petitions for review and now two oral arguments at the last oral argument the court reminded the case back to the with instructions that they need to analyze the four events that took place in this case because they had scant review previously they had only a one liner what is more striking is that judge bers on conquering with that opinion actually wrote a memorandum separately and laid out the roadmap for the v i i what they need to do what they need to analyze she stated that in this case death threats directed at the respondents it was at the respondents children it was by the mafia a group that we know carries out certain threats the threats were delivered in person in close confrontation in close proximity to the individual and they were coupled by the  mafia relative who had warned them that you better leave the country otherwise things are going to happen to you despite all of that i believe to be a has in carried out it's directed they have seemingly analyzed only two out of the four incidents they actually say so in their appeal that and they laid this at our doorstep saying that we had only raised two of these issues which is not true at page ten after two thousand and six appeal brief that our office wrote it actually lays out the fear out of the four incidents that's page two hundred and sixty nine of their record of proceedings they have seemingly failed once again to articulate the cumulative effect of these if your honour's look at the previous a decision they use the word cumulative so having used it once you have to understand that they know the meaning of the word cumulative and the weight of it but they haven't used that word in this case and it doesn't look if they have only analyzed two out of the four incidents they couldn't of looked at this cumulatively and finally they have failed to look at this case with the particulars of it involved the particulars the judge present laid out for them they once again seem to basically brush off the entire case by saying that more evidence was not provided we believe that ample evidence was provided in this case let me ask you about one of the difficulties you have in your case and that has to do with the husband's role as a cooperator or an informant and i determine ation when he had not done so before fleeing why isn't that fatal under the legal construct here your honor the issue is not whether the threats would have been carried out because had the husband had missed the boat cooperated and we don't know if he has or not we  just know that frozen in time at the end of the last quarter hearing the answer was i don't know she left left before she knew what happened isn't there a determination made that there is not fission evidence that he did cooperate  and that the ultimate conclusion were needing to deal with that he didn't cooperate before fleeing the determination is that we don't know and enough evidence hasn't been given to show that it was done yes i agree with you that's not the issue the issue is where the threats enough at the time that they were uttered to raise fear sufficient for past persecution in the person who heard it we have to understand this is a mafia a group that is strong enough your honour's and the disparity in who they are and who the listener is the fact that they have used the weaknesses of miserable day on the children to utter it and they have held out this prospect of harm that will come to her if an intervening cause happens which she has no control over the fact that her helplessness the fact that they have given her these choices that she has no control on i think rises to the level of fear that would be passed persecution we don't know we have also dealt before with this issue of verbal threats versus physical harm and the lemon case which you know you're familiar with it's been cited in the in the briefs if teaches us that really it's in only a very small percentage of cases where we've elevated the verbal threats to constitute past persecution how did your case get into the lim case and whether it really is not a minor in case and that it actually is a unique situation that we should really distinguish from a lamb in some way your honor i use the immigration outline that's under th circuit's website almost on a daily basis  glad to hear that yes it's we do it's very useful there are thirty eight cases that deal with threats so that tells me the court doesn't have problems defining threat it's just difficult to define it because in each case it's different each case needs to be analyzed on its own merits you haven't had a case like this i have read all the thirty eight cases and there is nothing where the disparity in the person or the group that wants to perpetrate the harm and the person who hears  mafia i mean we all know what the mafia does this case actually did have physical manifestations of their verbal harm she says i was shocked with fear i looked so bad that my neighbor said you don't look well  instances where the fear manifests itself in physical harm as well but we don't need it the fact that it was done in quite close proximity the fact that it used her weaknesses the children the fact that she had actually  no control over what's going to happen because i missed the ball being in jail was facing a number of years of imprisonment he had decided already to do this all of these together rise up to the level that although it's not like limb it's a case by itself that could fit among those thirty eight we have enough in this case to rise to the level of fear remind me why you think the threats that you  documented in the rancor amount to persecution your honor she says i was so frightened that i took my child out of the car seat held him tightly in my arms and stayed there for fifteen to twenty minutes i was so shaken i couldn't move then she says i was in a state of fear then she says i was frozen by shock and fear these are different incidents not not in one incident because if you had four incidents here my husband was so scared that he said you better leave italy until until you and the children remain here you're in grave danger she says i was becoming scared of my own shadow i felt for myself and my children we were in danger i was especially afraid and worried for the children that mafia could do something to them i imagine that they could find us and kill us i don't think anybody who has children would disagree with the notion that possible harm to one's children is probably to remind me i don't have t that pointed out st the threats were they not explicit none of them involve cases where this court has found threats were persecution involved explicit threats of death none of these that's not how the mafia operates i mean are you help me understand what was are are confusing or ambiguous about these statements get not explicit but they were also future and conditional and not present none of them were claiming we're going to hurt you today because of what your husband's doing or we're going to hurt your children because of something your husband has done they were also again even if we take that statement say hello to your father the next time you talk to him the clearest example we have is is a statement saying what your father is doing is wrong even if we take  those there are conditional they don't present a present tense direct threat of death and finally there was your present presentation on this point immigration judge to be reviewed by the board there is what we have in the record is the clearest evidence we have is the testimony from john agnew the expert who talked about what the mafia does after two thousand and seven we have no knowledge we don't know where he is today we don't have any reason to believe that any harm came to him without this evidence without compelling evidence  these threats to not create a presumption of well founded fear of future persecution which is really but the past persecution comes down to this then it does the burden shifts a d n a test to rebut or does the burden stay with  punish the family of a cooperating witness it does so in quick succession the only instance he had of possible exception to that rule was someone who died under suspicio circumstances and he couldn't really say otherwise but given the passage of time there isn't no evidence compelling a finding that there isn't the doyenne has a well founded fear of future persecution well i mean the what if the difficulty we have in these cases is the following if people are killed then that's of course there's no opportunity to apply for asylum so both the courts and the border weighing this situation where there's a threat but no death yet and of course if there's death it's fait accompli so the notion that you know nobody's die or nothing has happened aspect of the passage of time is the st of these threats was delivered in nineteen thousand and seventy seven years later mr mcgowan came to the united states and voluntarily returned to italy a few months later she was asked well why why did you do that if this if this instant was was passed persecution why did you voluntarily return to this alleged fear of harm and she explained over time you know that the threat to dissipate it to not only is it a general concept but  testified in this case that that had occurred for her  level of persecution there's nothing like that in this case so the record doesn't compel a finding of past persecution nor does it compel the finding of a well founded fear of future persecution and unless they're for their questions t you know the mafia is an organization that is notorious for war its treatment of cooperators stitches niches would you agree with that i would say that ports has been ineffectual in controlling the mafia  the reports as i read them indicate that the mafia goes after itself that the mafia groups go after itself and violent competition you know motivated by the drug trade and the products they can they can obtain  time what do you say about the trip back i'm not understand you're on our government just pointed out that after she had relocated to united states she voluntarily went back yes where we are not looking at anyone of any one of these incidents as the key incident you're looking at them cumulatively she agrees that her fears dissipated after a while after the st incident in ninety nine but starting in two thousand and five when he was the husband was rearrested and started contemplating cooperated with the government three incidents happened within quick succession and that rose up to the level that she felt for her life your honor when she returned i looked it up and i wanted to let you know she left italy two months after the last incident so very fast so even if professor agnew believed that these things happened  ninety nine and then she's there but she she came in ninety nine she left after six months she remained in italy until two thousand and six when she came to united states incidents the last three incidents were two thousand and five correct starting in march of two thousand and five then a couple of months later then a couple of days after that the last incident happened your honour's we've all seen godfather i'm going to make you an offer you can't refuse as you said these things are never done over the always done covertly but in this case it couldn't have been even more overtly than this they tell her it's better for you and the children if your husband doesn't cooperate i mean that laying it on the line my time seems to be over