my name is happy see if i'm here on behalf of luis gutierrez a restaurant and we're here to argue that we do have a pure issue of law for you to decide when reviewing the immigration judge's decision denying my client his right to present an asylum case based on not filing within the one year bar as we are aware where well aware eight u s c eleven fifty eight allows for an asylum to late file his asylum claim if he provides evidence that there has been a change in circumstances in his home country that materially affects asylum claim the pure air of law that we are presenting to you today your honor which was actually conceded by the government is that the immigration judge never reviewed the underlying silane claim therefore it is impossible for him to have made a determination as to whether the change in circumstances that were presented to him materially affected the underlying asylum claim i exception to the one your bar for change in country conditions as i noted in my brief and i believe that if the court comes out in our favor and reviews this case you will find that he did not he never looked at whether my client had a well founded fear and without looking at the first element of asylum which is whether my client had a well founded fear he could not possibly have used the proper standard and in eight u s c eleven fifty eight to find that extent changes in the country conditions materially affected the asylum claim you can see from the judge's own decision that he's citing to a case on a motion to reopen he's looking for a law on this issue he's looking for the definition of changing country conditions and the only law that he can find is the joseph decision and that's what he cites and his case but the joseph cision has a different standard it's the motion to reopen standard and the motion to reopen you do not look at the underlying asylum claim and whether it's materially affected by the change in country conditions and that's the arrow law that was made here he never looked at whether my client had a well founded fear and without making a determination of whether he had a well founded fear how is he possibly going to determine whether the rise in violence by the sandinistas in nicaragua the killing of his friend the attack on mr  the man who testified on his behalf who had came just three months prior from nicaragua who sat in the same elected or a position in the same city of the same age was attacked by the sandinistas how is he go of that information and change circumstances if he has nothing to weigh it against he has to first make a decision as to what is the asylum claim i have a well founded fear of being persecuted because am a member an active member of the p l o i and my family has active members that have opposed the sandinistas well watched change since two thousand and six well between two thousand and six and two thousand and twelve there was calm there was a p between the parties and then after the end of the two thousand and eleven the beginning of the two thousand and twelve elections there was a explosion of violence if you way that the explosion of violence the personal attack against his cousin of the same name and the fact that mr elisa tello came in and spoke to the court who was given a positive credit credible fear interview there is there is no way that a rational person couldn't look at that and find that that he did in fact have a well founded fear but you don't have to get to the facts you don't have to look at the facts on our initial  an issue for me this court's rulings the second courts the second circuit's rulings and several other around the country in regard to this issue as to whether you have jurisdiction to hear these when your bar issues you'll have courts that are coming out saying and this was discussed and yeah and that's my biggest concern here and something that i would like this panel to look at is the underlying cases in which young cited yang cited two i can't pronounce the name from the second circuit and and and for the proposition that you can never hear issues of the one in your bar because they're always factual that was of the yan dharti decision comes out and says exactly opposite it says it's long as you have to prove you produce constitutional issues of questions of law then you may and to argue as a young court did that these never happened is inconsistent with the supplemental authority that i gave to you and the numerous cases in which other circuits have reversed on this issue and our case is just one of those but going back to the underlying cases that yang was relying on the yeah i didn't that case never said we will never have a summary to hear one year bar issues rather it said that the courts should determine whether the petition for review in fact raises a cause or cause a constitutional claim or question of law we examine the precise arguments of each petition constitutional argument or a question of law this court has jurisdiction to hear it and that is what we have produced to you today secondly the immigration judge erred and looking at the standard of what is is required to produce when arguing a well founded fear the united states supreme court has stated that it can be less than fifty percent it went into the analysis from the united station united nations and said it can be less than ten percent a person can have a less than ten percent likelihood that they will be persecuted if they returned to their home country and still have a well founded fear the evidence that was presented to the immigration judge compels that decision you have a person of exactly the same situation you have state department records and you have cooperated affidavits that go with that also with the well good morning your honour's and me please the car allison fryer for the attorney general in this case mr gutierrez felt as asylum application more than six and a half years after he entered the united states well after the one year deadline the agency was not persuaded by his claim petitioner argues that the agency was required to consider the entirety of his asylum claim before deciding whether or not the claim had been filed timely but that's putting the cart before the horse before looking at the merits of the claim the agency needed to determine whether or not the claim had been timely filed immigration judge hasn't considered the question because he just decided this is  well here the idea of the immigration judge actually decided that there was no change he didn't discuss the materiality of any change he discussed simply whether or not there had been a change in violence on appeal the board discussed materiality as well so both determinations are properly before this court but the his decision discusses only whether or not there had been a change whether or not political violence had in fact increased and whether or not gutierrez faced increased risk in late two thousand and twelve and twenty thirteen as opposed to when he left in two thousand and s and the question of of course of weather conditions have changed is a purely factual question that the agencies to weigh the evidence to decide how persuasive the testimony is how persuasive the affidavits were weigh them against the state department determinations whether or not an asylum application has been filed timely and whether or not the alien has established an exception to that concluded that the record didn't compel the conclusion that there was a clear probability of harm upon return that's of a very high standard much higher than the well founded fear standard for asylum  to be more likely than not a fifty one percent chance of that's ridiculous that business of more likely than not especially when you put it in terms of percentages is preposterous because there never are data that permit the estimate and their estimate of percentage of risk of being killed or tortured upon removal to another country that's true  require that at the age if you do cousins are murdered is that enough well it depends on in what circumstances if they are murdered and common crime no if they were murdered for that yes of course but suppose two of them or two of the other one heard it for political reasons that enough i don't know the agency wasn't faced with that question here so i don't know hard the agency wasn't faced with that question here so i'm unclear how that would come out tied to pop to politics which is what mr gutierrez was basing his claim i was there any evidence of any other motive and i don't i don't quite understand the immigration judge his treatment of of that evidence is speculative the effect and petitioner has never relied on those statements in attempting to establish eligibility there's no information either way in the record but you know mr gutierrez had an uncle who was mayor in the local town and even after the sandinistas came to power he was safe until he died of natural  notarized letters this testimony and it's all about the the basis for his fear of being ill and the absolutely evidence but it's not sufficient evidence to compel the water not to be what do you want in the way of evidence something besides rumors it's unclear how many rumors when mr do you think these people that would have been helpful but it wasn't required why not well why it's not required why don't you have to consider i mean this is a potential life and death situation why should the immigration judge be required to go over the evidence and i mean he says the immigration judge says for example there's no evidence to corroborate the respondents belief that they were killed by the senate this news for their political  evidence and testimony that was available in the analysis section he didn't mention every piece of evidence in the record but he discussed the parts that he thought were the most relevant ok well thank you very much  you very quickly i would disagree with the government statement that eleven fifty eight does strip your ability to review factual findings in the case and i understand that that's going review issues on the one year bar where it is claimed that the fact finding is so flawed that it becomes an error of law and as such and there's material misstatements of the record so i don't think there is and it's i want to be very clear about that that nothing and eleven fifty eight that's the asylum statute but and twelve fifty two the real idea all it says it is we're giving you back the right to review these cases him please do so and they're giving it back to you because of the united states supreme court decision in sunlight which said this should be at least some he gave us relief here and there should be fairness and there should be judicial review so there's nothing in the real i d act that says that you absolutely cannot look factual issues what it says is you hat you only have jurisdiction to look at constitutional questions in questions of law so as the second circuit cases where for example the judge said that the distorting the facts then it becomes an error of law and you do have authority to hear those and so i don't like the concept that we're looking at the real id and saying we can't hear facts we can hear facts i will say in this case you