judge found those new facts to be son of incredibility and he did not believe the response testimony i forgive me i he found what did you say in credibility are not credible he found that those additions to i'm very interested in this other issue that you make in the main and in argument which was which assume that there was an adverse credibility determination and you argued that your client could still prevail on without his own testimon the feminine and he's if we return such a person to his country of origin where the evidence of record shows that he's likely to face severe persecution or torture then the  there's never been contested that this person is a homosexual and there was a question about whether or not he was also each of you positive that p s the h i v positive status is confirmed by medical records director and he asked you here she i guess i don't even know but the i j a asked  petitioner's counsel whether whether you wanted a finding that he was some sexual because he's a chubby positive and of course you should know that that would not be appropriate but you also said that he presents in a certain way and he's testified that he's consistently identified as homosexual because of his manner in africa and yes and that's one of the deficiencies in the record in that there is the judge was able to observe the response demeanor but he didn't necessarily state what that the meter was throughout the record but it is clear to the observer that he possesses secondary characteristics which some homosexuals possess said to me what you said in the record is that it's not contested that he is a homosexual and or you say i think not contest that these are member of a protected group and i couldn't tell whether you meant whether he that was his his orientation versus his status as a positive but i looked in the transcript and i can't see whether whether the government does ever  there was a back and forth that i would have with the government before and during the proceedings but not on the record so the government never raised that no it's not it's not record in the record but i've known the government counts for many years and issue just whether or not this was a pattern or practice that we're talking about in guatemala it was was that the can most contested issue and certainly the government argues forcefully that there is a lot of reason to find your client lack credibility because  had a whole lot of detail right correct and i think that is that there that they have a very strong argument on that point but i don't hear i don't see argument on this other point from the government and i agree that i think that the evidence convention so so so you're just relying very on if we assume that there's a negative credibility determination then you're relying for purposes of cat convention on the bill is a hole in the record about any kind of a finding regarding what else may have established or whether the government has conceded its status as an actual threat and from there then what you would be relying on the country condition to point that's what you see in your briefing correct and the kind of conditions are clear on that that the police are corrupt and arbitrarily arrest persons and they want to person is placed in the prison or jail they're facing life threatening conditions they go further insane that and when placed in custody they may be subjected to sexual abuse so i don't think this really dispute that is to our own us department state report on that matter good so for withholding we have the extra requirement to prove that he falls within a particular social group which deserves protection and i think that all three show that he does are all three that he claims  v i believe it was going solace which we also cite in our brief which is also my case i've let's go into the definition of social group which is always a big argument is that in this case in this particular unique case your argument is that they were because if the way your client presented right made that argument you're right expressly but you're not arguing i don't think of that that would be a presuppose that he's found to lack credibility but i think we all read the testimony in it and certainly everything about this dating back to age that happened and but if we're not relying on his testimony we went with the i just have to go on well i think that the judges mistake was that he threw out all of the testimony basically when he found that these additional details showed adverse credibility and i distinguish this case  from other cases in if i just may briefly stay simply state wide if they want to say why if he had for example a claim of gang recruitment throughout all the paperwork in the very end raised the political claim i think the judge would have a leg to stand on but here we have a person who presents himself and declares that he's homosexual he describes his entire history in then the judge says this testimony is vague and i disagree that it was vague and there after the where in this particular case against it's a unique record but petitioners arguments that they've never contested this said that before the i j and there's no response from the government so judge marshall is trying to get you to was that right was that  not trying to be you're probably sleep deprived you probably just got off a plane but here's the question the question is on the record in the transcript it's the opposing counsel said the government has never contested this point and in the transcript the government doesn't respond did the government respond was that uncontested as well in advance and it is just whether he was in fact a homosexual we wouldn't when there's not enough information to determine that your honor so you don't know whether the government what the government's position was the government's position is that there's not enough evidence i think i think we understand your point that the best miss you can do you were you with were you at the other hearing you're ok on it that's fine so you don't know what the government's position was opposing counsel just represented that he's litigated several times with the other lawyer and that throughout there were communications where this was uncontested and you're just telling us essentially you weren't part of  conversations right your honor that's fine so then let me ask you this if you could turn to it's on page ninety eight of the transcript what he what he wrote in council that was bottom line whether you find him credible or not he does present himself as a homosexual who sometimes dresses as a woman the court finds there's no pattern or practice he still member of a disparate group and the i understood this argument and said all right so you're saying that even if i find him not credible and you have a very strong argument that  the adverse credibility determination is well supported i get that even if i find him not credible the evidence separated from his testimony would show either there's a pattern or practice or he's a member of a disfavored social group and  where is that correct i think that's his theory today that's at least one of his theories today and i'd like to hear the government's response a petition or a look to independent evidence to corroborate or to rehabilitate his claims they found a found discrimination against persons with hiv in guatemala however the evidence does not show that such persons suffer harm rising to the level of persecution or that they're given to deliberately deprived medication accordingly that evidence is insufficient show that as a pattern of practice of persecution against such persons or that he himself is at a personalized risk of being prosecuted based on his status accordingly substantial evidence the record supports the agency's denial of his application for withholding of removal regarding his cat chain of events that could happen if he is removed as decoration he claimed that it is possible that he would not be able to afford atripla and the lapse of medication could then lead to him catching the flu pneumonia and his eventual demise alternatively he also for claim that i possible that someone could discern has hiv status and inform someone who is interested in targeting such persons and that he could and then the government would then subsequently turn a blind eye to the torture lastly he proposed that it was possible that a government official would perceive him to be transgender and then imprison him and then that would could eventually lead to his torture and while in detention but can't claim is premised and grounded record evidence what about this very unique claim where his testimony and his argument from his counsel is that he presents as a homosexual is very readily identified because this particular individual has mannerisms and affix that make this very readily identifiable given that argument from counsel and the witness was there on the stand do we need findings from the i g about that i believe those facts about finding that would require and i really do i don't have much more to add other than to answer any questions that you might have and we've concentrated on the withholding and on the torture convention i think actually the most attention should be paid to those released understand we have a difficult argument we're going to find in the when you're finally deadline but i'm concerned that the board said that there's some evidence that these persons are discriminated the record developed further on that topic i i did find it surprising that after all the evidence was taken there was no mention in the immigration judge's decision regarding the response to mean or if you could to solve that issue had he