good morning everyone and before we begin i just would like to thank judge richard lynn from the federal circuit for coming to join us and helping us out with their docket it's a pleasure to have you we will take morning good morning may please the court my name is maria alvarez and i represent the petitioner has if i could i would like to reserve two minutes of my time for a bottle this case is about domestic violence this case is about pervasive physical and emotional abuse of a stepson by his stepfather we all know too well the long lasting scars of this type of abuse and what it leaves on the abused and the control that the abuser has over his victim the petitioner was trying to feel powerless under these circumstance suffered for many years from this record thirty six dollars the i g also found that his had proven by way of testimony and supporting evidence that he had suffered past persecution the i j a stated that the applicant has presented evidence that he was selectively chosen to be beaten by stepfather for many years while the biological children were only spanked by the stepfather further applicants mother believe that the reason the stepfather beat applicant was that the applicant was not biologically related to the stepfather the court finds that the applicant has met its burden of proof to show that the past persecution was on account of his membership in a particular social group of step children or non biologically related children examples of emotional and physical abuse provided by his souse and his mother are many as is was woken up from his sleep by beatings at the hands of was gone hours when he was just two and a half years old that's at the administrative record sixty eight dollars this is was beaten at least once a week for as long as he could remember his stepfather would come home drunk or on drugs and beat and it was every friday he testified he was beaten with a cable he was beaten with  kicked at one point he was even tied to a chair and had his mouth taped shut and was forced to watch a stepfather beat up his mother he was told many times by step father that he hated him and he still believes that he hates them as this was threatened with death for causing his mother to leave his stepfather and even after the beating stopped when he was seventeen years old his stepfather still insulted him so that still continued the emotional b s that set the record at three hundred and twenty dollars once a court found that his suits had proven past persecution on account of a protected ground the immigration judge went in to analyze as to whether there was sufficient evidence to rebut the presumption that the applicant faces a clear probability of future harm this turn in the immigration decision is extremely important in essence what the immigration judge is stating to the analysis laid out in eight c f r twelve a waypoint sixteen b by beginning to analyze the requirements of proof after shifting the burden away from mr good on all those the immigration judges conceding that mr going to now this past persecution is related to his fear of future harm that's the same analysis that this court gave in in its recent case will about two years ago in the bring us rodriguez case this court has made clear in bring us rodriguez that this is a proper analysis under the c f r regarding withholding of removal although it was an asylum analysis it's similar in its structure because the i j a also found substantial evidence to support the conclusion that the presumption was rebutted based on fundamentally changed circumstances what are your comments about that your honor he based it soley on the human rights report that was submitted by the government and it was based completely on conjecture the reasons that he gave for that words that is can the government and we bet the presumption that has arisen as to future persecution by pointing to change personal circumstances alone or is it required to prove other things such as country conditions and well as how those personal circumstances  on the petitioners fear in other words simply because he's above seventy and his parents are divorced does that how does that demonstrate that is step father still isn't doesn't have it out for him and that his fear is unfounded that his stepfather will still a great early attack him your honor to the point that was made him bring us rodriguez and i'll refer back to that case is that the the b i stated in its decision that because the individual has been persecuted was no longer a child homo sexual or because somehow he now became an adult that that was that that wasn't going to be a reason that he could fear future harm because it was on related  he didn't really shift the burden to the government and all the government provided was a human rights report and human rights report actually cut against the government's argument because a human rights report concluded that there were extra judicial killings in mexico at that time are you taking the position that to establish a fundamental change of circumstances the government must show not only personal changes in circumstances but also some change in country circumstances i believe that it's i believe that the government has to show just enough of a change and it could be all of them it could be cumulative it could be based on that you know you're not answering my question i mean i didn't see any argument in your brief that raise the question of whether the government had failed to rebut the presumption because it only showed personal changes it did not show any change in country conditions well i didn't argue that it was personal change what i argued was at their evidence was insufficient and they didn't they didn't show that there was a personal change that was that was that came out in the testimony and that was conjecture by the way so he based his denial not on what the government had presented  my name is craig no i'm here on behalf of the attorney general mr granada's has failed to show the record evidence compels the cold clues and that he would more likely than not be persecuted by his former stepfather on account of a protected ground upon return to mexico that's regardless of the procedural posture on under which we look at this case if we st turn to how the the immigration judge found that there was a past persecution on account of the  how there didn't seem to be evidence of the social distinction of that group but but also that it seemed like the immigration judge did both he assumed that this particular social group big this it but also found gives the government ina position as to whether or not this is a social social group and no we are not over the board because this withholding of removal came could be resolved on other elements of the government of the not for the purposes of this appeal yes and to look towards the other elements of the claim that were not established so if we look at the the immigration judges finding which the board adopted about the fundamental fundamental change  circumstances that can be shown through a change in personal circumstances the regulations were changed i believe in two thousand the early two thousand from it being rebutted through a change in country conditions as a whole to something that's could be fundamental to the person him or herself and here we do have that fact there there are since long had a b m since the last beating by the father since when he was before the r j in two thousand and seventeen was then the late ninety's when he was around seventeen years old so we're talking a good number maybe almost twenty years and he and he lived with missed with his lease he lived with the former stuff father for another seven years into his young adulthood and did not suffer any more abuse during that time period and then in two thousand and five the stepfather moved out and then he returned to mexico a few years thereafter and despite some threats from the stepfather during this time period no further abuse was shown and so those those fundamental facts here they support both the showing of a fundamental change in answerer bought it and they also support that there's no there's not a sufficient showing of a likelihood that this former stuff father would harm him appearing here is a guarantee relying on just the fact that he's his personal circumstances have changed as a government relying on both the personal circumstances and there was no evidence of subsequent beatings or anything else in addition to me used are you staking your ground on you can and the government can satisfy the change in circumstances based on personal circumstances alone or do you believe there's more here would change how the motive of the stepfather to still attack no grenada i mean was there that link made to you know because is fear could still be well founded if he still feared even as an adult that this man hated him so much persecuted and had severed so much that past persecution that if he went back and he was anywhere near this man he would try to was horribly abused as a child in mexico it seemed to be purely the fact that that mr granada was was not one of his own biological children who he did not treat rachel when i see you know that for that right he was singled out from the other was singled out for that and now though the claim to fear of what what he fears is more is one of retribution for certain acts he took  m which has both a subjective fear element and object of fear element this is withholding of removal that just looks at objectively is it more likely than not that that this former stepfather is going yet right that's the government's prove yes for the fundamental change and that burden can be met by whatever evidence is in the record the government doesn't need to proffer independently a certain amount of evidence to rebut and certain circumstance it may have to if it is a change country conditions claim and there's no evidence of change country because it's there but here mr  out both the past persecution and the fundamental change that shows that he no longer has this no longer has this likelihood of being persecuted so what what do we do in dealing with his testimony the petitioners testimony that he actually fears the father because of things that have happened so that yesterday in circumstances in that he got older and after he passed seventeen and was still living on the house the stepfather didn't beat him anymore but they're now seem to be reasons a deuced by the petitioner in terms of retribution that he has now some fear and perhaps he has the fear perhaps that the actions that he fears are in part because he's not a natural child he's the stepchild he's always been the stepchild and the father is never particularly liked him and maybe of the natural drilled and had done the same things we wouldn't get the same answer how do you respond ok i think there are three points the st is his subjective fear is is not pertinent to this  child of his stepfather if that is immutable and that's one of the reasons why i believe that i j found in this particular social group that some of the characterizations for that he will always have that diminished status in the eyes of his step father that will never change that was the point that i think was made and bring is right regus and that you child that stepchild connection can be severed because it's based soley on the parent toll relationship of the biological parent and the spouse of so that has ended and there's no evidence of such  informal parental relationship continuing after two thousand and five there's there's nothing and they're not gonna make a living the divorce made him no longer the non biological child this step part of the decision or or the analysis it does not need to look into it because in the end there's been this fundamental change in circumstances that rebutted the presumption there has  life i'm not but i'm saying that that likelihood is part of as part of why the presumption has been rebutted that evidence is all there and the presumptions are applied and honors one very important fact that the government fails to point to that mr good are not those the petitioner has a name don't not us his father obtained unlawfully a fraudulent birth certificate for him and he will never be able to change that so that would make it make the argument that it's that the fact that he's a stepchild i look it up i'm not sure i understand that he can change his name well he could but other point that i wanted to make is that both the b i a and the i j in their decisions call we screen all those the petitioners stepfather so it's clear as a society never erases that point they continue to refer to people even if their parents have divorced as the stepson how realistic is his fear of harm from the stepfather how realistic is the fear now honor i believe that if you look at the record and the testimony the type of harm one that the petitioner suffered at the hands of the style father what instill fear in anybody for a line of time no i'm asking not subjective here but reasonable is the fear that he actually will suffer harm well recently if you look at the record the petitioner's maternal grandmother sent a photo to the family showing that was going on those lives with her now they have members of the family who are connected to both parties the petitioner and his stepfather they have a he has half siblings who have a good relationship with police going all those who could easily tell him where he is because the petitioner's mother continues to have a good relationship with all of her children so the fact that the argument of the government makes there's been no contact is it really undermines the record but what are we supposed to do with the fact that the abuse stopped when he becomes large enough to look like a full fledged adult that is to say the stepfather picks on him when he's a defenseless child but as soon as he's old enough to stick up for himself to stop father quits doing it well he quits beating him up presumably we could we could look at the record and see why he's almost a man he's grown so you can rate him up right but persecution is not based on size it's not based on who's bigger who's smaller  you can have a woman abuse her husband no one ever discussed as well is she stronger than he is so that i don't think is really relevant the fact that if you want to harm someone you can get a gun  committed crimes of the impunity because he has family members who are in government he has a cousin or an uncle who's a police officer who's a criminal defense attorney he has connections and that's the reason he's been able to get away with it in the past and that's why the petitioner and his mother both fear for the life of the petitioner changed the country conditions are a little bit i believe they've been all along i mean they e testified credibly to those past country conditions but we did submit country conditions at the time of the hearing that showed that corruption was still prevalent in mexico and that even though the country mexico has tried to combat corruption that it has not been eradicated and i think that that point was also made in bring us rodriguez eradication is really the point here and it has not been eradicated and