Legal Case Summary

Let's see how do you want to argue this? Mr. Yermen, do you want to argue both cases at once or do you want to argue Jen first? And then we'll hear from Mr. Marceller and then you'll argue, are you Zhang? And then we'll hear from Mr. Cantor. I would prefer to argue both at the same time. Is that all right with you? And then he'll do the whole argument and then you'll get up and answer and then you'll answer. You will answer, you don't prefer that. But maybe so. Be bold. You're a lawyer, you can be bold. I think that would be confusing. Because you think they're different. Because then Eric and I will be reaching back. Okay, I think that's true. All right, Mr. Yermen, I think you should argue Jen first and then Mr. Marceller will argue Jen will respond and you can have. Rebuttal if you want and then we'll do the other. Okay. May I please the court, Gary Yermen on behalf of a peasant. The issue in this case, the Chen case, 07th, B199 is similar to the issues in the second case that I'm arguing as well as dozens of cases that are pending before this court. I think you should speak up. Yes, Your Honor. The question is this. Is there evidence has been presented to the BIA that was previously unavailable to the appellants in this situation? Up until the year 2004, appellants in this situation arguing with family planning laws were left with little substance in which to support their claims. The 1998 profile was submitted that touched on the one child policy

. The late Dr. Aird, John Aird submitted a generalized affidavit. Dr. Aird's affidavit has been effectively destroyed, I would say, by the administration and our court. I agree. Is he given little to, little weight according to the precedent decision? That's the U.K. The U.K. Amongst others. What has happened, though, since 2004, is an abundance of evidence has come to light by these appellants that do establish and cooperate with their claim. Now, before 2004, the country reports and supporting evidence did not say how children were born outside of China to Chinese nationals were counted. It never mentioned how the Chinese officials, there was no official Chinese documents supporting what the family policy claims were. There were no reports of any specific enforcement. There were no reports of any abuses on massive scales. And furthermore, there was no evidence of what financial penalties were imposed on violators. Since 2004, this evidence has come now to light. Beginning with the 2005 and 2006 country report, the State Department now cites to massive abuses of the family planning law in China, specifically in 2005. They mentioned where 130,000 individuals were placed into population camps. That's in one community, right? That's correct. Now, out of those 130,000 and estimated 7,000 were either sterilized or forced to undergo late terms of abortion. Now, this, according to the country report, was only the most egregious example cited by the State Department. Which year is country report? 2005. What's your? 2005. Now, in 2006, in 2007, as Judge, as the court properly stated, there was no, it was only evidence of provinces other than food gen province

. But now, in 2006, in the State Department report, there was evidence that forced abortions and sterilizations are taking place in food gen province. So, on one side, you have the government saying up until 2005, there may have been some reports, but no reports of physical coercion or forced abortions. Then, they'll say there are reports of forced abortions and sterilizations, but there are none in food gen province. Now, we have those in food gen province in the government saying, well, we have an infusion province, but there's no report that children born outside of China are counted the same way as children born inside of China. But we did, now, we have additional evidence to prove that there is no distinguishing characteristics or demarc, excuse me, straight there. There are no distinguishing category between children born inside of China and those born outside of China. The Changi University family planning question and answer book, as well as the food gen province and administrative decision are now available. They existed, but now they're available. What are these documents say? What the trust in an answer book says, if you have one child, you must wear an IUD. If you have two children, you are forced to undergo sterilization. The food gen administrative office and Changi University official document says, children born outside of China to Chinese nationals are not counted any differently towards the family planning policy. So, 1,8 CFO, 1,000, three states, when evidence that previously unavailable establishes that there are materially worse conditions in the country or change country conditions, along with promise of eligibility to establish that claim, you must reopen that claim to allow the appellant or the applicant to file a asylum. I didn't ask you if you reserved any documents for the bottle. I did 5 minutes. 5 minutes, you have that? Okay, I'm sorry. No problem. Thank you. So, in summary, what the position of the appellant is, is that we have now evidence, now we have evidence that shows that children born outside of China are counted the same as children born inside of China. We have evidence that shows that possible abortions and sterilizations are now predicted in place of food gen province. We have evidence as far as the 2006 country report that says, people who violate the family planning quotas are penalized 1 to 10 times their annual salary. You know, the BIA found their evidence of change country conditions. What do we do with that funding? Well, I would look to, as the government will assert to the matter of S.Y.G., the second circuit, the decision, the second circuit just came down with on October 10th

. And in that decision, what the second circuit said was, they appelled the BIA, and they said that although that grow may have demonstrated through the food chain province in Changwil City Family Planning Administrative Record that returning Chinese nationals are subject to the same enforcement as her countrymen, she has not demonstrated primafacial eligibility that she will be forced to undergo sterilization. So I would urge the court to look at the evidence closely and find that unless China is the only country on the planet where women in their late 20s and early 30s are voluntarily undergoing sterilization, then something is amiss because thousands of people have to differ from the second circuit. Well, I want the court to recognize that the second circuit found that that grow S.Y.G., and this growth may have established change country conditions, but where I want this court to differ, respectfully differ from the second circuit, is find that the evidence does show that forced abortions and sterilizations are taking place. Because the- So, in that decision, do we look at the evidence? What's our role? Your role is to determine if the BIA gave the appropriate weight to the evidence presented to them. Was there a decision irrational and was a contrary to law? And I cert that it was irrational because as I said, no other country is there evidence that women are voluntarily undergoing sterilizations after they have 10 children, so it's only natural to assume. They even know there's no word in the Chinese law that says we're forcing these people under those sterilizations. What other way are you going to prevent a family who is matriculating as a normal family process is to stop them from having a third child? If you want to stop a murder from killing, you put them in jail. If you want to stop a person from having children- You put them in jail after he's committed murder. Thank you for- You're right. I'm a spoke. No, no, no, no. My point is this, Yohanna, is the only way to stop somebody from violating the family planning and choosing how many children they want to have is to sterilize them. Why should we want to stop another country from doing that which is that country's policy? Why would we do that? I believe that the Congress in an act in 111-42A established a formal relief for people in these situations saying that it is a fundamental right to choose how many children you're allowed to have. Yohanna, without having said moves, we have no nephews and nieces, no aunts and uncles. The whole dynamic of the family is destroyed, it's torn down. Yeah, but China's position is that they have so many people that if they don't limit their population, they'll never move ahead in this world. And I agree with that position personally. However, the law says if you can establish that people are forced to undergo abortions or sterilization, they are eligible for asylum. Now, if you want to look at- I'm not sure you're forced though, but even the one you refer to a five-year-old saying. I don't think they say that everybody who comes back is automatically forced to have a sterilization. Well, fortunately, you wouldn't come up and deal pregnancy, but the automatically forced sterilization or what automatically is much bigger than that. Well, I agree you want to- I mean, in a civil trial that had it stays, we wouldn't even accept that

. But what it does is it begs the question. Who would report- Who is sent back to China, deported from this country with two children, goes back to China, is forced to be sterilized. Who would they complain to? To us, to go to the American consulate, to the Chinese report. What reports would there be of such instances of persecution? I see that you're ready. I just had one show. But yeah, go ahead, Jimmy. You know, at the end of your brief here, what you want us to do is to reverse, and what you want us to do is send the matter back to the BIA to reopen. Now, what do you do at that point? Yes. You just file an effect or file like it's a new- Assignment application. Correct. And in fact, what we would do is- Or you want us to rule, is on whether or not conditions have changed. Now, the change conditions is still my lose. That's correct. But at this point, in the last two or three years, we have volumes and volumes and volumes of background documentation that we would like to present to the immigration judges to decide. Is there really a policy, a national or local policy, where people are being forced on to go? Borscht and sterilizations. And I'm talking about approximately 800 pages of documents, Your Honor. And this is just a very fluid situation where these documents are starting to come out more and more and more to prove the very light burden we have, which is a reasonable possibility. Does it- That's Judge Green's point. There's a proof change. The fact that now somebody comes out in 206 or 205 and says, yes, they're doing this, that and the other thing. Well, this is pin of either whether it's 1229A or 1158, a linchpin is changing the country. Where is the proof of change? Well, what was- what argument is this proof of worsening country conditions? In that case, what was the proof of- Well, I would say this. Before 2004, the argument was children born outside of China are not counted the same way. Now we have evidence that was previously unavailable that shows that. Where's the change in the country? It's not a question that new evidence comes available

. Well, maybe new evidence of something that happened a long time ago. My argument is this, Your Honor. The change- The time the order was issued in this case to wherever it was. I would say- Now there are reports that in a food-jink province, people are being forced to undergo sterilizations. You're relying on the fact that they now say they have evidence that something happened, that that didn't happen two years ago, three years ago, four years. I'm just- I'm just basically reiterating what the government's position is. There's no evidence that this is happening in the food-jink. Well, now there is. Well, we're going to wait and see. But why don't we see what the government's position is? Thank you. Thank you. May I please the court, Eric Marsdeller, for the Attorney General. It's important- Are you in a will? I am, yes, ma'am. Good, because for a while they were sending us tax lawyers. We've jumped up the number of attorneys in our office now, so we will be handing over some again. Okay, that's very good. Thank you. The critical question here in terms of the board decision is, did Chen show materially changed circumstances between his and his family? He's 2003 hearing before the immigration judge, and when he filed his motion to reopen in 2007, March 2007. So that's really our window, because we're just reviewing the board's decision for abusive discretion, and did the board, based on the evidence before it, reasonably conclude that there was not significant evidence of changed country conditions. Well, is it that he has to show evidence of change or has to show there's a change? I mean, there could be a change, and he might not have had evidence of it, but now he does. Well, it would depend on whether that evidence was available at the time of his earlier hearing. For instance, if there's a report from, say, 2001, which was before his hearing before the immigration judge, but it wasn't published or available until 2005. It was after the immigration judge's decision. He could present that as previously unavailable evidence, and that could be considered by the board. That says that

. That's right. That's in the statute. In 1229A. Opposing council has urged the court to consider the 2006 country report, and the 1999 Changel City question and answer handbook that are both in that. He has the court to consider those. The O6 country report is not part of the record, and because the court's jurisdiction is limited to. Yeah, but it's available on the, we can always get on the internet. It's amazing. But the jurisdiction of limitations of this court limited to reviewing the record that was before the board. Yeah, but if he's claiming that the O6 report. Or shows XYZ, then wouldn't we have to send it back to the BIA so it can evaluate it? Well, he could he could. We can't. Take it into account that he put it in the record. It is not in the record in this case, your own. A couple points on that. First. Did any of the, I mean, you represent, he represents all these different people. Did any of them put the 2006 report into evidence? I imagine some of them may have. I don't have all the records. I would point out that the board and its public decision in JWS, addressed the 2006 country report. So even if the court were to find that that was somehow material. Can you give us the site? Yes, your honor. It is 24 I and N decisions 185. 24 of seven BIA tours. Yeah

. It's in the board's decision in this case and it's in our brief. Can I ask you about a legal argument you made that I found particularly intriguing? The statute on the style of general is 1158. Normally bars repeat petitions, but says notwithstanding you can't have a repeat petition. If there has been a change circumstances or other things. It's not limited to change circumstances in the country. We change circumstances here. In the reopening statute, which is 1229A, the again, you have an exception to the time of the 90 day time limit. And that exception is based on change in country conditions in China. That's correct. One of the arguments you made, well, since part of his case is change conditions here in the United States. I yet do children here. You said that you can't rely on the general asylum statute. He has to pass through the motion to you. The hoops here. And that doesn't permit him to look at change circumstances in this country. Therefore, you don't even get to what happened in China. Well, he has because he's relying, the argument you've seen him made, he's relying on change circumstances. Personal circumstances. Personal circumstances. Which is okay on the asylum under 1158. But it's not okay on a motion to reopen. That's correct. And you make a rather, I won't say torture, but a rather detailed subtle argument that he has to satisfy the reopening statute. So we do mean that there's no, he can't rely on things here. And therefore he fails because since he's relying on personal changes here, he can't satisfy the rate the statute on reopening

. And therefore we never get to 1158. We never get to the issue of changes in China. Because. Well, I think it's a little. That's, I mean, it was hard to, to, to, to clarify a little bit. What we're saying is that the change in personal circumstances can't be considered in determining whether the motion to reopen was timely or not. But the court can consider any evidence, any other evidence of change country condition. So the extent he argues that conditions that the 2004 and 05 country report evidence change country conditions in China since his hearing, the board properly did consider those evidence that evidence in determining whether there was a change in country conditions. It's only that the fact that he has given birth to us and children cannot be considered in determining whether the motion to reopen was timely. But your position is if the motion to reopen is timely in untimely, he can't rely independently on 1158. Let's assume it was untimely. His motion, he doesn't pass the hurdle. Yes, yes, because it's not allowed to consider personal circumstances. Yes, your position is if you can't get by the motion to reopen, you can't rely just on the theory. This is a success of the petition. Yes, under 1158. That's correct, Your Honor. And except that position, we don't have to worry about conditions in China because your position with me, you never gets by the reopen. Right. Because we happen to reopen. We'd have to consider his change circumstances here. And therefore, as he doesn't get by that, we don't even get to 1158. That's correct, Your Honor. I'm not a subtle argument, but it won that that disposes of the case if you accept it. And it's been agreed with the second circuit may have accepted

. The second, the sixth, the seventh, the eighth, and the ninth, the ball accepted it. And I sent a 28J letter that cites all of those recent cases. Are you talking about the show case? No, Your Honor. I'm actually talking about the Yuen-Jin case, which is the second circuit one. This is somewhat different issue than the show case. The success of asylum application, which you have is, is, is, is, is. So, Jerenus pointed out there's two statutes that kind of work together, but there's no instructions in the regulation of the statutes to how they're supposed to work together. One says that an asylum application, when ailing can only file one asylum application. And one set's been denied. There is an exception where they can file another asylum application if there's changed circumstances affecting their eligibility for asylum, such as. In the country. Anywhere. Anywhere. You need such as having children in the United States. You were talking about the cases cited in your letter of October 17. That's correct, Your Honor. In the, in the, there's two paragraphs. There's a second paragraph. I believe so, yes, Your Honor. Because you cite a Lynn versus McKasey, which is the eighth circuit. And your anger versus McKasey, which is the sixth circuit. In the, in the first paragraph, it should be here on the first paragraph. So, the, the one I'm talking about now is in that first paragraph. It's this, the success of asylum issue. Whether an ailing can file a success of asylum application

. After they've been ordered, we move. He's done both. He has made a motion to reopen, but he's also filed an independent asylum application. That's correct. He's attempted to, he's attempted to in the, the yard use, I believe, is independently permissible under 1158. News say he can't do that unless he first passes the hurdles of 1229A. That's correct, Your Honor. And that's because we've got these two statutes that don't, how about our jurisdiction now? We have a petition for review. And before we look at anyone else's jurisdiction, we always look at our own. What's our jurisdiction? What limitations are there? In this case, the court would have jurisdiction over that issue because it's a legal issue. Because it has to deal with statutory interpretation and, in the interplay between the two statutes and pursuant to eight USC 1252. How about these other cases, what limitations are there? To the extent that the alien is seeking review of a motion to reopen, as on timely, the court has jurisdiction, so long as the petition was timely filed. And I can't, unless their alien has some sort of criminal bar or other things, I can't think of any jurisdictional bars that wouldn't be applicable here. So we're able to, we're able to resolve these cases. That's correct, Your Honor. As this one I can speak for, I haven't seen all series earlier. Yeah, but I have not seen the record or the briefs for the other cases related to this one. I'm just asking. Councillor Kineski, I'm asking it again. Under the motion to reopen, which is 1229. Do you, leaving aside your opinion, I mean, does he satisfy that, just that particular statute? No, he doesn't because he didn't show evidence of change country conditions. And then the, even if he did show change country conditions, what do you find? Well, actually, I want to make sure he's right to asylum. Clearly depends on what happened in the United States, not what happened, at least it starts with. You didn't have children in the United States, that's the change of conditions in the United States. Not a change of conditions in China. So even if you assume that there was change conditions in China, just assuming, pregnancy. Does he still qualify under Fall 29A to reopen? Where it limits the change, the consideration of change conditions solely to the country of where he's going to be sent back. But clearly part of his case is done only change in China. It's change that happened here. I think that's, that's right, you're on it. To the extent he relies on any change here, he would not be able to file a successive asylum. Then your second position is if he doesn't qualify under the reopen, he can't turn to the asylum statute, which merely says you only, you can look at any change circumstances anywhere. And if there are change circumstances that affect his eligibility, then it's okay, even if he's filed a previous. That's correct. And to clarify. He's relied on that, at least in brief, he did. He's filed two separate petition, wondering open, one for just a straight, new asylum. And to clarify that point, your honor, if there was, if he had filed the motion to reopen in a time and manner within 90 days of the final order, then the shot changed children in the US that would be. It was for us in 90 days. Right. Clearly he didn't do that. But just to clarify the issue there. Tell us how the shot case fits in, because in effect, you're saying that that rejected, in effect, the proofs, these kinds of proofs in change country conditions. There's just, there's a two issues. There's a successive asylum application, which we'll set aside for a minute. The shot deals more with the motion to reopen grounds, and considering the JWS, JHS and SYG, which are all board decisions that were all considered by the second circuit in the shot decision. Well, if we filed the shot, isn't that just in the case? It was your honor. It was all the other. Exactly. The second circuit in the case

. So even if you assume that there was change conditions in China, just assuming, pregnancy. Does he still qualify under Fall 29A to reopen? Where it limits the change, the consideration of change conditions solely to the country of where he's going to be sent back. But clearly part of his case is done only change in China. It's change that happened here. I think that's, that's right, you're on it. To the extent he relies on any change here, he would not be able to file a successive asylum. Then your second position is if he doesn't qualify under the reopen, he can't turn to the asylum statute, which merely says you only, you can look at any change circumstances anywhere. And if there are change circumstances that affect his eligibility, then it's okay, even if he's filed a previous. That's correct. And to clarify. He's relied on that, at least in brief, he did. He's filed two separate petition, wondering open, one for just a straight, new asylum. And to clarify that point, your honor, if there was, if he had filed the motion to reopen in a time and manner within 90 days of the final order, then the shot changed children in the US that would be. It was for us in 90 days. Right. Clearly he didn't do that. But just to clarify the issue there. Tell us how the shot case fits in, because in effect, you're saying that that rejected, in effect, the proofs, these kinds of proofs in change country conditions. There's just, there's a two issues. There's a successive asylum application, which we'll set aside for a minute. The shot deals more with the motion to reopen grounds, and considering the JWS, JHS and SYG, which are all board decisions that were all considered by the second circuit in the shot decision. Well, if we filed the shot, isn't that just in the case? It was your honor. It was all the other. Exactly. The second circuit in the case. That's one of, that's one of the late past, was it 90 days. Case. That one of the three underlying president decisions considered in the shot was matter of SYG. And that was a very similar fact pattern to what we have here. It was an untimely motion to reopen, submitted a bunch of evidence, including country reports, and the board and the second circuit said that wasn't. And you have 90 days or nearly to file, but if you show change country conditions, then there's no particular limit. That's correct. It's funny, the set's the same period, the challenge of preference, as we've found out. You were here to hear the argument. So that is correct, though. It's you have 90 days. And after 90 days, it's the. But the after the 90 days, it's only you can only rely on change conditions in the country where you're sending them back. That's absolutely correct. Different language from a repeat asylum, in which it says any change of any kind that affects is right to asylum. That's actually correct. Different language. Remember, there are two petitions here. Yes, that's correct, Your Honor. Unless the court has any further questions, government urges the court to deny the petition for review. Thank you. Well, is somebody going to argue on all the other? I guess we have eight and we've asked for argument in two. And that makes the assumption that they're all the same. But it seems to me that one of them, and I can't find my note, because I wasn't here, then I sent you a note that one of them might be different, because that one was purely the same. Yes, that's the low case

. That's one of, that's one of the late past, was it 90 days. Case. That one of the three underlying president decisions considered in the shot was matter of SYG. And that was a very similar fact pattern to what we have here. It was an untimely motion to reopen, submitted a bunch of evidence, including country reports, and the board and the second circuit said that wasn't. And you have 90 days or nearly to file, but if you show change country conditions, then there's no particular limit. That's correct. It's funny, the set's the same period, the challenge of preference, as we've found out. You were here to hear the argument. So that is correct, though. It's you have 90 days. And after 90 days, it's the. But the after the 90 days, it's only you can only rely on change conditions in the country where you're sending them back. That's absolutely correct. Different language from a repeat asylum, in which it says any change of any kind that affects is right to asylum. That's actually correct. Different language. Remember, there are two petitions here. Yes, that's correct, Your Honor. Unless the court has any further questions, government urges the court to deny the petition for review. Thank you. Well, is somebody going to argue on all the other? I guess we have eight and we've asked for argument in two. And that makes the assumption that they're all the same. But it seems to me that one of them, and I can't find my note, because I wasn't here, then I sent you a note that one of them might be different, because that one was purely the same. Yes, that's the low case. I put that on my notes to. Yeah. I don't believe we are prepared to speak on that, but we could certainly file supplemental briefing on that if the court has any questions. I guess if we need it, we'll let you know. Okay. Thank you, Your Honor. Okay. Did you want to do some rebuttal? You want to, when you file a motion re-open-based upon change country conditions, it must be filed a conjunction with a new application for asylum, or else it would be a facially deficient. Meaning, so what if there are change country conditions in China, if it doesn't materially affect you, it has no bearing on your personal circumstances. So if you file a motion to re-open-based upon change country conditions without supporting after Davidson application 589, the Board or the immigration judge would find it deficient on its face and deny it based upon insufficient filing. That's because what you're trying to reopen isn't the asylum, it's such a decision. Well, in other words, when you, what is it you want to reopen? You want to make sure we open the proceedings. That's correct, but then you have to go forward and present your new claim. Right. Okay. So you want to reopen the proceedings, but, and then if you present the new claim and you do get a reopening of the proceedings, what does that mean? The new claim is then with the judiciary cater on the merits? That's correct. The Court asked if the 2006 country report was in the record. It is in several records. It may not be in this particular case, but it is contained in the record. Depending on when the motion re-open was filed, the country report comes out on March 7th of each year. So if it's filed, if the motion re-open was filed there for March 7th on a particular year, that year's country report would be published. It's actually for the year before. So all these motions to reopen, if you look at it together combined, will have all the country reports up through 2007. The seven circuit has decided in the link case, decided July 8th, 2008, and the 11th circuit has decided in year-le decided 2007 that there is evidence of change country conditions or worst-country conditions, whether it's based upon the country report that says sterilizations are taking place or whether it's based upon the board's decision, a matter of TZ, supported by the country report that says.

. I put that on my notes to. Yeah. I don't believe we are prepared to speak on that, but we could certainly file supplemental briefing on that if the court has any questions. I guess if we need it, we'll let you know. Okay. Thank you, Your Honor. Okay. Did you want to do some rebuttal? You want to, when you file a motion re-open-based upon change country conditions, it must be filed a conjunction with a new application for asylum, or else it would be a facially deficient. Meaning, so what if there are change country conditions in China, if it doesn't materially affect you, it has no bearing on your personal circumstances. So if you file a motion to re-open-based upon change country conditions without supporting after Davidson application 589, the Board or the immigration judge would find it deficient on its face and deny it based upon insufficient filing. That's because what you're trying to reopen isn't the asylum, it's such a decision. Well, in other words, when you, what is it you want to reopen? You want to make sure we open the proceedings. That's correct, but then you have to go forward and present your new claim. Right. Okay. So you want to reopen the proceedings, but, and then if you present the new claim and you do get a reopening of the proceedings, what does that mean? The new claim is then with the judiciary cater on the merits? That's correct. The Court asked if the 2006 country report was in the record. It is in several records. It may not be in this particular case, but it is contained in the record. Depending on when the motion re-open was filed, the country report comes out on March 7th of each year. So if it's filed, if the motion re-open was filed there for March 7th on a particular year, that year's country report would be published. It's actually for the year before. So all these motions to reopen, if you look at it together combined, will have all the country reports up through 2007. The seven circuit has decided in the link case, decided July 8th, 2008, and the 11th circuit has decided in year-le decided 2007 that there is evidence of change country conditions or worst-country conditions, whether it's based upon the country report that says sterilizations are taking place or whether it's based upon the board's decision, a matter of TZ, supported by the country report that says... Where are those cases cited? The seven circuit? Yeah. They're not cited in the brief because they were just recently been published. I can submit to this Court of 2018 a supplemental brief, a letter brief. Are you citing cases thus now that are not in the briefs and we're not brought to our attention supplemental letters? That's correct. Well, that's not too fair. I believe in this is really fricking us. I understand. And I was not my intention. I can submit a supplemental brief, a letter brief to the Court addressing the 7th circuit and 11th circuit's decision. Didn't you send us any letters like that? No, just the government side. I've been flying around to all the jurisdictions getting whipped. I know, I know. Those two circuits, the cases, did the Court grant relief? The Court found in both those cases that there was a worsen of country conditions. The seven circuit found based upon the amount of fines imposed upon people. No grant relief. Those cases have not been back to the immigration judge yet. They were both sent back to the immigration. That's correct. But you got relief on the petition, no, to the Court of Appeals. Yes, sir. But the cases are still pending, both one in the land to Georgia, the other one in Chicago, Illinois. It takes a little while for the two to go through back to the BIA and back down to the immigration judge. What are you going to go to, Atlanta and Chicago? Do I want to? Are these your cases? These are my cases. That's correct

.. Where are those cases cited? The seven circuit? Yeah. They're not cited in the brief because they were just recently been published. I can submit to this Court of 2018 a supplemental brief, a letter brief. Are you citing cases thus now that are not in the briefs and we're not brought to our attention supplemental letters? That's correct. Well, that's not too fair. I believe in this is really fricking us. I understand. And I was not my intention. I can submit a supplemental brief, a letter brief to the Court addressing the 7th circuit and 11th circuit's decision. Didn't you send us any letters like that? No, just the government side. I've been flying around to all the jurisdictions getting whipped. I know, I know. Those two circuits, the cases, did the Court grant relief? The Court found in both those cases that there was a worsen of country conditions. The seven circuit found based upon the amount of fines imposed upon people. No grant relief. Those cases have not been back to the immigration judge yet. They were both sent back to the immigration. That's correct. But you got relief on the petition, no, to the Court of Appeals. Yes, sir. But the cases are still pending, both one in the land to Georgia, the other one in Chicago, Illinois. It takes a little while for the two to go through back to the BIA and back down to the immigration judge. What are you going to go to, Atlanta and Chicago? Do I want to? Are these your cases? These are my cases. That's correct. I do fly around because I have a lot of clients with the same issue. And hopefully I'm doing a decent enough job representing them, at least I hope so. You want to all save anything I rebuttal for the second case. But my arguments are the same. I don't think I need to rehash my arguments for the second. What were you citing? What were you just talking to us about? Which cases? Because the 11th Circuit, generally why any RLI is the 11th Circuit decision, 2008, I can give the Court a site, as well as the Linn July 8th, 2008, 7th Circuit case, which Judge Posner decided that there was evidence of severe economic persecution and finds a mountain to persecution. Well, we have our own rules on economic persecution. And that's not what these people didn't file, didn't say, economic persecution, and basis. Boy, I mean, there's an opinion of Judge Becker and one of me, I think, that the economic persecution has to sort of take away your right to life, almost. No, so what will recognize that? And what the country reports have recently evidenced is that in these infusion province, people are being fined between one and 10 times their annual salary for violating the family planning. Are all these cases out of Fujin province, all your 8 cases? I don't know, each one I would say that 95% of the people who are in Fujin province are in Fujin province. But I think that there's not sufficient evidence from each province. It's trickling out. So why should we overturn the BIA if we don't have evidence? I mean, can we, these are really provincial issues. These are local officials who are making these decisions, city by city, really. Yes, ma'am. So, which of them are not from Fujin province? Well, I would say 95% of them are. And so I would urge the court... They are wider from Fujin province because Fujin province is on the coast. Right. And that's where the skin heads operate. And so these people can come illegally because they can get the boats to come. And you don't get that anywhere else

. I do fly around because I have a lot of clients with the same issue. And hopefully I'm doing a decent enough job representing them, at least I hope so. You want to all save anything I rebuttal for the second case. But my arguments are the same. I don't think I need to rehash my arguments for the second. What were you citing? What were you just talking to us about? Which cases? Because the 11th Circuit, generally why any RLI is the 11th Circuit decision, 2008, I can give the Court a site, as well as the Linn July 8th, 2008, 7th Circuit case, which Judge Posner decided that there was evidence of severe economic persecution and finds a mountain to persecution. Well, we have our own rules on economic persecution. And that's not what these people didn't file, didn't say, economic persecution, and basis. Boy, I mean, there's an opinion of Judge Becker and one of me, I think, that the economic persecution has to sort of take away your right to life, almost. No, so what will recognize that? And what the country reports have recently evidenced is that in these infusion province, people are being fined between one and 10 times their annual salary for violating the family planning. Are all these cases out of Fujin province, all your 8 cases? I don't know, each one I would say that 95% of the people who are in Fujin province are in Fujin province. But I think that there's not sufficient evidence from each province. It's trickling out. So why should we overturn the BIA if we don't have evidence? I mean, can we, these are really provincial issues. These are local officials who are making these decisions, city by city, really. Yes, ma'am. So, which of them are not from Fujin province? Well, I would say 95% of them are. And so I would urge the court... They are wider from Fujin province because Fujin province is on the coast. Right. And that's where the skin heads operate. And so these people can come illegally because they can get the boats to come. And you don't get that anywhere else. Well, I don't know why we should make rules just for them. Well, because right now the evidence does show that in their province that people are being sterilized. And as far as what happens in China, it should affect us because we are the guardians of liberty and right and justice. So that's what our law say. Why are we working with the skin heads? The snake heads, I mean, aren't we really working with them then? I mean, they get the money, but we're working with them. Well, because we helped them. They actually instruct the people what to say. These are not nice people. I couldn't agree with you more. And I would say yes as to the claims, the false claims may be regarding religion, may be regarding Falun Gang. But when people of the age 25, the 30 years old are married and through the natural matriculation of a family have two children, I don't think they're being coerced at that point by the snake heads. One of them says in his brief that he... I think he's got three and he wants to go back so he can have more. So he can want to stay here. So he can have more. I mean, they live in China. They're not following the Chinese law. We're supposed to decide what China's law should be. In Africa, it's a law. It's FGM is a law. In other parts of China, discrimination of Tibetans is a law. Well, let me ask you this question. You want us to tell the BIA to reopen

. Well, I don't know why we should make rules just for them. Well, because right now the evidence does show that in their province that people are being sterilized. And as far as what happens in China, it should affect us because we are the guardians of liberty and right and justice. So that's what our law say. Why are we working with the skin heads? The snake heads, I mean, aren't we really working with them then? I mean, they get the money, but we're working with them. Well, because we helped them. They actually instruct the people what to say. These are not nice people. I couldn't agree with you more. And I would say yes as to the claims, the false claims may be regarding religion, may be regarding Falun Gang. But when people of the age 25, the 30 years old are married and through the natural matriculation of a family have two children, I don't think they're being coerced at that point by the snake heads. One of them says in his brief that he... I think he's got three and he wants to go back so he can have more. So he can want to stay here. So he can have more. I mean, they live in China. They're not following the Chinese law. We're supposed to decide what China's law should be. In Africa, it's a law. It's FGM is a law. In other parts of China, discrimination of Tibetans is a law. Well, let me ask you this question. You want us to tell the BIA to reopen. Yes, sir. Why, might it not be possible that there's material here and that maybe the BIA didn't consider it all at length and that we would remand it and tell them to reconsider and then decide whether to reopen? That would be sufficient by this attorney's belief. I mean, that would be a conceivable result. I think that would be more than sufficient. You know, what people... In Africa was... I think your issue was really a legal one. I think I thought... As I understood this when I read through it, that you were saying that the BIA aired as a matter of law because it took into account... It said... It was focusing on a part of change in personal circumstances, not in country conditions. That's not what your argument is. That's how the BIA addressed their decision. Is that what you said in your brief? Initially, yes. You haven't said a word about that in your argument before us

. Yes, sir. Why, might it not be possible that there's material here and that maybe the BIA didn't consider it all at length and that we would remand it and tell them to reconsider and then decide whether to reopen? That would be sufficient by this attorney's belief. I mean, that would be a conceivable result. I think that would be more than sufficient. You know, what people... In Africa was... I think your issue was really a legal one. I think I thought... As I understood this when I read through it, that you were saying that the BIA aired as a matter of law because it took into account... It said... It was focusing on a part of change in personal circumstances, not in country conditions. That's not what your argument is. That's how the BIA addressed their decision. Is that what you said in your brief? Initially, yes. You haven't said a word about that in your argument before us. Well, because the truth... The truth is we're not arguing... I have the truth, but... We're not arguing change personal circumstances. We're arguing change country conditions in conjunction with change personal circumstances. Now, so did you read the BIA, the Board of the Field Board, made a specific finding? It says, rather, the evidence reflects conditions substantially similar to those that exist at the time of his first hearing. With the government officially prohibiting the use of force to compel persons to submit to abortion sterilization, despite some reports of coercion by local authorities, it generally attempted to enforce compliance with the one child policy, to the use of economic incentives and other administrative rights. The reason I've been submitted generally confirms a continuation of problems that exist. They made a specific finding that there was no change. And you want us, like to say, something to send it back and, by the way, guys, you're wrong. It's not like we're sending it back to you, but we're instructing you to come to a different conclusion. They very specifically said there has been no change. Not that what you say may not be true, but that it hasn't changed since the hearing in 2003. The hearing where it was originally ordered to board. Which is why we're arguing legal error because there has been change. And what the contradiction, where the... I can't legal error

. Well, because the truth... The truth is we're not arguing... I have the truth, but... We're not arguing change personal circumstances. We're arguing change country conditions in conjunction with change personal circumstances. Now, so did you read the BIA, the Board of the Field Board, made a specific finding? It says, rather, the evidence reflects conditions substantially similar to those that exist at the time of his first hearing. With the government officially prohibiting the use of force to compel persons to submit to abortion sterilization, despite some reports of coercion by local authorities, it generally attempted to enforce compliance with the one child policy, to the use of economic incentives and other administrative rights. The reason I've been submitted generally confirms a continuation of problems that exist. They made a specific finding that there was no change. And you want us, like to say, something to send it back and, by the way, guys, you're wrong. It's not like we're sending it back to you, but we're instructing you to come to a different conclusion. They very specifically said there has been no change. Not that what you say may not be true, but that it hasn't changed since the hearing in 2003. The hearing where it was originally ordered to board. Which is why we're arguing legal error because there has been change. And what the contradiction, where the... I can't legal error. That's factual error. Well, the legal error. The legal error is in the analysis, in the weight that they gave, the evidence is supported. But what the contradiction lies is, up until 2005, the BIA kept saying there is no evidence to pull your case or your claim of future fear. There is not enough evidence. There's not enough evidence. Now, there is enough evidence. And the BIA is saying there is enough evidence. And what it shows is there hasn't been a change. So on one side, they're saying you can't, earlier in 2000, through 2005, you can't prove your claim of future fear because there's not enough evidence. Now, there's enough evidence to be saying, okay, there is evidence, but it's not showing any change. You can't have your case in either, too. The New Union, in fact, called Chen, if you can believe it or not, several years ago, authored a presidential opinion where, for example, in Foujan province, where the theme of the country of ports going way back, even before 2000, that the government had official policy against sterilization, against forced abortion, against all those things, but that there were sporadic kinds of violations, and the panel unanimously found that they didn't know asylum. And so, with the board finds here, I mean, the notion of the disconnect between what the country says its laws are, its regulations are, and what happens seems to have been known in China for quite some time, and particularly in Foujan province, which has been identified. I couldn't agree with you more, but the keyword being sporadic, and now the, and now the evidence shows that there is a pattern that has increased enforcement. The issue before us that you raised is whether they count a child born in this country as violating the one child policy. I thought that was what the whole issue is, and instead of talking about whether they changed their abortion policy or have become stricter on that. Well, if that's the only issue, I would urge the Court to follow the second circuit decision and go, and shall, what the second- What are you, what, tell me, what, tell me, what is your argument, your red light has been on for about 10 minutes. What is your argument precisely? The evidence now shows that children born outside of China are counted the same way as children born inside of China. The evidence shows that the policy of one child, one child policy is being enforced through non-voluntary means. And the evidence shows, because of that evidence, it shows that the conditions in China, in specifically Foujan province, have worsened because of the campaign, the campaign, again, increase campaign against the one child, or the one child policy. Thank you very much. We'll take that under advisers. And we'll hear your questions.

Let's see how do you want to argue this? Mr. Yermen, do you want to argue both cases at once or do you want to argue Jen first? And then we'll hear from Mr. Marceller and then you'll argue, are you Zhang? And then we'll hear from Mr. Cantor. I would prefer to argue both at the same time. Is that all right with you? And then he'll do the whole argument and then you'll get up and answer and then you'll answer. You will answer, you don't prefer that. But maybe so. Be bold. You're a lawyer, you can be bold. I think that would be confusing. Because you think they're different. Because then Eric and I will be reaching back. Okay, I think that's true. All right, Mr. Yermen, I think you should argue Jen first and then Mr. Marceller will argue Jen will respond and you can have. Rebuttal if you want and then we'll do the other. Okay. May I please the court, Gary Yermen on behalf of a peasant. The issue in this case, the Chen case, 07th, B199 is similar to the issues in the second case that I'm arguing as well as dozens of cases that are pending before this court. I think you should speak up. Yes, Your Honor. The question is this. Is there evidence has been presented to the BIA that was previously unavailable to the appellants in this situation? Up until the year 2004, appellants in this situation arguing with family planning laws were left with little substance in which to support their claims. The 1998 profile was submitted that touched on the one child policy. The late Dr. Aird, John Aird submitted a generalized affidavit. Dr. Aird's affidavit has been effectively destroyed, I would say, by the administration and our court. I agree. Is he given little to, little weight according to the precedent decision? That's the U.K. The U.K. Amongst others. What has happened, though, since 2004, is an abundance of evidence has come to light by these appellants that do establish and cooperate with their claim. Now, before 2004, the country reports and supporting evidence did not say how children were born outside of China to Chinese nationals were counted. It never mentioned how the Chinese officials, there was no official Chinese documents supporting what the family policy claims were. There were no reports of any specific enforcement. There were no reports of any abuses on massive scales. And furthermore, there was no evidence of what financial penalties were imposed on violators. Since 2004, this evidence has come now to light. Beginning with the 2005 and 2006 country report, the State Department now cites to massive abuses of the family planning law in China, specifically in 2005. They mentioned where 130,000 individuals were placed into population camps. That's in one community, right? That's correct. Now, out of those 130,000 and estimated 7,000 were either sterilized or forced to undergo late terms of abortion. Now, this, according to the country report, was only the most egregious example cited by the State Department. Which year is country report? 2005. What's your? 2005. Now, in 2006, in 2007, as Judge, as the court properly stated, there was no, it was only evidence of provinces other than food gen province. But now, in 2006, in the State Department report, there was evidence that forced abortions and sterilizations are taking place in food gen province. So, on one side, you have the government saying up until 2005, there may have been some reports, but no reports of physical coercion or forced abortions. Then, they'll say there are reports of forced abortions and sterilizations, but there are none in food gen province. Now, we have those in food gen province in the government saying, well, we have an infusion province, but there's no report that children born outside of China are counted the same way as children born inside of China. But we did, now, we have additional evidence to prove that there is no distinguishing characteristics or demarc, excuse me, straight there. There are no distinguishing category between children born inside of China and those born outside of China. The Changi University family planning question and answer book, as well as the food gen province and administrative decision are now available. They existed, but now they're available. What are these documents say? What the trust in an answer book says, if you have one child, you must wear an IUD. If you have two children, you are forced to undergo sterilization. The food gen administrative office and Changi University official document says, children born outside of China to Chinese nationals are not counted any differently towards the family planning policy. So, 1,8 CFO, 1,000, three states, when evidence that previously unavailable establishes that there are materially worse conditions in the country or change country conditions, along with promise of eligibility to establish that claim, you must reopen that claim to allow the appellant or the applicant to file a asylum. I didn't ask you if you reserved any documents for the bottle. I did 5 minutes. 5 minutes, you have that? Okay, I'm sorry. No problem. Thank you. So, in summary, what the position of the appellant is, is that we have now evidence, now we have evidence that shows that children born outside of China are counted the same as children born inside of China. We have evidence that shows that possible abortions and sterilizations are now predicted in place of food gen province. We have evidence as far as the 2006 country report that says, people who violate the family planning quotas are penalized 1 to 10 times their annual salary. You know, the BIA found their evidence of change country conditions. What do we do with that funding? Well, I would look to, as the government will assert to the matter of S.Y.G., the second circuit, the decision, the second circuit just came down with on October 10th. And in that decision, what the second circuit said was, they appelled the BIA, and they said that although that grow may have demonstrated through the food chain province in Changwil City Family Planning Administrative Record that returning Chinese nationals are subject to the same enforcement as her countrymen, she has not demonstrated primafacial eligibility that she will be forced to undergo sterilization. So I would urge the court to look at the evidence closely and find that unless China is the only country on the planet where women in their late 20s and early 30s are voluntarily undergoing sterilization, then something is amiss because thousands of people have to differ from the second circuit. Well, I want the court to recognize that the second circuit found that that grow S.Y.G., and this growth may have established change country conditions, but where I want this court to differ, respectfully differ from the second circuit, is find that the evidence does show that forced abortions and sterilizations are taking place. Because the- So, in that decision, do we look at the evidence? What's our role? Your role is to determine if the BIA gave the appropriate weight to the evidence presented to them. Was there a decision irrational and was a contrary to law? And I cert that it was irrational because as I said, no other country is there evidence that women are voluntarily undergoing sterilizations after they have 10 children, so it's only natural to assume. They even know there's no word in the Chinese law that says we're forcing these people under those sterilizations. What other way are you going to prevent a family who is matriculating as a normal family process is to stop them from having a third child? If you want to stop a murder from killing, you put them in jail. If you want to stop a person from having children- You put them in jail after he's committed murder. Thank you for- You're right. I'm a spoke. No, no, no, no. My point is this, Yohanna, is the only way to stop somebody from violating the family planning and choosing how many children they want to have is to sterilize them. Why should we want to stop another country from doing that which is that country's policy? Why would we do that? I believe that the Congress in an act in 111-42A established a formal relief for people in these situations saying that it is a fundamental right to choose how many children you're allowed to have. Yohanna, without having said moves, we have no nephews and nieces, no aunts and uncles. The whole dynamic of the family is destroyed, it's torn down. Yeah, but China's position is that they have so many people that if they don't limit their population, they'll never move ahead in this world. And I agree with that position personally. However, the law says if you can establish that people are forced to undergo abortions or sterilization, they are eligible for asylum. Now, if you want to look at- I'm not sure you're forced though, but even the one you refer to a five-year-old saying. I don't think they say that everybody who comes back is automatically forced to have a sterilization. Well, fortunately, you wouldn't come up and deal pregnancy, but the automatically forced sterilization or what automatically is much bigger than that. Well, I agree you want to- I mean, in a civil trial that had it stays, we wouldn't even accept that. But what it does is it begs the question. Who would report- Who is sent back to China, deported from this country with two children, goes back to China, is forced to be sterilized. Who would they complain to? To us, to go to the American consulate, to the Chinese report. What reports would there be of such instances of persecution? I see that you're ready. I just had one show. But yeah, go ahead, Jimmy. You know, at the end of your brief here, what you want us to do is to reverse, and what you want us to do is send the matter back to the BIA to reopen. Now, what do you do at that point? Yes. You just file an effect or file like it's a new- Assignment application. Correct. And in fact, what we would do is- Or you want us to rule, is on whether or not conditions have changed. Now, the change conditions is still my lose. That's correct. But at this point, in the last two or three years, we have volumes and volumes and volumes of background documentation that we would like to present to the immigration judges to decide. Is there really a policy, a national or local policy, where people are being forced on to go? Borscht and sterilizations. And I'm talking about approximately 800 pages of documents, Your Honor. And this is just a very fluid situation where these documents are starting to come out more and more and more to prove the very light burden we have, which is a reasonable possibility. Does it- That's Judge Green's point. There's a proof change. The fact that now somebody comes out in 206 or 205 and says, yes, they're doing this, that and the other thing. Well, this is pin of either whether it's 1229A or 1158, a linchpin is changing the country. Where is the proof of change? Well, what was- what argument is this proof of worsening country conditions? In that case, what was the proof of- Well, I would say this. Before 2004, the argument was children born outside of China are not counted the same way. Now we have evidence that was previously unavailable that shows that. Where's the change in the country? It's not a question that new evidence comes available. Well, maybe new evidence of something that happened a long time ago. My argument is this, Your Honor. The change- The time the order was issued in this case to wherever it was. I would say- Now there are reports that in a food-jink province, people are being forced to undergo sterilizations. You're relying on the fact that they now say they have evidence that something happened, that that didn't happen two years ago, three years ago, four years. I'm just- I'm just basically reiterating what the government's position is. There's no evidence that this is happening in the food-jink. Well, now there is. Well, we're going to wait and see. But why don't we see what the government's position is? Thank you. Thank you. May I please the court, Eric Marsdeller, for the Attorney General. It's important- Are you in a will? I am, yes, ma'am. Good, because for a while they were sending us tax lawyers. We've jumped up the number of attorneys in our office now, so we will be handing over some again. Okay, that's very good. Thank you. The critical question here in terms of the board decision is, did Chen show materially changed circumstances between his and his family? He's 2003 hearing before the immigration judge, and when he filed his motion to reopen in 2007, March 2007. So that's really our window, because we're just reviewing the board's decision for abusive discretion, and did the board, based on the evidence before it, reasonably conclude that there was not significant evidence of changed country conditions. Well, is it that he has to show evidence of change or has to show there's a change? I mean, there could be a change, and he might not have had evidence of it, but now he does. Well, it would depend on whether that evidence was available at the time of his earlier hearing. For instance, if there's a report from, say, 2001, which was before his hearing before the immigration judge, but it wasn't published or available until 2005. It was after the immigration judge's decision. He could present that as previously unavailable evidence, and that could be considered by the board. That says that. That's right. That's in the statute. In 1229A. Opposing council has urged the court to consider the 2006 country report, and the 1999 Changel City question and answer handbook that are both in that. He has the court to consider those. The O6 country report is not part of the record, and because the court's jurisdiction is limited to. Yeah, but it's available on the, we can always get on the internet. It's amazing. But the jurisdiction of limitations of this court limited to reviewing the record that was before the board. Yeah, but if he's claiming that the O6 report. Or shows XYZ, then wouldn't we have to send it back to the BIA so it can evaluate it? Well, he could he could. We can't. Take it into account that he put it in the record. It is not in the record in this case, your own. A couple points on that. First. Did any of the, I mean, you represent, he represents all these different people. Did any of them put the 2006 report into evidence? I imagine some of them may have. I don't have all the records. I would point out that the board and its public decision in JWS, addressed the 2006 country report. So even if the court were to find that that was somehow material. Can you give us the site? Yes, your honor. It is 24 I and N decisions 185. 24 of seven BIA tours. Yeah. It's in the board's decision in this case and it's in our brief. Can I ask you about a legal argument you made that I found particularly intriguing? The statute on the style of general is 1158. Normally bars repeat petitions, but says notwithstanding you can't have a repeat petition. If there has been a change circumstances or other things. It's not limited to change circumstances in the country. We change circumstances here. In the reopening statute, which is 1229A, the again, you have an exception to the time of the 90 day time limit. And that exception is based on change in country conditions in China. That's correct. One of the arguments you made, well, since part of his case is change conditions here in the United States. I yet do children here. You said that you can't rely on the general asylum statute. He has to pass through the motion to you. The hoops here. And that doesn't permit him to look at change circumstances in this country. Therefore, you don't even get to what happened in China. Well, he has because he's relying, the argument you've seen him made, he's relying on change circumstances. Personal circumstances. Personal circumstances. Which is okay on the asylum under 1158. But it's not okay on a motion to reopen. That's correct. And you make a rather, I won't say torture, but a rather detailed subtle argument that he has to satisfy the reopening statute. So we do mean that there's no, he can't rely on things here. And therefore he fails because since he's relying on personal changes here, he can't satisfy the rate the statute on reopening. And therefore we never get to 1158. We never get to the issue of changes in China. Because. Well, I think it's a little. That's, I mean, it was hard to, to, to, to clarify a little bit. What we're saying is that the change in personal circumstances can't be considered in determining whether the motion to reopen was timely or not. But the court can consider any evidence, any other evidence of change country condition. So the extent he argues that conditions that the 2004 and 05 country report evidence change country conditions in China since his hearing, the board properly did consider those evidence that evidence in determining whether there was a change in country conditions. It's only that the fact that he has given birth to us and children cannot be considered in determining whether the motion to reopen was timely. But your position is if the motion to reopen is timely in untimely, he can't rely independently on 1158. Let's assume it was untimely. His motion, he doesn't pass the hurdle. Yes, yes, because it's not allowed to consider personal circumstances. Yes, your position is if you can't get by the motion to reopen, you can't rely just on the theory. This is a success of the petition. Yes, under 1158. That's correct, Your Honor. And except that position, we don't have to worry about conditions in China because your position with me, you never gets by the reopen. Right. Because we happen to reopen. We'd have to consider his change circumstances here. And therefore, as he doesn't get by that, we don't even get to 1158. That's correct, Your Honor. I'm not a subtle argument, but it won that that disposes of the case if you accept it. And it's been agreed with the second circuit may have accepted. The second, the sixth, the seventh, the eighth, and the ninth, the ball accepted it. And I sent a 28J letter that cites all of those recent cases. Are you talking about the show case? No, Your Honor. I'm actually talking about the Yuen-Jin case, which is the second circuit one. This is somewhat different issue than the show case. The success of asylum application, which you have is, is, is, is, is. So, Jerenus pointed out there's two statutes that kind of work together, but there's no instructions in the regulation of the statutes to how they're supposed to work together. One says that an asylum application, when ailing can only file one asylum application. And one set's been denied. There is an exception where they can file another asylum application if there's changed circumstances affecting their eligibility for asylum, such as. In the country. Anywhere. Anywhere. You need such as having children in the United States. You were talking about the cases cited in your letter of October 17. That's correct, Your Honor. In the, in the, there's two paragraphs. There's a second paragraph. I believe so, yes, Your Honor. Because you cite a Lynn versus McKasey, which is the eighth circuit. And your anger versus McKasey, which is the sixth circuit. In the, in the first paragraph, it should be here on the first paragraph. So, the, the one I'm talking about now is in that first paragraph. It's this, the success of asylum issue. Whether an ailing can file a success of asylum application. After they've been ordered, we move. He's done both. He has made a motion to reopen, but he's also filed an independent asylum application. That's correct. He's attempted to, he's attempted to in the, the yard use, I believe, is independently permissible under 1158. News say he can't do that unless he first passes the hurdles of 1229A. That's correct, Your Honor. And that's because we've got these two statutes that don't, how about our jurisdiction now? We have a petition for review. And before we look at anyone else's jurisdiction, we always look at our own. What's our jurisdiction? What limitations are there? In this case, the court would have jurisdiction over that issue because it's a legal issue. Because it has to deal with statutory interpretation and, in the interplay between the two statutes and pursuant to eight USC 1252. How about these other cases, what limitations are there? To the extent that the alien is seeking review of a motion to reopen, as on timely, the court has jurisdiction, so long as the petition was timely filed. And I can't, unless their alien has some sort of criminal bar or other things, I can't think of any jurisdictional bars that wouldn't be applicable here. So we're able to, we're able to resolve these cases. That's correct, Your Honor. As this one I can speak for, I haven't seen all series earlier. Yeah, but I have not seen the record or the briefs for the other cases related to this one. I'm just asking. Councillor Kineski, I'm asking it again. Under the motion to reopen, which is 1229. Do you, leaving aside your opinion, I mean, does he satisfy that, just that particular statute? No, he doesn't because he didn't show evidence of change country conditions. And then the, even if he did show change country conditions, what do you find? Well, actually, I want to make sure he's right to asylum. Clearly depends on what happened in the United States, not what happened, at least it starts with. You didn't have children in the United States, that's the change of conditions in the United States. Not a change of conditions in China. So even if you assume that there was change conditions in China, just assuming, pregnancy. Does he still qualify under Fall 29A to reopen? Where it limits the change, the consideration of change conditions solely to the country of where he's going to be sent back. But clearly part of his case is done only change in China. It's change that happened here. I think that's, that's right, you're on it. To the extent he relies on any change here, he would not be able to file a successive asylum. Then your second position is if he doesn't qualify under the reopen, he can't turn to the asylum statute, which merely says you only, you can look at any change circumstances anywhere. And if there are change circumstances that affect his eligibility, then it's okay, even if he's filed a previous. That's correct. And to clarify. He's relied on that, at least in brief, he did. He's filed two separate petition, wondering open, one for just a straight, new asylum. And to clarify that point, your honor, if there was, if he had filed the motion to reopen in a time and manner within 90 days of the final order, then the shot changed children in the US that would be. It was for us in 90 days. Right. Clearly he didn't do that. But just to clarify the issue there. Tell us how the shot case fits in, because in effect, you're saying that that rejected, in effect, the proofs, these kinds of proofs in change country conditions. There's just, there's a two issues. There's a successive asylum application, which we'll set aside for a minute. The shot deals more with the motion to reopen grounds, and considering the JWS, JHS and SYG, which are all board decisions that were all considered by the second circuit in the shot decision. Well, if we filed the shot, isn't that just in the case? It was your honor. It was all the other. Exactly. The second circuit in the case. That's one of, that's one of the late past, was it 90 days. Case. That one of the three underlying president decisions considered in the shot was matter of SYG. And that was a very similar fact pattern to what we have here. It was an untimely motion to reopen, submitted a bunch of evidence, including country reports, and the board and the second circuit said that wasn't. And you have 90 days or nearly to file, but if you show change country conditions, then there's no particular limit. That's correct. It's funny, the set's the same period, the challenge of preference, as we've found out. You were here to hear the argument. So that is correct, though. It's you have 90 days. And after 90 days, it's the. But the after the 90 days, it's only you can only rely on change conditions in the country where you're sending them back. That's absolutely correct. Different language from a repeat asylum, in which it says any change of any kind that affects is right to asylum. That's actually correct. Different language. Remember, there are two petitions here. Yes, that's correct, Your Honor. Unless the court has any further questions, government urges the court to deny the petition for review. Thank you. Well, is somebody going to argue on all the other? I guess we have eight and we've asked for argument in two. And that makes the assumption that they're all the same. But it seems to me that one of them, and I can't find my note, because I wasn't here, then I sent you a note that one of them might be different, because that one was purely the same. Yes, that's the low case. I put that on my notes to. Yeah. I don't believe we are prepared to speak on that, but we could certainly file supplemental briefing on that if the court has any questions. I guess if we need it, we'll let you know. Okay. Thank you, Your Honor. Okay. Did you want to do some rebuttal? You want to, when you file a motion re-open-based upon change country conditions, it must be filed a conjunction with a new application for asylum, or else it would be a facially deficient. Meaning, so what if there are change country conditions in China, if it doesn't materially affect you, it has no bearing on your personal circumstances. So if you file a motion to re-open-based upon change country conditions without supporting after Davidson application 589, the Board or the immigration judge would find it deficient on its face and deny it based upon insufficient filing. That's because what you're trying to reopen isn't the asylum, it's such a decision. Well, in other words, when you, what is it you want to reopen? You want to make sure we open the proceedings. That's correct, but then you have to go forward and present your new claim. Right. Okay. So you want to reopen the proceedings, but, and then if you present the new claim and you do get a reopening of the proceedings, what does that mean? The new claim is then with the judiciary cater on the merits? That's correct. The Court asked if the 2006 country report was in the record. It is in several records. It may not be in this particular case, but it is contained in the record. Depending on when the motion re-open was filed, the country report comes out on March 7th of each year. So if it's filed, if the motion re-open was filed there for March 7th on a particular year, that year's country report would be published. It's actually for the year before. So all these motions to reopen, if you look at it together combined, will have all the country reports up through 2007. The seven circuit has decided in the link case, decided July 8th, 2008, and the 11th circuit has decided in year-le decided 2007 that there is evidence of change country conditions or worst-country conditions, whether it's based upon the country report that says sterilizations are taking place or whether it's based upon the board's decision, a matter of TZ, supported by the country report that says... Where are those cases cited? The seven circuit? Yeah. They're not cited in the brief because they were just recently been published. I can submit to this Court of 2018 a supplemental brief, a letter brief. Are you citing cases thus now that are not in the briefs and we're not brought to our attention supplemental letters? That's correct. Well, that's not too fair. I believe in this is really fricking us. I understand. And I was not my intention. I can submit a supplemental brief, a letter brief to the Court addressing the 7th circuit and 11th circuit's decision. Didn't you send us any letters like that? No, just the government side. I've been flying around to all the jurisdictions getting whipped. I know, I know. Those two circuits, the cases, did the Court grant relief? The Court found in both those cases that there was a worsen of country conditions. The seven circuit found based upon the amount of fines imposed upon people. No grant relief. Those cases have not been back to the immigration judge yet. They were both sent back to the immigration. That's correct. But you got relief on the petition, no, to the Court of Appeals. Yes, sir. But the cases are still pending, both one in the land to Georgia, the other one in Chicago, Illinois. It takes a little while for the two to go through back to the BIA and back down to the immigration judge. What are you going to go to, Atlanta and Chicago? Do I want to? Are these your cases? These are my cases. That's correct. I do fly around because I have a lot of clients with the same issue. And hopefully I'm doing a decent enough job representing them, at least I hope so. You want to all save anything I rebuttal for the second case. But my arguments are the same. I don't think I need to rehash my arguments for the second. What were you citing? What were you just talking to us about? Which cases? Because the 11th Circuit, generally why any RLI is the 11th Circuit decision, 2008, I can give the Court a site, as well as the Linn July 8th, 2008, 7th Circuit case, which Judge Posner decided that there was evidence of severe economic persecution and finds a mountain to persecution. Well, we have our own rules on economic persecution. And that's not what these people didn't file, didn't say, economic persecution, and basis. Boy, I mean, there's an opinion of Judge Becker and one of me, I think, that the economic persecution has to sort of take away your right to life, almost. No, so what will recognize that? And what the country reports have recently evidenced is that in these infusion province, people are being fined between one and 10 times their annual salary for violating the family planning. Are all these cases out of Fujin province, all your 8 cases? I don't know, each one I would say that 95% of the people who are in Fujin province are in Fujin province. But I think that there's not sufficient evidence from each province. It's trickling out. So why should we overturn the BIA if we don't have evidence? I mean, can we, these are really provincial issues. These are local officials who are making these decisions, city by city, really. Yes, ma'am. So, which of them are not from Fujin province? Well, I would say 95% of them are. And so I would urge the court... They are wider from Fujin province because Fujin province is on the coast. Right. And that's where the skin heads operate. And so these people can come illegally because they can get the boats to come. And you don't get that anywhere else. Well, I don't know why we should make rules just for them. Well, because right now the evidence does show that in their province that people are being sterilized. And as far as what happens in China, it should affect us because we are the guardians of liberty and right and justice. So that's what our law say. Why are we working with the skin heads? The snake heads, I mean, aren't we really working with them then? I mean, they get the money, but we're working with them. Well, because we helped them. They actually instruct the people what to say. These are not nice people. I couldn't agree with you more. And I would say yes as to the claims, the false claims may be regarding religion, may be regarding Falun Gang. But when people of the age 25, the 30 years old are married and through the natural matriculation of a family have two children, I don't think they're being coerced at that point by the snake heads. One of them says in his brief that he... I think he's got three and he wants to go back so he can have more. So he can want to stay here. So he can have more. I mean, they live in China. They're not following the Chinese law. We're supposed to decide what China's law should be. In Africa, it's a law. It's FGM is a law. In other parts of China, discrimination of Tibetans is a law. Well, let me ask you this question. You want us to tell the BIA to reopen. Yes, sir. Why, might it not be possible that there's material here and that maybe the BIA didn't consider it all at length and that we would remand it and tell them to reconsider and then decide whether to reopen? That would be sufficient by this attorney's belief. I mean, that would be a conceivable result. I think that would be more than sufficient. You know, what people... In Africa was... I think your issue was really a legal one. I think I thought... As I understood this when I read through it, that you were saying that the BIA aired as a matter of law because it took into account... It said... It was focusing on a part of change in personal circumstances, not in country conditions. That's not what your argument is. That's how the BIA addressed their decision. Is that what you said in your brief? Initially, yes. You haven't said a word about that in your argument before us. Well, because the truth... The truth is we're not arguing... I have the truth, but... We're not arguing change personal circumstances. We're arguing change country conditions in conjunction with change personal circumstances. Now, so did you read the BIA, the Board of the Field Board, made a specific finding? It says, rather, the evidence reflects conditions substantially similar to those that exist at the time of his first hearing. With the government officially prohibiting the use of force to compel persons to submit to abortion sterilization, despite some reports of coercion by local authorities, it generally attempted to enforce compliance with the one child policy, to the use of economic incentives and other administrative rights. The reason I've been submitted generally confirms a continuation of problems that exist. They made a specific finding that there was no change. And you want us, like to say, something to send it back and, by the way, guys, you're wrong. It's not like we're sending it back to you, but we're instructing you to come to a different conclusion. They very specifically said there has been no change. Not that what you say may not be true, but that it hasn't changed since the hearing in 2003. The hearing where it was originally ordered to board. Which is why we're arguing legal error because there has been change. And what the contradiction, where the... I can't legal error. That's factual error. Well, the legal error. The legal error is in the analysis, in the weight that they gave, the evidence is supported. But what the contradiction lies is, up until 2005, the BIA kept saying there is no evidence to pull your case or your claim of future fear. There is not enough evidence. There's not enough evidence. Now, there is enough evidence. And the BIA is saying there is enough evidence. And what it shows is there hasn't been a change. So on one side, they're saying you can't, earlier in 2000, through 2005, you can't prove your claim of future fear because there's not enough evidence. Now, there's enough evidence to be saying, okay, there is evidence, but it's not showing any change. You can't have your case in either, too. The New Union, in fact, called Chen, if you can believe it or not, several years ago, authored a presidential opinion where, for example, in Foujan province, where the theme of the country of ports going way back, even before 2000, that the government had official policy against sterilization, against forced abortion, against all those things, but that there were sporadic kinds of violations, and the panel unanimously found that they didn't know asylum. And so, with the board finds here, I mean, the notion of the disconnect between what the country says its laws are, its regulations are, and what happens seems to have been known in China for quite some time, and particularly in Foujan province, which has been identified. I couldn't agree with you more, but the keyword being sporadic, and now the, and now the evidence shows that there is a pattern that has increased enforcement. The issue before us that you raised is whether they count a child born in this country as violating the one child policy. I thought that was what the whole issue is, and instead of talking about whether they changed their abortion policy or have become stricter on that. Well, if that's the only issue, I would urge the Court to follow the second circuit decision and go, and shall, what the second- What are you, what, tell me, what, tell me, what is your argument, your red light has been on for about 10 minutes. What is your argument precisely? The evidence now shows that children born outside of China are counted the same way as children born inside of China. The evidence shows that the policy of one child, one child policy is being enforced through non-voluntary means. And the evidence shows, because of that evidence, it shows that the conditions in China, in specifically Foujan province, have worsened because of the campaign, the campaign, again, increase campaign against the one child, or the one child policy. Thank you very much. We'll take that under advisers. And we'll hear your questions