would be able to adjust his status because the t p s if granted would be an admission and he'd be able to get his lawful permanent resident status what happens to the petition in this case then i believe there's concurrent jurisdiction right now since us what do we do with the let's say he gets to the government agrees to temporary protective status does the petition here just sit in the on the back burner or what do we do with it do we dismiss it do it would be i believe the proper course of action would be remand remanded to the board of immigration appeals  from there potentially even to the immigration judge since an immigration judge would have the ability to review any decision if t p s were denied what happens if they revoke t p s status in the just the government just did that for nicaraguans that would be problem obviously that he would not be able to be granted that status but then what happens if not then what happens to the petition in that event it would go back and i was similar go back and calendar here and for consideration of what if we dismiss it how can it go back on calendar i would ask  remanded well i would ask for mediation right now but i mean the resolution of the t p s application and if it's granted i would move the then that it be sent remanded back to the board of immigration appeals and then probably either administratively closed or sent back to the immigration judge for disposition if the so that's what you do crime work out with the government is that the government agree to a remain and to the b s a yes that would be the best course of action from the petitioners point of view if the sure i think there's three very important factors for the court to consider in this matter first of all the immigration judge found that the petitioner's testimony was credible so everything that he said in the record i was he should be given full force and effect by the court he did find that family that this petition his family qualified as a particular social group he made that finding in his written decision so i think that also is on the syllable here and this is a pretty real i d act case so he's under substantial evidence standard  what i think the most important factor in this case is the judge looked at this case as a forced recruitment case and said well if it's just forced recruitment and nothing else i can't find past persecution because that's not sufficient and what the judge look to particularly is one incident when the f m l and guerrillas came to the house tied up his father who was a marshal he had some sort of government position somewhat similar to a sheriff or marshal tied him up and then these guerrillas did nothing to the father at that time in the immigration judge thought well really what's going on here is simple recruitment they're trying to get the young men into the guerrilla army you're not being singled out and what i think what's very important the judge missed the fact that the petitioner testified that different groups came at different times that was not always the same group of guerrillas that came to the house each and every time and that's in the ministry of record on page one sixty so different groups coming at suffered persecution but i mean in the government's opposition to your brief which focuses on the fact that the argument that he did suffer persecution the government just passes right over it like they don't even make any argument all that heat to support the b i l s decisions does that suggest to you that they're waving any objection to to pass it i think it it's an interesting record i think you know there was issue whether was fundamental change in country conditions i think everybody kind of the immigration judge early on seemed to hang his hat on that the government made kind of a weak argument and everybody just assumed there were changed circumstances that even if he showed past persecution even if the re think that's where the government brief was coming in that there wasn't a reason to grant him asylum now because it's safe for him to return to salvador so i think there is sufficient evidence of past persecution again presumption it was rebutted by change country conditions so what you do with that i think i think the records really sparse here and change country conditions i think for one it doesn't give any weight to the petitioners testimony that the f and is now really and that mass is now kind of morphed into this former guerilla and sons of the guerrillas and i think that testimony wasn't given really any value his father was threatened benchley killed under suspicious circumstances i think that's in the record the record the kind of his report does have on our mr record to sixty that and f m all uncaught councilman had killed two national police officers you know the record could have had a lot more evidence in it we have a two wasn't nobody offered a more current you know their one was not available or the job was yale i mean it was you know he put it in the record and i don't know why and i don't know why they would pick that that one either it didn't make a lot of sense to me he played for s reports i don't have any explanation why they would have done that and what factual basis was there for the i j s kook lucian that there was a change he relies on a twenty zero seven report well after that he concludes are going to change but i see no substantive analysis that's that's the problem that i have in the record to again it's seems to be almost like all the parties there was a tacit agreement that they were change contradictions because of the peace accords  there's not a lot cited to the record there's not a lot argued bought it by the petitioners council at that time the government and now the government's pre fund appeal it just kind of presumes that that is the case and i don't think there's a lot of record evidence  if that is in fact the issue i think the proper course would be really remained to supplement the record of course events of change you really don't have anything in the record what the current condition was in el salvador in two thousand and thirteen when the i g made its decision it doesn't credit police force about salvador one ninety that says that obviously there's a lot of gang violence and things like that the contradiction report of two thousand and seven does also support that even immigration judge finds finds that in his record  regarding the cat claim there was an issue raised by the government that that was waived to be i e reach that issue and i think they reached it to noble they made an analysis so i think the cat claim is before the court was argued by us i think there is a similar case that we  calvi holder that i think supports the petitions claim that he has a cat claim and for the evidence already mentioned of record i have nothing further to add and if i could then i reserve the balance of my time very well thank refer this case to mediation and as judge has was asking exactly what this would do with the petition for a view it doesn't necessarily impact the continuing validity of the removal order even if he is granted s he just can't be removed the reason we agreed to refer the case to mediation is because oftentimes when one receives t p s the resolution is to remain the case for administrative closure during the t p s is considered an admission in this circuit he could potentially have an avenue here to adjust his status which would then resolve any issue as far as whether t p s is ultimately not extended petitioners counsel mentioned t p s this court has concluded that it constitutes inspection and admission which would ultimately render him able to pursue adjustment of status based on certain qualifying relatives i'm not speaking to the ultimate necessary success of any application in that regard just that there appear to be potential avenues for alternative remedies here and that's why the government did not oppose his request for the case to father and if he's able to adjust status then you would the remedy is usually filing a joint motion to reopen and terminate that removal order before the board so it would at the end of all of these things happen render the removal order on final if the board did grant the joint motion to reopen it terminate that of course would all need to be worked out and radiation understood and take time understood well let's assume for a second that this petition or not before us what would be the process for t p s if the family that's leaving aside this petition i guess i'm trying to walk through what the mediators would do well the mediators wouldn't necessarily play a role in his separate filing of the application for temporary protected status the mediation would probably surround reports i can only explain that it was probably the two thousand and seven and two thousand and eight reports were probably the reports in the record because that's when his case was initially referred from the asylum office to the immigration court  why they were renewed subsequently i'm not exactly sure but i just your has never challenged the immigration judges reliance on those reports so any factual basis for the conclusion there was a change he argues that i guess he's not his argument wouldn't be exhausted with respect to the reliance on the specific record but if we're talking about whether he challenged the ultimate merits determination of circumstances had changed yes that's that's exhausted at the board address that and getting to what i believe judge pius mentioned that there didn't appear to be any real specific facts mentioned by the immigration judge and his changed circumstances finding that's not borne out by the record the immigration judge did cite several things that had changed in el salvador  the the there is evidence in the record of widespread violence in el salvador and the immigration judge certainly recognized that but widespread violence doesn't provide a basis for asylum withholding of removal or protection under the convention against torture so i think that the relevance of the gang violence is minimal here because it's so widespread that it wouldn't provide a proper basis for asylum and his speculation that sons of x guerrillas have morphed into the half a million it's not supported by any objective evidence it's just his testimony that his father believed that this was the alternative to terminations that he felt to establish his burden to show a well founded fear but in the context of rebutting the presumption that was the government's  i don't think that there is any indication here that the immigration judge improperly shifted the burden to petitioner and he doesn't make that argument at any point before the agency or before this card as far as far as i understand let me just up just one little notch in your brief you know when it comes to past persecution you just say well i mean there was past persecution the blue brief is all about the first part was all about there's not substantial evidence for past persecution you don't have it i mean i can quite figure what you were doing because the litigator strategy here based on the strength of the arguments with respect to future persecution that we need an address past when we have a clear finding by the agency let me ask you that is not a waiver of that argument on the on the  government's even if it is a waiver it's it's the court was right it doesn't have to tell you if substantial evidence doesn't support the finding of no past persecution then he gets the presumption  and then it's the government's clear burden to show change country conditions and when you read the i g report he does use language that says you know if you go to what his statement was he says well the f m l i party has come to parent recent years there was no evidence presented to the court indicating that a bridge dissipates in the killing disappearance forced conscription or even discrimination against any individuals formally affiliated with the government such as respondents family it sounds like you're putting you know political in the political power structure and also a door between the time he gets dragged into the proceedings and the time of the hearing well your honor with respect to the no evidence comment i believe that was a searching of the state department reports filed by d h s and finding no evidence there that would show that f and l and conducts these activities or that petitioner faces any objectively reasonable fear of future persecution and for the question