testimony to be thoroughly credible and that his prior mistreatment was quote severe and regrettable yet the i j a and later that the ira denied that the niece had been previously persecuted and said that he had no objective fear of future persecution and nd nothing in the record indicates that the nice to be treated differently and forced to return to cuba when denise was twenty three years old the cuban police and detained for twenty four hours after he spoke out against government problem with this is right we have a standard of review of substantial evidence and that would require us to zero that the board is finding that this mistreatment did not rise to the extreme level of persecution was so wrong that no reasonable fact finder could have could make that that even though we have to be the evidence in the light most favorable to the government that the record would compel a finding of persecution and i guess  my concern is when several detentions and beatings occurred none of that detentions whatsoever for more than it was over a two year period so we're talking about maybe issue denise maintains that this court should review this case do know though as he was found credible by the i j and this court's prior ruling in may he says that once a positive credibility finding has been made the  universe of facts is now undisputed us all this reviewing court is doing is applying undisputed facts to a legal standard which would under review be typically reviewed under genova so we would maintain that the proper standard of review here a fundamental right all point to the fact that this was indeed severe miss previous mistreatment in total when the seven to ten instances are added together over this two year period the cuban government detained of what rises to the level of persecution would be a legal standard as that what is persecution is defined as how would we define that legal where we would say it's crossed at this point  i understand your honour's point that this this is a highly fact intensive inquiry and what rises to the level of being severe for past persecution that the review question here though does not go into whether or not the facts as they stand in the record should be reconsidered the facts stand as they are and so all that this court is doing is applying those undisputed facts to the legal standard of what qualifies as necessary that wind was necessarily crossed your honor the the standard here is does account for the facts and circumstances of each particular case and here denise is mistreatment is well over the line that this court has found in previous cases let's not the line your honor under the law is whether or not the conduct a severe or not and this court has held in prior cases but with less  severe less cumulative can't misconduct by by non government actors was passed persecution such as in the delgado case of non government actors and in the she case with government actors and she as well including the exercise of a fundamental right as also present here denise is mistreatment the fact that it occurred over a longer period of time achieve your period included numerous instances of mistreatment by the government itself indicate that this this is well over that line of to verity that this court must apply now the government's own training manual that guides asylum decisions also supports this court's precedents and my argument here today that multiple instances in the past of mistreatment can be accounted for and determining whether or not past persecution occurred moreover the manual says that even minor beatings by the guard by government officials due to a protected characteristic can rise to the level of persecution for asylum that means that they rise above the standard of harassment and do you mean that's a very that's a very standard form is that this is the standard whether the be a determination  standard which the b i e did in this case by applying that regulation that matter to the law is that is that your position or is it your position that mission to the united states is different from  government asked the court to deny the petition for review for two reasons st that being at the petitioner fail to establish that his harm rose to the requisite level persecution and nd being that he failed to establish an objective mean reasonable fear of future persecution this court president sets a high threshold for mistreatment to constitute persecution and here a substantial evidence supports the agency's finding that the petitioner did not suffer the type of severe or sufficiently extreme mistreatment to establish persecution  does this court standard of review and this court's has a well established case law employing substantial evidence test to pass persecution determinations even when there is a positive credibility determination and that can be found in this course decision is recognize who had it which has considerable expertise in this area to say the least passed persecution determination is a question wall in future persecution as the distinction in its standard review from past persecution which it reviewed that jay's determinations as a question of the wall and they know that the board as opposed to feature persecution which is more of a predictive fact stand d which is said was clear right it's correct you are yes yes your honor however this this court standard of review would be different in this case because this court has indicated that the fact finder must determine cumulatively whether or not the harm rises to the level of persecution in this case the agency is the fact finder which this court has also has held in sylva that the agency is the proper fact finder in this case so of those two questions in our treatment that's that's correct miss if i understand this right really didn't but it's only makes one determination and that is whether the petitioner has a well founded fear of speech or persecution and he didn't prove that in two different ways one is you can prove that you have suffered pas you have other facts that have nothing to do with what's happened to you in the past in terms of persecution would give rise to a well founded fear of future persecution perhaps that are spent regime change and  i guess you know from from the time of the shot to the to the ayatollah and iran you know someone it was not muslim and who was being returned to iran would have been able to say never had a criminal charges an arrest warrant was able to leave the country without incident and his family remains in cuba unharmed their argument is the reason was able to leave the country is not that was coming to the united states provided the cuban government often use uses arbitrary reason to deny permission for any travel for political activists so if the government viewed the petitioner as such a an act of this that he would have been denied or he could have over the course of two years and also what the i g characterized as physical violence i've been seeing the record any indication that these beatings were going to stop so doesn't that pattern distinguish this how the beatings that he suffered while of course terrible and not to diminish his experiences in any way however they never amounted to bruises or marks or required medical treatment well let conduct that was different than those was subjected to descend repeated detention and physical violence is there some point at which it becomes too much what if you were what if this happened you know once a month or two times a month at that point would you say that  it was a complete infringement of rights that i would say that the treatment would not compare and it does it doesn't rise to the same extra stream nature that it was and she then she this court  very conduct become too much what he was saying once a week two times a month or over a period of five years let's say i would say would become too much when when the record compelled that i could not identify a single i could not i don't think it has a magic number i think it was used to really pay you to be focusing on the physical violence along with you agree with me that this behavior was some element of physical violence but no broken bones say no evidence of  ft tissue injury would be sufficient if this conduct happened frequently even without that evidence of injury i would have to say your honor that it would lot to her it was a reasonable educator could could make that conclusion however in this case the record that we have before us with the detentions them out of the tensions he's had in the treatment that he probable because back in the book return to cuba and every castro type holiday or some kind of holiday where they pick him up and do this they continue  beatings don't join it of another forty years so if he's going to be subjected to this three and a half to five times a year for the next forty years is that persecution yeah so in that in that case there would have to be something within the record that would be singling out the petition or indicating that he would be facing this type of genome however when the map authentic all we would have to be is a stipulation there's a stipulation given since if we don't you get involved these things but that's exactly what we plan to do and we'll make sure it's done until he leaves us or so you've got a understand it from th circuit nelse where that's not enough standard of review is that due to be reversed and they came to them saw it one can determine that everybody could find that that would be compelling or however  if if if though if they stipulate on the fact that he would be harmed for forty years yes yeah same right same same blows them get in and videotape they train the new people they sure you don't they're conclusion and standard in these prior cases the government relies on there was one detention and no one there there was one attention in one or one instance where the government or even the not non government actors  persecution finding in that case but here you're on to the the the cumulative impact and the i j s own determination that denise's past mistreatment was quote severe and regrettable indicates that it does rise to the level of past persecution when considered cumulatively the government own training manual that guides its to silent decisions again indicates that multiple incident or multiple detentions in multiple instances  especially with government actors can rise to the level of past persecution and for the grant of asylum and this was well denise's mistreatment over the two year period after being inhibited from exercising a fundamental right was over the line of for verity his past mistreatment rises to the level of previous persecution as he was continuously detained and beaten by his government for two years merely because he spoke out