versus bar council if you would identify yourself before you start speaking that would be helpful to us thank you thank you your honor this is briana carlson and may it please the court my colleague benjamin whether the figures that petitioners due process rights were violated when the immigration judge failed to give reasons consideration to their documentary evidence to that st question as to whether the immigration judge place the burden on the detention areas to demonstrate no fundamental change in circumstances had occurred this is a question of law and is therefore reviewed do novo i join you this is a threshold question if the court does agree that the burden was impermissibl to the department of homeland security to revive that puts on sion by a preponderance of the evidence the department can result yes your honor if you can i just interrupt you at the upset because does your argument on this point depend upon whether we find that the burden of proof has been switched or is that one of your arguments along this point and your nd point is even if the i j a didn't switch the its country of origin or a fundamental change in circumstances has occurred here the immigration judge in principle to place the burden to demonstrate that a fundamental change in circumstances had not occurred on the petition has failed to carry her burden in establishing that she will continue to face persecution if she returns to el salvador he goes on to to note in the discussion of the facts it appears with a court that indication that the family continues to take source in money there is no indication that the family continues to suffer cracks at the hands of the th street gang or any other gang we can see from his coloring of the fact there is no indication that the immigration judge is expecting the petitioner to demonstrate that the threats and they explore sion are ongoing rather than the department of homeland security to demonstrate that something has changed that the that the threats have stopped particular photograph family members of maria alvarado rosa are no longer being persecuted at least so far as the evidence of this case has indicated again he's he's placing the burden on the petitioner to demonstrate that she is continuing that her family is continuing to extorted and threatened by the th street gang rather than the burden on the department of homeland security to demonstrate that those threats are no longer continuing  in the when the judge is viewing the facts from the position that the threats are going on when he when and when i respond is entitled to the presumption the immigration judge might skew the facts from the view that that threats continue it must get the department to show that their view of the evidence is the most reasonable view and the immigration judge must give a reasoned explanation as to why the government's view is the more convincing and plausible inference pointing and in that direction is the most convincing here we have no interest in disturbing the immigration judges factual finding the immigration judge correctly concluded that it was unclear based on the evidence whether the family was still being friend extorted instead of the immigration regardless of that finding went on to find that a fundamental change in circumstances had occurred without giving a reasoned explanation or title in order to prove this court stated it will sometimes be difficult for the government to prove that an individual in another country no longer poses a threat but that is consistent with the and there is no evidence in their record that should have overcome that presumption much like in our test applicant said that she testified several times that she had in her she'd been in contact with her family but she hadn't heard them say that there was continuing threats and then she also said of sessions the petitioner had been in constant contact with his family and the last time they had informed him that the police were searching for him was in two thousand and nine individual hearing took place two years later in two thousand and eleven and while he was in constant contact with their family they never mentioned one way or the other whether the police were to looking for him and in that case the court found that that was not enough to rebut the presumption and similarly i hear in addition to the unclear evidence as to whether or not the persecution was going to continue and against the family we have an expert witness testimony that says that it's likely that the persecution would be continuing when asked whether under what circumstances the expert witness could imagine a gang that was and was extorting a family would stop at sorting a family the expert witness was only able to give two examples he  gang wouldn't have access to them we know from record as it in that news all grados mother still lives in the same home and there is nothing in the record that indicates that they became friends with a gang member and exacting member would have pleaded their case so affirmative evidence according to the expert that it's likely that the gang would continue persecuting the family this is similar to or has the ortez truth in that in that case the expert witness noted that while it had been fifteen years since the persecutor had contacted the petitioner it was likely given the nature of domestic violence cases that he would once aware that she had returned to her country would pursue her and in so again this this does not this is not enough evidence to rebuff the presumption additionally  gems so where we have no at record as it and that is clear as to whether or not the the family is continuing to be extorted and continuing to be a friend and we have affirmative evidence on the record from expert witness s that state that it's likely that once the once again has continued to do what has started it sorting a family they will continue that sort of family additionally we have significant documentarian evidence that shows no there's been no fundamental change in the country the gangs are no longer has not been excluded from the country the police are not suddenly protecting people from getting there there's no documentary evidence suggesting that there is any type of the bar and in that it reviews this idea of of questions of fine applying facts to law and they are of a supreme court held which was contrary to many circuit court decisions that when you  to the interplay of the supreme court case with or to as crews had any practical consequence when you are attacking the fact that g i g a shifted the burden to the petition much more deferential standard and still given the evidence in that case the court found that they that remand was necessary and that the department did not meet its purpose and when you're looking under genoa review which gives this court much more latitude to review the evidence in the case and the factual findings and apply the law to those factual findings and yes it's it's highly highly in the favor of a finding that the department did not meet its burden consideration to her documentary evidence that it was a question of law and also reviewed to know though ms alvarado must not only demonstrated that her due process rights were violated but also that she was prejudiced as a result of that did not have the opportunity to review and tell about halfway through the hearing at that point he did not cause the hearing to take time to review the evidence instead he continued on with the hearing and  and then gave his decision and mediately following testimony that same day while the immigration judge is not required to address every piece of evidence in the record in his decision he is required to announce his decision in terms of success in terms of fission to enable a reviewing court to proceed that they have heard and thought and not merely reacted immigration and judges not free were reasonable and did not violate the respondents due process and that no prejudice had occurred as a result of the immigration judge in their career view the evidence your honor i see that my time is concluded thank you prove to demonstrate that the form constituted past pushing past persecution the attorney acknowledged yes to the petitioner had the same attorney twelve the entire peninsula proceedings at page whether she continue to receive threats at that point the judge does acknowledge on t v one minute of the record that at this point i simply don't know so let's go and ask her bottom of the record is where she says quote she hasn't received any more letters asking for money this is the this is the conclusive testimony that the agency  petitioner suffered past persecution probably facing she probably faces a change of culture conditions because she's no longer featuring any threats and at that  regulations we're going to make an attempt to establish an independent well founded fear that's not an uncommon burden shift in fact if we take a look at in the body  qualify that in any risk so don't we have to then accept the fact that she was credible including her statement that or family may not have told her this to protect her and not to worry a lot but in those it is credible we have we don't have a definitive response on this and if you go look at what's ours and what we said and where ted cruz then we would have to go assuming there is no conclusive i mean you keep saying that you keep calling whatever you want to call conclusive but you just acknowledge there's also other testimony from her running around and i j found credible over removal orders so our human is that it would be applicable in this case also my closing statements during trial aren't evidence and i'm not the finder of fact the immigration judges and counsel permitted to argue in the alternative so i don't think that my statement can be used as evidence in this case responder seems to want to make a bunch of inferences that aren't actually in the record the i j a is required to make explicit findings of fact and that hasn't occurred here and so we can all say guessing while the i j a might have thought this or he might have missed this but he's required to actually say it in his decision given that he is the finder of fact and  of fact we have to defer to his findings that that ms alvarado does not know and that lack of evidence in no way shape or form can meet the department's burden to rebut the presumption of a well founded fear otherwise we're trivializing the meaning of fundamental i know that respondent wants to cherry pick statements here and there but i think that the court can clearly see that she always couched it as and she didn't know and that was the ultimate conclusion in his findings of fact that she was unaware so given that there is no way that the i just factual findings can then support his legal conclusions i also i mean i don't think that the expert can be ignored either this sort of also goes to the due process argument not only do we have the expert statements at trial that he can imagine a scenario where they're not going stewart and and not being harmed but then you have to look at his back his act declaration that was a included and his testimony as well that was never reviewed by the immigration judge so on one hand they want to say ok let's ignore the expert because he doesn't know but then we should pay attention to ms alvarado because she also doesn't know i don't understand how that can possibly make sense to to resolving this case and in the light of we're ted cruz and even the higher standard in that case i think that the court clearly has defined for us with regard to the due process argument so if the critical issue in this case is whether or not that presumption has been rebutted is into whether or not those threats are continuing as into whether or not country conditions would have so drastically changed that the gang would have been eradicated from this area that homicide rates would be significantly lower that they would be actually fundamental change that egg that record evidence cannot be ignored you know a good i think that the expert declaration would go to show prejudice and i also believe that the miss abbey road of sisters letter  and that's it they must get ready to page two hundred and nine dollars i understand that she is also present in the united states but she also says at the conclusion of her letter that she never received a solution or problem from them and by them referring to the gang so that to me indicates an ongoing problem and it's clear from from the review of the record that the i g never reviewed that evidence never consider the evidence and it may have pushed him one way or the other so the exclusion is definitely present prejudicial and it's ridiculous for the board to sit back and say oh in the interest of efficiency you know he had to conclude the proceedings that day in and stead of taking the time to go back to chambers and issue a written decision thirty days sixty days later and taking all of that evidence into consideration so i think that there has been a demonstration of a clear violation of due process in this case just briefly on some of the other issues at this court has been clear that a lack of evidence from this insufficient for the government to demonstrate a change in circumstances and so given that and given the affirmative evidence that was put forward by the expert witness and the country conditions in the documentary evidence we think that the court clearly