with regard to the instant case the petitioner was seeking asylum withholding of removal and withholding under the convention against torture with voluntary departure and the alternative immigration judge denied example patients first time withholding in convention against torture but granted involuntary departure the board of immigration appeals affirmed that opinion where the board of immigration appeals to merely affirms an immigration judge's decision pursuant to streamline regulations at eight c f r three point one the ninth issues in this case are actually first the issue of credibility in this case we do not believe this act actually at issue the immigration judge and the board of immigration appeals were silent on the issue of credibility and where the i that substantial evidence does not support the finding of the immigration judge that in the context of this person the position is that the coptic christian orthodox man from egypt had lived his life actually until  ninety back and forth as an f one student family owned a business in cairo they lived comfortably and he has intended to spend his future in egypt until the string of incidents occurred and the fact that the judge is actually well known in egypt so anybody traces his pattern and then a car stopped several men jumped out exclaiming verses and beat him so he spent ten days in the hospital when he was released sailants matching the muslim brothers versus during the attack that should have compelled the immigration judge to conclude that it was a racially yes exists that even though he couldn't westerner and that's what invited the attack but all of these things are not within the the facts in evidence so it's conjecture on the part of the immigration judge which cannot be supported by substantial evidence there's nothing to support that in the record well i hear your but i think it's a good one but the concern that i have is you're asking the fact finder to make an infrared show week from circumstantial evidence right and it's not direct and next this is the whole issue here that we're wrestling with yet so what can you point to besides the the modus operandi that should have compel the immigration judge to conclude that that particular assault was related directly to efforts by the two muslim brothers to convert the timeline the chronology and the timeline of its mission or coming back from the united states in beliefs and think he challenge them and they started chanting negative verses against him subsequently only subsequent to that not before that he started receiving threatening telephone calls at least five or six with the exact same verbatim verse from the koran which talks about harm to at least harm to christians in taking their wealth so there were some phone calls a string of phone calls and then the attack that put him in the hospital for ten days with possible internal injuries and then subsequently there was a vandalism in the r had left egypt to come to the united states and was as a result of what a phone call from an uncle or so yes the uncle phone calls telephoned her and let her know that the home had been broken into that it and vandalized she went back took a look and saw what immigration judge seem to first of all not listening very careful to do which was listening very carefully so we assert a due process violation they're fair and full and fair hearing by neutral arbiters paying attention but also that  please the court my name is jennifer lightbody and i represent the respondent the attorney general claims in this case can actually be broken down into two separate categories one are claims that are properly before this court which is the asylum issue and claims that are really and the suffici petitioner raised it to the board and so the court would lack jurisdiction to consider those admissions now and in the issue of hostility even if the court found that it had jurisdiction those claims are without merit and with respect to the hostility there's a claim those are arguments of counsel about certain snide remarks the immigration judge made of course we can't detect the inflection of the immigration judge when making those statements but really the immigration judge was commenting on the lack of cooperating evidence which she w idea that you cannot require cooperation evidence that's something they need to do so so what was the need to require cooperating evidence in this case well first of all let me start by saying that there the issue of credibility raising a couple of points i'm interested in so i don't mean to deter you from your argument but the but these are issues the immigration judge goes on to say he could have been in western far there was no evidence of that on the record was there from thanks only because i'm interested in a particular point but it all is related to his conclusion which is seems to me is the crux of this case that this was an isolated incident and he does not mention all of these other instances of the time the nexus to the time the attempts the repeated attempts to convert the escalating pattern the chanting of the verses and so so forth worst support for and that's what the immigration judge was focusing on and during that incident he claimed that there were some mumbling and some versus being seven you didn't say what those verses were if they were the same as what had been said to him previously or if it w violence i don't know what they were it's not clear from the record at the record and it doesn't and there isn't anything in the in the record to compel that conclusion and that's what the sisters burden here is today is to show what compels a contrary conclusion and she hasn't counsel hasn't shown that didn't make mention of this in the statements which about some of the evidence which of course the government's position is that the court does have jurisdiction over that because that wasn't ways for the board but even if it were it doesn't have merit first of all the immigration judge acknowledged that there were several phone calls that were made and that was stated in the application and didn't talk misstate that there was one phone call that had been made but that really wasn't the basis of the immigration judge's decision he was looking at this incident  the attack on the petitioner and finding that he couldn't make a connection that this was he couldn't identify who the individuals were that it was on account of the protected ground and that is the petitioner burden to show is necessarily religious and i don't think the record evidence compels the conclusion that it was religious or that it was in even if it were your own i don't think that it compels the conclusion that this that these were the same individuals i unfortunately i don't know the circumstances happening in egypt and whether that's common practice i really ask your question if this was nothing more than an isolated incident in the neighborhood on account of a protected ground and he hasn't shown he hasn't shown that i mean it could be a random act of violence it could be there could be a variety of reasons that it's up to him it's up to the petitioner to show that it's on account of the protect grounds he's the one coming to the court asking for relief from farm removal and it's his burden to show and if you can't meet that burden he doesn't qualify for asylum so if i understand your answer to judge thomas and judge it's your last question in looking at the portion of the record that judge thomas was referring to a r forty nine you would point us i guess to the first sentence in the opening paragraph that particular incident that happened to the respondent peers to be a somewhat isolated incident although it played out against the background of interfaith problems in egypt and then later on in the paragraph in any event the respondent does not really know why statutory grounds are contained in the united states they don't say that so you have to either it's an isolated incident of the street violence and sometimes that's the case or it's or it's as and i know he claims that she was ill that he didn't submit a medical report to show that she couldn't appear on his behalf and the immigration judge said will what about your brother why couldn't your mother have submitted affidavits in support of this and just going back to just one other thing i'd like to quickly mention is that with respect to the omitted evidence there was some question about whether the mother actually saw the vandalized apartment in and on page ninety five of the record sheet he says that she did return to the united states upon learning were actually the individuals these islamic fundamentalists who actually did this he committed this act of violence against him and it's his burden to show that and you know the mother was at the hospital when he was there maybe he had made some statements i don't know but the the fact is that he could have sounded some cooperate in evidence and he didn't i think us want to for i again i don't think  and in response to that we would consider that to be an issue that's been waived by respondent if respondent if the government has been concerned about this issue that the petitioner had not raised isn't that the difference between a jurisdictional claim and an affirmative defense and there's a huge difference between you two i understand that the board of immigration appeals can address a constitutional claim anyway so i understand she's trying to work it backwards with it being a procedural issue but the board of immigration appeals could have taken a look at the record and presumably they did review the record and saw the errors on the part of the immigration judge and could have reversed at any time and i think your answer my question i think there's a distinction here that i think you're glossing over between a jurisdiction issue i e a failure to exhaust which deprives us of the power to even look at the issue and an affirmative defense which assumes jurisdiction but which is nonetheless wa christian christians being persecuted in egypt when you take everything together that the immigration judge stated in this oral decision combined with the evidence that the facts that are in evidence we don't believe that it was a matter of reasonable surmising and piecing together all the evidence to come up to the conclusion that he did and it's it would be hard to tell if he had something else on his mind when he made the decision because  the words that he chose and articulated to reflect the basis for his decision don't accurately reflect the facts and evidence so it's really apples and oranges he's making comments and statements about  elements of testimony that didn't exist he's misstating testimony and that it's more than one event it's not just about one telephone call or the mother is being vandalized i mean and frankly there's no difference between him having been beaten up and try