good morning your honors please the court we so provided on behalf of the petitioner francisco javier flores medina at this time i would like to reserve three minutes for a bottle on behalf of my colleague kendra tovey flor medina has entered persecution in mexico as a transgender person who suffers from mental illness because of the abuse and beating she endured she fears for her life to return to that country a committed reversible legal error in analyzing her claims when it conflated sexual orientation and gender identity by not once discussing her transgender identity in its alleged her basis for really based on her transgender identity that you know sir it seems like in her briefing she makes a reference to issues affecting transgender individuals but i didn't i couldn't tell if she was she in fact stated that she was transgender and i did but was this reference sufficient for the  y to conduct an in depth analysis or or do more than what they did yes your honor on a r twelve forty nine of the record and for as medina's handwritten asylum application she identified as a transgender wife additionally at a r five twelve in her first appeal to the b i a ideal to identify herself as a male and female individual putting the  on sufficient notice to evaluate her claims under that rubric thank you i haven't dano hernandez v lanch which directly governs this case mandated a separate analysis pertaining to gender identity when an applicant identifies as transgender this court stated on page ten eighty two of that case that quote the unique identities and vulnerabilities of transgender individuals must be considered when evaluating a transgender applicants asylum withholding of removal or cat claim despite the instruction of this court the b i a not only did not conduct a separate analysis it did not even mention her transgender identity and its order had it conducted that analysis it would have shown that although mexico has taken some steps such as legalizing gay marriage these protections do not extend to the daily life of a transgender person living in mexico in fact and often donna hernandez this court stated that laws recognizing same sex marriage may do little to protect a transgender woman from facts here in a pondo that person was undergoing all sorts of medical treatment hormone treatment that sort of thing none of that occurs in the record here does it know you're on or not in regards to hormone treatment however far as medina has dressed as a woman and does just as a woman i was dressed as a woman significantly the night that she was targeted in two thousand and ten in mexico so that raises a question if you're concerned about how authorities might react to trance gender persons in mexico why would you go to do you want to to a gay bar dressed as a has identified in those records citations i cited that she identifies as transgender the record does not state why she took the trip however when she did she was targeted and the b i a did not take into consideration that at least one central reason for that was her transgender identity as you know because i wanted to talk about the claim of past persecution based on the mexican police's actions  in arresting detaining and then beating misfortune to wanna i guess my question is how do we know that any of those actions which might constitute persecution  is sexual orientation or transgender identity it seems least from my review of the papers here that the police were at least initially motivated to arrest m floors because she was causing a disturbance which seems like a legitimate reason not motivated by a protected ground then the police go on to detain her and beat her but also it the police were in part motivated by extortion and peculiar gaming which are also not the basis is linked to a protective status or crown so has the record clear enough for us to know that the police detained and and beat her on account of her sexual identity or orientation do we need any more evidence here now your honor the most compelling piece of evidence medina's own words she was deemed credible in this case and her asylum application she stated and response to why she fears harm or mistreatment quote i was arrested assaulted by asylum application she did state in her testimony that she was dressed as a woman at the time that the attack occurred that's it a are eleven forty three and eleven forty six of the record thought they did and so that wasn't government sanctioned was it or something unable to be controlled by the government your honor all although the school officials did atte intervene to separate the children from her she did have to receive hospital treatment approximately six times she suffered a broken hand broken hand just by the severity of her injuries although the facts of the case were different the fit the case states that physical harm has consistently been treated as persecution but significantly primarily looking to the twenty ten incident the v a overlooked that probative evidence as to motive and did not conduct a mixed mode of analysis and therefore the b i's conclusion in that regard is not supported we have in the cases that transgender people members of a asylum withholding of removal or cat in that passage i quoted i know there is another case that has addressed if we could perhaps attempt to cite to it on rebuttal i can't recall the name of it as far as distinguishing that particular no your honor it was discussed her transgender identity was discussed because she identified as transgender and then while it was a cack case it was held by this court that the transgender identity would be  identified separately in looking at asylum withholding upper middle and cap claims your honors because of the failure to employ the oven donna hernandez analysis we ask that at a minimum this co persecution was not based on sexual orientation as to homosexuality or schizophrenia no you got it we are we are appealing that the v a s determinations regarding asylum based on sexual orientation in transgender or what are just one or the both your honor in regards to the past persecution it would be through a mixed mode of wends because primarily that she would have been perceived as transgender i did not conduct a comprehensive analysis and to those matters it with mental illness for example the b i did not look at the past persecution incident from a mixed motive lens so they concluded that it was not on account brutal attack over a four hour period therefore because of the b i e s failure to look at this what what she endured from a mixed motive perspective and failure to separately analyze her transgender dresses as a woman that's cross dressing that's not a transgender claim and while he may have mentioned previously to have in some ways to being a transgender wife he didn't develop that claim specifically before the immigration factual determination of that issue the question is what was the record that was presented to the agency on what and i said you just heard all of the references to that record certainly that that your coll so how are you saying that that was not referenced or raised below the question is it substantial evidence to support that claim is there enough beyond those two isolated statements  those are their governments not disputing that that claim was mentioned or was it sufficiently developed to support this entire type of analysis that differentiated analysis of amandine hernandez that in fact the immigration judge conducted anyway well what we have here is a petition or offered evidence well i guess under no hernandez versus lynch it seems to clearly hold the b i must consider a petitioners transgender identity separately from one sexual orientation or any other claim the b i didn't do that correct because the b i was not called upon to do that and that's the other point what we have here is the immigration judges extensive decision which did reach the convicted of aggravated felony because of an arson conviction the judge then found he was ineligible for withholding of removal because the arson conviction constituted a particularly serious crime so the analysis wasn't needed at the immigration judge level for which from what you just said right now that that the i guess any case out there that says just a reference in a pro se petition was not sufficient to put the b i a on notice and didn't need to consider that it seems like most of these cases where this comes up when it's identified the b i has dealt with it or  asked to deal with it there's no i'm the particular factual scenario this case is such that immigration judge was not asked to reach these questions the immigration judge was asked it was ultimately left with deciding whether or not they eling was  was presented but none of these issues that are before that are being raised now such as mixed mode of analysis particular social groups and this separate of and on his analysis as to asylum and withholding that was not raised to the board sort of not the b i did consider the asylum and withholding it didn't decide whether the crime was a bar i thought because fisher did not ask the board to do so fisher waived those issues by not raising them before the board the board isn't going to address questions that doesn't have to did petitioner of essentially a favor here by saying even if you're eligible for asylum you fail to demonstrate that you qualify for  can you address this alleged incident of past persecution based on the mexican police detaining and beating this war's how do we know that the police were not in part motivated  by her sexual orientation or transgender identity after the arrest the question is whether or not substantial evidence supports the agency's conclusions and what we have here are subjective allegations by the petitioner that he was targeted because of his either section either sexual orientation or his transgender status the record however and by his own admissions was that he was picked up by the police because he was quote acting crazy in the street and he conceded that the police can in fact arrest people acting crazy in the street it's important to know that the police were not strolling around looking they were hanging outside as usual and the police you know had a valid reason to for first arrest her that could not be a likely or would perhaps not based on any protected ground but then she was detained and beaten for four hours so i guess even if the police were motivated by protected ground needs to be one reason but not the main reason for or the only reason and so how do we know the police were motivated in part by a protected ground that asserts that's a mixed mode of analysis and again that's an analysis that the agency was not called upon to engage in here just taking a step back to the immigration judges analysis on this point immigration judges and allies in this matter as to cat protection eligibility capita action doesn't require nexus to a protected ground so the one central reason standard simply doesn't apply in the correct so what the board was doing here was looking at the factual record and reaching that conclusion and in doing so cited the immigration judges factual findings and what the board found and that substantial evidence supports is that while petitioner might subjectively believe that he was targeted because of his sexual orientation the record simply doesn't confirm that and that's by his own concession that it was because he was acting out in the street he fell down in the street he had either you perhaps mixed alcohol and his mental health drugs or some combination thereof and that caused this to happen the police weren't looking for him he also provides bald speculation that the police were throwing slurs homophobic slurs at him there's nothing in the record besides a statement of council support that  it's his own evidence it's his own concession that he was quote acting crazy in the street as to why the police arrested him when asked did they say anything to you he was asked three times the immigration judge asked him on three separate occasions did they say anything to you and he said nothing about it being because of transgender status although the only statement that comes close is that they told him that there are laws and that what he was doing was illegal there's nothing specific about him being targeted for being either homosexual or transgender he also claims that he was the only one targeted with his the evidence simply doesn't support that he was i think there's a question earlier my opponent responds that the no evidence to support that you need identifies as a woman the record is simply not even close compared to auburn i know hernandez in terms of what i've been down to one has experienced throughout her lifetime throughout everything that i've been down to experience what petition experienced as yes the unfortunate circumstances of being a homosexual in mexico yes that results in discrimination and harassment it's not ideal is that persecution is that torture and that's a very specific point but seriously maybe i'm missing were raised not all of them specifically these social group issues were not specifically raised at least to this this degree or even naming what group or of what groups what is really mean for the i j a before the krantz gender people are treated in mexico yes so doesn't that raise the issue of transgender and it wasn't addressed by the b i was it the board did address the board i believe t is transgender that the board was specifically considering this question and affirmed the analysis by the immigration judge essentially extending it to an asylum and local in context i'm have the page before me can you tell me which to discuss whether the petitioner appreciates that her not you behalf of the government have to respond to their allegations in the petitioner has a right to appeal it's not a favor that we're doing for the petition adopt the reasoning you make all these references are you point out all these references the b i did to the i ching but i i don't believe the b i explicitly adopted the reasoning of the i j prior i believe ok and so it seems like i've been down there with control here and it says that the b i'm a separately analyze a petitioner status as a trans gender person there are two separate questions on the question of which decisions are before the court medina lara's talking about whether or not the immigration judges and the board's decision are before the court and that's critical here because again the immigration judge was not called upon to engage in a specific analysis as to did not raise that point to the board for it to discuss it anyway so to fault the board for not doing something that it wasn't called upon to do doesn't comport with how simply immigration cases or work yes the board has to follow the law doing so here by this court does not accept that proposition that the i a e a was on sufficient notice that they are twenty seven when that i j did address the almond on hernandez question and went through that analysis and attempted to do that analysis i see my time has expired me answer your question for as medina under the law was not required to put that legal argument into the notice of appeal as a pro se petitioner so before it correct not necessarily your honor that issues that were exhausted before the v a under vi care i all of the the i addressed all the asylum withholding ever move all and kept claims on the merits and therefore those were properly before that the i a e a the question of whether the the i analyzed those properly through the through the lens of the transgender identity is a question of law which that the ira was required to do under this court hernandez you're argument is that it was raised as sufficiently as was would be required for a pro se petition yes your honor and this is a procedural error that we're dealing with dress transgender as a matter yes your honor and the question is not whether or not flores medina is transgender that issue was properly before the b ira and they were sufficiently on notice to know that that requirement and was required and if i may quote from auburn donna hernandez this court required that not that i j but the be ira consider quote the unique identities and vulnerabilities of transgender individuals in all applications for asylum withholding of removal and cat relief and that wasn't a direct instruction to the ira which they ignored and now the government seeks to sidestep it on exhaustion grounds and for those reasons we would ask