persecution or well founded fear of persecution on account of race religion nationality membership in a particular social group or political opinion although the term persecution is not defined in the immigration nationality act this court in other courts have defined persecution in turn as the infliction of suffering or harm upon those who differ in race religion or political opinion in a way that is offensive this court is held like other circuits persecution is an extreme concept it does not include every sort of treatment that our society regards as offensive and it's decided on a case by case basis for instance discrimination while reprehensible is not always the same as persecution but this court has generally held that a pattern of physical harm combined with specific individual eyes threats generally rise to the level of persecution petitioner cements that this record shows was threatened st by maoists who objected to his political activity and then he was physically attacked on two occasions once occurred when he was attempting to vote in two thousand and thirteen be a good thing for you that's what the letter said so council could you be more specific regarding the physical attack quote what's the nature of the attack he was attacked by a group what did they do they hit him with steps and fractured his arm that was the in the st incident he was i did he have medical attention he did yes and how long was he was he hospitalized it was he had he hit yes his the  he was hospitalized the nepali congress paid for his medical care in the record can we confirm that he was hospitalized and the length of his stay in the hospital i don't think the record is really specific on that your honor is the record specific regarding whether he was hospitalized or treat it outside hospitalization if the record is clear on that the the records not really specific about his about his medic he was treated i should say he was actually hospitalized he was treated and and is the record clear regarding the nature of the treatment that he had his arm sat his arm was sat ok for in the record does it say that his arm with that  too dangerous his part in the st incident that i just talked about the party told him not to do it there's another incident that would i haven't got to we're before we leave that incident that incident was not reported it to the a that that was something that troubled him but he did not make an adverse credibility determination and then in view of that the board has has deemed him credible  the b i a find against your client that has to pass persecution because well the board concluded that the total pattern considered cumin and the i j a for two for that matter consider that the entire pattern considered cumulatively did not rise to the level of persecution because we fear that persecution is an extreme a concept that's correct but this is only one incident if if this was the only incidence then there would be a good argument i think that it's that that this would not rise  of persecution but the court has also held that an entire pattern of incidents consider cumulatively is that is the proper norm was the worst that happened here i would i would argue that the last incident which happened in march t maoists came to his home and pointed a pistol at him essentially kidnapped him for several hours had made him go into the jungle and threatened him and friends gave him a death threat and said that he would be killed if he didn't comply with their demands lower their demands money they demanded money and they also demanded that he stop his activity for the poly congress party the ultimately released him that's right because he told them he would he would get money and give it to them laws in accordance with this court's previous precedence and that this court should vacate the board's decision and grant detention and remand this matter so they can consider whether he could yes i think that would be the next issue he would be entitled  as you know if there's a final pass persecution he would be entitled to the benefit of presumption of a presumption of well founded fear t make a finding regarding ability to real ok the board concurred with the i j a that has his testimony regarding the ability to relocate to not support internal relocation  he merely said that he fled he fled to cotland do it he was there for a month and he said that there were certain people who inquired about him he was told that they inquired about him and he based on that he  think reason i would submit reasonably to determine that it was the people from the maoist group who were after him because he had not complied with their demands in the marketplace sixteen incident and fled but if the board's already made that determination  need to remain and for the board to again address whether or not he could relocate because well i think that hinges on whether this court agrees that the pattern rises to past persecution if it does the court concludes that then the burden of proof would shift to the governments approve an internal relocation is israel it is reasonable and in this case the the i j oppose the burden on the petition and i remember you you were going to give us that record high yes court not only that the conclusion he seeks could have been made but but the evidence absolutely compels that finding that absolutely no reasonable fact finder could have found as the agent if there's an air of law if there's an error of law there's you under a case like this look at the cumulative events that happened to the petitioner i believe the agency did look at them cumulatively and made the explicit finding that even taking into consideration the incidence there was three years between them he never reported any of them to the police and it was spanned over a four year period period these incidents it wasn't repeated and severely threatening and menacing matter that was was constant ongoing there was a four year time period over which these three isolated incidents took place and the agency determined that even taken cumulatively that would do the country reports to us about the most well the mouse it's it's clear that there is several different fractions of maoists we're not sure exactly there's no discussion this record at all of what would what fraction this particular alien was involved with i guess and i'm not sure what the ideologies of all the different fractions are but as far as the  incident the nd incident where there was beating with sticks i would i would point out the evidence is simply just not that compelling and i believe the court will find that when it reads the testimony statement was that he was going to vote with about twelve other people and some people attacked the entire group with sticks and the country reports document that during that year there was voter intimidation that occurred by the malice nonetheless that the election went off it says pro seventy three percent of the country registered voters were able to make it to the polls and voted in fact to party one yes there was a voter to mediation but that again that coupled with  incident i want to make one correction to the record i think that i thought opposing counsel only talked about two incidents he actually talked about three the st one was just a threat a letter that was nothing came  but i would point out that after he got the threatening letter he continued isn't activities that wasn't so menacing and harassing that he was scared enough to stop whatever he was doing as for the rd incident so  there is absolutely no evidence in this record that the maoists were demanding that he stop his activities you can look through his testimony and his asylum application it sounds like a robbery they demanded money the only reason they let him go is he promised to pay them i don't see i didn't see in the record anywhere certainly not in the testimony and i looked at the application and the declaration attached there too and it doesn't say that there was any political sarette staring that to our detention it looked like a robbery is only a discussion of demanding money as far as well normally for a robbery they don't drag you into the woods and stop this stop you're active there is no discussion of that nature and the only thing he mentions was that they were demanding money and he promised he'd give it to him so they let him go as far as so the the agency did not apply the presumption of past persecution and it's our position that's very well grounded in this record i mean there's case law that says that courts have been consistent the physical harm constitutes persecution  arm and then later pointed to post a lot on that begins to sound fairly serious again i would point out on the rd one it looks like a robbery there's there's no interactions that would suggest it was a targeted political act  but again that's these are factual findings that the agency made the determination that humility fully these incidents didn't rise to the level of persecution and that's that i perhaps there is another permissible view of the evidence and the fact finders choice between two different very viable options cannot be clearly erroneous and it's not let's not clearly it's clearly erroneous we'd have to be compelled correct to find the other way in order for us to reverse you would and that takes a lot more than just finding that you would have maybe ruled differently or that the evidence could support a different finding it it's absolutely no reducible factfinder could have found on these facts and i believe once you read the record you will find that the testimony simply just wasn't that compelling even the testimony about the attacks with sticks on the on the group of he says there was twelve people he was at the polls with and it became after the whole group with sticks his testimony is really very good but injury st he says it was his wrist then he said was hand that he said it was his arm and the judge just kind said ok what does really matter what it what it was did you go to the hospital that's another correction i think that needs to be made he did say he went to the hospital and got his arm plastered he wasn't in the hospital for any lengthy period i don't think i think it was outpatient treatment that's fracture hairline fracture i don't think so i've suffered one myself i think it really would depend on the severity and i don't think that it was here again look at the testimony petitioner was uncertain did not make a clear adverse praed which is why the board just said ok we'll proceed on the assumption that what he says is true and even accepting what he says is true they made the finding that she was not a finding or a conclusion that  or was not past persecution it's a finding of what happened to him factually and whether or not that rises to the level being persecution i guess at the it's a legal question kind of mixed factual the factual conclusions made en route to making the ultimate mean finding whatever i broke his arm or didn't broken that's a fact yes but i mean that when you look at these facts and then you make a conclusion there was or was not passed persecution and that's really a conclusion have to go back for to then it was their conclusion at the legal conclusion is that he suffered past persecution under our case law and then has to go back for a determination of relocation with the burden being on the government not on him i believe that the agency did look at the events cumulatively i prefer the court to administrative record at forty eight where the judge specifically says even taking into account and considering these two incidents in and that judge was referring to the two instances were physical harm that even taking those into account he has not shown a well founded fear of persecution they were three years apart he didn't go to the police he hasn't established the government will protect him he i think i believe the agency did take into account the cumulative effect and that's what about the letter the letter well again i think the agency found definitely that in isolation not to be persecution and not even that menacing because he to and there's many cases that we cited on our brief page concluded and i submit that he has not done that did not do that and has not done that in his brief and that the evidence does not compel a conclusion that he suffered persecution agency's decision is well would attach and the government would bear the burden of coming forth with a preponderance of the evidence that he look asiatics is reasonable for him under his particular circles now the relocation finding in this case was still part of his case in chief and we in the government are sees me the agency also found that he had not met that part of his burden either and that's what's the verdict was on him at that point that would be on the government if it were remand that's correct finding  of with the conclusion that the only permissible determination is one of past persecution that we'd have to make that's correct the government have to and if they came forth with the preponderance of the evidence then it would go back to two thousand and sixteen incident was related to his politics as opposed to just a robbery is opposing counsel is yes i heard counsel's argument and it is correct that there is no testimony about that is no testimony that they said something about my politics so i misremembered the record when i said that before however at page one a weight of the record the petitioner says he did not give the money because of his political opinions in other words he with money was demanded but he refused ultimately deprogrammed to give the money because of his political opinion you want to give the mouse i think was five hundred thousand really didn't want to he didn't want to contribute to the mouse if that's correct but that's in survey anything about what the intent of the robbers no but there was a pattern if there was just the one incident then that would be i think a ballad argument but there is there was a pattern of activity here it was  pattern there were years between the incidents right but that i think that that goes to show that he was he was actually being targeted it was just a robbery they did they they took him out into the woods it wasn't just that they came to his house and asked for money they had him in the jungle for two hours they pointed a pistol at him and said if you report this at all to the police we're going to kill you and kill your family so it's a yes it's an extortion attempt it's in if there were no political overtones i mean they didn't make any political remarks so that would just be speculation on our part if we attribute a political political motive i think respectfully i would say that you have to look at the whole pattern your honor if we don't get to do that yeah we the only thing we can say is that that conclusion is come pay out against that the finding that was made by the i j a right that's correct it with with respect to your question about the about the setting of the arms page one hundred and one of the record saying he talks about his arm was plastered he went to the hospital and he names the hospital and i just want to address also if i have time to have a  d the hoax a case the cases cited at page sixteen of the government's brief are all distinguishable and that there are cases that there are cases in which is a member of a disfavored group was trying to argue that were they there was no individual was targeting they had not been individual targeted individually as the petitioner was in this case but she cited that case for the proposition that the agency was looking at the cumulative impact not that