york he entered the united states originally on august thirtieth of two thousand and four he was apprehended at eagle pass texas but tempting to enter without inspection the record of the appeal proceeding at page forty one reflects the nature of that encounter with the form i two thirteen which document is commonly used along with a notice to appear of the charging document to substantiate the charges that are being lodged against a responded in removal proceedings during that encounter it's documented in the ice officer said we we have here address ma'am and such and such terrorist avenue oh yes i just moved there and she says so in her accompanying affidavit that was filed along with a motion to reopen that was until such time that he was deported in two thousand and ten so why why did you challenge this lack of notice in two thousand and ten when he was deported he that's a good question you're right or he he reveals to me that the lawyer didn't do anything and the seconds were ticking and it was all quite blurry to him everything moved very fast he was picked up he was transferred over to ice by local law enforcement after a traffic yeah i think it's failure to challenge it in two thousand and ten and he was deported pursuant to that original removal order which you say he lacked notice for but there might be some jurisdictional problems because he was already deported but first let me ask what's the end game here because let's say you're right that there was improper notice let's assume you win that and you're going to reopen the initial hearing i mean i don't see i mean he's here without status i don't think there's any argument about that so aren't aren't you back just arguing well asylum and withholding of removal and convention against torture which most of those arguments are still able to make here is what does what is the get you if you can reopen the hearing and we are urged to look at it another way what was the the burden of proof is a ten percent according to our established supreme court precedent as mentioned in my brief whereas under with the withholding statute into forty want an indoor cat convention against torture relief your burden of proof is much higher it's fifty one percent if i'm not mistaken it's more probable than not now immigration new york in case you have a case pending up there to yes sure he's trying to get withholding of remov reopen he can get asylum and that's the that's the end that's it that's absolutely right judge chu a seasoned immigration judge who has been on the bench for many many years decades if i'm not mistaken i started appearing before him in the late ninety's judge to has found reasonable fear of persecution having vacated an a o in asylum offer to officer decision not finding a reasonable fear and judge two cases currently pending now that mr may he has a reasonable fear of returns to others but i guess i looked at your second circuit brief and in the second circuit which you got dismissed once to which there was that reasonable fair determination because they said let's wait to see what happens with the withholding but in the second circuit you are also challenging this same notice issue you're raising here saying get in of notice of the ridge hearing how can you get two bites at the apple api challenge the notice here and in the second circuit you're out or it was never our intention we had filed a motion to reopen before ice had issued the reinstatement order and it was never our intention to be dipping into baskets at the same time we were forced into a procedural corner if you will and we had to respond accordingly we have no choice other than to apply for withholding based on the circumstances of mr savannah may he is life and while our motion proceeding was pending here in the circuit so over here the i j a in the b i a rejected your argument about notice they said it was your client's responsibility to mail it in that's if if that if we were to uphold that would happen after occlusive a fact in the second circuit on the notice issue that was put us back into the withholding only proceed in that is currently before judge two and it would be withholding only and so as our end game is to try and apply for asylum under to await where he has a better chance given the respective burden of proof you know we feel that it is highly prejudicial one moreover as i pointed out my brief judge close to the withholding statute when when you get an order of withholding you get a removal order you're ordered removed from the united states the order is withheld in other words removal is actually withheld ice can't deport you unless they reopen and find new country conditions you do not get permanent residence ever you cannot leave the country so you are not allowed to travel without self executing that removal order that's that's a serious legal predicament so the consequences are and as you see in our brief also it's our contention that judge burkholder had failed to recognize this distinction when he made the statement that he would deny the motion and the exercise of discretion because mr may he is not prejudiced he can apply for the same relief so reasons judge burkholder but it's clearly not the same relief and to the extent the judge burkholder error on that ground and determining whether or not he would exercise favorable discretion we believe th agency should revisit that issue the board never reached it as you can see they said it's not it's not prejudicial because he hasn't established new country conditions so we don't even need to address the discretion issue because my first question was why he didn't challenge the order back in two thousand and ten the original removal order and it's it seems to me the failure to do that means there's no jurisdiction to reopen that original proceeding now twelve thirty one a five that the government relies on says a prior were movable order once someone's been removed and comes back and there's a reinstated order which now there's a reinstated order it says the prior removal order is not subject to being reopened to review the alien is not eligible and may not apply for any relief under this chapter and shall be removed under the prior order at any time after the re entry so how can you why does the original order really have any legal effect it's all the reinstated order that is having legal effect now and that's what you're challenging in new york so why do we even have jurisdiction here where it's our assertion that the original order only affects the outcome if it's actually reinstated number true you can both in our circuit i'm sure in the second you can challenge in challenging the reinstatement order what you're doing in new york you can bring a case in limited circumstances a collateral attack as part of that on the original order but with the goal of undoing the reinstatement is that the reinstated there is what they're trying to remove your client on now yes but what do you have any authority that allows you to basis for the order in the first place through to the lack of the hearing notice but two we believe that to forty one as as you've brought me to point out is intention with that section of two away which allows anyone at any time to file an asylum application based on new country conditions anyone at any time can file for asylum based on new country conditions so it's hard to see it's hard it's hard to say i don't know if i don't see anywhere where that issue has actually been resolved that that section of two await is clearly at odds with two forty one or that section that you just cited your honor that that's how i read it but of course of course you will have a different opinion on that very possibly want a new country conditions which you brought up as is the key to the asylum if you can get even get through the jurisdictional problems what you have a bunch of record evidence about how bad things are in under us yes i've seen all that what's your best evidence you can point us to of how they've gotten worse since is to show the change condition since his last entry all of the state department reports from two thousand and fourteen which are in the record as well as the balloon minnes articles that we have submitted showing how the of both the thirteen and eighteen sections have virtually taken over the country and require its citizens to cooperate with a corrupt just it's just it's a it's a whole political social economic system seizing with corruption and payoffs and murder under us is now this year according to the un the murder capital of the world it has the highest murder rate of all countries in the world i mean that's more than other countries that might that's more than syria that's more than other countries that might regularly come to our mind when we think of that statistic it's brutal to have to live there and that's certainly different than the situation that existed in two thousand and four i think that's readily apparent from the record now there is a massive meltdown and hand urse just in the last few weeks if you cording to that mother of all newspapers the new york times i mean the increasing lawlessness  honduras at the moment is just apic which is which has only become more unstable i just watched the report last night due to the the pending election results and all of this it's it's just i just don't know how people could ever cope i have many people that i speak with every day i know it's not an evidence but they come in and they cry because their family members are getting murdered the same is true for el salvador this is a real situation that  i i don't know if any of us know how to deal with it but certainly word affects these applicants we have to on a case by case basis look at what happened evaluate the evidence and decide the case according to the statute and the regs sessions just decided last month about three weeks ago but i'd like to point out the differences if i could and also point to one specific statement made by justice in this decision that she authored and that is that she she specifically stated and specifically used the words d distinguishable from the situation we have here where his address was articulated at the time the original i two thirteen was created and during that operative period during which the  issued so under a presidential decision of this court the judge in that decision is specifically addressing the failure of of can this  e also like to say that it's really for the agency to come up with a proper mechanism to it to allow the immigration courts to be informed of a change in address if one occurs and they have they do it on your i r thirty three it's a change of address form but in this case in perhaps another cases and as i've argued in my my all times use that form essentially in order to inform the immigration court of of your address but that is use for a change yes and so at no point did or all respondents in removal proceedings to inform them of the change of address than they might come up with some other regulatory mechanism maybe a different form that would allow people to do this but up to now there is no form and very frankly you know i sort of do everything under the sun that's immigration but i've litigated well over  hundred cases in immigration court both detained and non detained and unless the person unless you've changed venue the immigration court already has the address because that information has been forwarded to the quirt by d h us that information is already in the record so the question that i get when i'm first done with with the immigration judges is your client's address still sixty four fulton street new york new york one zero zero three eight yes sure there's been no change and i just i don't you know i just like to point that out as a matter of practice you know if they insist on the strict reading then they should come up with a different procedure that  have an issue here with you i mean you have an address here counsel have you a sense i mean have we sent an ad any notice to this address or here on terrorists have no well let's i'll tell you what let's send a notice to this  dress that your guy is of uncovered in this to thirteen of us to geisha and let's see what we get maybe we'll get the guy here for the next hearing at least one other hearing so i kind of hard to see under those circumstances how and an abstention order you please the court clear workman for the attorney general this court should deny the petition for review because the agency acted well within its considerable discretion in denying petitioners a motion to reopen rescind his in absentia remov order first the agency reasonably found that after having been personally served with the notice to appear petitioner failed to provide the immigration court with his mailing address in writing such that he was not entitled to notice of his hearing second the agency also did not abuse its discretion in finding no evidence of materially changed country conditions in honduras so as to exempt his motion to reopen from the time requirement lastly this court lobster's stiction to review the agency decision not to reopen his case to a spontaneous and even if this court finds that there was an abuse of discretion with either the agency's notice or change country conditions findings  it would be futile because petitioner's order has been reinstated and by statute it cannot be reopened and he is precluded from applying for asylum so what's your how the board went ahead and addressed the motion on its merits if though the court concludes that the board abused its is its discretion and just simply would be futile for the to remain because for asylum she is barred from that and then in terms of withholding of removal and cat protection he already has full rights in parallel proceedings that are pending in new york so if the do you get there when the statute says it's not subject the when there's a prior whatever mobile it's been reassessed in state in which is happened here that then the prior order is not subject to being reopened or reviewed yes you the the motion on that basis then the government would not have a problem with that you want to pardon me but you ought to be very clear on that because this is a major issue for your agency we either have jurisdiction or we don't so your answer is we have jurisdiction yes your honor because of that means you and i see it differently because i don't think we do but i'm that it's an important issue for addressed the case on its merits if the board had decided that it lacks jurisdiction because of the bar from the reinstatement order then this court would also review that decision and find that it also would not have jurisdiction because well it would have jurisdiction to review that order but  case law says ramirez milian and some other cases that if he were challenging the reinstatement order itself as he's doing in the second circuit then there is a limited way in which he can try to challenge the underlying order make a collateral attack on the underlying order but what authority do you see that allows you to directly reopen or challenge the underlying order as opposed to challenging the reinstatement order because the reinstatement of or is the only thing that's causing his client to face removal right now i mean that's that's what has legal effect the old order is it's been executed in two thousand and ten it's actually been it's not having direct legal effect right now that's it's an elevator isn't it i mean it's well in his reinstatement perceiving once they are concluded in terms of he's downwind withholding only proceedings so let's say that she is denied withholding of removal and cat protection and of course he can appeal that to the board and then if he again is if he if his appeal is dismissed by the board you can  petition for review before this i did circuit and he can challenge the dolls withholding of removal and capper to action and also very limited there are three things he can challenge with respect to the in the where and petitioner has made a due process challenge it found that that the petitioner had not exhausted his administrative remedies and  prior removal order that he was in fact the alien who was prior previously removed or who departed voluntarily  it just seems to me the statute that says we can't once there's a reinstated order you can't challenge or reopen the underlying order it makes sense in that i mean two thousand and ten was his opportunity to say he had no notice i think two thousand ten is when he finally got deported on the the original order of removal so that statute is saying look you can't and we could be twenty years down the road and if you're allowed to every time you get a reinstated order reason the government makes the distinction here is that so he here is filed a motion to reopen challenging lack of notice so that is a separate final order from the what she may eventually seek review of in the second circuit the final order of the reinstatement with its associated proceedings so if if the court i suppose would want the board the board has not in a published decision reconciled the statutory right to reopen and rescind and you have censure order for a legitimate lack of notice clean and the the twelve thirty one a five bar that once or orders reinstated it cannot be reopened or reviewed so if this court were one of the board to do that then it could theoretically remain for that reason or it could decide the issue on its own but but that is why because the board went ahead and gave him the benefit of the doubt went ahead and gave him more process than he was due arguably because  could have just said well the reinstatement order was issued and therefore we cannot reopen this case it has done that in unpublished decisions i do not know why it did not do that here but i do want to correct  which i believe there are some some issues with that argument but it isn't doesn't matter in the end because once the order is reinstated and the statute takes effect and then the underlying removal order cannot be reopened and also the claim that with respect to twelve thirty one being in tension with section two hundred eight of the immigration nationality act the asylum provision and this court has rejected that argument in whe yours me which we cited in our brief ultimately with respect to the notice issue the statute and the regulations are clear that no noticed is required if an alien does not provide and this is a quote a written record of an address which is mandated by us c section twelve twenty nine a one f and petitioner has never claimed and there is no evidence in the record that he provided an address in writing either with form you are thirty three or in any other way before his innocence order was issued so he did not comply with his statutory and regulatory obligation and it's undisputed the petitioner was served with the notice to appear which on its face shows that he did not provide an address and informs him of his address obligation and that the government was not obligated to serve a hearing notice if no address was provided additionally by regulation it was petitioners duty when there is a missing address on an n t i or an incorrect one he has the obligation to provide it again this is a quote a written notice of an address to the immigration court and the notice in the address requirements are intended to ensure that the alien will appear for his hearing and he is in the best position to know his address so the written requirement is key because otherwise there could be as in this case conflicting accounts of what was said to whom and when and there's a lot of ambiguity that that a written address requirement essentially trying to fault d h s s for not doing the work for him in terms of providing his address but he but do you just was under no obligation to do so nothing require you just confirmed petitioners mothers i guess it is just simply states that border patrol agent hold positions mother and asked her to dress she provided one address and that the address of record was another address not it does not indicate that she was ever confronted with that address or that she confirmed it or that petition it was living with her but in any event it still comes back to the fact that the addition or did not provide an address in writing to the immigration court at any time and he had the notice to appear which told us that the jury notices were going to  but again that that just highlights the problem and providing an address or in this case a phone number or orally it still comes back to it's his obligation to inform the immigration order ensure that it has to continue an obligation to ensure that it has a current address for him because i use is under no obligation to call a phone number it does to as a matter of courtesy it wants to ensure th appears for hearing as well and but it doesn't have to call up a number and try to track down an address for an alien who does not provide a written address with respect to the change country conditions claim there is no abuse of discretion that he did not show materially changed country conditions since two thousand and four to overcome the time limitation because he does not point to any evidence in this record that conditions have changed in that are there qualitatively different from how they were in two thousand and four in fact i don't see any evidence of conditions in two thousand and four and it was his burden to provide that evidence so it's almost it's very difficult to make a comparison when there is no evidence of how conditions were at the time of his hearing and the fact that he argues in his reply brief that an immigration judge in new york times he had a reasonable fear he says that means case for asylum but he ignores that he still has in the motion to reopen context the obligation to show change country conditions to overcome the time bar for motion t decision not to reopen in in its exercise of discretion so that is now before this court to the extent he makes a due process claim there is no liberty interest in the discretionary relief of reopening and the courtney not reached the arguments on the merits of the eligibility for relief from protection because the agency's finding that this motion to reopen was untimely and not excused by a lack of notice claim or a changed country conditions claim that finding is dispositive and in any event of course the review and would just be futile because if the court disagrees there are no further questions at the board acted well within its broad discretion in rejecting both of petitioners bases for seeking reopening and this court to deny the petition for  government even went there and that is the fact that we actually received the notice of intent to restate after we filed our motion to reopen and so if the operative language of the statute is preclude ng trying to do something about the original order which can be filed pretty much at any time if you meet certain conditions  as long as the case has not been reinstated and that's exactly what we did here it makes i get things all the time from v h s and they put a date on it but they might wait twenty days or a month or two months before they send it to me how can any one reasonably have any hope of responding to some a less they get it they have to get it first so if it really should be the operative date a e it seems to me that the eye to thirteen read only indicates that the mother was contacted and she provided an address but that further  according to what in this is corroborated by her converse public records it stated right in the two thirteen public records indicated that she lives on such and such an address in the address is very clear and very specific there is a definite and dress there it's very very clear all right i would like to know yes those are the two points said that i would like to make i know i've argued pretty much every other point that the government has addressed i don't believe i have anything to to add to that only that in terms of the discretion you know where if to deny a motion reopen where it's purely discretionary relief it's not withholding is not discretionary it's up to it's a must or not situation if you find these conditions you cannot remove that's not discretionary discretion has absolutely nothing to do with it but we're of course insisting as you know that my client deserves an asylum hearing and on the notice issue your honor i agree with the government that the agency is if the court finds fault there's an issue here with respect to what what happened first this court under supreme court precedent isn't wants to rise to decide the issue in the first instance the agency is so a remained would be in order at least