but the noble matter of law at his shoes the government raises an issue and the immigration judge raised the issue as to whether or not the facts that were recounted in this particular case were sufficient to the immigration judge found the petitioner credible there was no issue as to the credibility of the petitioner the only issue was as a matter of law did the facts that he stated in his application for asylum to which he testified to and to which he was found to be credible did those facts constitute sufficient basis for finding one of the five enumerated reasons for asylum and we respectfully suggest to the court that did and that the standard for the court to review this is not the substantial evidence staggered which is not the case here but in fact because this is an issue of law i e what constitutes one of the five bases for asylum this is a question of law and the court is free to make a decision and review whatever it wishes to not under the substantial evidence role but as a matter of law as to what in fact constitutes one of those five numerated bases in this particular instance we are ver that the petitioner had sufficient basis for a claim of asylum either under membership in a particular social group or under ethnicity he stated and he was believed by the immigration judge that his house was raided at least on two separate occasions that he was threatened that his family was threatened by paramilitary groups that the government of armenia refused to control and even the government agrees in its brief that the state department has found that membership of particular minorities specifically in this case  kurds were subject to quote unquote so societal prejudices discrimination and even persecution the government admits that the government says that is not membership in a particular social group it's not based on ethnicity it's not based on race religion and so forth but how can you distinguish between quote unquote societal bases and membership in a particular social group or ethnicity the state department specifically names people who are kurds and in this particular case the petitioner is in fact a kurd you're basing this primarily upon the fact that the government would not do anything that it was incapable of doing think that that is precisely correct that is correct that the government knew about it the government didn't do anything about it and in fact the truth is the government supported this ethnic cleansing because the government was in a war it was in a war with muslims who were fighting for certain parts of territory and these individuals having to live in those territories where they had christian enclaves and they were trying to keep those enclaves holy armenian christians and that's exactly what happened i mean i slide from the record that your client was use fiddy yes he  interesting point well the answer is no isn't it the answer is no that's right the it's not it's more than in hair sticking point the answer is no that is correct that is correct because what the i j a did is the i just said that i can't get to that issue because i find that what happened to him was essentially with regard to the housebreaking and the i j a found that this was a normal robbery ok let's assume again for the purpose of this question that we agree but the record compels factually the conclusion that he was indeed persecuted how under vinter and could we reach the protected ground basis because he has stated previously something that the government refused to protect him from this is something that the government allowed to happen and therefore if you are not protected by your own government you then reach the issue conclude that the burglaries were done because the residents of the homes happened to be in a in a minority group that would let me let me give you a sort of that snow also isn't it that is now but i have to mobs went in attack jewish properties the german government at that time claimed it was just a bunch of rampaging mobs and yet the only people they ever attacked were jews what we have here as we have groups of armed people with weapons dressed military uniforms attacking who are they attacking or only attacking minorities so the answer is that in fact they are singling out minorities and so yes on the face of it if you read it on paper it sounds like people attacking other people and not necessarily the government doing anything about it because maybe they don't have enough police or so forth but when you look at who the victims are the victims are always minorities my question didn't presume what the answer one was answered in a negative way with respect to your client and the idea didn't reach two or three so my question is real simple how could we reach two or three if the i g didn't because what the i g did is what courts do sometimes with jurisdiction they have to determine whether or not they have jurisdiction to hear something so they determine first whether the facts give them jurisdiction the same thing with the judge what the judge did was the judge said well let me look at the persecution if there really is persecution here then i'm going to understand that the persecution is because the government didn't do anything but if i don't find that there's persecution that i'm not even going to find that the government didn't do anything because the t may please the court my name is john battelle you represent the united states immigration judge in this case found that the petitioner had not proven that there was a requisite government action that there was the requisite link between the acts you described  the race or religion that he was claiming asylum on or that there was harms amounting to past persecution nor was there a well founded fear of persecution and there's nothing about this record compels an opposite conclusion as to any of those four findings the i j with the petitioner credible is that correct she found him credible with regard to his application yes so the fact that he described she found him present credible correct as to the facts which she could reach she could draw different inferences or conclusions as to those facts or is not inconsistent and it was her doing so was his testimony with respect in the general manner with respect to the treatment of the religious group to which you belong consistent or inconsistent with the country  report i would say the answer is it was inconsistent with the country report in so far as you can see in the record at one fifty nine the country court says that there there were no reported there was no record of violence against religious groups in fact the country report saying that this particular subgroup has been subjected to discriminatory acts and persecution it indicate persecution in the hague has a latin phrase and it means to indirect and there's no indication at all here the contrary report says that this particular group has been subject to persecution doesn't  i don't recall the country court saying that i think at one fifty nine for the record it makes clear that the that there is discrimination but that there are also no reported there's no report of violence against religious turn to page one fifty nine what is the country report say at that page about discrimination against you cities it says in the last paragraph the city leaders continued to complain that police and local authorities subjected their community to discrimination it also indicates on that same page that the government does not discriminate against the small officially recognized national communities including kurds and there and in the middle paragraph on that same page as to religious minorities it says there was no real reported violence against minority religious groups during the year so given the government's position is that his testimony is inconsistent with the country record as a general matter i would say that the country court is mixed i think you could  then we're then where are we the court doesn't have jurisdiction over this argument because the argument is not been presented in exhausted before either the immigration judge or the board of immigration appeals and get an opportunity to be sure to make that but again it is immaterial to this appeal before this court because the court doesn't have jurisdiction over it and the record is with the review was limited to what is in the record so the attorney general it would be this is a hypothetical question the attorney general takes the position that it's consistent with the purposes of the general purposes of immigration naturalization law that a husband and wife having exactly the at the same time it happens that they go before two different immigration judges with the same lawyer they present exactly the same facts and the husband is the knife in the wife is granted it's ok with the government to deport the husband i'm not sure what the avenue would be for doing that but as you recognize that's not this case but i'm not sure what the avenue would be to do that your honor but if i may sure continue the immigration judge also found that there wasn't the requisite link here between the acts described and the petitioners race or religion and if you look at one seventeen one twenty three for the record about these finian's coming to his house there's no specific evidence in there that they were motivated by his ethnicity or religion or him being a kurd and you can see as well about no government action petition himself testified that he did report the first finian appearance to the police so it's quite reasonable for the immigration judge to conclude that the government was not on a boat or on willing to control this group when they can know about it in the first place and there's nothing in criminal arrest the petitioner himself testified that this was a quote unquote street fight you can see that in the record at one twenty seven one twenty eight and so again this was reasonably viewed by the immigration judge as not there's insufficient evidence here to compel a finding that the actions taken won account of the petitioners race or religion and there's no well founded fear or acts rising through level past persecution such a far specifically says that there is family unification and asylum cases and so in response to your question what would require the government to do something about the petition that his wife is overnight and you give us a time sequence when was her grant if it was to be it was granted after the be a decision did you move to reopen we did move to reopen we don't represent the wife around or i have nothing to do with the wife's case but you were gone over to reopen this case i would certainly make an effort to do that yes now the other thing i'd just like to point out before anything you have mentioned on page one fifty nine it specifically sa in continually that a lack of police response to serious crimes committed against this group by other citizens was one of the bases for their claim of discrimination and persecution that's at the bottom of page one fifty nine in the administrative record ok thank you thank both sides for their argument against argue will be submitted for a decision will proceed to the next argued case on the calendar which is alvarado vs small of counsel presently come forward please