old the department of homeland security agreed that the rape was inflicted on account of race and that michelle is a member of the particular social group of persons who cooperated with the police and prosecutors in the investigation of her kidnap bar department also agreed that if michelle suffered past persecution then she is eligible for humanitarian asylum under the regulation because she will suffer other serious harm if she is forced to return to guatemala a major issue in this case is whether there is a reasonable possibility that the guatemalan government will be unable or unwilling to protect michelle should she be forced to return to out of mala and therefore whether her fear of persecution is well founded in the decision below the immigration judge and the b i a fail to use the proper legal standard factual determination of whether michelle's here is well founded and therefore the case should be at the very persecution or return to the home country in matter of a cost the b i a formally adopted the language of harm inflicted by persons the government or organizations the government was unwilling unable to control as part of the definition of the legal term persecution so her fear of persecution is well founded if there's a reasonable possibility that persecution will occur and the government's willingness and ability to protect is part of that definition therefore the reasonable possibility standard must apply in turn charming whether fear is well founded is there a case that actually says that the unwilling or unable  the i think there's a difference between whether you're to try and you're analyzing past persecution where it seems like the courts have held that whether the government is willing or able to control is a matter of fact and that if you're dealing with past persecution then it would seem that the preponderance standard would apply when you're dealing with a felt well founded fear you're looking at prospective behavior on the part of the government and that's when the reasonable fear reasonable possibility standard must apply i don't i'm not aware of any case that says that that's that's and that's an inference that seems to me to be necessary to be drawn from a matter of of a cost as definition of the term persecution so in the decisions below neither the i j a nor the board of immigration appeals use the reasonable possibility standard in evaluating michelle's well founded fear  the analysis in both decisions is all related to past persecution and the analysis related to a well founded fear is a simple statement the immigration judge makes that statement that because the government pet checked her in the past it will also protect her in the future which is not logically sound and then the b i a adopts that position in its in its decision  if we look at the record it's very clear that there is a reasonable possibility that michelle will face persecution if she's returned to guatemala on two different grounds remember that there are two protected grounds that the government admitted to in this case one was persecution on account of race and the other one was on account of her membership in a particular social group so in terms of the particular social group record evidence shows that some of michelle's tormentors remain at large the record evidence also shows that the guatemalan court system is corrupt and that preserves can get their sentences reduced and that they can also direct criminal activity from within the jails there's also some evidence of hostility between michelle's family and the family of the of the persecutors so there certainly is a reasonable possibility of future persecution there are to what extent should that be i have looked at general country conditions state department reports things of that nature i think that's extremely important in this case your honor because the petitioners shrink up people are especially targeted or persecution by the that the guatemalan government had given a license to a mining operation to operate a gold mine on chink of land and the chink of people were protesting and as a result several chink of leaders were kidnapped and tortured one of them died from that torture and the interior minister again bottom all at that point which was april two thousand and thirteen just after  michelle escaped from her kidnappers but the interior minister's made statements in favor of the mining company in favor of the torture and murder of the chink leaders so in the context of the racism it directed specifically against her people but that's really an important point i think it helps us to understand when the person occurred so  i also believe that michelle was a was a victim of past persecution her people were widely discriminated against she was chosen on the basis of her race as a target for kidnapping she was tied to a tree she was beaten she was raped all of that happened before the guatemalan government moved into action she was abandoned by her kidnappers and later found her way to a neighbor's  home and then the guatemalan police did show up they had been chasing the kidnappers at that point and the records show why she was abandoned by the kidnappers at that moment was it because the police were on their track i would believe that that would be a fair inference and and the that is the that was the immigration judges conclusion  acts is there any evidence in the record that the government did not prosecute the remaining kidnappers knowing who they were  that i'm aware of though so isn't it difficult for you to argue that the government is unwilling or unable to protect your client given that they did prosecute the people that they knew they did punish some of the perpetrators punishment it seems to me is different from protection and so in the in the broader conditions of racism against her people and guatemalan government statements that torture and murder of people of her race was appropriate the fact that she was then selected for persecution seems to have what the first circuit would call a governmental nexus and do something to do with directing more resources to the protection of indigenous to women and girls human rights state rip the state department human rights reports do show that thousands of sexual assaults against minors are reported for example and there are very few shelters in the country that are available to help them some of those shelters also house criminal offenders the police are overwhelmed and ninety to ninety five percent of the cases such cases are are go unprosecuted you're you're arguing that there's a systemic problem but should the showing of willing and able to protect a person be more targeted to that person's particular circumstances in other words are for some kind of haven to this particular individual or something more specific i think your honor that would be appropriate so a good case that to compare the two is garcia versus u s attorney general the third circuit case where the guatemalan government or offered around the clock protection to a witness and then finally removed or  got her abuser to go to mexico because she was in such danger in michelle's case they offered a day twice a month check in with a justice of the peace and it doesn't seem to me that that rises to the level of protecting her from  threats that she might receive so michelle was grievously harmed the medical report indicates that she needed surgery to repair their degree tear in her vagina among other injuries she suffered psychologically for years and will suffer for her old life she was persecuted because she was raped on account of her race when she was seven this court should find she qualifies for asylum on the basis of that past persecution even if the god of the government's remedial efforts after the persecution mean that her fear is no longer was founded the department does agree that she will suffer other serious harm if she is removed to guatemala at the very least the government the dischord should remand the case in order the court my name is sitting green i represent the government in this case and i'd like to start this morning by doing the i b s that this was an very sad case a very painful back and i think that you can stimulation so that that legal it in this case was narrowed down extremely and it was only he only to litigate one single issue that was dispositive and that was that the government was willing and able to but the government stipulated that she had asked persecution within the meaning of that term of art that she would be eligible for humanitarian asylum not because she would be subject to harm in the future  because she would go weighing and fica logical suffering from what happened in the past so i don't want you to impression that the government stipulated that something bad would happen in the future because it certainly did not  prosecuted and senator lott this is just this judge moore there were a couple of kidnappers who were who were and i understand may still remain at large is that correct  newstead were related to disagree but there was no information about what their actual role was for the day had anything to do with this particular kidnapping they just had some of their suggestion and then the things that the news real after her time in the refuge the requirement was simply that she appear every couple of weeks or that someone on her behalf check in with  some government officer and the question that your opponent is raising is how is that really protecting her how does it show that the government is able to protect her because anything could happen in those two week periods how do you respond to that within the meaning of past persecution would that would preclude humanitarian asylum within the regulation and i mean i think what you're talking about is not humanitarian and you know they proceeded with that just calling him a reference earlier to the standard of review curious the government's position with respect to standard of proof in terms of reasonable possibility standard is the standard to apply reasonable possibility that the government is unable or unwilling to protect her well of course which possibility is the standard for wel possibility that all those things will coincide criteria and in cases where there are met already occurred so it does to something that is very well established and there's no there's no law on the other side of it  it and so it read the evidence and conditions was mixed into board bad also it's very important to look at what actually happened in this case because of course you know some of that kind of conditions evidence m supervision when she laughed so she was not somebody and the police had trouble getting to them protecting the government encourage her to apply for humanitarian asylum back recommended that they could a humanitarian asylum and date and she begged court instructed the children's refuge to help her with that and they did so and what should we do with that fact then the government of quantum encouraged her to apply for humanitarian asylum suggesting perhaps that they recognize that she would be better protected in the u and the grandmothers indorse language affidavit that was discredited at the hearing and the grandmother doesn't speak english but this detailed english language affidavit she is their second language we did work with her actually both in person and on the telephone to develop the affidavit and unfortunately she broke down one of the stress of testifying but we did not rely on that and we don't i believe need to rely on that in making in the court making its decision in terms of the standard of review  and i'd like to emphasize that many of the rehabilitative services that that were offered to me show were offered by non governmental organizations  you're are you you did raise the issue of whether this case is fit for humanitarian asylum and and it's correct that as counsel said that that does require a finding of past persecution and  respondent as part of the term persecution is that actually fuses to elements of the statute the statute reads a refugee is a person who is on able or unwilling to avail yourself of the protection of her country because of persecution or a well founded fear of persecution so the availing yourself of the protection of her country is a separate element from persecution in this statute i'm well aware that this is a big change in the law and i'm not sure that you could we would adopt that change but it does seem to me that a cost as an interpretation of the term persecution is in conflict with the plain language of the statute again that's another question of law for the court  finally they will be on your honor your question about the the standard of proof for how much government protection is is absolutely necessary there are very few published cases  this issue and cully as a council cited as is another one and in that the jordanian government did prosecute every single case