for the time and america limitations on motions to reopen and sufficient to justify reopening of his case to pursue applications for withholding up and move all and for protection under the convention against torture the board's decision in this case conditions documents in the record at his removal hearing did not mention anything about discrimination or persecution of aids or hiv suffers in nigeria the board also did not dispute mr  testimony at his last removal hearing that injury and authorities would need to detain him upon his deportation because of his criminal history the immigration just specifically found that information credible so the board had to find that that testimony was true the board also did not dispute that the state department's report at the time of this motion to reopen reported quote unquote widespread discrimination against persons with hiv aids which the public considered a disease resulting from a moral behavior and which included the denial of health care that same state department report also indicated that nigerian authorities intentionally deprive detainees of medical care as a form of punishment or torture the board in this case also does not have the benefit of this course decision in charge of her says holder which held that a combination of changes in personal circumstances and changes in country conditions could justify reopening under section two forty  oh to be fair abraham lincoln did not have a time or next to have so maybe know well in any event your honor the board's unreason it says in that there were no changes in country conditions supporting reopening at odds with the record and its failure to account for all the evidence relevant footnote saying look we're very sympathetic to you know your quite situation and if you wish to pursue a humanitarian stave removal than go to with government counsel regarding an alternative position in this case in particular i was seeking reopening to pursue the withholding or can't claim based on changes in country conditions or an exercise of prosecutorial i understand that you want that but there are other options and i want to know if those options are being fully explored your honor we have explore those options and regrettably the government does not want to exercise any sort of prosecutorial discretion or afford him any other really other than what he's already received which is basically release under an order of supervision so you think that they've denied his petition for humanitarian relief or did he not pursue it well you with government counsel about that in addition i approached illegal what did he or did he not file a petition for humanitarian relief that's a yes or no question there was no specific petition for humanity answers no and the first time i raised it was with government counsel when this case was set for argument is that what happened while your honor i also approached the office of the chief counsel in los angeles to see if they would  actually was it was after the notice was issued in this case so why i mean you've had the board suggestion for years why why did you not pursue it more rapidly well your honor my impression was that the office of the chief counsel would not grant any other relief to his criminal history and that is in fact what was confirmed after the notice was issued and so you didn't pursue the suggestion because you thought it would be futile yes your hon so as i indicated before your honor unfortunately we're in a situation where federal immigration officials do not want to afford any other humanitarian relief but even if they deny that  this court still should vacate the board's decision because of its on reason determination that there were no changes in nigerian conditions a country conditions for a to be an aids sufferers justifying reopening the problem of that we have though is there's nothing in the record to show a change between one thousand nine hundred nine and today and it's hard for it's hard for me to say that that's an unreasonable determination when the record is what the record is well there is some evidence in the record to support such a change your honor and what a shame that's what i'm trying to determine here while at the one thousand nine hundred removal hearing there was a department of state report entered into the record and that's a part of the report did not indicate any evidence of any persecution or discrimination of hiv and aids sufferers at the time of his two thousand and eleven motion to reopen in contrast the state department noted quote unquote widespread discrimination of hiv and aids sufferers and also indications that prison officials with withhold medical care as a form of punishment that constitutes a change sufficient to justify an exemption for the time in america limitations and motions to reopen and to justify reopening in this case and you know of course for a motion to reopen we only have to show a reasonable likelihood that the requirement for the form of relief thought would be that it's by not a conclusory showing iran or the child or cases actually helpful on this matter and nack case he chandra had originally planned for asylum based on his status as an indonesian of chinese ethnicity that was denied the motion to reopen stated that he had converted to christianity and showed evidence of quote unquote increased persecution of indonesian christians and the ninth circuit in that case found that the combination of a change of personal circumstances as well as changes in country conditions for engineers and christians justified reopening under section two forty seven c two of the immigration and nationality act and the regulations now chandra of course doesn't specify what degree of quote unquote increased persecution will justify reopening here but as i indicated before we only have to show a reasonable likelihood that the requirements for withholding and kept be specified the court can also look of course to similar cases in the context of exemptions to the one year bar for a change country condition of going back  to humanitarian grounds for relief for a moment because what we're familiar with chondroitin the case law in this area i'm not saying that you don't have a good argument on the merits but i think it's tough for your  scase frankly so i want to ask you are you familiar with the process of applying for a humanitarian study of removal with the h s is there a formal process that's in place i there is a process in the sense that one can file in i two four six which is an application for stay of removal or deportation it doesn't specify that form does not specify whether the application for a stay  deportation would be on humanitarian grounds to my knowledge though that is the only process available to ask for some sort of humanitarian stay and at this point he is he has been released under suggest you go there and try to obtain that relief that's a fairly significant hint if you will that there's possibly another avenue here you've got fairly sympathetic facts somebody who's been diagnosed with hiv aids and he's receiving regular treatment presumably he's taking medications right yes or honor and we know that there's denial of care for aids patients in nigeria and so a given that he's undergoing treatment and he may not get the same treatment if he were to be moved to nigeria i would think those are fairly sympathetic facts to pitch a case for humanitarian relief certainly those are sympathetic facts but even in pitching a case for humanitarian relief your honor does not mean that federal immigration officials are going to accept that case sure but if you don't try to go through the process and you will know that discretion will be exercised by the government has this case been in mediation this case was in mediation for a short period of time if i remember correctly  i don't remember exactly but it was fairly recently only i would have to look back at the record your honor to determine that but all indications at least from my end seem to suggest that federal immigration officials but not consent to a humanitarian say because of its criminal history so even you know assuming arguments are that that hinge was significant the question is whether that avenue was reasonably available to him your he actually got into trouble with the law so i don't know about what was a i think at that point when he was finishing medical school was when he actually got into trouble with the law so my understanding is that he did not complete the full residency requirements for medicine at this makes these false statements and then you get a larger amount of money and so he ended up with what about four hundred thousand dollars a yes your honor he was dying you know and prison he was diagnosed with hiv the end she thousand but he believes that he may have contracted it earlier through an infected needle as he served in our military he has not your honor are they treated in the nigeria well that or the country reports that there was a country report entered into the record as of the date of his motion to reopen of the two thousand  country report which said that hiv and aids sufferers sustain widespread discrimination because the public believes that their disease results from a moral behavior department of state's report indicated that the forms of mistreatment that hiv and aids sufferers sustained included employment discrimination as well as a denial of medical care you know in addition of course there was the earlier statement on page fifteen of the same report credible statement so this court has to accept it as true and of course since in a motion to reopen all the assertions have to be accepted as true and unless there are inherently unbelievable but yes your honor there was a statement concerning to him on account of his h i v or aids status and that would either be inflicted by the government or by private entities of the government is unable or unwilling to control purposes of withholding your honor i would note that i'm about three minutes over my please the court my name is andrew o'malley i represent the attorney general of the united states this court dismissed the petition for review because the i and a limits the course jurisdiction to colorable constitutional claims and questions of law based on this tricky ars finding ever the medical school to file false claim you know of two points your first is that there isn't simply the bank fraud or student loan fraud i believe there was also a conviction for lying on a passport application and i think it was a passport application fraud that was the second conviction but these are all issues that are that are not before the court the he was found removable as an aggravated felony and in an individual was convicted of two crimes involving moral turpitude rage and taking them and throwing them out your i'm not sure the evidence in the record and he had a full opportunity to present evidence of what treatment he will receive in one jury and whether or not country conditions change in nigeria such that he would be excused for the time with all motions to reopen but you know  me as far as the justice department is concerned it's all right for a disbarred lawyer to practice under these new people have of people who are here illegally have a better chance of getting some relief eleven yet lisa over live in a different world but then if that's true and we spoke to opposing counsel i spoke after the order was issued or the notice was issued in this case concerning whether or not any of the with the implicated executive action and  of course this is all outside the scope of this courtroom view because this is prosecutor reading this committed to the executives discretion and it went through our process and opposing counsel asked me if i would be opposed to her going directly to ice i believe that's how this  and i said no and she did and as i understand it and i might be wrong here the request to ice was to go ahead and reopen the same request that was before to reopen for withholding and protection of the cat i don't know that there was a he falls into sort of the highest priority for enforcement action that's director so he it's not likely that the agency is going to be inclined to do much for him because of the nature of his conviction not likely i certainly one discouraged petitioner from going to ice and asking for the for a lower level i think that's going to hurt as it sounds to me given his conviction and status and priority one that if you were to go through the checklist that he wouldn't qualify for the exercise of prosecutorial discretion under the language of the memos or directives that were issued but it doesn't sound like the consideration up humanitarian need was fully fleshed out but i don't think that's that's quite true your honor i think we tweek we treat each case individually i don't know that everything in this case is in the record what we have before us is just a glimpse of the case and again that is fully outside the scope of this court's authority that is a matter  petitioners counsel can go straight to ice and ask them to ice counsel who is handling the case and ask them for to for the first action or some sort of humanitarian relief that way as well but i don't have the knowledge of how that works because i never see it as to these cases is handled on an individual case by case basis i don't i don't know of any policy that specifically targeted towards individuals with hiv and aids now again you're saying evaluation of whether relief should be granted would be with the ice council well initially initially in this case it went through our office in conjunction with with ice but if this petition for a view  and there's no other relief available then yes it would have to go through ice council now accepting as we do that the court's decision in ramadan that twelve fifty two a two d restores the court's jurisdiction over the next questions of facts and law applies to the to the change country conditions analysis if that's the case then this case should still be dismissed because their dispute here as to what the facts demonstrate is not the application of law to undisputed facts specifically petitioner contends that the ut that there's some discrimination there's some denial of health care but that doesn't show a change from from one thousand nine hundred nine to two thousand and eleven now chandra which petitioner relies on in supplemental briefing absolutely says that a change in personal circumstances can make the change in country conditions material but there still has to be a change between the time of the merits hearing and the time of the motion to reopen and here that simply is not there i'd like to but you know my concern is he's been here for all these years of course he did some bad things i don't know what the circumstances were i know that this whole system of student loans that we have in this country is a disaster and there's a lot of corruption inside i think the total amount of student loans now is about one point seven or eight trillion and never be able to pay it back you know so not going to stand here and pretend like this is not a sympathetic case i think we all agree i think the board agrees that this is a wholly sympathetic case because your had an opportunity to file a motion to reopen and chose to present really no evidence that would accept him from that from that numerical at the time limitations s nothing in the record that tells me that there's nothing in the record that tells me that well what if the petitioner has something that shows that there's been a change in country conditions now that would make him eligible for relief he can certainly go to the board of immigration as far as the motion to reopen is concerned your honor there is sufficient evidence on the record at least to justify development of the issues concerning the treatment of hiv and aids sufferers in this present record to reopening under the present proceedings and to justify granting its petition for review in particular evidence of his age hiv and aids diagnosis in that isn't true well yes yes we would want this court to and with respect to the the current country conditions of course as government health noted that's not part of the record i'm more than happy to send up supplemental information about that for which his court can take judicial notice  and but i do believe that the record contain sufficient information at least of his hiv diagnosis and if at least a difference in the way the country conditions is unsupported suspicion to justify a grant of this petition for review and further development of the record regarding his eligibility for relief thank you ron thank you