duty to develop the record in the case of an asylum seeker with a religious persecution claim includes a duty to consider and to ensure that the state department's international religious freedom report is part of the record we're also asking the court to find that the immigration judge abused her discretion when she denied reopening for mr adie to supplement the record with the international religious freedom claim based persecution he stead that the had to rod tribe had a land dispute with his father and they had eventually they shot and killed his father and that was related to the end the only objective evidence in the record of proceedings was a two thousand and fourteen country report now in the two thousand and fourteen country report as the country report for every year does there was merely a  to a reference in the country report to the state department international religious freedom report if the reader wants to understand issues of religious freedom in the country this is this is a proceedings was a two thousand and fourteen country report we provided evidence to the motion to reopen to show that between the time of the hearing and the time we filed the motion to reopen the al before the two thousand front country report with respect to the al shabaab merely stated that the al shabaab had control of much of southern and central somalia but didn't speak specifically about the hearing but did have control of the area at the time of the motion to reopen that's a change country condition which i'm trying to understand from your argument i guess my argument is that the two thousand country report is silent as to what specific areas the al shabaab had control over and through one thousand and fourteen report is not the two thousand and fourteen report merely stated that the al shabaab had control of much of central and southern somalia but did not speak specifically about what areas whether it they had control over say the jubilant area you i would also say whether the the reopening also could have been based on a sewer spawn type we are opening and we argued for that the court because there was a due process violation namely the immigration judge did not ensure that the religious freedom report was part of the record they are the remedy for that would have been spontaneous opening in the interest of justice mr ster in that right i believe it was january he seventy two thousand and sixteen and the only country report available at that time was the two thousand and fourteen can't report but we take issue with the fact that though the two thousand and fourteen country report was part of the record the international religious freedom report which should have been incorporated by reference into the country report was not part of the record the immigration judge did not request and she easily could have i think you take a look at your file you'll see that the the merits hearing the date of the merits here when you when we talk about a change in country conditions don't you have to fix the start and then see that there's been a change from a between day day and they'd be and this merits here and was fairly certain october the th two thousand and fifteen and so you want to show i think what changes could convey what the change in the conditions in the country were for from that date for you you do your honor and it may be true that that was when the merits hearing was and that the judge released her decision on in january of that year but mr davis appearing pro se at the time and i didn't come on board until until i filed the motion to reopen i'm we requested reopening based on both change country conditions and on a request for a swiss ponty reopening in the interest of just and undergo we have the jurisdiction to review the reason behind the decision to deny suicide that's correct and the in his dissent in the fisher cas judge noonan addressed the immigration judges judy to develop the record and there were several night circuit cases after that which were cited in my brief that also agreed with the judge noon position and if the panel doesn't have any more questions or reserve my remaining time for rebuttal thank you good morning greg pennington for the attorney general because you know i'm likewise just happy to be here day two in portland i want to start with any arguments regarding the impropriety of the original removal proceeding now abdi waived appeal of the immigration judge's decision on that day he did not appeal it to the board he did not file a petition for review in this court so any arguments regarding the impropriety whether the judge should have included evidence in the record whether the judge was biased or had a high denial rate or any of those arguments the court lacks jurisdiction to consider them i mean the statutes really clear that you have to file a petition for review within thirty days of final order of  petition for abuse not filed so only looking at the motion to reopen it was an untimely motion to reopen and the only exception acknowledged in the motion to reopen was change country conditions in order to do that you have to show conditions have changed materially since january th two thousand and sixteen and the date of the motion to reopen and the evidence submitted with a motion to reopen shows a mere continuation of violence committed  you use it's their burden to show that there's been a material change so conditions have changed that makes an applicant who was not eligible for asylum now eligible for a while i know that what  be used in this particular circumstance her allegation is there's a two thousand and fourteen report that included the religious or referred to a religious freedom report i'm paraphrasing and that you think you know wasn't considered so they l j decided or i j decided basically that things were bad and they remained bad again phrasing but i'm curious about the baseline and that matters to me because we're trying to figure out whether there's a material change in this in the delta between point a and point b as judge ferris said so point a are we supposed to look at just the two thousand and fourteen report that's all the well is it or if it's there well we're not looking at the original removal proceeding we don't even have the immigration judge that's it testing other wise counsel i'm just trying to figure out what is the baseline for purposes of the motion to reopen for measuring the delta right materiality of the changed circumstances we look at the evidence that she's pointing to were guarding b includes that religious freedom report is our is that the appropriate measure i don't think so we have to look at the evidence she's claiming existed at two thousand and fourteen or two thousand and sixteen versus the evidence of the time of the motion to reopen whether or not there was the report included in the original decision we're not looking at that as a baseline we're looking at just the evidence you submitted with the motion to reopen right and her position i'm just trying to get you to engage with her position as i understand it and her position is  submitted this earlier report that made reference to another report that wasn't considered but that should have been at his her argument right and hence i'm trying to figure out what is the baseline measure that i j considered because i j then came back and said well there hasn't been a material change right i guess i'm confusing your question with her argument is that because the two thousand and fourteen report that was submitted at the original removal proceeding cited the religious freedom report that reports that have been included but whether the i j a should have included that is not currently before the court what is before the court is whether there is a material change in circumstances right and we have to measure point a and point  judge farah said i think we know what point b is what evidence we have about the country conditions of point b my point is while the i just said well there hasn't been any change since at point a the religious freedom report was not considered it seems to me she's got an argument that there's a different delta there there is a material change of circumstances because the snapshot at the beginning of the period was only the twenty four thousand dollars report and i'm just interested in the government's response to that oh well would say that the evidence she did submit which predates her hearing shows that al shabaab was targeting sufi muslims throughout somalia as were they targeting military police n g o s civilians this is an indiscriminate terror organization so whether we're looking at what is point a i think what the immigration judge was looking at was the the entire evidence she submitted so she'd lumped it into two groups there was the evidence that was available so everything that had a date before january two thousand and sixteen she said that's not new evidence as required under the statutory exception to the ninety day deadline so then she looked at the evidence that was new and compared it and what she saw was regardless it just shows that al shabaab is an indiscriminate terror group and she didn't abuse her discretion in deciding that i don't know if that answers your question i think it does but i'll let it go i think you maybe have answered it to the extent and i apologize i don't think you're trying to avoid it that's fine typically what the board has said in matter of s y g is the point of comparison sticks solely with the motion to reopen so we're not looking at anything underlying the removal order we're looking at the evidence submitted with the motion to reopen and suddenly appreciate that i'm just trying to it was but her argument is maybe let me get out this way does she what is your response to her contention that that at point a the immigration court only considered didn't consider the religious freedom report what's your response to that response is that the court lacks jurisdiction to consider that argument because that's an argument for purposes of assessing the the baseline which is really a doing is attacking the immigration judges failure to consider evidence at the original and ok i really read the motion to reopen three times this morning not once does her motion to reopen state the words to a spontaneous and if you look at the motion to reopen this is at page ninety one through didn't write so the immigration judge was under no duty to consider suicide and to reopen it because she phrased it as she was seeking reopening in the interest of justice to further develop the record again the majority of her arguments go to the i j a at the original removal proceeding so if she doesn't ask the immigration judge to sue a spontaneous opening which is a misnomer because it's something that the immigration judge or the board does on its own motion reopen to deny it and explain why i would agree that the idea would be under a duty to address arguments made they can't just bail their work nor arguments but it's our position that it wasn't even made in a motion to reopen and again i read it three times this morning i would urge the court to look at page ninety one and ninety two of the record at the motion to reopen to see how it was raised to the i j a and if there are no further questions on to can hit down here i did make that specific request to the board i think in the board is not a yes i'm i'm i'm going to try again on my baseline question and what i want to know in particular is what is your contention you think that in two thousand and fourteen that the that the religious freedom report was not considered how do we know it was not considered if it was considered the judge certainly did not mention that in her or in denial of the motion to reopen what's the appropriate baseline for purposes of determining comparing point a to point b what's what should we look at it point i would say the baseline would have to be the evidence that was before the immigration court at the time of the merits hearing in this case the only objective evidence that was in front of the