the united states from mexico after experiencing decades of abuse including repeated rapes attempted murder severe beatings and unlawful detention and selected upon him because he is again a man with a female sexual identity error analysis your honor first the agency did not discuss the evidence under the proper legal standard which affects the outcome of the case in a way that cannot be harmless because with respect to the withholding of remov and the court may reverse and that case however if the court does believe that the more prudent course is to remain and we believe that that would also be appropriate at a minimum because of the incorrect legal standard applied in the withholding case or ten years before you were running there are other events that show that the government was directly involved for example when ornelas chavez worked in the prison officers there not only regularly beat him but also on one occasion i tentatively to kill him by smothering him with a pillow this court has held that person persecution and torture can be comprised of severe physical violence as well as threats of de government would have been willing to turn a blind eye to the abuse he suffered at the hands of private individuals in fact his fear was confirmed is well founded when two of his transgendered friends were kidnapped brutally raped and murdered by police as he credibly testified she believed that the police would come after him because some of the individuals who worked at the present had joined the police force and he believes that they knew he was friends of these two victims the government also was unwilling to step in against his father as shown by the unlawful detention incident moreover the police at other times when he was walking down the street is friends with witness a verbal harassment if there are no further questions at this time i will reserve my remaining time for a battle good morning and made these that i want just one right on behalf of respondents united states attorney general i think it's important to clarify the two separate issues before the court today the first is with respect to withholding whether or not the sole incident and the one involving the chief of police rises to the level of persecution and if i understand petitioners argument correctly with respect to the cat claim the argument is the incorrect legal standard was wide because  there wasn't a requirement of state participation and that without understanding let me address first the withholding claim the board here conducted an independent review and issued its own decision did not affirm that opinion and so it is only the board's decision that's before the court except to the extent that it may have agreed with the reasons stated by the immigration judge and that stage will posture and itself i think to address first the am the due process claim of bias immigration statute a petitioner must that must establish that it is more likely than not that he will be persecuted on account of a protected ground if he is returned to the country and persecution may be either by the government he was detained by the chief of police in an event that was orchestrated by his parents and that his parents request more there to influence the sexual identity that that that that attention six hours and as judge of scotland player that occurred twelve to fourteen years before he left  suffocate him in prison again whether or not those related to government whether or not those were ever reported to the government or the federal government of is not clear from the record he says that he worked for a as a person that was run by the government but it's not clear whether it was the state government or local government or the federal government but after we pointed to the government is there a bright line rule understand the board here simply said that where the record in this case is inconclusive on whether or not the government is unwilling or unable to control this kind of societal discrimination against homosexual of review in this court is whether the record compels the conclusion that the board this wrong and here the record doesn't compel that conclusion because as the board pointed out the record is inconclusive with respect to that aspect and i would point to the administrative record at pages five eighty eight eighty five which is a question and answer or it was issued by the immigration and naturalization service or department of homeland security  advocate there's no reason to believe that other constituents bits that are smaller around the country would also follow it also points out that an homosexuals participate in two out of the three active political parties  reporting requirement or you're saying that the the i s p rejected that i mean assuming that was an improper legal standard that the b s a did not apply that and fifteen of the excerpts of record says in two sentences that all of the harm suffered by or nail a child has occurred at the hands of private citizens responded to not report any of these incidents to be authorities i think from that it's clear that the this court has repeatedly held that for persecution the court will review the cumulative harm of the incidence of persecution suffered for example in chan versus ins i'm losing in verses ashcroft the court looked at all of the incidents in cumulative total rather than just looking at them in isolation and in fact held that the harm is compounded when incidents of persecution of her over a period of years and this whole abuse is compounded with death threats and unlawful detention that is exactly what happened here in this case second moving on to the government's claim that the decision somehow obviates the need to remain  and or a hearing that comports due process would be i did not quibble with the idea is factual findings and the factual findings made by the immigration judge in this case clearly are biased and in some cases frankly changes its findings moreover with respect to the cat claim the i did not make any independent findings rather it simply said that it agreed with the immigration judge and upon her finding on that matter we believe that if the court does not find both claims as counsel noted censure requires that the agency has the record is not compelling one way or the other take another crack at the case under the correct legal standard and if the b s a looked at all of the evidence