Good morning distinguished panel, good morning, your honours. Could you pull the mic up so we can close it? Okay, this is my voice clear now. Good morning distinguished panel, good morning, your honours. My name is Adid Iod, I represent the the petitioner and it's actually the costing dollar zones to preserve my case this morning. Yes, go right ahead. Yes, I'm this problem's a little echoey so if you can all for everyone present if you can try to speak into the microphone and also not speak too quickly that helps us. It's just echoey back here. Okay, wonderful. Thank you. Yes, I'm here today to present the petitioner's case. Basically it's a case in which it's a motion to reopen which was denied by the board of appeals, the board of immigration appeals, the board from henceforth. The petitioner is a sought to have his case reopened based on his activities in a pro-democracy organization in the United States. The board
. What is your best argument for renand? The best argument to tell you the truth would your honour would be the case of Chandra versus Holder. This case is virtually identical in facts. I'm very happy that the court has brought this to our attention that we should be prepared to address this but if we look at the facts of this case and the case of Chandra versus I'm sorry, Chandra versus Holder, we will see that the facts in this case are virtually identical in every respect. The only difference being that one is based on religion, one is based on a political opinion being a member of a pro-democracy organization. The court did remind that back to the VIA and I would actually point that case out would be my basis to have this case remanded also. Councillor, could you look at the, I'm referring to the affidavit filed by your client, the declaration. What facts exactly are you relying on to show the change in country conditions? Within the record at AR109 there is a letter from his mother which indicates that the authorities in China have come to his home in China seeking him and been harassing his family in China. In order to assert change circumstances also the in-country conditions, the position itself must show that there's a kind of like there's a coincidence of his changing circumstances and the change in the country conditions. If we look at that we see that there's a coincidence here. The, the question is changing circumstances is based on the change in country conditions in China. Sure, the government argues that. Well, I mean, sorry, the VIA argues that the conditions haven't changed but how is that true? Well, the, what do we do with the fact that the VIA in this particular case found that broader country conditions have not changed based on the country reports
. So let's assume that everything that your client indicates in this affidavit is true. There's increased persecution of his family members and presumably if he were returned to his home country there would be increased persecution of him by virtue of his political activities. Yes. If we accept the VIA's conclusion that there's no broader change country conditions than which your client lose? Yes, he would because he would not have had the opportunity to present the VIA's well-the-country reports say this. We have one from when from 2002 let's, that really wasn't in the record. We can only go on what's in the record but the court does take administrative notice of these facts but a 2002 which is in the record which the respond at the position of subitio to the court. And the 2014 show yes that the government, but there are changes, there are material changes in the sense that the government has increased its persecution of CDP members that returned to China. Even the CDP members within China. Can I interrupt you there because that's the point I've been waiting to hear about. What shows me that the persecution of CDP members has increased since the time of the first application? I think that's a pivotal point. Yes. In the country reports that if you look at from 10 from 2002 to 2014 you'll note that there's been an increase in the number of the CDP members that have been arrested
. Even the CDP members have been arrested. There are these psychiatric hospitals which they commit people to, political dissidents in China. Actually the number of these institutions has actually increased and the number of people who are CDP members have also. Where in the record do we see that increase? Can you give me a citation to the page of the record? Yes it's at, I don't have the page on it. It was referenced in the record at page 3 in the page 4 of the BIA's decision. It notes that it says X of it 3. I'm looking for this citation. But I don't have the exact reference here but it's probably the record. It's a country report which is to the year 2002. What are you referring to in the BIA decision? It says on page 4 AR4 it says, or they say, evidence submitted motion does not show conditions of materially changed since respondents hearing in this case in 2002. And then they cite exhibit 3. Yes, and then they say the country conditions in China appear substantially the same as the conditions existing at the time of the hearing
. Yes, there it indicates that but where's the website as it exhibit 3 at 6? Yes, and it wasn't actually in the administrative record even though the BIA states sites to it. So there we have a problem also because the BIA site into that document which isn't in the record, then how can we, how can the court make that, how can the BIA make that determination? The BIA hasn't taken everything into consideration in making that determination. It just makes a function reference to that which doesn't exist in the record. But the citation as I read it, counsel, talks about very harsh treatment in 2002 and that the harsh treatment continues. I don't see indication that the BIA thought the harsh treatment had worsened. Yes, but even though the respondent wasn't a CDP member at that time. In 2002. So other like the same circuit for instance has said that going back to these kind of situations where the person hasn't been, I mean, hasn't suffered, been seeking a new grounds for relief. We go with the most lenient standard that would have applied then if it was a CDP member then would he have been eligible for relief the answer would have been yes. That's your reading of Shandra. Yes. Did you want to reserve some time counts? Yes
. We'll hear from the opposing counsel then, please. Good morning. Good morning, Your Honours. I'm Anita Natu no behalf of the Attorney General. Your Honours, the board did not abuse its considerable discretion in denying Mr. Chance and timely motion to reopen. I would just like to for purposes of record make one correction which I believe is a very significant one. Opposing counsel refers to the BIA's reference to exhibit three page six and sits at that piece of evidence is not in the record. It actually is in the record. It starts at AR 386 and the specific reference page six is at AR 391 and it's an entire paragraph plus more which specifically refers to the C. D. D
. P. and his treatment of political activists in China. What's the date of that report? Your Honour, that is the 2001 country report which was published on March 4th, 2002. And despite the fact that Mr. Chance had not been a member of the CDP, he was not a member at that time, that is the evidence of country conditions that was in the record in 2002. And that's why the BIA used that to re-evaluate or to compare rather country conditions in 2011. How could the 2002 report provide any information other than a baseline? What were they looking at to support the notion that it hadn't increased? So this record that I'm referencing, exhibit three at page six is at AR 391 in the record and it speaks to the CDP and its... I'm asking, that's my original question. What was the date of exhibit three? March 4th, 2002, Your Honour. Okay, so let me restate my question
. They are citing a 2002 report to show that conditions have not changed as of when? As of 2011 when Mr. Chance... The persecution of CDP members is in 2011. How can they... They got a baseline from 2002. Where did they get the support for the statement that there hasn't been any change in nine years? No, I understand, Your Honour's question is my apology. That evidence was based on the country conditions submitted by Mr. Chance with his motion to reopen and that's in the record
. And that's the 2010 country report, which is in the record at... It starts at page 200 and... Sorry, page 187 of the record. So that's what the board used to compare the country conditions in 2011 when Mr. Chance filed his motion to reopen as opposed to country conditions. That were prevalent at the time when he first..
. When he had his first hearing before the immigration judge. Council, I'm concerned about the BIA's decision because I don't think it makes any mention of Mr. Chance affidavit at all. Or his brothers. Actually, Your Honour's on page three of the agency decision. And it specifically states that the agency, and this is the third paragraph down, one that starts, we have considered the statements from respondents mother. That one. You're asking about the affidavit for his brother? Is that correct? Well, there's two different questions. Okay. My first concern to take them one at a time is I don't see anywhere where the BIA decided that Mr. Chance affidavit was inherently unbelievable. And I think the law is that if unless they make that finding they have to deem it as true, except that is true because we're here on a motion to reopen
. And I don't see where they did that. But I'm ready to be corrected if you can show me where they considered his affidavit. So they did consider it in that same paragraph where they refer to tabs P through you. And then also where they considered it on page three of the record in that third paragraph where they refer to evidence of his membership in the CDP and they refer to C tab C E H I and O. And Mr. Gupta says the respondent states that he joined the CDP in the U.S. and his membership and party activities are supported by documentation. They reference the various exhibits that he submitted. Yes, your Honor. Tab C is the petitioner's affidavit and that's specifically. Is this any place where they found it to be inherently unbelievable? No, Your Honor. Not to my reading of the agency decision. Okay. So when we get to the second page and the conclusion. I don't see reference there. It says we've considered the statements from respondents mother and classmate. They give the reasons for not giving that much weight. Yes, Your Honor. And the reasons they say it are because they're unsworn, do not provide specific facts, indicating threats. They're respondent and we're paying for purposes of these removal proceedings. And the petitioner's, for instance, petitioner's mother's affidavit. So substantial evidence would support that find in the second paragraph of the affidavit states. I have no idea how the Chinese government know that the fact that Chen Feng joined the CDP
. Not to my reading of the agency decision. Okay. So when we get to the second page and the conclusion. I don't see reference there. It says we've considered the statements from respondents mother and classmate. They give the reasons for not giving that much weight. Yes, Your Honor. And the reasons they say it are because they're unsworn, do not provide specific facts, indicating threats. They're respondent and we're paying for purposes of these removal proceedings. And the petitioner's, for instance, petitioner's mother's affidavit. So substantial evidence would support that find in the second paragraph of the affidavit states. I have no idea how the Chinese government know that the fact that Chen Feng joined the CDP. The policeman from the local, sorry, the policeman from the local police precinct came to my home and inquired a lot of information. It doesn't state information about what. They went through my staff at home. I think she means stuff. It doesn't say what stuff. It doesn't state a date that the police came to her house. It says they also took away pictures sent by Mr. Chen. It doesn't state what pictures it doesn't state when they took away these pictures. And that would support the VIE's finding that they do not provide specific facts to support Mr. Chang's motion to reopen. And again, just to go back to your honours point about the change country conditions, there's ample evidence in the record to support the finding that the agency made about a lack of change country conditions
. The policeman from the local, sorry, the policeman from the local police precinct came to my home and inquired a lot of information. It doesn't state information about what. They went through my staff at home. I think she means stuff. It doesn't say what stuff. It doesn't state a date that the police came to her house. It says they also took away pictures sent by Mr. Chen. It doesn't state what pictures it doesn't state when they took away these pictures. And that would support the VIE's finding that they do not provide specific facts to support Mr. Chang's motion to reopen. And again, just to go back to your honours point about the change country conditions, there's ample evidence in the record to support the finding that the agency made about a lack of change country conditions. And I can give some specific citations from the record if that would be helpful. Now, you're going to do that or with your permission, Your Honor. You're almost at the time. I'd like you to address, though, so we don't just get hung up on country conditions because the VIE said that basically all he's established. In fact, it says it's well settled that a change in personal circumstances does not establish an exception to the restrictions. Yes, Your Honor. And so, Chandra, under Chandra, it would perhaps be a new piece of discussion if the agency had stopped there and said, well, this is the only factor that would mitigate or prevent the petitioner from showing these change country conditions. But the agency went further on page four where they separately and expressly did an analysis of the change country conditions in light of Mr. Chang's membership to the CDP. And they found that based on the evidence that there were no material change country conditions. And that's the first paragraph on AR4 where the agency made that finding. And so, I would submit that there is no piece of discussion because the agency did look at these change country conditions in light of the change in personal circumstances, which is what Chandra, which was a hold in in Chandra
. And I can give some specific citations from the record if that would be helpful. Now, you're going to do that or with your permission, Your Honor. You're almost at the time. I'd like you to address, though, so we don't just get hung up on country conditions because the VIE said that basically all he's established. In fact, it says it's well settled that a change in personal circumstances does not establish an exception to the restrictions. Yes, Your Honor. And so, Chandra, under Chandra, it would perhaps be a new piece of discussion if the agency had stopped there and said, well, this is the only factor that would mitigate or prevent the petitioner from showing these change country conditions. But the agency went further on page four where they separately and expressly did an analysis of the change country conditions in light of Mr. Chang's membership to the CDP. And they found that based on the evidence that there were no material change country conditions. And that's the first paragraph on AR4 where the agency made that finding. And so, I would submit that there is no piece of discussion because the agency did look at these change country conditions in light of the change in personal circumstances, which is what Chandra, which was a hold in in Chandra. Well, they didn't have the benefit of Chandra, correct? That is correct, Your Honor. But now, it's standing that they still made the finding about the personal circumstances and then did a separate analysis as to the change country condition, which is a specific. That's what the regulation stands for. So, it's your position. I take it that we should decide that they did consider Mr. Chang's affidavit and that they did not, because they did not deem it inherently unbelievable, that they deemed it believable. And then, given the facts that he asserts there, even under Chandra, he didn't make the requisite showing. I think that has to be your position. But they didn't have Chandra. That is correct. And that's your position. That is absolutely correct
. Well, they didn't have the benefit of Chandra, correct? That is correct, Your Honor. But now, it's standing that they still made the finding about the personal circumstances and then did a separate analysis as to the change country condition, which is a specific. That's what the regulation stands for. So, it's your position. I take it that we should decide that they did consider Mr. Chang's affidavit and that they did not, because they did not deem it inherently unbelievable, that they deemed it believable. And then, given the facts that he asserts there, even under Chandra, he didn't make the requisite showing. I think that has to be your position. But they didn't have Chandra. That is correct. And that's your position. That is absolutely correct. And again, just to go to the personal circumstances. Even in Chandra, though, there was evidence that presented by the petitioner of broader country conditions changed, right? Increase persecution of Christians. Here, the BIA did make a finding that there are no broader country conditions that have changed since the time the petitioner. Exactly. We move on proceedings first occurred. I'm sorry. Is that right? I'm sorry. So, what the BIA did is they took the 2000 and two country conditions. For 2001, I think country report. Yes. And they compare that to the 2010 country conditions report. And they made a finding that there's been no material change in country conditions in China with regard to persecution of members of the CDP
. And again, just to go to the personal circumstances. Even in Chandra, though, there was evidence that presented by the petitioner of broader country conditions changed, right? Increase persecution of Christians. Here, the BIA did make a finding that there are no broader country conditions that have changed since the time the petitioner. Exactly. We move on proceedings first occurred. I'm sorry. Is that right? I'm sorry. So, what the BIA did is they took the 2000 and two country conditions. For 2001, I think country report. Yes. And they compare that to the 2010 country conditions report. And they made a finding that there's been no material change in country conditions in China with regard to persecution of members of the CDP. Exactly. We have to review that finding with substantial difference, the BIA. Absolutely. But yet, at the time that they made this ruling, they didn't have the benefit of Chandra. Yes. That was an adorable foresight. Tell me why despite Chandra, this case shouldn't be remanded for the BIA to take another look at it. Despite the fact that the BIA has, without even without having Chandra followed Chandra and followed the hold in in Chandra, not abused as much, not having the benefit of Chandra, why is it that this case shouldn't be remanded? Why should it be remanded? Why shouldn't it be remanded so that the BIA can take another look at his personal circumstances in light of Chandra? Because it wouldn't be worthwhile, Yarn, or even if it was remanded, which is not our position, it would still be the same conclusion that the agency made the personal circumstances finding, and then they still applied the regulation as to change country conditions comparing conditions in 2001 and 2002 when Mr. Chen was previously before the immigration judge and comparing that to country conditions in 2010-2001. I don't know how you can make that such an absolute statement because if I'm sitting on the BIA, and all I think is relevant is conditions changed in China, the political conditions, regardless of the individual circumstances of the positioner before me, I would come to the conclusion that you suggest, but under the law of Chandra, a change in personal circumstances is as relevant as country conditions. So now I have to weigh whether given his individual circumstances, his past record, his notoriety apparently, his now has been exposed to more likelihood of personal violence or persecution directed at him. There's no such analysis in the BIA's opinion because they dismissed his personal circumstances, individualized circumstance as not being relevant
. Exactly. We have to review that finding with substantial difference, the BIA. Absolutely. But yet, at the time that they made this ruling, they didn't have the benefit of Chandra. Yes. That was an adorable foresight. Tell me why despite Chandra, this case shouldn't be remanded for the BIA to take another look at it. Despite the fact that the BIA has, without even without having Chandra followed Chandra and followed the hold in in Chandra, not abused as much, not having the benefit of Chandra, why is it that this case shouldn't be remanded? Why should it be remanded? Why shouldn't it be remanded so that the BIA can take another look at his personal circumstances in light of Chandra? Because it wouldn't be worthwhile, Yarn, or even if it was remanded, which is not our position, it would still be the same conclusion that the agency made the personal circumstances finding, and then they still applied the regulation as to change country conditions comparing conditions in 2001 and 2002 when Mr. Chen was previously before the immigration judge and comparing that to country conditions in 2010-2001. I don't know how you can make that such an absolute statement because if I'm sitting on the BIA, and all I think is relevant is conditions changed in China, the political conditions, regardless of the individual circumstances of the positioner before me, I would come to the conclusion that you suggest, but under the law of Chandra, a change in personal circumstances is as relevant as country conditions. So now I have to weigh whether given his individual circumstances, his past record, his notoriety apparently, his now has been exposed to more likelihood of personal violence or persecution directed at him. There's no such analysis in the BIA's opinion because they dismissed his personal circumstances, individualized circumstance as not being relevant. So it seems to me that it would be logical to send back to the BIA so they could make the finding. I don't know how you can assume what that finding would be. If I may respond to that, I respectfully disagree with that in the sense that I would say I would point to again the record at page three where even though I think when you look at the decision as a whole, even though the agency did make a finding as to his personal circumstances as a finding, they still went further and looked at those personal circumstances in light of the country conditions at the time. Point me to the exact language. On AR4, that top paragraph where it states the evidence submitted with the motion, however, does not show that conditions in China have materially changed since the respondents hearing in this case into the country conditions. It doesn't say anything about his personal situation. He had a history. He had a history. How do we know that that history combined with this new status of being a CDP member doesn't elevate his exposure to persecution, even under the existing continuous country conditions? Where does the BIA say even though he became a member of the CDP, whatever persecution risks he had before have not been enhanced now because he has taken an additional step to join a controversial party. That would be the analysis I'd be looking for in the BIA's decision and of course they didn't make that analysis because they ruled it out as a matter of law. May I respond to that, Yana? Just again, I would point to the fact that they looked at it materially and then the next sentence goes on again to refer to the treatment of CDP members. The fact that the court looked or the agency rather looked at it materially and the only material change or fact that would be different in 2011 would be the fact that he's a member of the CDP
. So it seems to me that it would be logical to send back to the BIA so they could make the finding. I don't know how you can assume what that finding would be. If I may respond to that, I respectfully disagree with that in the sense that I would say I would point to again the record at page three where even though I think when you look at the decision as a whole, even though the agency did make a finding as to his personal circumstances as a finding, they still went further and looked at those personal circumstances in light of the country conditions at the time. Point me to the exact language. On AR4, that top paragraph where it states the evidence submitted with the motion, however, does not show that conditions in China have materially changed since the respondents hearing in this case into the country conditions. It doesn't say anything about his personal situation. He had a history. He had a history. How do we know that that history combined with this new status of being a CDP member doesn't elevate his exposure to persecution, even under the existing continuous country conditions? Where does the BIA say even though he became a member of the CDP, whatever persecution risks he had before have not been enhanced now because he has taken an additional step to join a controversial party. That would be the analysis I'd be looking for in the BIA's decision and of course they didn't make that analysis because they ruled it out as a matter of law. May I respond to that, Yana? Just again, I would point to the fact that they looked at it materially and then the next sentence goes on again to refer to the treatment of CDP members. The fact that the court looked or the agency rather looked at it materially and the only material change or fact that would be different in 2011 would be the fact that he's a member of the CDP. And so I would submit that the agency did in fact take that into account in its analysis of change of country conditions. It wasn't a separate and isolated finding of only change of country conditions. It's based on the fact that he's now a member of the CDP. How's your significantly over time? Thank you so much to your argument. Thank you, Your Honour, and so would ask that you deny the petition for a review. Thank you. Council, you reserved a bit of time for a rebuttal. Yes, I returned to Chandra versus Holder at page number eight and I'm quoting from Chandra versus Holder. And this is the referring to a seven circuit cage, which is shoe, new, which is 718 F3D at 710 through 713. And I quote, after reviewing the new evidence, the court determined that because the position is conversion to Christianity, we could drop the post Christianity with a CDP activist placed him instead of her at greater risk. And so I think the time of his motion to reopen that he would have faced had he being a CDP activist at the time of his removal hearing in, which was about 2002, which is kind of coincides with this. So basically what the court is saying is, sure
. And so I would submit that the agency did in fact take that into account in its analysis of change of country conditions. It wasn't a separate and isolated finding of only change of country conditions. It's based on the fact that he's now a member of the CDP. How's your significantly over time? Thank you so much to your argument. Thank you, Your Honour, and so would ask that you deny the petition for a review. Thank you. Council, you reserved a bit of time for a rebuttal. Yes, I returned to Chandra versus Holder at page number eight and I'm quoting from Chandra versus Holder. And this is the referring to a seven circuit cage, which is shoe, new, which is 718 F3D at 710 through 713. And I quote, after reviewing the new evidence, the court determined that because the position is conversion to Christianity, we could drop the post Christianity with a CDP activist placed him instead of her at greater risk. And so I think the time of his motion to reopen that he would have faced had he being a CDP activist at the time of his removal hearing in, which was about 2002, which is kind of coincides with this. So basically what the court is saying is, sure. I was actually on the Chandra panel, Council, and I think the biggest hurdle that you are going to have and what distinguishes Chandra from the facts of this case is that in Chandra, there was a showing of broader changed country conditions that the BAA failed to take into account in light of his personal circumstances. And here it seems like we have to defer to the BAA's conclusion that there's no, there's been no broader change country conditions, albeit there's change in his personal circumstances. And may I respond to that? In quoting from also from that, the same Chandra, you being on that panel and this decision, you quoted from the Sixth Circuit, saying that the Sixth Circuit is also recognized that a change in personal circumstances this time around when a company by a changing country conditions may warrant a grant of emotions to reopen removal proceedings. So now what we have is a perfect storm of the individual with personal circumstances that are now calling that now point sides with a change country conditions. Now, if you go back to the Seventh Circuit, they were saying, well, whatever existed then didn't exist now, and given what had existed then, if you had applied then, you would have still, you would have been given a free-for-bridge position in regards to what his claim is at this present time. Council, you're out of time. We thank both Council for your arguments. Case number 12-70164, we'd be submitted.
Good morning distinguished panel, good morning, your honours. Could you pull the mic up so we can close it? Okay, this is my voice clear now. Good morning distinguished panel, good morning, your honours. My name is Adid Iod, I represent the the petitioner and it's actually the costing dollar zones to preserve my case this morning. Yes, go right ahead. Yes, I'm this problem's a little echoey so if you can all for everyone present if you can try to speak into the microphone and also not speak too quickly that helps us. It's just echoey back here. Okay, wonderful. Thank you. Yes, I'm here today to present the petitioner's case. Basically it's a case in which it's a motion to reopen which was denied by the board of appeals, the board of immigration appeals, the board from henceforth. The petitioner is a sought to have his case reopened based on his activities in a pro-democracy organization in the United States. The board. What is your best argument for renand? The best argument to tell you the truth would your honour would be the case of Chandra versus Holder. This case is virtually identical in facts. I'm very happy that the court has brought this to our attention that we should be prepared to address this but if we look at the facts of this case and the case of Chandra versus I'm sorry, Chandra versus Holder, we will see that the facts in this case are virtually identical in every respect. The only difference being that one is based on religion, one is based on a political opinion being a member of a pro-democracy organization. The court did remind that back to the VIA and I would actually point that case out would be my basis to have this case remanded also. Councillor, could you look at the, I'm referring to the affidavit filed by your client, the declaration. What facts exactly are you relying on to show the change in country conditions? Within the record at AR109 there is a letter from his mother which indicates that the authorities in China have come to his home in China seeking him and been harassing his family in China. In order to assert change circumstances also the in-country conditions, the position itself must show that there's a kind of like there's a coincidence of his changing circumstances and the change in the country conditions. If we look at that we see that there's a coincidence here. The, the question is changing circumstances is based on the change in country conditions in China. Sure, the government argues that. Well, I mean, sorry, the VIA argues that the conditions haven't changed but how is that true? Well, the, what do we do with the fact that the VIA in this particular case found that broader country conditions have not changed based on the country reports. So let's assume that everything that your client indicates in this affidavit is true. There's increased persecution of his family members and presumably if he were returned to his home country there would be increased persecution of him by virtue of his political activities. Yes. If we accept the VIA's conclusion that there's no broader change country conditions than which your client lose? Yes, he would because he would not have had the opportunity to present the VIA's well-the-country reports say this. We have one from when from 2002 let's, that really wasn't in the record. We can only go on what's in the record but the court does take administrative notice of these facts but a 2002 which is in the record which the respond at the position of subitio to the court. And the 2014 show yes that the government, but there are changes, there are material changes in the sense that the government has increased its persecution of CDP members that returned to China. Even the CDP members within China. Can I interrupt you there because that's the point I've been waiting to hear about. What shows me that the persecution of CDP members has increased since the time of the first application? I think that's a pivotal point. Yes. In the country reports that if you look at from 10 from 2002 to 2014 you'll note that there's been an increase in the number of the CDP members that have been arrested. Even the CDP members have been arrested. There are these psychiatric hospitals which they commit people to, political dissidents in China. Actually the number of these institutions has actually increased and the number of people who are CDP members have also. Where in the record do we see that increase? Can you give me a citation to the page of the record? Yes it's at, I don't have the page on it. It was referenced in the record at page 3 in the page 4 of the BIA's decision. It notes that it says X of it 3. I'm looking for this citation. But I don't have the exact reference here but it's probably the record. It's a country report which is to the year 2002. What are you referring to in the BIA decision? It says on page 4 AR4 it says, or they say, evidence submitted motion does not show conditions of materially changed since respondents hearing in this case in 2002. And then they cite exhibit 3. Yes, and then they say the country conditions in China appear substantially the same as the conditions existing at the time of the hearing. Yes, there it indicates that but where's the website as it exhibit 3 at 6? Yes, and it wasn't actually in the administrative record even though the BIA states sites to it. So there we have a problem also because the BIA site into that document which isn't in the record, then how can we, how can the court make that, how can the BIA make that determination? The BIA hasn't taken everything into consideration in making that determination. It just makes a function reference to that which doesn't exist in the record. But the citation as I read it, counsel, talks about very harsh treatment in 2002 and that the harsh treatment continues. I don't see indication that the BIA thought the harsh treatment had worsened. Yes, but even though the respondent wasn't a CDP member at that time. In 2002. So other like the same circuit for instance has said that going back to these kind of situations where the person hasn't been, I mean, hasn't suffered, been seeking a new grounds for relief. We go with the most lenient standard that would have applied then if it was a CDP member then would he have been eligible for relief the answer would have been yes. That's your reading of Shandra. Yes. Did you want to reserve some time counts? Yes. We'll hear from the opposing counsel then, please. Good morning. Good morning, Your Honours. I'm Anita Natu no behalf of the Attorney General. Your Honours, the board did not abuse its considerable discretion in denying Mr. Chance and timely motion to reopen. I would just like to for purposes of record make one correction which I believe is a very significant one. Opposing counsel refers to the BIA's reference to exhibit three page six and sits at that piece of evidence is not in the record. It actually is in the record. It starts at AR 386 and the specific reference page six is at AR 391 and it's an entire paragraph plus more which specifically refers to the C. D. D. P. and his treatment of political activists in China. What's the date of that report? Your Honour, that is the 2001 country report which was published on March 4th, 2002. And despite the fact that Mr. Chance had not been a member of the CDP, he was not a member at that time, that is the evidence of country conditions that was in the record in 2002. And that's why the BIA used that to re-evaluate or to compare rather country conditions in 2011. How could the 2002 report provide any information other than a baseline? What were they looking at to support the notion that it hadn't increased? So this record that I'm referencing, exhibit three at page six is at AR 391 in the record and it speaks to the CDP and its... I'm asking, that's my original question. What was the date of exhibit three? March 4th, 2002, Your Honour. Okay, so let me restate my question. They are citing a 2002 report to show that conditions have not changed as of when? As of 2011 when Mr. Chance... The persecution of CDP members is in 2011. How can they... They got a baseline from 2002. Where did they get the support for the statement that there hasn't been any change in nine years? No, I understand, Your Honour's question is my apology. That evidence was based on the country conditions submitted by Mr. Chance with his motion to reopen and that's in the record. And that's the 2010 country report, which is in the record at... It starts at page 200 and... Sorry, page 187 of the record. So that's what the board used to compare the country conditions in 2011 when Mr. Chance filed his motion to reopen as opposed to country conditions. That were prevalent at the time when he first... When he had his first hearing before the immigration judge. Council, I'm concerned about the BIA's decision because I don't think it makes any mention of Mr. Chance affidavit at all. Or his brothers. Actually, Your Honour's on page three of the agency decision. And it specifically states that the agency, and this is the third paragraph down, one that starts, we have considered the statements from respondents mother. That one. You're asking about the affidavit for his brother? Is that correct? Well, there's two different questions. Okay. My first concern to take them one at a time is I don't see anywhere where the BIA decided that Mr. Chance affidavit was inherently unbelievable. And I think the law is that if unless they make that finding they have to deem it as true, except that is true because we're here on a motion to reopen. And I don't see where they did that. But I'm ready to be corrected if you can show me where they considered his affidavit. So they did consider it in that same paragraph where they refer to tabs P through you. And then also where they considered it on page three of the record in that third paragraph where they refer to evidence of his membership in the CDP and they refer to C tab C E H I and O. And Mr. Gupta says the respondent states that he joined the CDP in the U.S. and his membership and party activities are supported by documentation. They reference the various exhibits that he submitted. Yes, your Honor. Tab C is the petitioner's affidavit and that's specifically. Is this any place where they found it to be inherently unbelievable? No, Your Honor. Not to my reading of the agency decision. Okay. So when we get to the second page and the conclusion. I don't see reference there. It says we've considered the statements from respondents mother and classmate. They give the reasons for not giving that much weight. Yes, Your Honor. And the reasons they say it are because they're unsworn, do not provide specific facts, indicating threats. They're respondent and we're paying for purposes of these removal proceedings. And the petitioner's, for instance, petitioner's mother's affidavit. So substantial evidence would support that find in the second paragraph of the affidavit states. I have no idea how the Chinese government know that the fact that Chen Feng joined the CDP. The policeman from the local, sorry, the policeman from the local police precinct came to my home and inquired a lot of information. It doesn't state information about what. They went through my staff at home. I think she means stuff. It doesn't say what stuff. It doesn't state a date that the police came to her house. It says they also took away pictures sent by Mr. Chen. It doesn't state what pictures it doesn't state when they took away these pictures. And that would support the VIE's finding that they do not provide specific facts to support Mr. Chang's motion to reopen. And again, just to go back to your honours point about the change country conditions, there's ample evidence in the record to support the finding that the agency made about a lack of change country conditions. And I can give some specific citations from the record if that would be helpful. Now, you're going to do that or with your permission, Your Honor. You're almost at the time. I'd like you to address, though, so we don't just get hung up on country conditions because the VIE said that basically all he's established. In fact, it says it's well settled that a change in personal circumstances does not establish an exception to the restrictions. Yes, Your Honor. And so, Chandra, under Chandra, it would perhaps be a new piece of discussion if the agency had stopped there and said, well, this is the only factor that would mitigate or prevent the petitioner from showing these change country conditions. But the agency went further on page four where they separately and expressly did an analysis of the change country conditions in light of Mr. Chang's membership to the CDP. And they found that based on the evidence that there were no material change country conditions. And that's the first paragraph on AR4 where the agency made that finding. And so, I would submit that there is no piece of discussion because the agency did look at these change country conditions in light of the change in personal circumstances, which is what Chandra, which was a hold in in Chandra. Well, they didn't have the benefit of Chandra, correct? That is correct, Your Honor. But now, it's standing that they still made the finding about the personal circumstances and then did a separate analysis as to the change country condition, which is a specific. That's what the regulation stands for. So, it's your position. I take it that we should decide that they did consider Mr. Chang's affidavit and that they did not, because they did not deem it inherently unbelievable, that they deemed it believable. And then, given the facts that he asserts there, even under Chandra, he didn't make the requisite showing. I think that has to be your position. But they didn't have Chandra. That is correct. And that's your position. That is absolutely correct. And again, just to go to the personal circumstances. Even in Chandra, though, there was evidence that presented by the petitioner of broader country conditions changed, right? Increase persecution of Christians. Here, the BIA did make a finding that there are no broader country conditions that have changed since the time the petitioner. Exactly. We move on proceedings first occurred. I'm sorry. Is that right? I'm sorry. So, what the BIA did is they took the 2000 and two country conditions. For 2001, I think country report. Yes. And they compare that to the 2010 country conditions report. And they made a finding that there's been no material change in country conditions in China with regard to persecution of members of the CDP. Exactly. We have to review that finding with substantial difference, the BIA. Absolutely. But yet, at the time that they made this ruling, they didn't have the benefit of Chandra. Yes. That was an adorable foresight. Tell me why despite Chandra, this case shouldn't be remanded for the BIA to take another look at it. Despite the fact that the BIA has, without even without having Chandra followed Chandra and followed the hold in in Chandra, not abused as much, not having the benefit of Chandra, why is it that this case shouldn't be remanded? Why should it be remanded? Why shouldn't it be remanded so that the BIA can take another look at his personal circumstances in light of Chandra? Because it wouldn't be worthwhile, Yarn, or even if it was remanded, which is not our position, it would still be the same conclusion that the agency made the personal circumstances finding, and then they still applied the regulation as to change country conditions comparing conditions in 2001 and 2002 when Mr. Chen was previously before the immigration judge and comparing that to country conditions in 2010-2001. I don't know how you can make that such an absolute statement because if I'm sitting on the BIA, and all I think is relevant is conditions changed in China, the political conditions, regardless of the individual circumstances of the positioner before me, I would come to the conclusion that you suggest, but under the law of Chandra, a change in personal circumstances is as relevant as country conditions. So now I have to weigh whether given his individual circumstances, his past record, his notoriety apparently, his now has been exposed to more likelihood of personal violence or persecution directed at him. There's no such analysis in the BIA's opinion because they dismissed his personal circumstances, individualized circumstance as not being relevant. So it seems to me that it would be logical to send back to the BIA so they could make the finding. I don't know how you can assume what that finding would be. If I may respond to that, I respectfully disagree with that in the sense that I would say I would point to again the record at page three where even though I think when you look at the decision as a whole, even though the agency did make a finding as to his personal circumstances as a finding, they still went further and looked at those personal circumstances in light of the country conditions at the time. Point me to the exact language. On AR4, that top paragraph where it states the evidence submitted with the motion, however, does not show that conditions in China have materially changed since the respondents hearing in this case into the country conditions. It doesn't say anything about his personal situation. He had a history. He had a history. How do we know that that history combined with this new status of being a CDP member doesn't elevate his exposure to persecution, even under the existing continuous country conditions? Where does the BIA say even though he became a member of the CDP, whatever persecution risks he had before have not been enhanced now because he has taken an additional step to join a controversial party. That would be the analysis I'd be looking for in the BIA's decision and of course they didn't make that analysis because they ruled it out as a matter of law. May I respond to that, Yana? Just again, I would point to the fact that they looked at it materially and then the next sentence goes on again to refer to the treatment of CDP members. The fact that the court looked or the agency rather looked at it materially and the only material change or fact that would be different in 2011 would be the fact that he's a member of the CDP. And so I would submit that the agency did in fact take that into account in its analysis of change of country conditions. It wasn't a separate and isolated finding of only change of country conditions. It's based on the fact that he's now a member of the CDP. How's your significantly over time? Thank you so much to your argument. Thank you, Your Honour, and so would ask that you deny the petition for a review. Thank you. Council, you reserved a bit of time for a rebuttal. Yes, I returned to Chandra versus Holder at page number eight and I'm quoting from Chandra versus Holder. And this is the referring to a seven circuit cage, which is shoe, new, which is 718 F3D at 710 through 713. And I quote, after reviewing the new evidence, the court determined that because the position is conversion to Christianity, we could drop the post Christianity with a CDP activist placed him instead of her at greater risk. And so I think the time of his motion to reopen that he would have faced had he being a CDP activist at the time of his removal hearing in, which was about 2002, which is kind of coincides with this. So basically what the court is saying is, sure. I was actually on the Chandra panel, Council, and I think the biggest hurdle that you are going to have and what distinguishes Chandra from the facts of this case is that in Chandra, there was a showing of broader changed country conditions that the BAA failed to take into account in light of his personal circumstances. And here it seems like we have to defer to the BAA's conclusion that there's no, there's been no broader change country conditions, albeit there's change in his personal circumstances. And may I respond to that? In quoting from also from that, the same Chandra, you being on that panel and this decision, you quoted from the Sixth Circuit, saying that the Sixth Circuit is also recognized that a change in personal circumstances this time around when a company by a changing country conditions may warrant a grant of emotions to reopen removal proceedings. So now what we have is a perfect storm of the individual with personal circumstances that are now calling that now point sides with a change country conditions. Now, if you go back to the Seventh Circuit, they were saying, well, whatever existed then didn't exist now, and given what had existed then, if you had applied then, you would have still, you would have been given a free-for-bridge position in regards to what his claim is at this present time. Council, you're out of time. We thank both Council for your arguments. Case number 12-70164, we'd be submitted