the i j a found that the petitioner did not prove that the government was either unable or unwilling to protect him from the abuse that he suffered because he failed to report now we're talking  whether the claim is based on past persecution or well founded fear of future persecution must the asylum seeker also demonstrate that the home country is unwilling or unable to protect does so and so ok go ok so that's helpful so in a case like this where i think this is a principly anyway i'm looking at the uncle incident which is i think you're one of the ones you're talking about which seems one of the more serious ones to me  that's a past issue yes and so how does the failure to the alleged failure to report where does that fit is that sort of part of the past persecution or is that part of the separate standalone requirement that he show unwillingness or inability to protect so for the petitioner to show that he suffered persecution he has to it's there are different components to it so one is you have to show that there's a nexus right so that the harm that you suffered has to do with one of the protect grounds when this case is a homosexual male from what i'm on that that's our protect the ground the other one is for you to find for the court to find that there is prosecution you have to show that the harm rose to the level of persecution you can't just beeches harassment barrel  there is not to a requirement to report to the police because there are there are different reasons why you would not be able to do that you would be not willing and sometimes she's not physically able to do that so there is case law that says consideration because you understand the standard of review the record has to compel or contrary conclusion to the conclusion that was reached by the board of immigration appeals and so i guess one of the growth but the difference is the h and so this is one of the errors that both the b a a in the i j a committed and that's because the persecution that happened while he was a child has to be looked at from the child's perspective so a child does not have to start for the same level of harm that an adult would and this is what the board and the i g failed to address so we have a somebody who was in one year old who  harm that rises to the level of persecution so neither neither the board nor the i j did this what i'm sorry that i've lost track of the timeline here but what was the so when he was eight or nine when the uncle and student correct right and the teasing about the classmates and then what about the beating how much how much time elapsed between those incidents we're talking about thirty years later thirty years yes he spent a big part of his life in the us yes he came here when he was seventeen and then he was deported around twenty ten i see so so the uncle incident occurred before he originally came then he was deported then the three man beating happened later that's right got it yes so we're go ahead lucy would say that there's in both instances the harm that he suffered while he was a child in the heart and he suffered while he was an adult they were both based on his status as a homosexual male so really thirty years passed in between and he is still suffering harm from he's people in water because he's a homosexual male so we have there is enough evidence in the record to show that things in what i have not changed they're not they're probably not going to change in the near future so the one of the things from the be a decision in that the government says that the to be actually address these claims  we do not agree with this and that's one of the things that many of the decisions that have handled children asylum cases in other circuits they usually use one or two sentences just to say we are aware of the age of the asylum seeker and that is not enough to have a meaningful review of these cases so one of the things we want to see is a meaningful discussion of the petitioners age have to have as this court i guess i read the recent ninth circuit decision where they flip their earlier decision has this court ever sort of engaged the age issue specifically and i guess it could run either as you suggested earlier to the level of harm encountered but i was what i thought you were going to say is instead that it might run to the requirement that there be a report that you wouldn't expect perhaps an eight or nine year old to report to police necessarily the same way you would a four year old is j e u n e got it ok thank you so the other issue with the decisions with the decision from the board of immigration appeals is that the evidence was not considered as a whole so that is one of the things  that the board has to do so that follows that their decision is not supported by substantial evidence that there were things that were missing from the record for example the expert witness report was not properly consider morning may please the court sherry glazer appearing on behalf of the united states attorney general your honour's in this case mr racine is core not o simply fails to meet his burden to present evidence that compels the conclusion that he is eligible for asylum withholding of removal and protection under the cat a few points i'd like to make first is that he just argued that all that was done after the two thousand and thirteen beating was that the police took a report and that's not true he testified contrary to that he testified that the police took a report the police investigated the incident and at the time of his hearing he even testified that the police were still looking for the individuals who who beat him and this court has held in cases that when the police investigate an incident like that that the individual did not show that the police were on   willing or unable to protect him and that i can citations are two sixteen federal appendix nine sixty three and five twelve federal pen six nine hundred sixty three but there's also  country reports in the record prepared by our state department how allotting the fact that the grandma and police regularly abused and extorted members of the gay community and that they rarely conduct any meaningful investigation of the crimes committed against members of the gay community right amala is recognized as one of the most dangerous central american countries for the gay community and there are no laws on the books to protect the gay community from harm seems pretty strong to compel them to sell a card for a conclusion there is a lot of evidence in this record saying that shows that but i that that record that that art didn't says old and it's outdated a lot of the evidence predates two thousand and thirteen it's not recent and he will for a lot of those arguments he relies on his expert and his experts testimony and she also relied on outdated evidence a lot of her evidence to was between twenty two thousand and three and two thousand and six and i can point the court to several citations that's five sixty to six twenty six six seventy two to six eighty six three zero five three  for who perpetrated the attack and recent evidence shows that the water never came or nothing ever came of that but that's because he gave very big descriptions of the individuals he didn't know his name they didn't know their names he gave descriptions that included body type that included hair color skin color but that was all that and that was all the information that he gave so it's presumable that the police have not found the individuals because they didn't have enough information to go on so just for the purposes of this question that it were found that there was a pattern and practice of persecution is earning evidence in the record developing weather moving to a different part of my suffice there is there are two points that i would like to make i would argue that if they'll do exhaust that before the agency my second point would be this case with the agency found that he didn't show past persecution so the relocation finding would really only come into context with regards to the cat claim but i would argue that there is evidence  the board that shows that he could relocate there's evidence showing that guatemala city now has a large active gay community there is gay pride parades there's bars that are cater towards the old beauty community and there's evidence in the record that a town north of has a very open commune and there's and there's a blurb in the record regarding a man who's had a long time male partner and he lives in antigua and he discusses how he lives openly he has friends in the bt community his friends who are not beach community and nobody cares that he has a male partner and that is on page six seventy six to six seventy seven so can i ask you i guess i want to ask you the same question that i asked your opponent i'm just trying to get straight my own had the uncle incident the the alleged failure to report the uncle incident does that ron is that a is that a past persecution issue or an unwillingness to protect a shoe or both it's both ok order to show past persecution an applicant has to show three things has to show that the harm had a nexus to a protected ground under the way that the police were unwilling or unable to protect him and that all of the harm that fit into the definition of persecution rose to the level of persecution so it's both unwilling or unable standard fits into whether he showed he suffered past persecution got it even though of logically the unwilling or unable seems to be sort of a forward looking thing right fits into the past persecution disjunction of the standard well in this case we would look at whether there is because he didn't report it in the government isn't arguing that a child of eight or nine years old has to report sexual abuse to the police i would be an unreasonably high standard for a child to me but the question still remains that he needs to show corner to this court case law whether it would have been  report the abuse and looking at the record to see essentially how the police would have reacted if he'd reported in a child went to the police saying he'd been sexually abused and i point this this court to evidence in the record that there is that the police would have been willing and able to protect him there is evidence showing that the secretary of social welfare provide shelter and assistance to children who've been victims of abuse there's a unit of adolescent and child victims in a special prosecutor's office and they investigate cases of child abuse and the public ministry has has released numbers of convictions for sexual abuse of a minor through the years that's all in the record on four zero four four thirty six four sixty eight and five a wine so  this why so if the government is conceding that an eight or nine year old certainly doesn't have an obligation to report conduct like this to police why isn't that sort of a stand alone exception to the reporting of the presumptive reporting requirement instead of sort of in addition to futility why shouldn't the child victim also get a pass on having to show futility well because then he wouldn't be here to child would not be meeting the overall standard for asylum there is no case law in any circuit that i know of that exempts a child from meeting that third requirement in order to establish what how he entered the country i don't have that fact at the top of my head i can't remember with regards to the other incidents mr seen as core not omaeda an incorrect statement saying that the board cumulatively look at the incidents that fit in the definition of past persecution which would be the teasing by his classmates the statements by his father and the two thousand and thirteen beating but the board did that's on page four there's a statement saying in address that's a paragraph the focus is on the harassment by his classmates so the board did cumulatively look at the incidents that fit the definition of persecution and i would argue that this court has it hasn't made a blanket statement about the standard related to child but it's been hernandez that six eleven federal appendix nine fifty six the applicant in that case was it was applying for asylum based on incidents that happened to him when he was a child and arguably all the incidents that happened to him when he was a child were more severe than in this case in that case all the incidents were based on his sexuality he was teased by his entire community and verbally abused by his community his neighbors told him that he shouldn't be gay his classmates teased him his parents virtually abused him it's parents also physically forced him to work in the field for long hours and deprived him of food and this court found that that was all on account of the sexuality but none of that rose to the level of past persecution and arguably everything that happened to him as a child was much more severe than what happened in mr rhys you know score not zero in this case and did not rise to a level of past persecution and when this court has found that conduct does rise to the level of past persecution it's continued it's repeated it's very severe we have a case that is for ninety eight f third twelve fifty three and not cases court found that the applicants the past harm did rise to the level of past persecution over a period of fourteen months she was threatened via email and telephone she was pulled out of her car by her hair she was thrown fist first on the ground face first on the ground i'm sorry she had a man's foot jarden her head quote unquote death to help with love was painted and red on her parents door the four killed family friend when they had come to her family farm looking for her she experienced several more threats and she experienced another severe beating and all of that was continuously repeated over a period of fourteen months and that is the kind of past harm that this court has found rises to the level of persecution not the harm in this case which is both less severe and there longer intervals of time between between each incident ken so you guys are going to think i'm the densest judge who ever has been but i'm going to circle back to this how it is that youth how it is that the presumptive reporting requirement used in futility sort of tied together into this unable or unwilling to protect so i think you answered my question why isn't there in effect a youth exception not only to the reporting requirement but also to the futility proviso you said because that would exempt the youth from meeting the unwilling or unable to protect standard i just don't think i understand that i mean like so the youth presumably would still have to show unwilling or unable to protect it's just that his or her failure to report it wouldn't be a bar to his ability to show unable or unwilling to protect correct i mean i think this case would be different if the record didn't have any indication how the guatemalan authorities would have reacted had they known about his uncle's conduct the ninth circuit kind of discussed this in bring us rodriguez and it's said that there may be some cases where you know again we can expect children to report it and of children aren't reporting it there may be cases where there just is no record evidence showing how the authorities would have reacted had they known about it but the ninth circuit really emphasized that in these cases we still need to look at the record to see what we have regarding this issue and if there weren't any evidence in this record i would argue this court probably should send it back but there is evidence in this record so that's why he does not meet his burden to compel the conclusion that the police were unwilling or unable to protect him because there's evidence in the record showing that the guatemalan authorities do protect job victims of sexual conduct one quick point i would also like to to make sure the court is aware of it one of the for the well founded fear one of the factors that the board relied on was that he remained unharmed in guatemala for four months after his two thousand and thirteen beating a mysterious you know scor emphasizes his argument that sure he wasn't he wasn't harmed during those four months because he never left his house but there is that's not true in his declaration he says that he went out with other people after the beating and he testified that thieves robbed him after that two thousand and thirteen beating during those four months so that's on page two of four in three sixty four so based on this record it's simply not true that he remained in his home for those four months which is why he was never heard or injured case talks about is filling the filling that gap with documentary evidence so i think it's important for a petitioner to have quality and quantity of evidence to be able to show that a reporting of the abuse or that the police is not going to be able to we even have a i was just looking at it we have a news article from twenty fourteen about reports of like children getting expelled from school because the teachers have found out that they are they are homosexuals so it's really in case also talks about how do you have to be cautious about not equating legal process legal progress with social social progress and the fact that there is an office created to be able to help the victims of abuse doesn't actually mean that this office is effective and so we have a lot of evidence in the record to show that the police in the judicial organizations in one of the largest simply ineffective so we're actually having to show both that the police are unwilling to help because there are sometimes the prosecutors in the social structure and the judicial structure in what is actually unable because they are incompetent and they just do not want to deal with this so you're the point about the  the failure to report the uncle abuse is it doesn't bar you know it's not a preclusion to your argument that you know to meet the unwilling and unable prong of the test and then but at that point i guess there's a separate question are we now just in sort of a contest sort of of warring bodies of evidence about whether you know the government guatemala can or will protect and you say we've got this evidence in an expert and stuff that says no and she says oh but they investigated this twenty thirteen incident and you know she's got this body of evidence and if we're left in that situation given the standard of a review isn't it sort of tough for you it is able or was unwilling to help you so in this case the board didn't even get to the they didn't find any nexus for example they didn't say they didn't address the issue sorry they did not address the issue so there were little things put together they reached the conclusion that there was no persecution but there was no meaningful discussion of the nexus they said that because there was a failure to report then that the petitioner could not show that the government was unwilling or unable so they just caught of that that analysis right there to find that there was no persecution and so we're trying to say that they are that they did not apply the correct standard they did not look at the evidence as a whole and they did not use the right children standard for this for this quite so a statement just like the government said that they used that first of all they didn't even include the sexual abuse from the uncle and that statement that the government is quoted the fact that you were mentioning in just one sentence is not a meaningful review is