the position of the position is first of all that the government has no the government has abandoned its legal arguments by failure to submit a brief before the board of immigration appeals and this there's  no evidence to the record that they have submitted a brief and they have offered no reason for their failure to submit a brief and we believe that we've been disadvantaged by not having heard their arguments at a time in this proceeding circumstances in this case when the petitioner learned in january of twenty two that her that the person that she had reported in was under investigation was for corruption again threatened  thousand and five when she was run over by a car quite honestly i don't see any difference in the threats i think that what that goes to say is that this the petitioner who had complete faith in her country and wanted to go back and work she was a professional and she worked in a bank and she wanted to go back she did it once and she held out under the hope that these things would disappear i don't fortunately in this time finally in january twenty two she recognized that when they said that they would find her through her brother she abandoned that hope and that's at the time that we would determine that change circumstances occurred in this case and she then she determined that she needed to file her application so how much is a difficult question is that she has obviously been subjected to quite a few things in the earlier years but under the legal standard change circumstances have that phrase in there that  application must be much stronger in order to support this late application so why is the threat via the brother make her case much stronger at that point well i think if we place our ourselves in the minds of the respondent we continue to hold this faith that she could return to her country at this particular point it's it seems to me and i believe is that she determined that this was just the straw that broke the camels that this was just for her the last bad act but isn't the standard that it has to be a material increase in the danger that occurred yes that is correct  and to fight back against really what works to ordinary ops obstacles that were placed in her path and at this point time this final point when she her brother ten years later when he and her brother can fade this information and those threats were the threats that we're looking to to stab us if it was strange to change circumstances we know that under dar changed circumstances all these threats alone can constitute  persecution and that again would even establish the ability for her to present a new a new claim she she she  so finally i think if we put ourselves in the shoes in the mind of the petitioner at this point in january two thousand and two and she had to surrender to the fact that yes this was the last bad act that she was going to be able to tolerate those of us that are looking at it  in retrospect i think it's a little bit difficult for us to put us in our ourselves in the mind of the petitioner as she was fighting for her career and for her own life and her home country with respect to the believe we believe and we agree with the dissent because the board of immigration appeals and the dissenting opinion has for steady state it clearly that this would this cup was a material change that was the finding by the board of immigration appeals that this was a material change in the case that should have justified change circumstances under both factory and the horror in addition we believe that the petitioner has a claim for this petition is daughter has a was his name that that he had a claim for asylum but there's no real no reasoning that i could that i could find and there was no no precedent that i could find  reasoning for it it just seems to me that it's there but well i think well we rely on that as the president and so i know  and we do we have to take some notice of the regulations the regulations are are very clear but the let the regulations also state that those circumstances may include are not limited to those factors that are in numerated and the regulation so are his and then with the broader interpretation that has been given by him reading we believe that of course that this is not a stretch need to look to so we end it in mentions unaccompanied minors and we have a rule of interpretation and this circuit is called and modern express who has if it's mentioned it means to exclude accompany mine i think that maxim reference to one thing exclusion of all other things has its place but in this circumstance i don't because the regulations themselves state that those circumstances include but are not limited to those items that i referenced below that we certainly have that has in my view was the signal to the court to be able to make the reasonable the reasonable interpretations based on waive our position before the b i what we did was we agreed with the immigration judge's decision below so when the immigration judge granted her petitioners withholding every move and denied the batsuit her with running a claim the department of homeland security was fine with that particular decision before the court today defending the board's decision on its on it now it's a common practice for the department of homeland security not to fabrice before the court i don't know if it's due to time constraints or whatever but is there a regulatory foundation for that position now but i do know that if the if the da has had a position where they they disagreed with the immigration judge they would have been obliged to actually file and preserve their challenges to the immigration judge's decision may not be for the board but when they don't disagree with their with the immigration judge there is no need to actually preserve and i give an opportunity i can maybe go back to my office and maybe find a regulations for you to sell it for the court it's just that on the petition or course is a different lack of symmetry here right well the about the move the moving party always has the burden of proof so if we had been the moving party before the board then we would have to preserve all the issues before the board that could be heard before this court later on and vice versa the c f r to eight point four five i think was born out of the the wilberforce she accompanied miner act that came out there was trying to preserve children who were traveling into the united states from trafficking enactment of the regulation then the regulation actually applies to the minor child's claim prior and again and the minor exception to this actually has never been created prior to analysis we can't be sure whether or not there's a conflict between the two decisions but what i what sort of came to mind was that prior to the enactment of the unaccompanied minor  regulation maybe the i j a at her own discretion or his discretion thought of a minor as an exception extraordinary circumstance when there was no exception carved in a statute could you address your colleague point the definition of exceptional circumstances list a series of actors but which is not meant to be exclusive correct but if we were the i do but based on that one particular statement they specifically expect you to have the child to be on a concrete and as legal disability has to do with the competence of the child and it makes sense that a child would be legally disabled but if you're in the presence of your parent you have someone that's there to actually valid for your your status or whatever your legal rights are before for the agency so why can't it be read to say that that's certainly an extraordinary circumstance because you la it out but it doesn't preclude other circumstances that's true i think that i found that other circumstance here would be unaccompanied child well i agree with the general premise but i think like the board change or extraordinary circumstance to excuse the filing deadline the language in a statute actually states that the circumstances that create the exception have to be material and they have to affect the person's eligibility for asylum that particular statute has been applied by the ninth circuit in those two cases in fact three and hora and both of these decisions but the board relied on to support its decision even knew casey the petition to enter the united states but he didn't have an objective lee reasonable fear of the time of persecution when he came to the country he feared harm because he had been beaten up by the police in his country but he wasn't beaten up based on his participation in a particular social group so he came in and he intended to file but he didn't have a valid basis to file but shortly after these riots broke out when the  the government raided the headquarters for the f t c but titian or allege that he was going to fear persecution not only because he was a member but now the government can find out that he's a member and it had been had been alleged that persons who were members of m d m f t c who traveled outside of the government were actually doing it for purposes of raising funds for the river and so his fear was that based on the fact that they now know or can find his name that he's been away from the country that he now has  reason to fear persecution in the court and fog review casey's agreed by taking a look at that what you find is that the person initially had a subjective fear of harm but once he expresse facts this circumstances changed because now his his fear and that became objectively reasonable and i was a specific statement that was made in the court the others case at the board relied on was in fact hora that case was just a complete opposite and more like the case present here the petitioner an appetite killer case had an objectively reasonable fear of harm when she entered when he entered the united states he had been individually individually harmed by the police into what made circumstances special in his case or change was the fact that when the riots broke out they were talking about the riots being the most worst and most dangerous in two like decades and he also said that the riots impacted his families  his family members like his his house was burned down the farmhouse was burnt down the one of his brothers is missing another brother went in hiding about two thousand muslims had been persecuted  and forced to live in camps and so what you see in viewing are analyzing that particular case is that now you find a person who had an objectively reasonable fear of persecution based on his own individual lives harm but now he has so based on those findings i think that this court and i circuit has decided that what constitutes materially affecting an alien eligibility for asylum is the ability to submit evidence that changes the status of their eligibility so arguably it's what i would call a game changer maybe you were only ten percent reasonably able to claim for your persecution but maybe new facts might make you seventy five percent more likely to be injured or harmed the board reasonably determine that material materially affecting eligibility for asylum means harm that increases a person's risk of persecution or substantially makes it more likely that but now we realize it's not just restricted to that time frame but yes forward a little there doesn't seem to be the ability to just sort of fade into  strengthens her claim but it doesn't change her eligibility for asylum you and me like that she qualify for withholding every move and that particular factor doesn't change her withholding of removing the only thing that she's not getting now is the us time because she failed to file within a certain members are going to be injured so the fact that he followed up want to harm her he actually alleged to her before isn't a change either it's just him well i can't remember it it's like when you go to criminal trial if you have one piece of evidence sometimes two is better you have a said that this qualifies as a material in strength and that change circumstance constitutes a change circumstance because it did materially strengthen the claim that y is and that's really the main determination because as seen by these judge these board members people can have inconsistent term projections of the same set of facts  thank you your honor i'm not really saying much daylight between myself and the attorney for the government if we agree that the that these threats that were vance will january of two thousand and ten materially strengthen the claim because we know was a reasonable time period there after four months for her to be able to seek out counsel prepare her application and have it filed in may of that same year and again with respect to the child we do believe there that  minor and therefore would be entitled to file her own application that would be considered time timely under the regulation thank you very much thanks for the counsel for your argument this morning the case of