good morning your honour's mate please the court leon has on me for the respondent mark for all of us at the outset i'd like to request to reserve two minutes for rebuttal in this case the board not only abused its discretion in denying the motions to reopen but if the law was properly relied upon and applied to the administrative record before the board it would compel the absolute opposite result first of all the record is quite large and the issue seemed to be complex but i think it comes down to two issues one is whether the due diligence exception applies and the number two did to change country conditions exception apply as to whether the motions to reopen were timely filed and i believe the borderline on incorrect law and also was arbitrary and irrational with regard to the application of the law to the facts in in these motions to reopen so for example with the due diligence the board doesn't contest that there is ineffective assistance of counsel not once did they contest that issue they only say look once you became aware of the ineffective assistance of counsel then you need to exercise  and there's a reason very rational rational explanation for that first of all the record is very clear that the respondent was suffering from pathological avoidance from his p t s d but the border they say let's just ignore that report let's give it diminished weight they don't attack the report they don't attack the credentials of the psychiatrist they don't attack any aspect of of the report itself but simply say it was prepared in in anticipation of litigation so we're just going to give it diminished weight i would propose that not only did they give it diminished weight they gave no explanation really for it and they didn't think they didn't give it any weight at all well you know i can't predict with you know like we can speculate with the board did or didn't do but you know the argument i find a little bit more persuasive is the notion of change country conditions i agree i believe the board got that wrong legally the board didn't have the benefit of our our shondra correct that's true but they did have the benefit of the multi and decision multi versus ashcroft in fact they cite to it and in the in the same decision if they say ok well freedom house reports we can't rely on those that's not we have no idea what those are those aren't persuasive at all but the multi case was it reopening of an asylum proceeding on the basis of freedom house reports in part i believe that child could have seen that there was an increase in danger to the petitioner in the case they just go numerically they go on a scale of one to ten and each year the conditions got worse and worse and interests me about this case is that his own situation in the united states changed somewhat correct i believe it's analogous to the chandra case the case he he's pursuing his academic degrees and one of his areas of interest to the academic interest there are the conditions one hundred percent and as a child he wasn't and he was unable to express those opinions his father expressed his opinions was shot for it as a child he didn't have the capacity to do that but as an adult he devotes his life he devotes his life to challenging corruption including in the philippines and the board wants to make a distinction about oh well these are academic articles i mean i would i would ask the court to take judicial notice of what's going on in the philippines today which is you're allowed your law to shoot someone if they're suspected of a crime and then you can ask questions later well in ninety seven percent of those cases when the police shoot and ask questions later the individual is dead there's no questions to be asked the board wants this court to believe that persecutor is going to go and make a distinction between an academic article and a journalistic article and i think that that distinction doesn't really exist as he grew up he became more active he devoted his life to expressing his political opinions and as he grew up the conditions in the philippines got worse and worse and worse every single year the record showed it no one ever said let me ask you that what does exact relief you're seeking here we believe that the case should be reopened and for the first time in his life he should be allowed to apply for a m for the first time in his life he's never been given that opportunity he would have derivative on his he was a derivative on his father's claim which wasn't his claim which wasn't who he was it wasn't who he became yes not i'm not saying look only at the change personal circumstances i'm saying look at the change personal circumstances as they relate to the deterioration of the conditions in the philippines and that's exactly what chandra is about and that's what the law was before chandra if the conditions worsen then that's relevant you can't just say well perhaps he could have made the claim before so could have chandra so could have multi but the conditions in those countries continued to get worse and at the time of his father's asylum was considered there was a widespread belief that the conditions in the philippines had improved so much that a man who is fighting corruption in his country who was a was told hey you know what the philippines is great that your father you know we realize he was shot in the head that's fine we realize he was and corruption and running on an anti corruption platform that's fine but look it's better don't worry about it you don't need to get it you don't need to fear return it's fine and the board says the board says we i didn't mean it when we said we affirm without  opinion and adopted that ruling we didn't really mean that that was just an alternative ruling we didn't really mean that at all and i don't believe that that's the law and i believe it's completely irrational to take the position in one breath that yes we've adopted that position but years later when it's convenient to say well we didn't really mean to adopt that part of the position i think that that's irrational i believe that it's contrary to law and i believe th never in the aggregate consider every one of the diligence factors every one of the change country conditions factors and certainly never considered the change country conditions as they relate to his personal changes in the changes in his own we're not dealing with religion you know true and that year when he went through it on his father's application as a derivative i mean he was a young kid right he was a young kid that now at the time he filed this motion to reconsider he's a he's an adult who was pursued academic degree has written about corruption right and in particular corruption in in the philippines ok then you look at the at the circumstances in the philippines from the time from when they first went through as a derivative until when he filed his motion really has not been a significant change material change of circumstances between the time of nine hundred ninety eight of the original hearing and the present with respect to people who oppose corruption in the philippines that it's always been a problem that hasn't been conditions generally in the philippines philippines may have worsened for various reasons but you have to look at what this potential asylum claim is here that people opposing corruption are going to suffer from persecution there is no showing worsening condition if they get worse enough qualified change the nation well good well it all depends on what the person's claim is in no it doesn't matter of kinda if you are talking about mexico conditions work with worsen with respect to drug dealers and the effect of what happens to somebody who commits a drug crime if the guy's not claiming asylum based on anything to do with drug crimes by the same token if the conditions are worsening generally in the philippines for various reasons it has no significance over this individual's claim for purposes of the motion to reopen analysis if the changes have nothing to do with what he is arguing is his claim for asylum which is that he is a person who is opposing or he has a political opinion opposing corruption well in that sort of graduations to the fact that his personal your personal circumstances i mean color how we look at the change country conditions well i mean in one respect yes just does say that you have to look at the personal circumstances with respect to how it's relevant to the changing country conditions in the country that we're talking about but you also have to look at that in the context of what the asylum claim is or would be should you be able to bring one after a motion to reopen but in this case we're talking about somebody again who says that he is going to suffer from persecution as a result of his political opinion but how is his political opinion known to people in the philippines he wrote a couple journal articles one  that they rely on heavily is entitled court reform the chilis and in chile and the philippines in in this is the most famous article he has in the journal of international relations who's to say that anybody in the philippines has read this article and considers this scholarly work to be an incident in which he's expressing his political opinion also it's an article with joint authors it's authored by another individual and mark for all of us the petitioner is the second second author who's to say whose political opinions are are written in that article with respect to anything about the philippines is the first our author or just second so we have to look at the materiality it was upsetting the record that his name was with know his reputation was no philip i'm sorry where is that in the record i just thought there was i maybe i misread or maybe there was something in the briefs so right well it's the government's position that it's not his political opinion is not known in the philippines and that's why this is all not material course malty requires that the information be material that must be a material change of circumstance material to the to the individual and here is not shown that he is his political opinion is known in philippine to write a few journal articles in one of them that they rely on this is dissertation that he gave i think either for his master's or doctorate degree is in in california how is anybody in the philippines going to recognize this just for taishan if they even get a copy of it as an expression of his political opinion and that's why we think really they're probably going to get me through not going to take much effort on their part to figure out you know what his academic work here why would they even look into it in the first place th government checks them out when they land and start missing the government in the philippines you know looks to see who's coming back certainly but but i think the idea that they would have any knowledge that he wrote these scholarly articles and then number one whether he wrote them at all does the government know that number two do they consider that really to be an expression of his political opinion and number three is it really anything that they would persecute him upon once a scholar a scholarly article just discussed discussing for instance the court reform that he  necessary in chile in the philippines are those really expressions of political opinion that are going to subject them to persecution the government thinks not and but looking at the strict analysis here on the motion to reopen you know he has to show a change in probably concerns you where it says change in personal circumstances that it's a change in personal circumstances records well look if you look at the next paragraph it goes on to say that look in any event these papers  there's no there's no suggestion that they're well known in the philippines or an expression of political opinion so it's not they're not only relying on this issue of personal circumstances are gone they're going on to say that in any event we're not persuaded that he's demonstrated it's a material change in conditions arising in the philippines because whatever he's suggesting is this material is political pin is not material to the claim of the of the change country conditions in the philippines so the fact even if you consider that a statement about personal circumstances to be slightly wrong or not informed by the solder opinion there's an alternate finding in the next paragraph which more than makes up for that us and other reason why it's annoying the claim as not meeting the standard other to address his immigration claim until two thousand and ten it was only after ice picked him up to be deported from the country so there were eight there wouldn't when when his father's application with him was ruled upon how old was he was twenty  nothing to act on his immigration case he knew his hearers illegally he had no status in the united states but he waited eight years and my opponent makes makes a very passionate case that  you know there are there are circumstances here where he was suffering from p t s d but over those eight years he was able to graduate from harvard married to come along but he couldn't address his immigration case for eight years on a particularly when he says that he had a lot of it had to do that the views of his father his father were still alive up until two thousand and six but what happened between two thousand and six and two thousand and ten why could he still not  address his immigration plan when the time this report on p t s d did not come out in the first motion to reopen it came out afterwards where they supplemented that this report but the board said look you know the they got this report to address the board's concern obviously that that he had been deliberately avoiding it's an obvious come up with this excuse that he had p t s d and the board to generally said look this was done for the litigation purposes we're going to give it to miss wade and they also board also recognize as i said in their opinion that you know there's something that doesn't make sense here if this guy was able to be such a success academically very smart individual why c he do anything on his immigration claim why can't he consult somebody else but now is that my point it's also correct that we you know the board we're not challenging the ineffective assistance of counsel we didn't challenge it doesn't mean that we believe that that there was that his say you have to reopen within ninety days of the final measure of a board opinion that was in two thousand and two and we're talking he didn't open till two thousand and ten eight years difference and from the government's point of view he deliberately avoided his immigration case for his entire eight years but certainly understand or he didn't show due diligence with respect to his immigration claim and this therefore he shouldn't benefit from a doctrine that exercise extremely sparingly again there's an alternate finding there which is partly legitimately rely upon to the extent that you believe that it wasn't informed by the solder and there's still apple evidence in the record to demonstrate that it is not abuse to strip discretion thank you thank you honor regarding the issue of p t s d if the respondent was physically incapacitated and unable to leave his home for example we wouldn't be having this issue but the government's position is no different than to violence victim once they're able to see their abuser is suddenly miraculously cured of all psychological issues associated with it it's also a great deal of victim blaming you can't say a domestic violence victim for example or a child abuse victim can't be successful academically as there never been a domestic violence victim that was successful academically i mean i think it's preposterous the position of their argument isn't completely preposterous as you just said i believe it's preposterous i mean they say that he that you know he has managed to get through harvard and get his degree and a new couldn't consult with somebody about this because it's got nothing to do with the stressors that would have triggered the post traumatic stress if the board had actually considered the report they would they would be much more educated and in a better position to evaluate that many victims are able to be successful in in issues that have nothing to do with their victimization and here i do believe it's absurd because all of his life facts nobody disputes that is four he was ten years old in two men walked up and shot his father in the head right in front of him nobody disputes that nobody how how how was that p t s d a result of a litigation position i think that that is an absurd position for the board to have taken with regard to the with regard to the chandra case and the changing country conditions i believe the government's position is is also just completely wrong they would they would have you believe that neither multi nor chandra could ever know coptic christian no chinese christian in indonesia prior to those decisions whatever i've been able to make out an asylum claim that's not the question the question as did the conditions get worse and in the record we provided the corruption index showing the corruption in philippines got worse and worse and worse and that's exactly the kind of person they would go after we also cited to other articles that the board just decided not to look at like the i believe that's just way too nuanced the court correctly noted that when he's deported from the united states if that were to happen he's not going to simply walk into the philippines embrace they're going to check him out and for the government to take the position that they couldn't simply on page one of google find all of his peers are ticals and all of the information about him is very naive extremely naive and not only that but in the book before the board was the l a times or showing that there is a public awareness of mr ferraris and what's going on with his life and his case was widely covered by the filipino media widely covered by the philippine media it takes no more  effort than a google search of his name to find out all of the information and for the government to take the position that the persecutors going to go and explore the nuances well his name a second time this article well perhaps this is just an academic article i believe is just contrary to the asylum laws of this country ok we rest thank you thank you counsel