning your honour's my name is jenna ellis fire near perfect i would like to reserve two minutes of my time for a bottle i also want to acknowledge that while petitioner cannot be here physically today she will be watching through the cour or ask this court to remain on her case to the agency with instructions to reopen exclusion proceedings petitioner a practicing christian and mother of three children filed a motion to reopen her exclusion proceedings based on deteriorated conditions in china for those who practice christianity and those who deviate from the country's strict family planning regular we don't have a lot of time and we've all read the briefs so i want to just jump filed her motion to reopen approximately fifteen years after the initial order of removal and approximately eleven years after she had her second child isn't this delay unreasonable your honor that's a great question she filed her motion to reopen exclusion proceedings after the change in country conditions if she had filed after her second the birth of her second child that would be as this case decided and he was going sol is merely a change  personal circumstances however she waited to file after a change in country conditions which was evidenced by the government sending her a letter stating that she would be forced to sterilize that subject herself to serialization if she returned how did that letter come about all of a sudden in two thousand and eleven when she was living in the united states the record is not clear as to the provenance of the record but in the context of a motion to reopen the facts asserted must be when those your client claim country conditions as to the one child policy change her claim your honor is that the country conditions changed in two thousand and ten in two thousand and eleven prior to the filing of her motion which is supported by the difference that you see in the u s department of state reports between one thousand nine hundred five which is included in the record in her prior proceedings and the two thousand and ten st department report which was provided in her motion to reopen was a two thousand and twelve two thousand and ten state department you're are your honor she filed a motion to reopen in late two thousand and eleven well i'm just  there's this the skepticism and me that i just feel that i need to address here that your client initially tried to get in with a false passport claiming to be an american citizen and i can't tell from the record as far as that goes but that doing something and it doesn't say anything in here but it's sort of the elephant in the room you say that makes you have a fifteen year bar from being able to try to become a citizen does that play a factor in here she barred she's not barred from asylum your honor which is the relief that she's seeking and she barred from some it's just like there are certain things about your client that obviously she seems to be a law abiding you know i there is evidence in the record that she's paying taxes but but then she did try to come in on a false passport claiming that she was an american then does she have some sort of bar on her the relief that she's seeking but on something she have a bar for something is that why the government isn't for example you know she were seeking to adjust her status through different means that might pose a problem but not through this route through these so the government isn't hasn't indicated any willingness to work with her because of that is that i mean if anyone tried to ask the government if there's is asylum her only way your honor as far as i'm aware asylum is the relief that is available to her i would also like to point out that when people are fleeing persecution and they're afraid they'll do a lot of desperate things and so it's you know of course she regrets now having presented a fake passport at the time but she did what she felt she needed to do to escape harm when she was leaving china well now if she had  presented i think assuming that she presented change conditions in china treatment of christians wasn't her motion properly denied on the basis that the evidence she presented was available at her initial immigration hearing in one thousand nine hundred six no the evidence was not available your honor there are several critical pieces of evidence i would like to point your attention to first as a lot or from her aunt in two thousand and eleven at the administrative record page one thirty stating that the aunt who is also a christian who had received religious materials from petitioner was arrested by the authorities and beaten on account of receiving those materials also if you look at the state department as to the christian persecution but i happy to address both but with regards to christians the one thousand nine hundred five state department says that the government views religion as a cultural phenomenon present  society the government generally tolerates the existence and activities of the un sanctioned churches and individual worshippers are not harassed by the regime and those are quotes and you compare that with the department of state report in two thousand and ten which says the criminal law defines bans band groups as quote evil cults and reports that individual worshippers have been imprisoned so this is a change in tone a change  attitude and then there is specific and concrete evidence in the record about her own relative being persecuted on account of her religion didn't the immigration judge and the b i may evaluate the evidence and find it to be insufficient they did evaluate that evidence and i do think that we should say that insufficient as a matter of law don't we owe some difference to the evaluation of factual matters by the immigration authorities honor in the context of a motion to reopen the facts are not in dispute so this is merely have they applied the correct legal standard to the facts and so it legal standard is if there's substantial evidence we in the treatment of christians between one thousand nine hundred six and two thousand and what's her evidence what is the evidence that china's treatment of child mothers sufficiently changed over the period in question and so house the current picture that she paints of said treatment materially different than the one child policy in one thousand nine hundred seven in addition to the letter that i mentioned which specifically states petitioner we understand you to be in violation of our policies and what like you to submit to sterilization lazer that's very bizarre that she that she gets a letter from china what eleven years later and how would they even know she has children those are facts not in evidence but we have to assume that the government means what it says when it says it intends to sterilize her but i would also like to point you to the change in the start state department reports during this time in question the one thousand nine hundred five state department report says that john officials describe central and provincial regulations as flexible and suggested numerous exceptions to penalties the she she is yes she's from fuzhou out city the general reported that although many violators paid nominal fines the post has seen no evidence of more draconian measures such as forced abortion or property confiscation and when you compare that with the two thousand and ten state department report it's a market change this is at the administrative record page four seventy three intense pressure to meet birth limitation targets set by government regulations resulted in instances of local family offices using physical coersion to meet government goals so in the earlier report there was no such evidence of draconian birth control measures whereas in the two thousand and ten report there was is a two thousand and ten report show any change if depending on the questions that we have of the government if we feel that we need more time to ask you questions we will do so thank you all right we'll hear from the government now if you could state your appearance s to the two state department condition reports one nine hundred ninety five condition report and the two thousand and ten port what i see is what i think is an over reading of the g case say that the only thing that the petitioner shown is that she's had three children i see a great deal of difference between the  ninety five conditions evidence in the record and the two thousand and ten evidence in the record and i see that the evidence of the difference in the evidence shows that what has to be considered is for instance whether the alien resides in an urban or rural area where rural area being looser in forstmann whether she's a member of a minority ethnic or a floating population and what province she's from i see none of those considerations in either the i j a or the b i so therefore i think that error of law may have been committed here by not considering the change between the two country conditions and so it's never been transcribed we don't know what the basis of the actual decision was well she didn't know either but this is this is the only because the final order came from the immigration court she was required to go back to the immigration court to reopen it and so it's the immigration judge's decision that goes through the evidence and the lord is revealing that and agree to much of it except for the departure bar and so it the immigration josh does recites he as saying it this is for the clothes and the number of other nice circuit cases subsequent to that in two thousand and nine in one circuit sort of the beyond what i'm saying is that he was over read the what they didn't with the didn't consider all was a different country conditions in one nine hundred ninety five and two thousand judges things which i have before me there is any consideration of the two cited and submitted immigration apartment country condition standards immigration judge and the b i considered the evidence as to whether there was a difference are you saying that as a matter of law there's no difference between one nine hundred ninety five and two thousand and ten policies but i think what i'm saying is that it's fair reading of the twenty ten c m s that they're not talking about forced sterilization or abortion what they're doing is using rewards and incentive instances of physical coercion to cause for abortions and sterilizations ye let me ask you about miss shon filed her motion to reopen approximately fifteen years later after the initial order of removal what is the significance if any of the length of that delay on stablished the grounds for an exception to the ninety day time limitation promotions to reopen well it certainly isn't reasonable but can you point me to a case that says i can say you weren't delegate or that you delayed actually i cannot but i can point you to is in the record how he comes to the attention  on a false passport that's why she was deported and trying to be an american citizen i am curious is is she she only eligible for asylum is that the only possible thing or she eligible for anything else people that have been law abiding have been here a long time have citizen born children and pay their taxes or anything is is the government have any interest and out hers that ever been discussed there is one other thing i'd like to bring up to find him and that is in the two thousand and ten on country conditions it was a very selective reading you received from counsel the quote own page three ninety three the record says two thousand  basically on when this was handled because she had the children after she came and she converted to christianity after she entered illegally the determination was her personal circumstances they're not change country conditions circumstances but chandra changed person it changed the lens that you have to look through it is it possible that birth of the three children not if there is no evidence that she will be persecuted for the birth and the one thousand nine hundred five in the record is in the asylum questionnaire it reports that children born overseas to chinese the evidence in the record includes a letter which is addressed to petitioner saying we understand that you have children in the united states you are in violation of our policy and we would like to sterilize you when you return so the letter in and of itself could indicate a change in the government's position on children born outside of china i would like to address your honor's question about shondra because i think that letter really as you have three children born in the united states the letter does not say that your honor it says you're in violation of such and such code correct i would like to address your point your honor's point about the shondra case which is absolutely controlling here both the immigration judge and the b i a said that the birth of your children cannot be considered at all in the change country conditions inquiry as your honor points out says no if there is a change to country condition that is made relevant in light of a change in personal circumstance the agency has to consider that for that reason alone this case has to be remanded i would also like to address that the opposing counsel cited the case of lin two thousand and nine nights are good decision and with in which this court upheld the denial of a motion to reopen but there than the ninth circuit was very specific to say the agency did a detailed consideration of the evidence and gave enough information to this court to show that they had done a reason analysis and that they had thought and considered and not merely reacted i'm so it's a very different circumstance from the evidence was different but also the agency really gave a lot more analysis as to why it was rejecting the claim here we have essentially no analysis of why they believe the country conditions have not changed in a way that would be sufficient for the exception i also want to address your honor's question about the length of the delay so the statute eight us c twelve twenty nine little a c seven states there is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under asylum and it is based on changed country conditions well if ok they changed conditions alleviates the ninety days but generally if but our case law in terms of if you're seeking relief say from the asylum bar diligence is a factor so there isn't anything i don't think there's anything that supports your position or anything that supports the position other there isn't anything specifically but i would actually say that in the regulations interpret in the statute on motions to reopen there is no reasonable requirement reasonable ness requirement imposed whereas by contrast in the one year context those regulations say yes you can get around the one year bar if you have changed country conditions or change personal circumstances and it has to be filed within a reasonable time so if the agency were we've allowed you to go additionally and thank you both for your argument this matter will stand submitted