denied her once again on changing circumstances because of the passage of time since this case was brought before the court i'll focus mainly on the second claim which was a female genital mutilation related question is there anything to prevent you on behalf of c m claim and with respect to the politically based claim the government that was the party that was in power at the time of the decision is still in power at this time and the reason i ask that is i just had occasion read a couple of united nations reports about increased violence recent increase of violence against physical you quickly yes yes and in the region is your client and your claim but one of the problems in the immigration process is we take a snapshot in time yes and we have to look at that snapshot we can't look outside  essentially relying on the problem as a country report that indicated that the government of kenya has banned forcible s g m against women of all ages that there's a ban in government controlled hospitals and facilities and that the usual age of s t m it's at a younger age th government is on the web of the laws in force my understanding is that your your client the only issues she had at one point was that her former husband was female family members wanted her to undergo the procedure she resisted that she did not have it happen and she's divorced now from the man whose relatives wanted to do this she also has a sister who remains in kenya and has never had any problem procedure forcibly she had her twin sister was a manage to run away she also testified that since that time her sister has been able to avoid undergoing the procedure simply because it's been moving from place to place no doubt one of the things  rather large swath of kenya our largest californias it's lies i believe the population of kenya is somewhere between thirty and forty million and a large percentage of them reside within the asylum with respect council because as the record indicates within the concrete tribe approximately forty three percent of the women undergo this procedure but but doesn't your client under the law bear the burden to show that she particularly has a reasonable of persecution didn't the obvious procedures not happen before she was able to avoid it she's older now by the standards of this horrendous procedure it's a law that says you can't do it th the government is headed by the the man who headed the party that resulted in the earlier persecution of her father and family members so things have changed radically we as you know experienced lawyer in this area we regularly have cases that come before us where there are some really awful things that are stated but but sometimes things change and we have to rely on the country report to analyze whether there is in fact a realistic possibility of future concern and they are our question here is was there substantial evidence to support the determination of the b i n this area and although i have great empathy for your client i like you to help me if you can to show me how the the i was wrong here i don't see it and i would agree that this many change with respect to the political claims with respect to the mutilation claim i would think that there's  decision so it gets back to the point that i've mentioned before and that is that your belief is to there's any s g m occurring in kenya anywhere anywhere that your client has met the burden is that the position some sort of case but the analysis that the board employed i think would be helpful to this court because they're very similar and in the seventh circuit case and this case it cited by the government the seventh circuit overturn that decision finding that even a three percent chance of s g m within came the government articulation that she does not have this great risk and should enter sheesh and she should not be remain in this country how does that work out i would agree that the procedure is usually performed at a younger aids however i don't believe that that language means that it's exclusively performed at the younger age so to testify that the first time that this was attempted to be perpetrated upon her she was twenty she testif because of the risk and it has to be more of an individualized analysis than a generalized one do you agree i agree but i believe in this incident in this instance the petitioner comes from a tribe that practices  almost a fifty percent rate throughout the country the incidence of f t l is about thirty eight percent and within her reason it's estimated between eighty and ninety percent so i don't think this is a letter i asked before to see you general asked about the ninety percent that's in her region yes within the rich certain districts within the rift valley at all or when i was in that valley not necessarily where she lives not necessarily where she lives however the tribe is he belongs to does practices at a forty three percent rate which morning worried at first i thought maybe i was the attorney general but you're all i know i'm just a little joke my name is allison drucker and i'm here representing the united states  there is noting that in all of the cases that the statistics are being put forward there there aggregate there covering large ranges of geography in some cases tribal groups and perhaps most significantly ranges of time if you are getting statistics on a group of women and some of them are fifty or sixty years old but some of them are ten years old the likelihood in many african countries and i think this comes out in the record is that the older women are much more likely to have been subjected to s g m than the younger because of the kind of changes that are going on socially and of because of changing positions in the policies and laws of the government in this case we believe that there is two reasons why the petitioner did not carry her burden of proof on this issue and i want to  mention that it is her burden of proof there was no finding by the i j a or the board here of past persecution due to s g m so we don't have national average is about fifty percent and i'm not sure your honor and i'm not really sure about what cases come before this immigration judge and solar's a website i gather is that information well of legally available and this is an immigration judge who denies asylum request asylum relief at a rate about twenty percent higher than the national average should we take that into consideration i think that this case needs to be decided on the record my  internal mechanisms that in the department and maybe that should be addressed and looked into but i don't think that as i said i think that the job of the court is to decide on the record coun of my understanding is that we look at the record that has been developed here and as an appellate court we determine whether there is substantial evidence to confirm the decision  whether the idea is a good idea or bad idea we've had lots of the latter categories in the department i was trying to make some changes were nonetheless stuck with the record and the petitioner is stuck with her burden to show evidence here and as i understand it the government's argument is that there was no showing of past persecution and therefore without that predicate she can't win on this point is that  well founded fear she can demonstrate well founded fear it just means that there's no presumption so that the burden of proof in this case remains on the petition actual problem of being mutilated that's what bothers me a little bit when you say that i don't think that's the case for two reasons one reason is i think the law in th she's divorced and she's a mother basically i mean the the record is all clear on this and also when she when she described the dangers the chiefs perience back in kenya personally about g m i mean initially at the end there were at one period she was she was living at home with her family and so but now she she said herself she testified that she hadn't had any contact with her family except e mails with her twin sisters and she came to the us a she's become independent of them this is a are one seventy nine also she says but that she was divorced in december of two thousand and three that's a r one forty seven and she hasn't had any contact with her husband and i'm sure that means her in laws as well they were the ones who then tried to convince her to have s g m later and that's it a r one eighty two so that's all one asked that's about why she individually shouldn't be considered to be at such great risk the other point is about the government and the changes that are occurring over time that i mentioned before the both the board and the immigration judge cited two materials that were in the records the country report which is exhibit six and that talked about  know a great can you assume that i'd like to see where you're going experienced a situation where there was a coup and then things settled down and there's another coup and things settle down i think they've had four or five or ninety four g m c rise up after a legitimate election  stablish in the labor party in government but in any event channels have sent matters back to the i a e a to examine the current country conditions my information from published reports is that following the two thousand and seven election eight hundred members of this woman's tribe were killed six hundred thousand kenyans were displaced almost entirely on political and i think grounds and the main target was her ethnic group and that most of this faction occurred in or near the area where she wants to lay it down in if that's correct and i understand it's not part of this record that's right that's correct why shouldn't we send this back to the vi to look at the current current conditions first of all  any any applicant would come under the the regimen of motions to reopen rather than remanding so i think it is some question about whether the court should be using that as a mechanism for dealing with new evidence but further i'd like to say that actually she never made a claim of ethnicity she made two claims one with particular social group relating to s g and the other one was political opinion and if you read the record all the incidents are described as my family my father my brother and myself we were members of the democratic party and various things to reopen with the i a e a and bring this kind of information to their ascension they can certainly attempt to do that well you know it and say that there is change conditions or whatever and make their got the impression when opposing counsel was before us in making arguments that in effect he was not pursuing the political opinion portion of the claim i'm going to ask him that is that your understanding as was asking the question which you should now be well prepared to answer so let me ask you i got at the end i had the impression that you had said previously that you were not pursuing the political opinion claims that correct that is correct you ok so wait whatever you do in terms of petitioning for we open after our court decides this case is a separate issue but for purposes of this proceeding we're really considering the f p m claim that's correct ok so i thought ok thank you both for your argument the case this argued movies the mid for decision