eligible for adjustment of status if we went through mediation the government agreed to remain on this case we sent back to the immigration judge and it's virtually certain at that point he would be granted adjustment does he know your honor he won't be able to file that application unless this case goes back to the board goes back to the board then the board would remain and this to the judge because he's clearly prima facia eligible at this point and it's a virtual certainty to be granted permanent residen and it doesn't go back to the board and we lose this appeal then he would be forced to depart the united states and because he's unable to show that he's not worked a single day without authorisation while his asylum application has been pending he'll be barred from returning for a ten year period so we think that the just result here would be certainly an attempt at mediation to see if this case could be sent back to the immigration judge in any event it's our view even if mediation didn't work out th necessary because the immigration judge simply didn't apply the correct legal standards when he evaluated this case the second time when this case was before the board of immigration appeals the first time the board found that mr on his testimony was credible and found that he's a victim of past persecution at that point the government then had the burden of at that point to presumptions arise that it's presumed that at a minimum that has a well founded fear of persecution the government can rebut that presumption in two ways it can demonstrate that there's been a fundamental change in circumstance such that he no longer has a reasonable fear or it can demonstrate that he could safely relocate to some other part of this case romania and that it's reasonable to expect him to do so now in this case the judge focused on that second issue whether it's possible for him to safely relocate to some other part of of romania but in doing so first he has to make a finding that the individual could safely relocate to some other part of the country second he also has to make a determination that it's reasonable under all the circumstances of the case to expect him to do so in this case the immigration reasonably relocate or could be expected to relocate if you can move thousands of miles of the usa hard to think you could move a couple hundred miles elsewhere in romania well obviously it's not up to this court to evaluate that in the first instance although you may be inclined do that that's not your role but more importantly yes there are factors i mean first foremost he had family here in the united states his brothers here he's got no family in any other part of romania secondly if you look at the two thousand there then believe it's the one thousand nine hundred four country  isn't usually taken to be a reason for what i mean they're wrong on that because the issue then is whether or not it's reasonable for him to have relocated if it's a dismal economy and he's unable to find work in any other part of the country that's a factor that the immigration judge would have had to consider but he didn't consider any of these factors for example mr on you testified that his his his record his government file would preclude him from finding you know good employment in romania because he got low marks after his brother defected from a country that affects his ability to find work and it may not be a basis for asylum that's true but in determining whether it's reasonable under all the circumstances to expect him to relocate it's a fact that immigration judge could have and should have considered the bottom for two reasons john i mean first we don't think that that quotation was intended to be incorporating that earlier finding because obviously that earlier finding was based on an altogether different record and there was a lot of evidence presented there after but more importantly  if if the government's going to establish that there's been a change in circumstances so as to eliminate an individual's fear it has to do so on an individualized basis and all this quote says is that the situation in transylvania has this particular individual to live in romania because what's particular about this guy it's not just that he's an ethnic romanian but he for whatever reason this hungary a political party somehow identified him as a member of this rabid nationalist organization the vote for roman s q and it identified him as being personally involved in the writing that took place in one nine hundred ninety between you know where there were six thousand people involved and from this court you're out of this court has consistently required that in order for the government to rebut that the presumptions that arise it has to engage in an individualized analysis it can't rely on general improvement borehole is probably one of the leading cases and i'm back case to that effect but it has to it has to evaluate the individual circumstances of the of the applicant now the judge heard i would say in one other way in this case you know going back to this know in this particular case it is incumbent upon the government to rebut threat of past persecution but then his analysis and this is in the middle of the page on page sixty three here in this particular case based on the background information submitted by the respondent i continue to believe and to find that this respondent was never was and is not now at risk countrywide in romania i will once again deny his application for asylum as a matter of discretion because in this court's opinion he never has established and i do not think he ever will that he is that risk of countrywide persecution please the court i am stacey young for the united states government and this case the record does not compel the conclusion that the government failed to rebut the presumption up to now has a well founded fear of persecution were he to return to romania specifically the petitioner could reasonably relocate to another part of romania to avoid any future persecution as for the first issue the records talk of how the reversal of the immigration judge is finding that there have been fundamental changes in romania such that petitioner no longer has a well founded immigration judge a second decision was he actually finding it contemporaneously always you studying the stage by just driving what had happened before and relating his previous decision and then the second part of the challenge i think as to whether whether the proper standard is being applied in the burden is properly put on the government on that issue as to your first point the immigration judge did consider all of the testimony he made clear that his decision was based on the entire record he said that explicitly and he also stated that court will consider any new facts that have been presented and in support of that he did cite to new testimony he cited to petition or his mother's letter which stated that she or his family have not been in danger since was peaceful he states that there was ethnic violence in transylvania before in the early ninety's but that it has improved states on fifty nine really fifty nine through sixty one that conditions in romania have significantly improved and there really can be no doubt that either of the two parties to which position their sites would have any reason to target him for persecution through the courts and described as a loving a that's correct on our report can be found on page one sixty eight of the record correct it's not the petitioners burden however in this case the government did rely on the volumes of evidence that the petitioner did proffer to make its own argument that country that conditions in romania have changed since the time was persecuted and also that it would be reasonable for him to relocate in this case the government sometimes does proffer its own evidence most often it proffers state department reports but in this case petitioner really made out the government's case for by proffering a large amount of evidence that clearly demonstrates that conditions in romania have been proved the only testimony the only evidence in fact in the record that position it would be in any danger  testimony and what the government did during the hearing was point to testimony point to point to the country reports in the record to make out its own case that country conditions have improved and also that position it could really locate and i can who can say that the immigration judge applied the right standard can we uphold what he did well the immigration judge did state that the burden of rebutting the presumption of a well founded persecution was on the government good briefs they returned passing in the dark one talks about the burden of proof when you talk about the evidence and they never quite quite as i mentioned the immigration judge did get the burdens to to ation correct by saying that the burden was on the government and then he went on to found to find that the evidence simply doesn't support the fact that country conditions haven't improved or that petitioner couldn't were reversed but the bottom line is that the immigration judge did correctly find that there is no well founded fear here the government did make out it case and while there may be some some slightly what their position would be i'm not in a position at the moment to answer that how long would that take i suspect it won't take too long i could contact if we if we withheld submission for a week or ten days for example to wait to hear  leader of we can advise that that mediation is agreed to and if so if you want to be referred to our circuit mediation office or let us know that there is not an agreement either way i think will withhold submission of the case for a week to give if that's going to be enough time for the two of you to give you a chance to to let us know about that that should be fine that to divert you from your argument go ahead including your honour's record overwhelmingly supports the conclusion that conditions in romania today are such that petitioner would not face persecution anywhere in the country if he were to return the government did satisfy its burden of establishing both that country conditions have changed and that petitioner could reasonably relocate because the evidence does not compel a contrary finding the petition for review should be denied thank you change that's crack that the last you know evidence we have the most current evidence is from two thousand and three rats right thank you thank you well the existence of the well founded fear his focus is the relocation that's the focus of his decision that's the basis of the decision and on that point without question he put the burden of proof on the petitioner on the