and we're pretty familiar with you know sort of what the procedural history of what happened here and there are two appeals in front of us correct yes one is from the direct appeal yes right on the application for withholding and then on he filed a motion for to reopen and that was denied and that's the force yes well ok as i read your brief it looks like i mean you're look like you're focused was just on the motion to reopen is that correct you know yes under recently there is essentially two grounds ineffective assistance of the prior attorney and change country conditions yes ok so the motion with was not filed the motion to reopen was not filed timely right correct yes ok so you got to meet one of those two hurdles all right so on a motion to reopen on the basis of ineffective assistance of counsel when there was counsel in effect if you know he was ineffective because i did time of the here declaration from your mother i believe so you know because he was doing the one of the hearings where his presence was mandatory yes so is there a diligence problem i wondered if we should read the b i a as saying well you should have known that this was important because it was mentioned at the hearing and yet a lot of time went by and your petition for reopening wasn't filed timely even though you could have known that this information would have a helpful i believe so you know because when an attorney is told by the judge that these because there's the diligence problem and that he didn't file sooner even though he was at the hearing when the judge that he knows that there was nothing filed from his mother well the thing is that it was doing still doing the proceedings in front of the judge so he the petition was relying on the attorney and the attorney's diligence but once he loses why didn't he file for reopening right away saying my attorney was in ineffective because he didn't file anything for my mother that's also a particular to reopen yes you changed country conditions yes yes so what were were the conditions at the time of the hearing and the change conditions that warrant reopening in the motion were like that is your argument that the with the information regarding the mother that it wasn't available because council was in effect they say the two go together w do they describe torture of people who oppose sandinistas i didn't really see you citing something like that no you know i think that in general they show how the government is arbitrary and take actions against people ok i'll give you a minute for rebuttal let's hear from the government the court matthew george for the attorney general as the clerk the court has already pointed out petitioner waive any challenge to the positive change country conditions findings that the board made and with respect to the st petition for review he didn't make any challenge to that in his brief you know on the merits the the underlying merits in his application for yes or if you were in the in the st petition the immigration judge and the board found that conditions had changed since the incidents that petitioner actually you know was a relief brief it does make some reference to the original application for withholding but there's not much discussion in the brief about that decision that it needs to be more full so many to point out what argument and evidence he's relying on as as the federal rules require as this court cases require he hasn't done that so he's waived that and in any event he's failed to show a nexus to protect  ground with respect to that claim there's no proof that sandinistas were aware of his familial relationship or harmed him or were motivated to harm him on account of that as i read the record his uncle to petitioner petitioner was conscripted in an indiscriminate manner he even testified that it was done indiscriminately when the senate needs to stop the bus they said everyone all the males over age sixteen were conscript we don't care anything about who you actually are you're coming with us there was no mention of like we're looking for somoza supporters or family members where they don't ever ask for names or anything like that that's that's been petitioner's consistent testimony of they never really made any sort of connection there was also consistent there was also just the money regarding painting the mother's house with the tribes about being dogs and traders yes there were some graffiti some harassment and i believe she was detained for two days because of bruce almost a connection well it's unclear exactly why that was done there is there is some evidence that the sandinistas were motivated by trying to get the land and that comes up in both petitions for review and that's really the nexus if you will of why those actions are going on but in any event some graffiti some harassment a brief detention don't don't rise to the level of persecution that the mother has been there for a camera one thousand and twenty years until her death without anything that rose to the level of persecution and so as another family member who's affiliated with some those supporters if she's never been persecuted that undermines petitioners claim that he would be persecuted on account of that ground and i'm not trying to anyway say all those actions are fine or good or are they obviously are not pleasant and probably very scary but they don't rise to the level of persecution turning to the motion to reopen petitioners fail to show any prejudice from outcome however there's no evidence presented with a motion of what would have been produced or should have been produced by this attorney such that it may affect the outcome there's the the cousin carlos water music for the alleged cousin and there's no evidence connecting him to petitioner in any event his situation is completely opposite of what what about that declarations describing the harassment of the mother and problems with the mother unsworn we don't know who these people are that are sending them and they give different reasons for who was doing it how they had any idea that these people doing this harassment and such were affiliated with sandinistas and they're not even consistent on who was taking care of the mother the one individual nelson and you believe was supposed to be the mother's caretaker and he said someone else was taking care of the mother and so how the agency is not abusing its discretion and saying look these inconsistent evidence doesn't show either a material change in country conditions or what if we read those and think that there are ways to explain what you're calling these contradictions i mean maybe someone took care of the mother for a while and then someone else took care of her for a while i mean it didn't read to me like they were necessarily inconsistent and the overall story they were telling well that's ultimately comes down to the board's discretion this is an abuse of discretion certainly the court ma conclusion from them the board through a different conclusion drawing different conclusions from from evidence doesn't mean that the board has abused its discretion what is the standard the board applies in reopening and assuming that the truths of the evidence are are how what does the board need to say in terms of disregarding something for not being credible does it have to be inherently unbelievable or i don't remember the exact language but isn't there a standard that has to be like inherently unbelievable which i'm not sure these letters are i believe that's the the overall standard is presumed to be true and or inherently unbelievable however the board still needs to confront this evidence it's akin to a motion for a new trial is looking at all this evidence is it going to affect the outcome the board still needs to in some way of value weight the evidence and so it's presented with what it is determine is inconsistent the court may say they're not inconsistent however those are just two conclusions that can be drawn from the same evident if the board is supposed to believe them for purposes of reopening if they're not inherently unbelievable how can we tell that the board applied the right standard it seems like the board didn't really ask whether they were inherently unbelievable well let me put it this way your honor how can all three of them are inherently believable if they're not consistent in terms of what they're saying not understand maybe the court can find a way to read them consistently but the board didn't and so for example if one letter says the light was at the traffic accident was read another letter says the light was green literally but i don't think that's the kind of contradiction we have here we have partial accounts that could be just accounts of different time periods or i just don't think there's anything that's as directly conflicting as that well the board saw it that way and it ended in abuse discretion in drawing that conclusion from these letters they're not so compelling that it must for you open and in the same the same way that say these letters were presented to a district court judge in a motion for a new trial with the court could we find a way to read them consistently or or do they sort of say something it's like is it going to you know it may be a can but there is really a really significant difference in these people that submitted these letters they're in spanish for one thing trial i mean i understand the similarities but look let me ask you this so so take taking the let's just take these letters the motion to reopen and he raised two grounds ineffective assistance of counsel and change country conditions right yes or so wouldn't a reasonably competent lawyer when the i j a raises these issues during the course of the hearing and there's a continuance wouldn't a reasonably competent lawyer make you know pretty diligent effort to get the information that jay is asking for perhaps the competent attorney would however what is the evidence that wasn't presented but if she was harassed before and is harassed now there's no change and i see my time is up if it could i ask one more question about the baseline issue in this case so  when we look at change country conditions when we also have an i a c claim going on at what is the baseline for which we compare the change country conditions is it what was presented at the original hearing or what could have been presented if lawyer had done a better job i believe it would break into two separate inquiries really because for just change country conditions we have to look at what was actually presented to the agency at the st hearing versus what is being presented now perhaps it relates in that for the an effective assistance claim we need to see what is the evidence you would have presented before and does that affect how many that affect the outcome of the proceedings and so they are interrelated but they are two separate but your position is that when we look at change the country conditions we compare it to what was actually presented at the hearing yes ok thank you thank you thank you i'll give you a minute for rebuttal if you have any he would like to