azari can claim asylum from germany a nation in which he resided for some seventeen years before coming to the united states and that central question the board's view was all but impossible to decipher question here as well is mr al as somebody who still owes permanent allegiance to iraq yeah obviously is not i mean this is a man who fled iraq after having been arrested and brutalized detained for four months suspended from the ceiling ha i think it's a it's both a legal question and a factual question in this particular case we have a situation where the man has not returned home for some thirty two years he fled it's true after having been brutalized by the iraqi government and when he left and this is laid out on page forty six  administrative record he vowed never to return it's difficult to conceive or it's difficult to to suggest that this is a man who owes permanent allegiance to iraq when he was he was treated this way by his own government fled some thirty two years ago inv never to return but the critical point here your honor is that this is a question that the board has not addressed and because the board has not addressed the question it's really appropriate for this court to decide it in the first  as that the issue was raised because he argued that in fact he was eligible for asylum from germany and why would we send it back the b i a when it already has  allison i was hearing for the immigration judge but more important than that the content of those news articles makes clear that the german government at least in the higher levels did not discover the widespread nature of this iraqi intelligence iraqi intelligence activities until about one thousand nine hundred nine and this was laid out in these news articles on page seventy eight and eighty that they didn't make any arrests of any iraqi nationals engaged in this espionage isn't harassment until the year two thousand and at the time the board ruled in two thousand and two that's not the test you're out of the test is whether it was available at the time of the immigration judge hearing i thought one could present new evidence to the beyond in korn's with ninth circuit law in some situations you can your honor but the regulations here if you look at eight c f r section one thousand three point two that's the regulation that governs motions to reopen and it simply requires a showing that the evidence was unavailable at the time of the original hearing iraq they understand it at this time at this time anything government try to send him to germany he doesn't have travel to papers right now correct the germans won't take him that's true so he said he's going to remain here in th what point did the government then begin to remove him from the country when they think it's appropriate to remove him to iraq when they believe that it's no longer more probable than not that he'll be persecuted in iraq at that time they could remov to iraq unless he has a granted asylum the difference between withholding asylum is a huge one because with asylum you're here for good basically i want to do something that makes you deportable with withholding you're here only until the government decides that it's study say that any alien is not based on conditions in any country of origin if the airline was firmly resettled in another country before arriving on states and the court noted that there is no grounds for granting asylum from the second country  him he claims that the police told him that they cannot guarantee protection i noticed know that there is a big difference between on being unable to guarantee someone's protection and being unable or unwilling to protect someone the fact that the police may not have been able to protect him or that if he fails to depart voluntarily he shall be deported as provided in the immigration judges order the immigration judges george says he shall be deported to iraq would agree i think that should be interpreted as meaning you can be deported to another country such as germany but he but he cannot be a part of the board obviously not that they may have their they didn't specify and in fact they it's not unusual for for the board to provide extra paragraph without providing more specific details of what country he can or cannot be deported to that's something that but the boy certainly does understand that he cannot s there is no evidence to show in the record that he would be harmed by these anonymous individuals fourteen years after he left germany and there's no i don't think he was trying to harass pacifically because he worked for the united states military or because of his political beliefs the issue about the concession the only formal concession here is not about nationality it's that you are a native of iraq and a citizen of iraq that's what's alleged on page two seventy seven in the notice of here and he is a