good afternoon your owners and may please the court my name is wesley weeks i represent the ball family or the petitioners in this matter i would like to reserve two minutes for just watch the clock and counts down understood thank you case is based on the ball families claim that they were persecuted in austria on account of their romanian ethnicity in this ixil and claim it is undisputed that the ball families fear of persecution was subjective genuine it is also undisputed that the boss testified credibly to numerous attacks and incidents including for example an attack on their twelve year old son d b that left him deaf in one ear that was on account of his romanian ethnicity and another tapped by mr pam or zachary that is correct and for example another one of the numerous incidents the testified to an attack on their eleven year old daughter who was attacked by a group of boys and the school also on account of her romanian if ethnicity which wound her ended she ended up in the hospital for six days as a result of that attack and is also under spewed that at least some of these attacks rose to the level of persecution to be i e however denied the boss asylum applications because it concluded that the government was willing and able to protect them but when all of these attacks and incidents are reviewed cumulatively as the b i should have done here the record compels reversal i would like to focus first on the incident involving the theft of the boss land because i believe that places before you well i guess this is a substantial evidence argument you're going into right the standard for review is substantial evidence i want to ask you do i want to ask you a policeman or a question which is why i thought one of the arguments you had is that the b i did not consider the argument or the contention that cramer was a government official that is correct that is one of the several arguments we present if the board didn't address that argument would we do well i think the answer is twofold first i think the record is sufficient for this court to conclude that being the fire chief is a government official and that satisfies the requirement that the persecution be attributable to the government in some way second i would say that under this court's precedents such as a footballer versus ashcroft the government after abuse and test is a disjunctive test so there are two ways that we can satisfy that test one would be the way your honor just mentioned by showing that chief primer is a government official which automatically should qualify or should satisfy that prong of the analysis the other way is for this court to conclude that regardless of whether chief crammer is a government official the cumulative record shows that the government was unable and unwilling to control the various acts of persecution and this is your comments now are directed to that prong that is correct but we are certainly are arguing under both  did implicitly affirm that finding or would it be necessary to send similarly if we were to find insufficient evidence that the government could control its actors would that have to be sent back to the day would have to send it back to the i j a could as you propose fred without authority although maybe you have some that the petition could just be granted without sending it back either to the b i or to j so i'm sort of concerned about well and then i guess the third thing is if either komarr was a government actor or it was shown that the government couldn't control its actors then the only remaining question is whether the past persecution which everyone found was sufficient to show future persecution or did the government rebut that would we have to send it back in either event for the give the government a chance to rebut the presumption and this court went ahead and said the cumulative record compels the conclusion that there was persecution here and remained only for the discretionary determination of whether the attorney general would grant the siloam application ashcroft those would be two examples as far as the government's ability to rebut a finding of past persecution this court has often said that if the government did not put on evidence at the agency to rebut that by showing for example change country conditions that this court will not remain and to give the government a second chance at that i'm an example of that would be ahmed versus kaiser is one of just go away you know i think that if this court concludes that the government attribute prong is satisfied then the boss of established that they were subject to past acts of persecution which entitle them to the presumption that they were they have a right now the government can rebut that except for here the government did not present any evidence suggesting for example change country conditions so under at least some of this court's precedents i don't think it's necessary for the court t determination if the government did not present that argument at the agency to begin with they did present the argument that the austrian government was trying to do sensitivity training for their police and  correct now that argument was not based on change country conditions that was based on the conduct country conditions that the cia was analyzing at the time there's a number of problems with that argument the first i would say is under this court's precedents such as our five versus holder the b i a is not permitted to disregard sworn particular lies testimony by pointing to generic statements in a country report that indeed the state department here report here is silent about the treatment of romanians in austria and second there's a second problem with that argument in that is the fact that if you look at the report the report actually states that persons from diverse ethnic and racial backgrounds were facing increasing discrimination from government officials such as the police at the time of the state department reports and i think the fact that the austrian government had to offer these sensitivity training classes in fact corroborates the boss account let me ask you this the i j a writes there is no evidence that mr cramer is a government official evidence he was a government of course he was a government official but as the saying well he's not a government official in the sense that would be meaningful here because he was not in any way acting in his official capacity and beating up the he was not a government official but it's important to remember that these immigration asylum hearings they hear that the immigration judge hears a lot of testimony and then renders the oral decision immediately and so she might have overlooked this issue now whether she did or not mr grammer and they get an award of twenty thousand euros and change that doesn't sound like government indifference or unwillingness to protect what i do with that well i think if if the court concludes that the primer is a government official because the test is just junked of that alone satisfies satisfies the government attribution requirement here but even if the court goes the other route and looks at this in terms of willingness or able to control i there  court has suggested that slap on the wrist punishments are not sufficient to demonstrate control over what exactly was the amount of the award against mr graham so there's two numbers in the record the first just fifteen thousand euros which was the offer for how to hoard there was a in a war that was large it appears to be twenty four thousand in the record but so that's about thirty thousand dollars you know in this case has been pending for quite a while i can't say what the exchange would have been at the time of either roughly what it was sure and you know i believe it even if that sounds like the sum of money i think for an ethnically motivated beating of a child that results in permanent disability i think this court can still conclude that that is that's woefully insufficient punishment for that type of attack there was no criminal prosecution correct correct no no criminal prosecution no arrest at all and you know if this court looks at cases such as show affair or versus ins in that case the court concluded it's unclear whether the the person was a government official or not on the court said that he was but he was actually arrested and held for a month and the court said the  it please the court i'm john of the robins here on behalf of jefferson sessions the united states attorney general good afternoon your honour's the key issue in this case is whether the record compels reversal of the agency's determination the petitioners fail to meet their burden of showing that the austrian government would be unable or unwilling to control any potential persecutors in this case and was there an error of law let's start with that one first an error of law which was right with me i didn't consider whether or not cramer was a government official raised that issue well your honor the they specifically said that he wasn't a government official i'm sorry the board did they said he was a private actor the the immigration judge seemed to suggest were the words that help oh i'm sorry i'm sorry  no why not because the what i guess you're referencing the requirement that you have to show it's either the government or the government being unable or unwilling general but the problem is that is a concept that has come up in the in the case law with respect to asylum and withholding of removal with respect to devon defining persecution persecution is a term that is famously not defined in the eye and say so what is developed in the case law is a sort of definition as to what constitutes persecution but the term refugee is defined in the i and the term refugee is defined in the i and a as quote one who is unable or unwilling to avail himself or herself of the protection of his or her native country because of persecution so refugee has the persecution definition in there but before you even get to persecution you have to show that you can not avail yourself of your country's help and the record evidence in this case amply demonstrates the petition was able to avail himself of the country's help you know kind of circumstances but i don't think what you said in any way contradicts the implicit  actors it defies what we understand about refugee law with respect to asylum being a relief of last resort is designed to be a form of belief that is only available when alien has nowhere else to turn if they can turn to their home country because the home country is willing to control one of its own actors that renders surrogate protection of asylum unnecessary international protection hasn't failed there so that would run counter to some of the most highly secure standard case law is just counter to everything you're saying no no your honor you look i don't want to argue with you about this point but we said we've clearly said in the case that he the counsel just mentioned bob you know we made it clear we said when the government is responsible for persecution the third prong or were silent inquir satisfied without further analysis the ball is distinguishable in a couple of ways you are first of all in that case the government said that based on the facts of that case and what had happened that it could tacitly assume that there was governmental persecution and there was a hole i for the facts of the case with the respect of the whole issue of the israeli marines and all that and all the different government officials in the area that had all ganged up on petitioner there was no there was no instance of evidence like in this case where we have direct evidence that when they went to go to the austrian government for recourse that they received recourse quite successfully as your honor noted and i would also reduce the fact that this was not criminal if you look at page three hundred sixty one of the record this was bought brought by the public prosecutor of drugs in a criminal court now i admit that the it is a little bit blurry about whether this was a civil or criminal proceeding but the documents here suggest suggest that it was filed in criminal court i'm not the record is devoid of evidence about how this works exactly about why a a a an award amount of that nature was award d in a criminal proceeding but it certainly was filed in criminal court according to the documentation in the record a page three sixty one this is a document in the record brought by the public prosecutor of grass this is it says it's a penalty request  now if it does appear that they tried to reach some settlement that did involve money so i mean it's not entirely clear from the record how exactly that works in the amount of award goes to the family correct correct and  way that we would understand a criminal fine correct and looks like an awful lot like in function the civil suit here now they may have different labels for it but it's a monetary award paid by mr grammer to the family correct it's actually not i think it was it was not paid because it was a yes or no but it wasn't paid because petitioners didn't stay in austria for them to resolve the exact amount that was paid although the there is indication here that there was amount awarded in the amount of just over twenty four thousand euros but you know and bear in mind here i mean not only is this direct evidence that the austrian government is clearly acting as a deterrent to this type of behavior from people like mr krammer but we're talking about a first world european union democracy here there's no evidence in this record this is a country that granted petitioners citizenship that is clearly working to try and assimilate immigrants into its country understanding that there is discrimination here and of all the harms that went to petitioner remember here the immigration judge only found it was one of those harms roast a level of persecution that was the harm to daniel and when they reported that instance single instance of persecution to the government the government responded and in fact and in fact you know the the austrian government is a country that works of the united nations commission for office for the high commission for refugees to bring refugees into austria refugees flee intra austria from other countries so this is the notion of the government here if there is no evidence in this record to demonstrate that the austrian government is engaging in persecution of people that award citizenship to there's no indication that it's not willing or able to control groups that engage in discrimination that rises the level of persecution when it gets into violence i mean this is not a situation where international protection has fail is a horrible situation i agree your honor that it's certainly discrimination and it's deplorable i don't dispute that one bit but i do take issue with your description of the facts on a couple of issues for example the property dispute when they were asked did you take this dispute to court which this is a property dispute not persecution it's discrimination certainly and it's and it's not that's not not right don't get me wrong but when they asked did you take this to court they said no so this is a distinct when they did take things to court and they want and the reason they did the court they believed they wouldn't be helped but that when the time when they did go to court and did win an award so there's there that's what they were found to be speculative subjectively credible their beliefs were to appear to be genuine but in terms of objective reasonable it's not objective leigh reasonable to suggest that the austrian government here wasn't going to help them had they actually brought a claim with respect i see that oh i saw it two minutes yes i lost my train of thought there there's no it's not objective lee reasonable to assume the austrian government would have helped them if they had filed a claim with respect to that property dispute and again that property dispute is not persecution and you can't and i know there's this whole argument being made with respect to cumulative persecution but you can't accumulate discrimination that doesn't rise to a level of persecution into the persecution else of the immigration judge found with that where there were instances of actual harm that roast level of persecution it was only one instance that that was satisfied based on the objective evidence and that was the harm to  question assume for a moment that that i were to disagree with you about whether or not the i was required to address whether or not grammar was acting as a government official what do we do with the case well like i said hear shouldn't go back to the can address this issue respectfully that's because if the if the board doesn't make a finding under the we can't rely on ad hoc determinations that the board did make but one of the well established exceptions generally is futility so i would say that you don't have to send it back and this is exactly that type of scenario because even if you assume that i would also note the record doesn't really demonstrate that this fire chief is a government official it's big i mean is this a five volunteer fire department is not quite clear  the normal meaning of a ploy by the government it's possible i'd chief it sounds like he's inefficient it does sound that way around it which is why i'm arguing about the futility as well but senator i see that i'm over my time do you need to go a little further down there remedy path let's say we find that the i was wrong and not addressing the government official question could we not then simply find that he was a government official the a did consider it we could look at what the i j a looked at and say no he was a government official we don't need to remain and we find that he was alternatively what if we find that the government didn't show that austria was willing to control its people in this arena would we then could we not then simply find to the contrary and grant a petition or would we then need to go on to the rebuttal of the presumption of for future persecution could we not then find that there was no rebuttal the government had its chance to put on the rebound and put on any and therefore grant petition well with respect to the rebuttal issue there it was rebuttal evidence granted and the immigration judge actually made findings with respect to rebuttal if you turn to page one thirty nine of the record here the immigration judge found for example that nor does it appear that the applicants would necessarily have to return to the area where the persons who harmed them live if they returned to that country so that relates to one of the rebuttals that can be made is if the if the if the individuals can reasonably be expected to relocate within the country that would rebut a presumption of future persecution so there's a findings from there that specifically rebuts the notion of past persecution so if you were to find that the evidence supported a claim of that that petitioners suffered that the austrian government was willing or able to control the persecutors the government there is certainly rebuttal evidence in this record and findings by the immigration judge with respect to that rebuttal evidence that would also make remain futile again so so unless they're there for the questions i'm i see a way in my dream and the question of government actor or the question of control of actors there was an error in the analysis by the age of the board you could remain for for findings that are consistent with that resolve whatever error in the analysis there was but you can't make this court can't make factual findings if that's what you're asking based on the record based on the no the neither can the board for that matter the board can make factual findings either only the immigration judge can make factual findings on this under the appropriate standard of review so thank you very much for timers would you put two minutes  whether a fire department could have volunteer fire chiefs is irrelevant to the questions before this court and for example the department of justice has volunteer a u s c is they can still put you in prison they're still government actors so i don't think that needs to detain the court same thing and other decisions such as abba tova verses where this court said we need not rely solely on the inability to control concept concept because there is compelling evidence that it least tacit government sponsorship is involved in the harassment of armenian so i think that indicates that this court views the test as two separate progs the government's arguments about european democracy and the surrogacy purposes of asylum i don't think have any relevance to this review of and of a particular record in a particular case before the b i a the v the asylum statutes are clear that when a asylum applicant has demonstrated that they were subjected to specific acts of past persecution where the government was unable or unwilling to control them or under the other problem of the test if they were attributable to the government that alone  creates the presumption that they're entitled to asylum this court doesn't need to look at the democratic nature of australia i see much of my time is risk expired thank you i think both sides are good arguments and before we finish up  court would like to thank mr weeks who's here as a pro bono attorney and we've great french appreciate your help this is not a signaling to us as to who's going to win it's rather a statement that we very much appreciate pro bono attorney to come in and help out thank you thank your hono