the right to nationality chief justice warren went on to describe the nationalisation as a punishment more primitive than torture it is two thousand and eighteen motion to reopen to the ordered immigration appeals one million provided evidence that ethiopia had discriminatorily denationalize to him and left him stateless in two thousand and eleven he argued that this was new and previously unavailable evidence of a change ye would not constitute de nationalization your honor the difference in refusing to issue one million a passport while he was still in ethiopia was a security measure to make sure he did not travel that's different then denying his passport when he is outside of the country of nationality is that effectively revokes his right to return to his country of nationality moreover in the two thousand and eleven incident  ethiopian embassy consular official said that it was denying the passport because he was your tree and not you know that exchange did not take place with your original passport eleven and that was a change in circumstances yes your honor i'm sorry can i ask you a question about just the timing on this which is always confusing to me so if they didn't nationalization happened in two thousand and eleven or at least that's the best evidence at the embassy  that evidence was unavailable in two thousand and three at the i j a hearing but it was available in the fall or the st motion to reopen right so that some of that evidence was available  motion and it wasn't passed on by the i a e a but that's ok that's not a problem you're allowed to file successive motions to reopen based on evidence that would have been available for the st one your hon should always compare the new evidence to the circumstances at the time of the immigration court hearing yesterday that aren't the changed circumstances that it's talking about change country conditions not constitute a change in circumstances in ethiopia it was a sovereign decision by ethiopia to strip his nationality and in so doing it removed one million from the citizens but is unit but is judge harris pointed out that was the that was available before not at the time of his two thousand and three hearing your honor at the time of his two thousand and three hearing there was no claim of the nationalization and no claim of state a motion to reopen for the board to exercise its discretion to reopen that's different than the case before this court today right so you contemplate a petitioner being able to sort of trot out claims piecemeal that is even if he or she is aware of a particular basis for granting relief as it appears you can see  the national asian claim was it seemed to reared its head in two thousand and eleven right before the st motion to reopen you seem to be saying that it doesn't matter petitioner can simply if you fails as one time this fall another motion to reopen alleging a different claim even if he or she understood and had all the evidence available and could have litigated that issue in the person motion to reopen that seems a little strange i mean in civil litigation for example if you do that your collaterally is stopped from raising claims that you either quit or should have brought in earlier what is what is it about the immigration context that makes it different you honor for starters the regulation that i cited earlier is the department of justice it is interpretation of its statutory authority to reopen asylum claims and so it's significant on the country conditions at the time of the hearing this is how all the regular and she has been routinely applied but are you saying that in that case the petitioner could have brought require in those earlier motions to by a chinese national and that individual head brought a claim twice before in motions to reopen that by having children in violation of the one child policy in china that they had violated family planning laws in china and with each motion to reopen that petition or provided additional evidence of the circumstances in china they were ahead of validated the asylum claim now importantly in matter of s y g b i focused on the new evidence provided and you compared it to the evidence at the hearing that is the appropriate comparison for a did not see your explosion from ethiopia because he was only half your tree and his mother is a roma which is another persecuted minority in ethiopia and the immigration judge found that significant synonyms expatriation nationality stripping it simply was not an issue at the initial hearing and most importantly was considered a citizen and a national at the t yes you're on a question and you can tell me how this lines up with the s y case so we have a case in the four circuit the lindh case where we held that when there is a nd motion to reopen and this may be what you're saying to you look at the new evidence that became available and where the claim is the same you look at the new evidence that became available since the st motion to reopen and you compare that to what was going on at the time of the hearing to consider whether there's been a change in country circumstances but you don't look at evidence that's already been provided in the st motion to reopen is that a problem for you that th not a problem for me your honor that's how i believe the regulation has been written and interpreted consistently by the bionic butt and please like it but part of it seems like it would follow that what the board was supposed to look at here was what it did look at which is the two thousand and seventeen un declaration because that's new that was not available in two thousand and eleven so they should look at that but they shouldn't go back and look at the things that happened before two thousand eleven your honor i am sorry i believe that the board had to consider the new evidence as compared to the evidence provided in two thousand and three i recognize that there is some overlap between the millions st motion to reopen and his nd motion to reopen i also think that there are important differences but i think most important is that the regulation and the beyond his interpretation require determination that your honor just mentions because i think that one of the key abuses of discretion committed by the b s a here was to characterize that statelessness determination as a change in personal circumstance qualify as a change in circumstances in the country or nationality for purposes of reopening in a silent case that mall of law however emerged from a very specific set of facts that i actually referred to before between change personal circumstances and change circumstances in a country of nationality but his emphasized that this should be limited to self induced change indeed the rd circuit in moham clarifying it just procedurally it so messy and if what i understood the b a a to be saying here was look the only thing we're looking at is new evidence since two thousand and eleven so we're not going to look at what happened at the embassy at the deal national on itself the only thing that's properly in front of us is this declaration of statelessness and that by itself it will if you take it that by itself doesn't change anything about the world that's just your client on his own initiative went and got this declaration of a thing that was already true back in two thousand and eleven and if you look at it that way if you sort of separated from the de nationalization itself and this is just a petitioner going out and getting a declaration then it is more like a change in personal circumstances isn't it i mean you think they should have been looking at the d nationalization itself from two thousand and eleven but if they weren't looking at that if you were just looking at the determine this declaration in isolation by itself it wouldn't have changed country conditions would it so well your honor i think that we offered the statelessness determination as evidence th absolutely right but it evidence of his statelessness was key and in finding that it was a change in personal circumstances the b i g committed a legal error because it mis understood the and i'm with judge harris because this is just really confusing to but that occurred back in two thousand and eleven right yes you're august all this does is sort of bolster of the fact this they was this which occurred back in tw eleven and of judge terraces correct it wasn't required to consider that old d evidence was simply focus on the new evidence why couldn't they conclude that there's nothing new here we're we've got a petitioner who is stateless now he was state being asked to exercise its discretion but that was at the request of the petitioner right the petitioner could have said could have made the claim that you're making now back then and praying that that way but he didn't so then statelessness determination it declared that one million was not a national of any country under the operation of its laws and therefore an internationally protected person yes but that you knew that their coloration to make that claim in two eleven i think importantly your honor the claim was not pursued and i think that has at least in part to do with the fact that this situation was not clear at the time that one million was stateless as it is up blended clear now honor i want to reemphasize that the relevant comparison is that evidence provided a psychological evaluation that shows millions personal suffering from his stateless status and the u his determination that he wrote is in fact stateless that is what the word was under the obligation to consider with the situation in two thousand and three and in failing to do so if used its discretion personal circumstances not a change and the country and so the board's decision was correct in that regard and i would st point out and i don't want to just rehash the brief so actually as far as seventeen document that's the thing that he is saying is a change as far as his current motion has no relation with one the un regional office for the united nations high commission on i mean you could say that or you would say that the the embassy situation in two thousand and eleven obviously that is a sovereign ethiopian territories saw that potentially could have been a change in country conditions the problem eric let me ask you something just assume for i mean for a minute that i disagreed with you that the b i a passed in its denial of the st motion to reopen just assume for a minute that i don't actually think the d nationalisation issue is squarely presented as a change country condition and i don't think the b i a passed on that either ok but i think it could have been raised and b i e could have been given an opportunity to pass on it and it wasn't is if if it wasn't passed on but it could have been raised and passed on regulation and the statute or motions to reopen it doesn't care about what your claim is in two thousand and three vs two thousand and eighteen when he filed the motion they specifically want to see a change and i agree that there are allusions in that brief to the nationalisation but it's not presented the argument is not there's been a change of country circumstances based on my d nationalisation and the b i a appropriately doesn't address that argument it says that to the extent he's relying on change circumstances at all he can't show it because the general treatment of ethnic a retreat ins has not changed and it doesn't really address what impact of any his individual de nationalisation might have so that just assume for a minute to be as i understand the petitioners claim he's saying look the change circumstance i am pointing to is my individual de nationalisation and the b i am this proceeding has never considered whether that could count as a change in country circumstances and then he concedes i could have raised this in two thousand and eleven but i didn't but he looks at the regulation which says and says i don't have to raise it then what the regulation requires is that i'm relying on evidence that's material and was not available and could not have been presented at the previous hearing and everybody agrees that means the i j a hearing in two thousand and three so what's the problem i have a claim it's never been it's it is different than it was in two thousand and three and it's never been addressed by the b i a why can't i bring it in a nd motion to reopen why can't it just be an immigration law  stop from bringing something bad it is the government's position that he did agree and i think the part that i did not get to is part of that is so that it does not recognize me as a citizen as confirmed by the actions of the embassy in washington d c and i thank you this decision they point out that the mother in the siblings are still residing there notwithstanding the fact that they are not are apparently are not ethiopian citizens so the board does get to the citizenship issue and it recognizes that h individual de nationalization can constitute a change in country circumstances but i guess i would like you to answer my hypothetical question if i thought to be a had not squarely addressed and rejected that cl is there any reason why the petitioner can't bring it now after he has already filed in a nd motion to reopen and saw the reason why you are on successive motions to reopening these regulations because i see one which successive asylum application did seem to place the issue of the nationalization squarely before the b i and two thousand and eleven may be that the b i was d made made an error of law in not addressing that issue of course that was an issue that could have been brought to our attention in the appeal of that order i don't recall that it was and if it wasn't that would seem to fall squarely on the petitioners shoulders not the government's and would at this point seem before close re ensue when someone has the nationalize and we all agree that that that's important but it's also i think important to the process season and procedure be followed and i've just been struggling with this case because if you as as petitioner seems to concede suggest that the claim is now barred as a result of rescue to conduct or is just harris indicated claim was never never fairly presented back in two thousand and eleven and therefore the b s a had no occasion to rule on it and then that takes the question as to whether or not under these regs the petitioners in free to follow another motion to reopen based on is allege the nationalization so that's the that's the issue that that we're struggling with here if i thousand and three and so i mean i may go back to that i know while while counsel now want to say that evidence was in and the record at the time i had believed the argument is that and two thousand three h says they just didn't give him a passport because they didn't want him to lean his client seems to say otherwise this client specifically says if i may and i can just go that st i thought back to the confiscation of my passport in ethiopia when i saw an exit permit after my detention in two thousand and one the government left me without any identification documents and there was all these instances in the record if you go back and look at the thousand and three he characterized himself as stateless as a result of what happened with the passport in two thousand and one that is correct if you look at page five just trying to give you slice refused again because of my ethnic group and a lot of things but they didn't tell me as why they denied me at that time and then in the separation he specifically says it was arbitrarily confiscated that's on page nine hundred and thirty five paragraph away as related to his father and at some point i think in two thousand and one he went to complain about this about how his father had been treated back in ninety eight and he was thrown in jail when he got his mother told him you should leave the country he key language here and could not have been discovered or presented at the former hearing so petitioner hasn't presented any evidence that he could have gone to the ethiopian embassy in washington d c and somewhere around two thousand and three or  that this court may consider the evidence in the st motion to reopen however that is not how the department of justice has interpreted that statute the department of justice's interpretation of that statute is now i believe my opposing counsel in some level recognizes that and so he goes on to argue that one million was actually stateless in the two thousand and three hearing but there simply is not adequate evidence to support that in fact on balance all of the evidence suggests the contrary the immigration judge had to determine millions nationality it's an immigration hearing and more importantly it was an asylum  in two thousand and three had legal significance moreover one million described the incident of being denied a passport and provided the explanation perhaps they did that because of his ethnicity now millie on is a member of two marginalized and oppressed ethnic groups you're training and a roble and both at the time that decided to not give him a travel document so that he couldn't leave the country and then it preceded to persecute him in country that is absolutely was absolutely not before the court in the last petition for review that lame of the nationalisation that was originally released was submitted surely to the