will call the case of basra mohamed vs attorney general of the united states of america several severe injuries including significant scarring to his head and a fractured finger that has never properly healed which finger i believe his is going to figure all right these facts are critical because they directly contradict the basis for the board's minutes to show the nation let's let's we should start with jurisdiction sure absolutely on it because it's always a complicated question in my mind some things we have jurisdiction over some things perhaps we don't have  actually applied the wrong with legal standard so we're not talking about an appeal i actually determination we're talking about looking at the board's decision and saying well this is the proper application the legal standard in this case the board applied something that it referred to as an exceptional circumstance standard and that's not the correct standard undetermined whether an applicant can be extension filing a beyond the one year bar same same group within it that itself is a legal question but it's also the case we have a finding i don't read that he failed to produce any evidence or arguments justifying his delay in filing and isn't that question that that fact finding something that we can't revisit given the jurisdiction bar where we disagree with that notion we believe that his statements about being a little bit his statements about only having limited education in his a fourth grade education were sufficient under the circumstances to at least inform you the the other issues in this case which is we're dealing with somebody who rocked the sophistications he was about twelve years late and seeking asylum right absolutely or i mean i isa just you know and we have plenty of petitioners who are context of motions to reopen that the application of a legal standard like what type of hard right is a level persecution is a legal issue that this court can really get to know and that the court retains jurisdiction of that type of application we've got a couple of different sufficiently the evidence argument is not one that we're able to be we don't agree on and the reason for that and let me back up a second because clearly our position in this case is that this is not a properly developed record the record is incredibly vague and there's not there's not because i don't think we're asking whether the decision itself was supported by sufficient factual evidence our position is that assuming all that that's an issue which is the record here which is the record on the appeal from the board's decision the facts as stated next question and that means it's got a couple of different parts one of the legal standard part one is a factual part and it's not clear to me whether you are taking decision itself and their quest that there was sufficient evidence in the underlying hearing to establish past persecution it's a little bit closer to agree that there's no use of gray there but i think ultimately what we're asking is for the court just to apply the case law on past persecution to what under the the procedural posture undisputed facts and this court has held assiduously beth where all were being asked to do is apply a legal principle to understand that facts not to make additional facts findings that the court retains jurisdiction under comparable circumstances three incidents of violence combined with scarring on a petitioners head and a home invasion were sufficient to establish past persecution and i thought you were making a couple of arguments not just that and there was nearin even consider evidence and arguments presented which itself would be a legal issue of separating my good from the materiality standard but that right the board doesn't actually say that the evidence of the facts reflected in the immigration judges  correct standard under color was that it was likely to change the result it demanded standing that argument correctly you know you were intending to make that argument because it didn't think that the board's decision ultimately does reflect insights to the proper not proper standard in other cases that it's about reasonable likelihood our position as reflected in the most recent filing is the question here is simply do the facts to give rise to a local past persecution that is a mix question ether this could have been raised previously by your client and given that when we need to rein in and without any kind of direction or instruction to reopen for the issue i thought that was sufficiently clear in their decision i don't think they denied it they certainly didn't find that it was not pretty could have been previously presented and we did we did explain in our briefing why i could not have been previously present and th  that being said criminal alien board clearly applies here is the core recognizes so i'd like to focus down on what i see as the questions of all presented in these petitions for a view the first one recognized by just yes it was whether the board  council sites to talk twenty nine eight be wrong and which is title authority of the immigration judge which just tells the immigration judge that he or she has the authority to administer oaths receive evidence examiner cross examine witnesses now i don't think that that clearly defines duty to develop a better word ignat the courts have kind of reached that question so that the question of all which i don't think was violated here a little upset that the immigration judge denied that continuance so she went out to question tell me everything that happened in guyana why you believe he will be persecuted or tortured if returned he went on to give a small narrative and he said that all i can tell you judge so the judge passed it off to the department of homeland security attorney noted a consistency between that testimony that he just paid and his application for asylum and he got even a little more combative and said i'm not answering any more questions so i don't think it's clear from the record that even at the immigration judge or the department of homeland security attorney what a bath another question he would have made them answered and if you look even another two pages record he started cursing that t h s attorney so i think he was continually arguing that he deserved to be let out on bail to get be given more time to get an attorney and immigration judge clearly in this case even  immigration judge i think very politely responded explaining what was required for those forms of relief and exposure explain why he was an eligible in the end it at his merits hearing she said tell me everything you want me to hear about why you are going back and maybe she could have asked more questions but i think you made clear that he wasn't getting into any more questions so i think that's the beginning of the two process argument is he had to show substantial prejudice tests showed that he would answer more questions that's his whole argument as to why he was tonight due process is because the immigration judge didn't ask our questions and i don't think he even gets over the substantial prejudice hurdle here we're now appears from the really an issue and i didn't read this statement but it said moreover the issue is not simply whether there is new evidence because evidence is always continuing and this court held that in a motion to reopen context it's not a change to submit at evidence after an application has been denied that add on to the application you know any alien can look at why their application was denied and come up with new evidence that would rightly changed the outcome of the denying the motion to reopen right will the motion to reopen regulations are in the negative they say that the board shall not create a motion to reopen unless new material up in the supreme provided but i don't think that's what the board focused on here i think the board mind i think that's a discretionary determination i think that even if you reach whether the evidence is new material those findings are factual better be on the courtroom to you if we disagree with you or think that the board was making in i believe the court has held that materiality is i think it was a published decision on a communique or something like that but it is a next question to look at the undisputed facts presented and whether it wise is to admit the legal standard context and is there any reason that we should take a different approach to whether we have here a legal or mixed question raw and fact than we do the criminal context i think so materiality can mean a lot of different things in the immigration context they think that's best left to the discretion of the agency materiality can mean whether you're a eligible for asylum it could mean whether are maybe now based on these new facts you incredible and we would have no idea application and he said those are just a lot of reasons why maybe it wouldn't be best to import another criminal context into the immigration context and if we did reach  the end i think that the motion to reopen he's arguing that the board did not consider the evidence will or did not consider all the evidence and sided with the immigration judges decision  r the evidence that those are kind of the fact the only legal question raised in the most reopen was whether the board applied the quite legal standard and as i continue to argue i don't think a board really rested on the to reality they said that a to see if we're looking at whether it relates to the level of likely and to change the outcome and we have here an evidence that was not previously presented that instead of the single incident there are three incidents instead of no evidence in your eight there's no substantial evidence of injury instead of no evidence of the state police involvement there is now and there's now an evidence of our police involvement in the prosecution how how could we say again assuming that this wasn't previously available and to be presented at that it wouldn't likely change the outcome opinion which obviously is going to lately to some weight but when you ask me whether materially was a legal question in my opinion i think that it's best left to discretion of the board whether something is going to be material in a case by case agree the court did not actually address the question of whether this evidence was previously available to be presented i and the petitioner and if we agreed with you and that circumstances do you agree that we would simply be remitting for additional proceedings that is the word would be making its own determination about whether the evidence was previously available and we would not be efforts this program or counsel on behalf of mr mahmut our court relies heavily on corona counsel in cases like this that race is significant issues and you've presented your case marvelously and your firm as well as to be