address the numerous issues with the agency's decisions and significant problems i have with the government's argument in appeal i do think it's helpful to reorient the court but the ultimate issue goes before the agency and the ultimate issue before this court and that's whether that miss uncrowded demonstrated a ten percent likelihood of persecution on account of her status as a transgender woman and a transgender human rights defender if she's returned a one hundred s there is no credible way to review this record and find against my client there is nothing that explains the lifetime of systematic abuse and violence she endured other than her status as a transgender woman classes of persecution that she endured and if we look at the the three factor test that the agency and this court looks to for past persecution it couldn't be any more clear that there's outright legal error here could past persecution correct and you know just or at the court we're looking at acumen of harm here but for specific acts if we want to focus just on the police i think the police is the police that's correct term will focus on is the transgender rights march she is in a transgender rights march that she is leading that the police used tear gas to tear gas and violence to disrupt she ultimately has her arm dislocated simply because they want to break up this transgender rights march now the government will tell you and with the i j a said which i notice pure conjecture is that it was some type of crowd control at effort by the police but in the transcript and forty six dollars for the record the i g actually asked miss and drop a quote was the march out of hand her response no if the margin isn't out of hand even if we assume the police had some legitimate reason to stop the march there is absolutely no explanation for using tear gas and violence that would lead to her arm being dislocated and just to remind the court we're not talking about the only reason this changed transgender rights march was broken up all we have to show it was one central reason that she suffered this persecution was her status as a transgender woman it's impossible to understand this record in ignore the fact of her transgender status in the way that they broke up this march so that's the st episode that's currently if there's another episode with the police that's correct so separate and apart from the transgender march and separate apart from the general harm that she outlines from the police there's a specific instance where the police go into what she calls a gross search where they end up ultimately tasing her and robbing her now the government's response and agencies opinion says well she spoke she essentially spoke up and i think w agency is ultimately saying is she asked for it but that clearly isn't the law in this court if we look at the chandra decision how did she respond why would there have been contact with her on that occasion according to her testimony the police were carrying out a search with a search warrant looking for weapons but they only targeted the trans women prostitutes who were in the area ok so i'm i'm i'm trying to make sure i want to make sure that i'm remembering the same industry and i think the same is the nd incident that incident where she was working as a as a sex worker in an area and they came to the police came to that area that's got that right that's correct ok so is this the same incident where there's that they removed her wig it is ok so can you tell me about that because there's an allegation in the briefing a couple of different places that she was sexually assaulted and it may even use the word rape and i don't i think it uses that word and i'm trying to figure out where did that happen yes your honor so that's actually talked about in a different part of her testimony it's actually a separate instant altogether as separate instance yes correct this is just so you know i know sometimes you know the case is so well that you forget what you've told us but this separate instance if it's separate it's if this is very unclear in the  instance where happens with the way that she describes it in the testimony and it is very unclear she was pro se at the hearing and i was your where we we don't think the testimony was elicited in a proper way you're not relying on that i really am trying to get my arms around everything you know it sounds like you're not relying on that is that right no that's that's not correct your we are certainly line and it's a cumulative approach here but we don't have specific details about that particular instance what we do know is oftentimes when she was in her sex work there her clients were the police she calls them public officials and all other she also calls in the police right and so your time ticking so i'm aware of that that she  from the police that if she were to tell they would protect potentially take her life that's correct but the argument from the government to say have a chance to respond is going to be next it's going to be that that those death threats of the result of her work and it wouldn't be a credible argument for the government to make to somehow separate her transgender status in her work as a sex worker the d h s guidance that is given and i'm not suggesting it's binding on this court that you just guidance for these particular claims are very clear that store but i didn't see that she tried to get other employment if she had to work as a sex worker if you can show me that and then suffer death threats as a result it seems to be much more compelling but i'm missing the link that required her to work as a sex worker you know this is a quote point one we cited in our briefing quote transgender people face such severe discrimination that the only way they can survive is by engaging in prostitution ok so where do i find that in the record or did just it's not in the record  will i'm i'm going to the the same argument you're referring to your honor if we look at the actual record self the things that were before the agency she says that in this is her word she was forced into slavery because of the prostitution under this court standard if you're put in to quote substantial economic disadvantage or if this economic debate disadvantage is quote so severe that it constitutes a threat to an individual's life or freedom that is persecution so what i'm trying to get i think i do have to circle back because this the document that you're talking about which is cited you know i appreciate that but in this particular case she did have other work she worked as an in a grocery store so that's the link i'm having trouble with is is it the case that that's because they didn't know she transgender or once they discovered it she was fired fired or how do you get past this yes you are so she worked so as soon as she was a victim from her family home because she came out as transgender i her mother she moved to the capital she then becomes a worker at a supermarket this is record one hundred and fifty in one hundred and sixty four she is fired and i'm using the words that she used not my own because she was quote a faggot and because the supermarket was afraid that she was going to give them h that is the reason she was fired she even tried to go get a government course for some type of learning i think it was in the accounting realm and she was not permitted to take the class because she wouldn't dress like a woman that's a record one hundred and fifty one so she's trying to she didn't get in the course because she wouldn't dress as a woman and she's claiming to be a transgendered i may have misspoken she would not dress like a man in the languages she would not dress like a man and that was the issue that she story correct you know this is all very consistent i may have spoken inconsistently but the issue that we have is she was kicked out of her family home so now she's homeless and can't provide for herself she tries to get what's called legitimate employment for purposes of the argument she can't maintain it as soon as they find out she's transgender she tries to go to a higher education she's not able to get higher education because she's transgender and then she's forced into their world of prostitution which is entirely consistent with the documentary evidence that the agency did not look at entirely consistent with the d h as guidance for these particular types of of claims she has no issues she has absolutely no chance of getting a house no chance of getting food until she does the sex with that is her testimony so then she enters a sex work it's a remarkably violent she's been raped she's been robbed she has death threats in there's no way for her to hide this because she's gender nonconforming everyone who sees her on the street knows right off the bat that she is a trench that a woman so all of that is sort of the the wind up to the ultimate issue here is that anything she does everybody know she's transgender in nobody in hundreds has any interest in protecting her and you go back just quickly your time is ticking and i want to take a lot of your time but you said there are four instance kicking her out of the house is that is there more than that she was raped two years every weekend which think it's infantile if he was that is that was when she was a child and then ultimately the persecutor was prosecuted for abusing boys so that you're this woman has to ultimately make the decision to leave i'm not trying to diminish this person's misery i am what i am trying to say i'm not sure it does i'll get added into the mix if you can't show nexus counsels or something i'm overlooking there with the particular rapes when she's a six year old i don't i don't dispute that the record says the person who did it was ultimately arrested but if you look at her age from six years old until she's seventeen and ultimately leaves she is treated significantly different than anyone else in her house ok so ok i think you've answered the question so the core classes are relying on the police and there's three episodes of police misconduct that you've identified the her family yes and the gangs or the gangs and then you have economic persecution all right thank you you're going to look to reserve the rest of my time good morning greg pennington on behalf of the attorney general i'll start by responding to those in counsel's claims that she was forced into prostitution which seems to be some of your concern judge kristen the record shows that she was kicked out of her house in two thousand and eleven when she was seventeen years old and then she testified that she went to the capital top to go sit up a where she finished a college degree in accounting and then in her declaration it kind of fills in some of the gaps in her testimony she says that she looked for months for work as an accountant but nobody would hire her because of her lack of experience and this is at the record at three hundred and seventy six so she did not stay saying there that she was discriminated against on getting a job because of shoot her transgender identity but because she didn't have any experience so then she goes and gets the job at the supermarket and is working in prostitution at the same time so this whole time line everything's happening in tw eleven so she's working out as a prostitute and then she gets this job at the supermarket where she was fired so i don't think the record here would compel a conclusion or make a reasonable adjudicator find that she was compelled into slavery or prostitution in this court the d h s guidance was not submitted into evidence in the record before the immigration judge or the board on appeal even though she was a counselled in the appeal to the board and nd that's d h s guidance that's given to asylum officers are reviewing credible fear proceedings at the border or affirmative asylum applications she was in proceedings before the department of home or department of justice so those guidelines st are not binding even on the h s they're just guidance and nd she they're not binding on the department of justice on the immigration judge that was hearing her case so sure and i kind of want to fold in her claim that the i g failed to consider the evidence and the record board failed to consider the evidence  yes the immigration judge says she was not sufficiently incredible she was a sufficiently credible witness so there was an explicit adverse credibility finding so the board deemed her testimony as true as this court would yes so what she says is credible testimony and that's what the court reviewing but back to the evidence that she submitted as this court likes to say judges in the board this court you're not pig searching for truffles in the ground  she submitted a lot of evidence but she never pointed to any of it to the immigration judge she cited one article where a journalist was murdered that article the journalist was not murdered because of transgender or l g p t i status it was just a journalist that was murdered and then in her appeal brief to the board she cited one article out of those hundreds of pages and in fact her whole well founded fear argument was boiled down to one sentence so that kind of shows where the focus of this case is in this court it's all past perfect she really didn't exhaust a well founded fear claim based on her one sentence that she gave to the board so i'll focus on the past persecution and she seems to focus on the incidents with the police two incidents the st one she was working at this what she called the red building there was according to her a transgender prostitutes and four normal women prostitutes working at the red building and the police came by and put them all up against the wall and went to search her and when she resisted she was forced up against the wall and then she kept resisting and then reached into her purse and that's when the officer tasered her and this is according to her testimony so again on the substantial evidence review a reasonable adjudicator could find that she was tasered because she resisted arrest she wasn't targeted because she was transgender they were targeting all the prostitutes some of which were not transgender and the nd incident was the human rights the transgender protests or the police use water care tear gas and water cannons and i would argue that the two thousand and fifteen country report states that this is how the police deplorable but that's how the police respond to human rights protest not specifically transgender protests so they used tear gas they used violence it was nothing to show that this one protest was targeted specifically is just how they operate so those two incidents there's no nexus to her transgender status and then there's the incidents when she was a child and this is just truly unfortunate i mean she's had a horrible life but she does have to show that she's a refugee in order to attain asylum or withholding of removal and the incidence as a child she was raped as a six year old there were other children that were victims of this man who was eventually jailed there's just nothing to show that he abused her because of her transgender identity or that the police were unable or unwilling to control this abuser because they in fact jailed and imprisoned him come out as transgender at the time no she says that she she was a feminine she was teased and harassed at school she said she committed or attempted to commit suicide when she was nine but her brother stopped her but she says she didn't come out as transgender to her mother until she was seventeen and that leads to the next incident her her mother who kicked her out of the house and hit her and shipped her tooth the immigration judge found that this while it might be connected to her transgender identity  not rise to the level of persecution it wasn't sufficiently extreme and there was no showing that the police run able or unwilling to control her mother hitting her and then the last we've already talked about the police there was the gang member as going back to her testimony that she worked at the red building with all these other prostitutes that was according to her elmer rae as his territory and he would charge all of them rent the transgender prostitutes and the other women that work there so she wasn't singled out to pay rent because she was transgender it was just she was working on his turf and then eventually he came out and accused her of being a member her being a member of a different gang and that was the st threat she said that elmer came to me and threaten me because i was a member of another gang and then he came to our house and again threatened her accusing her of selling drugs on his territory that there's just no record evidence to compel a conclusion that this was based on her transgender identity make a reasonable adjudicator could find that it was can not connected to her transgender identity so those are the four incidents of past persecution she claims if none of them are connected to a protected ground or shown that the police were unable or unwilling to control they can't be lumped into a cumulative analysis each one has to individually count as persecution in order to be lumped together cumulatively so even if the court finds that one of them is connected to a protected ground it would still have to hold that a record the record compelled a conclusion that that persecution and as for the convention against torture claim the immigration judge felt that there was no past torture as awful as the past incidents were none of it was under color of law by a public official constituted torture and the immigration judge also felt that she can relocate when she testified as to why she couldn't relocate she said that she didn't have family or friends  she could go so her response to the police response to the l g b t march that that doesn't constitute persecution on account of this protected status because the police's response to any human rights march is to take people and beat people up well the teasing was a different incident that was targeted at the prostitutes that were working ok so the nd incident was the be human rights march but you understand my question i do because it seems to be that this doesn't count because the police in this country beat up demonstrators of any sort of any any sort of human rights violation is quite different to me then to deny that the march was maybe part insufficiently specific or diffuse they couldn't tell that was an l g b t march you seem to be arguing differently that march the police responded in the violent way they responded but that that doesn't the police specifically targeted her or that group because it was l g b t well there's no there's no contention i don't think from the government that the police couldn't tell why these people were marching you're right when i heard you say a minute ago is that it doesn't count because the police respond to any kind of human rights violence and human rights march the same way is that the government's position right i see your point and if they are targeting this specific march because it's l g they harm her then that would be sufficient to show a link i'm just saying there's not record evidence to compel a conclusion that they specifically did it on this occasion that the police formed up because there was a margin she testified that the government approves of these marches there's no evidence to show that they came out the police got together and said let's go horror these members of this march because they're l g p t i the record is just what there was there was a pose to write for this group to have this type of march it's identified type of march and the police responded the way that it did and the government's position is you can't tell that's why they responded right we don't know many things about the march he said that the police were blocking off the streets because they didn't want them to go that way there i mean we don't know there could have been they tried to force their way through and the police responded there's just not enough evidence in the record to compel a conclusion that the police on this one instance targeted this l g b t i march because it was chained transgender they were just performing crowd control perhaps perhaps there's just she would have to point conclusion in the government's position is that she has failed to do that is really the record the police use different methods for different groups of crowd control no there's not that's why i kind of cited to the two thousand and fifteen report maybe i did it in our fully but it just seems to be like that's how they respond to crowd control they get her to protests that get out of hand so there's no evidence that th even if we get there in the court were to find out that one instance where she was participating in a protest she did show the nexus it would still be the government's position that that's insufficient to show past persecution as this court has held it's an extreme concept being involved in eleven beating so then you would argue and doesn't really rise to the level of persecution i believe that's what the immigration judge said about the police instances well ok i see my time's running down i would kind of finish up on the well founded fear we talked about the past persecution it's the government's position that she just hasn't shown a well founded fear and i would go back to what she said to the immigration judge when he asked her why do you fear going back to honduras and she said because of this disgusting number and then because she doesn't want to be another statistic another statistics  referring to her tranced and trained gender status so that's how she presented her well founded fear claim to the i j a the i j a says that well according to the country reports there is progress in honduras there's laws passed there's prosecutions for hate crimes and that therefore the government she hasn't shown the government's unable or unwilling to control her fears of being another to fix because the government is making this progress and again to the board she stated in one sentence that the record shows that she's entitled to a well founded fear and that's just insufficient to put the board on notice as to why she think the i g erred and it's also insufficient too exhausted to bring it out before this court so we would argue that the record does not compel a conclusion that she's suffered past persecution or a well founded fear and therefore the thank you as of late to address a couple points raised st in terms of the transgender rights march you're exactly right they did ask her if it was out of control she said no she sceptical he said when they asked why it happened her quote the trans get beat up because they're trans the police called them queer when they were organizing the march that's a record one hundred and fifty four they ask why they broke the march up because they didn't want the trans women riding together record one hundred and forty seven there's no dispute that what was happened here t police knew they were trans women at a transient rights march and i think you know partly this is explained by the fact that the i g completely ignored her p s g of a transgender human rights activist there's no discussion the the nd is that she's a transgender human rights defender the government acknowledges it at page five of their brief the nd particular social group here was not addressed by the i g at all and the government doesn't dispute that that alone is sufficient for rema under the light of cases saying the i g violated violates the law if it ignores arguments raised by the petitioner you know another thing i think is interesting is the government seems to be trying to argue the facts that w persecution under this court's definition physical harm dislocating arms using tear gas to violently break up a peaceful rights march certainly rises to the level and then when you start looking at all the other things that happened to her i thin no the there's no evidence in the record of there was resistance to the police the the way that the record reads in this is the credible testimony of that position or is that they were marching to police wanted to stop it up was the quote unquote was a march out of hand no and then before they know what they're being violently inner directed by the police if i could your honor real briefly were just one other thing that the governor raised and their argument we were talking about this reasonable fear there was some suggestion that this was waived that's the st time we've ever heard that from the government and in any event it certainly wasn't and if we look to the bromfield case you can take a reasonable inference when she says she doesn't want to be another transgender statistic g had taken the time to look at the record evidence that she put forth it's remarkably clear that transgender women bear the brunt of all of the violence and murders happen in honduras zero point the court two  so if we think about that in context there's absolutely no way to understand her statement of not wanting to be another transgender statistic other than the fact that she is fear for her life or at minimum significant harm thank you very much we take you pas the case who mendez versus barr is submitted and of course thanks counsel for the their argument