speak today about the board's three chief errors in its dismissal of petitioners appeal initially in petitioners case the government did not make the requisite showing that there was a fundamental change in circumstances that can overcome the presumption that petitioner is entitled to because he has suffered past persecution and the board erred of holding otherwise second the board abused its discretion in holding that asylum is not warranted as a matter of discretion in petitioners case and third the border area in failing to analyze whether humanitarian asylum is warranted in petitioners case especially given that in this case the agency delayed fifteen years to find that petitioner had suffered past persecution by which point apartheid under the law had ended can  i ask you about your second point yes can we review their discretionary denial can this court really yes yes this court can review the discretionary denial of congress preserve the surely change and we have a removable alien why why does the board abused its discretion in these circumstances to to say we would not grant relief yes the board clearly abuses its discretion regarding its analysis that petitioner does not merit asylum as a matter of discretion because in the board's analysis it merely considers the negative factors president petitioners case and it is required to consider all of the factors negative and positive and the past persecution that petitioner suffered as this court held in kalu b and jang and here the or plainly did not consider all of those factors so we go back to the first question you pose what how would country conditions have to have changed in south africa in your view in order to it would be sufficient of sufficient change in other words that there is a pretty been a pretty dramatic change in country conditions in south africa what  more would what more would have to be shown in your view to to meet the change country conditions requirement yes or honor to meet for the government to overcome the legal presumption that petitioner is entitled to because he suffered past persecution and that the government is required to demonstrate by a preponderance of the evidence that we are not the standard another we are not just here's what we have in this case we have somebody who is i think undoubtedly persecuted because of the apartheid regime in south africa and we now have a country that's not only doesn't have an apartheid regime but has by its laws change its laws to make make the kind of treatment that your client that your client got illegal so i'm asking what more would the government need to show i know what the legal standards are just tell me what more in your view could the government ever stablish sufficient change country conditions here and if so how would it do so in this case the government did not establish change country conditions because it submitted a country report that at best is inconclusive and does show that petitioner still risks future harm under kamali and that is not sufficient to submit and an inconclusive country report moreover the board here ignored portions of the report portions that do so petitioner faces a risk of future harm that was legal error of the board to ignore evidence of record the board is not permitted to only rely on specific parts of the record of the report as  call notably in this case the board was discussing and they are for that the constitution and laws prohibiting discrimination and i am place and but if upon examination of the country report the very next sentence states however entrenched attitudes and practices as well as limited resources restricted the practical effect of these legal protections so the board was not considering the entire country report which it was required to do the borders required to conduct an individualized analysis tailored to the petitioner specific harms and circumstances so not only was the report insufficient but the board failed to conduct the requisite analysis therefore the burden has not been overcome i'd like you to remain on the case with instruction to grant withholding of remove all and to reconsider asylum as a matter well i think your argument is that the they didn't sufficiently consider all the circumstances and they also didn't and in addition in petitioners case the border area in failing to analyze whether humanitarian asylum is warranted which is especially important in petitioners case because here the agency delayed fifteen years to find the petitioner suffered past persecution and by that time when the agency finally did make that determination apartheid under the law had ended matter of chan is the seminal board of immigration appeals case like a rise to humanitarian asylum and in matter of chan the board of immigration appeals explains that a person who or whose family has suffered under atrocious forms of persecution should not be expected to repatriate even a change in regime may not produce a change in the attitude of the population nor in view of past persecution in the mind of the refugee in this case not unlike in matter of chen where the apple asylum applicant had been raised during the cultural revolution in china and experienced persecution police did his raise the police beat him and humiliated him and used racial slurs against him after leaving south africa he told north america as a minister and christian musician publicly criticizing the government and petitioner's case the board plainly failed to consider all of the factors and it's conclusory dismissal of humanitarian asylum and under this court's case law namely kalu be the court the board is required to consider all the factors and to recognize the special factors  ever present asylum cases here the board merely considered the one time petitioner was arrested in a vacuum ignoring the rest of the details that he can't that he had suffered he and his family had suffered a lifetime of persecution as petitioner stated before the immigration court growing up pollard in south africa was like fighting for your life on a daily basis i'd like to reserve my remaining time for  say yes we cause you grief does suggest that that he's established past persecution and so there would have been a presumption to rebut and maybe you know of something that you would have said in ninety nine that you'd say now but i i can't think of any i understand your and the only i'm not asking you to concede it but it does appear likely and then we get to two thousand for some reason that's unexplained in your record maybe it's mr absalom fault maybe it's the it's the agency's fault i just can't tell if the case reactivated self when he goes to an interview in two thousand and three and by the time he gets to the board country conditions have changed with the change officially or not as we're fighting about what's the consequence of that delay i'm not sure i know but i'm troubled by it as i understand honour's concerns a couple points factually that i think played very heavily in this case and petitioner argued not and i hope i heard right that the agency delayed in allies in the claim of past persecution that's somewhat misleading because the claim that mr absalom made when he applied for asylum in one thousand nine hundred eighty eight was not it passed persecution claim he claimed in one thousand nine hundred eight that he feared reprisals retributions for things that he had said when he was touring this country when he was interviewed by the media he criticized the apartheid regime the claim that he articulated in one thousand nine hundred eighty eight was a claim of a fear of future persecution that's not my summary that's not the agency summary and i would urge this court to look at page two ninety five of the record his representative at the time from catholic charities in submitting paperwork to the court says we've got a claim here for a well founded fear not past persecution so the delay in this to do with these two i don't know who caused it there's there's a few points to make i think with regard to the delay certainly that type of delay should not happen and i'm not going to stand here and say that that that type of delay was ok there's that but there are a few points number one he has never formally articulated an argument based on that delay to the immigration court or in the reverse here or in debris or in the briefs to this except with respect i suppose to the discretionary denial and the notion is you fail to consider doesn't quite say it this way that i've been in this country for thirty years and have a family here i think your honor with that ultimately gets to as is the problem with the legal problem with his claim for relief is that the evidence doesn't support it and if you look at what he's actually saying when he testifies in immigration court what he says is i want to stay here because my family and i have established a life here that's understandable but it's not a basis for relief under the law the second problem with attempting to use the delay at this point as some form of argument for relief is that any type of stop all type of due process type of claim would require clean hands on his on his part and he simply cannot make that showing based on his conduct based on his conviction for sexual battery against his daughter again with regard to the claim that was originally made it was a claim for well founded fear that's his own representatives words as as the paperwork is being submitted the claim changes absolutely your honor but the claim that he makes in two thousand and seven two thousand and eight is based both on the general conditions the pattern practice under the apartheid regime but it's also very specific as to him and he says things in his application i'm sorry he says things when he testifies in immigration court that he has never said before ok let's go let's fast forward to the two thousands and and at that point the i j a says yes you have established a past persecution the government has the burden to rebut the presumption of future persecution and there are no rebuttal is entirely a country conditions report are almost entirely why is that sufficient to r the presumption it is sufficient your honor because the requirement is for an individualized analysis it doesn't the requirement is not for individualized information there's no requirement for the for m location to go to the state department and they run background checks on him and they say this individual any problems he had before they've been rebutted that the more individualized the claim is the more individualized the rebutt would necessarily have to be in this case the claim of past persecution was based on the the general conditions under apartheid and also specifically his claim that he was that he personally suffered that he was arrested that he faced discrimination that pattern of practice after practice changes and as your honor noted this is not simply it's a sea change this is not simply a change in government or one party's in one party's out rebels or in rebels or out this is a complete change in the system there  laws there's a new constitution and specifically the agency analyzes the claim that he's made with regard to himself it would not have been sufficient if the government had simply said come on this is south africa we all know what happened we all saw the movies we all saw c n n no longer has a claim they did not do that what they said was let's look at his specific claim he fears problems based on his colored status but there's no indication in the record of persecution of individuals of his status and that's exactly the individualized analysis exactly the type of thing that this court has said is important and is not simply important but is required to be done so to suggest that there is no analysis and no attention paid to the specific nature of his claim i think ignores the specific language of both the immigration judges and the board's decision under discretionary denial issue to the board consider all the facts yes how can we tell because they specifically reference the discretionary evaluation and they specifically agree with the immigration judges conclusions and they specifically cite to the immigration judges discussion at pages of lee ten eleven of the immigration judges decision this court is has not required that the board simply repeat forbade him what an immigration judge has said here the immigration judge goes through all of the factors positive and negative him out but concludes that mr absolute conviction his conduct his lack of forthrightness in immigration court in discussing the sexual battery on his daughter those things outweigh any positive equities the the board looks at the same factors reviews the case there's no indication that they did not consider those things they specifically talk about these specifically cite to rather the immigration judge's decision and that and the specific parts of the immigration judge's decision but he also comes out and says you know what the reason i did this i was worried about my daughter going out and having sex as a teenager i was right because look what happened now she's thirty three living at home living in my home and i'm taking care of her and her four kids sort of the extent that he expresses any remorse i would respectfully suggest that that's at least tempered if not seriously undercut by what comes very close to a statement of vindication on his part sensually he's saying  i may be sorry i may have been wrong to do what i did but i was right i'd also urge this court to look at what could have been said what could have been said in immigration court this is the discussion immigration court went on for i believe more than twenty pages teasing out one fact at a time did you touch it was it mean to what does it mean to touch or where you convicted where anywhere in the world big world no let's talk specifically about whether you were convicted outside of south africa that's clarified on the record twice he says no then he later admits that what he could have said in court very simple i was wrong i was convicted i was trying to protect my daughter but how i went about it was wrong and that would have ended the discussion but that's not what happened see the my time's expired i would make something to the court's questions  may please the court in response to respondents arguments initially i'd like to explain that in the asylum denial that was issued by the ins and one nine hundred eighty nine it stated that petitioner would have the immigration court proceedings where he could have more thoroughly presented his claim and i do want to point out and so that and take steps to deport him in effect is the always the at that time was equivalent to and just to appear which asylum and any other forms of relieving the injured might have been eligible and he would have been deported correct ok couldn't even noted on his own i'm sorry with without being put into the immigration court proceedings what happens is it appears to me the ins dropped the ball they didn't  i mean i'm not sure i can lay the way the government's feet here that's what i'm trying to figure out i don't have an explanation for the for the delay but procedurally it is the government's job to put the mechanism by which an asylum applicant can have their application renewed before the in various and is indeed in immigration court and in immigration court petitioner made a much clearer showing of his claim but i would like to briefly explain that petitioner did make claims of past persecution in his initial claim at a r two seventy one and petitioners ninety eight declaration he did raise past persecution he said he began to have trouble with the police and the police would beat us so this was present his initial