old familiar with our lighting system and we've read your briefs so please get to the point as expeditiously as possible we'll call the first case number eighteen down or six zero zero six five maldonado versus parents when they went to mexico to try to reclaim the body of a murdered son in the documentation center and held that as a basically that simply need has they were not harm and that is still relevant because that finding form the basis of the rejection of his motion to reopen which he filed after he had been released from detention he was held for two years from when he first fled mexico after having been treated so badly when he went to find out what happened to his twin brother at the immigration judge said that that was persecution it just was not based on who one of the protect grounds and therefore did not constitute past persecution but he fled to the us and requested asylum was found to be credible and have zero zero zero reasonable fear by the asylum officer who interviewed him at the time but because he was detained for two years he was not in a position to express his own political opinions in december of twenty fifteen he was released by the writ of habeas corpus and of the the widespread abuse of human rights in mexico as well as the abuse of human rights defenders in mexico which was not been an issue in the first trial of the first trial was doesn't have anything to fear so in the second trial the judge considered the imputed political opinion in him and ruled that no he would not be persecuted because they were not harmed so in january of convinced that the case could have been decided differently the case could have been decided differently or that evidence it weighed differently and that to me is clear proof that they did can't do it because we're under really remains and you're saying that i think what you're saying is that that is evidence that actually did know really was not done and instead this legal conclusion was and with this court as i understand the procedure which is pretty complicated yes it's this came up here once before and we sent it back and i don't know if it was you but mr chavez is a lawyer and the government agreed to send it back for you know for the board to to make sure that they did it right and the board essentially said yes we did it right and it is it correct to because they're not saying we we are doing it right they're saying we did it right back in two thousand and sixteen which is our standard of review right here right now it's you know the  incorporated it as organization where the began to publicly advocate for human rights in mexico not just on relating to his deceased brother which is what the parents have done but on behalf of all other similar situations this was very public it was highly covered by the press and all that was documented in the record he also documented very thoroughly how human rights advocates are persecuted in mexico and they have been persecuted since before this case arose but the evidence of that persecution really only started to come to light in twenty fifteen all the documentation of persecution of human rights at that date from twenty fifteen beyond the demonstrated that he would not and the fact that he had gone himself out publicly and done all of this advocacy that had been so thoroughly covered and the fact that this situation in mexico with on denial of a motion to reconsider motion to reopen the underlying b i a decision hasn't been appealed will it be appealed is there still an opportunity to appeal the underlying b i a decision that affirms the political opinion after he was released on bomb and the fact that his parents had not been on when they had expressed political opinion relating sold it to the issue of their murdered son was not conclusive of whether or not he would be persecuted for what he did when he was released and what he would continue to do right before you run out of time charged duncan i ask you a specific question was the initial twenty sixteen reopen and the standard for that decision is abuse of discretion which is a very deferential standard and as we know the motions to reopen and reconsider your particular disfavored especially in immigration cases kind of a strange case review here i don't believe it does your honor i believe that the the board's decision initially denied a motion to reopen and reconsider which as it was before this court which was remanded i think i think the primary reason i know that talks about the motion to reconsider and to consider all the other legal issues of the board deciders to to consider but i think the primary issue is that the board did not specifically discuss the petitioners changing country conditions argument instead denied the motion to reopen primarily just on a sort of the change in personal circumstances of the of the petitioner so i think the other like i can't speak to exactly why the case was remanded but i can say i can certainly say that there were some issues that the board needed to consider and that was put back with well one of the issues as i read the riemann order is whether that be i a properly unclear to me if we find in this appeal going back and reading all those opinions that the b i a in fact applied clearer view should have replied applied to novo review are we required to and i believe this court would be required to reverse three mand the there's two because that would be by definition abuse of discretion wouldn't that apply and in fact legal standard would be an abuse of discretion is correct or but i  would take a step back and say two things your honor first of all the board is considered the facts of the motion to reopen reconsider three times out and despite what petitioners arguing the board did not admit that this court and sometimes when one judges grade their own work to give themselves a pluses right that's correct and you know i'm going to make mistakes in opinions that i write and it because somebody asked me whether i made a mistake i'm probably saying no right i mean up that's what the b i is done here that we sent it back and said did you apply the wrong standard they said no we didn't that's correct or and i think if you look at the context of all of the sessions the board has used in china motion or consideration it's a very factually intense clear air basis on that and i would i would i would also ask the court to look at z z z which is sort of the matter of z z which is the board's presidential decision where they they said that in order for the board to that's ultimately what's going on i mean you get through all the procedural stuff so with respect to the facts underlying that is there any material dispute as to the facts of mr chavez asylum claim or a claim of persecution i mean is there any material disputed facts that we have to say well we don't know what happened so we have to defer to the i j a with a b i well that's a very a question that if you read the petitioner's brief there's no there's no contesting of the specific findings that were never appealed the merits of the decision of the board that that would have been out or at least the the two thousand and sixteen decision which they didn't do instead they filed a motion to reopen reconsider so that's all we're left with the only question presented that's not anything that we have to defer to be on if we conclude that the b i a didn't in fact applied an overview i mean i can read opinions as well as anybody and i say no they didn't that's legal or that's by definition abuse of discretion i think if the if the court believes that the board says they did not says they applied to an overview but the board doesn't believe that the i'm sorry the court doesn't believe the board is actually doing that then i would i would just point that the course attention to zero which is sort of the last paragraph on page findings here that decision it's very interesting because that's the case from the presidential case from the board of the board says these are the standards bare standards of those findings they go through and they make the final conclusion that he's not made his burn for relief nowhere in that paragraph to this they were applying to know though review to that final decision it's very clear from the context of what the board was doing in that decision and it's very clear that that's what they did here and now the court has said that twice yes we've reviewed this and of this is what our position is there's no reason to think and there's no evidence in the record that would give any reason for the court to believe that they would give a different reason there's no reason to believe that the order of use their discretion here we have the so i'm looking at ford's january seventh two thousand and sixteen decision that's i guess the merits of the and at age four its record seven thirty five the board says after it after it basically says the i just wrong about the news articles the news articles that have to do with the taurus and then at the top of that page first full paragraph board says nonetheless we do not find clear errors in the immigration judges determination that the information that commander tourists colluded with cartel members did not impact the respondents well founded fear now i don't understand  whether or not the applicant or the claimant has a well founded fear of persecution is a legal question is it not yes or ok now i understand there can be factual determinations underlying legal question but that sounds like the board is applying a clear i think that's why when it went back to the board or has reviewed it and said well and you say there's no reason to think the board would come to a different conclusion on de novo review the very next sentence says we sympathize with the respondents fear of returning to mexico there's there's a legal basis to give relief here because it doesn't meet the legal definition or the legal requirements for their release i mean what are the what are the factual disputes regarding the kidnapping of tourists i mean is there any dispute that the man was kidnapped i don't believe i don't believe there isn't a dispute that or i actually don't know that it's known that he was kidnapped i think it was based on some bay articles and i think that the finding from the agency was that the the arguments that were made by the petitioner and why he was kidnapped the purpose of it was all based on speculation it wasn't founded in the in the record why he was kidnapped or with the purpose of that was or if that was actually what they were arguing what it was  of some sort of a farce and an attempt to scare the family into no longer investigating the case and i also believe that he ultimately recovered the petitioner's brother's body was successful in that so whether it that the board agreed that and feelings consider evidence of his political activism that after his relief from detention that they have abused their discretion but the records really demonstrates or did not and ignore any there was no new evidence out of a sense of personal circumstances so whether that's true or not is really not before the court because we're not considering the merits were disconcerting the fact that the board looked at his own changes which is his opposite just told us is that because he was released on habeas corpus he was now able to actually express his political opinions regarding police corruption right that's their claim and that's their claim and and they and that with at least one basis for the motion to reopen right newman new material evidence that there is on his will find if you're persecution issues right and if i understand the reasoning of zot of the board of the i j a reasoning was let's not material because it's just like the opinions that his parents were expressing that's correct and that would be a merits question and the only issue that's at play here is whether or not the board considered that which the board did in making their determination to deny the motion reopen which they clearly did so therefore they did not use their exact review we could review that determination about the materiality of the new evidence under abuse of discretion standard right i don't even believe they're arguing in their opening briefs that there is an issue of the material out of that because they just simply said the board didn't consider it so there would be no basis to argue that because they've never exhausted that issue before this court either in the merits brief or in their most recent opening that's correct they said that any political opinion that he would have that he's saying that would cause him to be persecuted he's already argued that that was imputed to him from his of his that are going to reject it absolutely are and that's exactly what the board found you from this court it says i'm reading page twenty five the record in that motion the government agreed that quote the board would have the opportunity to respond to the titian as assertion regarding quote evidence of increased persecution and its rights defenders and specifically petitions was the evidence that was put forth on that issue with respect to the motion to reopen and why and you know why why did the board say it's not enough i think because initially with the board said  the motion to reopen the first time around was it focused on what we were just talking about which was the political political activism of the petition or they didn't specifically get into the country background conditions that were produced by saying that for people who are similarly situated to me i'm a political activist things a are deteriorating becoming more violent for us are being targeted more i suppose by gang members or criminals or the government a change country conditions and concluded there been no material change warranting reopening and specifically the board identified evidence that showed that this wasn't a change in conditions and in mexico where there was more there was apparently increasing violence against human rights activists but the board pointed to evidence produced by the petition that showed that this was an ongoing problem prior to the that shows that this was an ongoing problem before petitioners removal proceedings before he would have claimed to become a political activist your brief says admittedly some of the background evidence accompanying shabbas his motion to reopen generally indicates that violence has increased against human arguing change country conditions but if you can go back even even if there's a a incremental increase in violence against some incident similar situated in the country if you can if if it's shown that this is not something that's new in that this was occurring before and this was a part of an ongoing increase of violence even though it's increasing if you show that six years before his mission his i'm sorry his removal proceedings that there was violence against political activists in mexico then that's a couple of points on first of all the facts are that january sixth of two thousand and sixteen decision was not appealed is not relevant because that decision was essentially incorporated by the board in its most recent decision because they said in that decision this is what we did there and we're saying no that's not what they did there so the fact that that was not appealed directly is not relevant secondly it's not the case  not raise the issue in his brief on regarding the motion to reopen on page sixteen he says that the recently aired in failing to consider is evidence and renewed political activism subsequent to his release from ice custody as a basis for reopening and in rejecting the claim that there was increased violence against human rights petition advocates the board cited a number of cases from this court that it alleged stood for the proposition that simply because the situation was worse now even materially worse incrementally wors materially worse you know that there's there's a spectrum there but none of the cases from this court to the board side or any of the cases they cited relate to claims that the situation is worse now than the wors ning of the situation is in and of itself a material change that yes there were a few human rights violations that go back to twenty eleven but it was later that it became so pervasive and that's what he says that the human rights are violated in mexico that nothing happened as a result of that they still haven't done anything about it they've never you know located the bodies if you know they think they found some remains in the landfill that may have been them but his is showing that the situation is far worse now than it was in you know in two thousand and fourteen you know when you had his  about the but the fact that there were two aspects to the change of circumstances one was his personal change which the board totally rejected since it was cumulative and we consider that not to be the case because it's very different to be in mexico advocating for human lives for everybody you know his parents isolated trips to mexico to complain about the murder of their son and the fact that his advocacy is now far broader as he even included a new asylum application in a motion to reopen to demonstrate that  making a much broader claim than what had been previously made and the board rejected that part out of hand and they rejected it changed his climate change material change of circumstances as being just cumulative because they had been violations before nobody disputes that there had been violations before but that was not a focus of the original trial they were not the original trial did not deal with  the human rights situation in mexico as a general matter it just dealt with the parent political opinion as expressed in their trips and whether that might be imputed to him which was never determined it was assumed that it would be and that therefore because the parents were not harmed he would not be harmed there is a very serious change material  when a person who is advocating generally and he included in the in the documentation numerous instances of human rights advocates who have been recently persecuted in mexico in th end the situation in mexico and that is the face of what he would face as opposed to what his parents faced when they went and said you killed my son and we're not happy about that and the fact that his parents were not harmed is not conclusive of whether