good morning your honour's may please the court then we center i just one second because we're still unpacking over my time starting but we'll start now after he gets his papers ready it's just you can't see inadequate and the petitioner my client was an represented during the proceedings before the immigration judge and it's well established that immigration judges are under a heightened obligation to develop the record for failing to appear pro se before them in this case one of the primary issues on appeal and what the government  is primarily arguing is that there's no evidence that my client was attacked because he's got my client claimed that he was attacked while obviously his attacker was a pedophile because my client with only eleven years old when he raped well that's simply a conclusion that my client came to some twenty years twenty years some odd more years later the the immigration judge for the department never never asked that question so they never inquired as to whether my client self identified as gay or homosexual they never asked whether  mr garcia the man to attack my client said anything during the rape we don't even know what kind of rape it was unfortunately there are many so the record here i believe is inadequate i believe that the judge failed to fully develop the record and this question as to the attackers precise motives has become one of the central issues on appeal and yet i believe that the record is inadequate to determine properly that question in the first instance so what are you making this charge under the substantial evidence doctrine or is that on appeal the the central focus the motive of the attacker is the immigration court proceedings brushed that aside they said well it was obviously a pedophile they did and that's it they didn't inquire of my client what was going on before that in his life they didn't inquire whether the details of the attack and it was probably difficult to talk about and maybe that's why reviewing i guess i'm back to my first question is if i'm trying to figure out what issues are on appeal your first argument about not helping him out and not providing the appropriate support appeared to be more of a due process argument it is your honor must be and that only due process arguments on the brief had to do with this spanish speaking witness who they basically stipulated what she would testify to so how how can we consider your argument within the context of what was appealed i'm just trying to understand that because what was appealed was this this question of motivation the nexus argument and whether there is whether my client's homosexuality is a sense a reason or one central reason i don't believe we can answer that based upon this record i believe it's the one of the problems is  one thing i don't i want to make sure that i'm not you know waving on appeal is the one year bar and i want to bring up something that judge order that you wrote about in bring us rodriguez in bring us it's clear that bringing us did not file his i sound application within a year of his arrival he was over twenty years old right and in his asylum application or in the record he said i didn't know about asylum until  f ignorance of the law of argument i think is extraordinarily weak because it we apply it in criminal matters because we as a moral society have you know duty is not to you know assault and commit against one another in civil law the the main idea is fairness to the other party you know the statute of limitations on civil actions or proof of causation of personal injury actions none of those none of those considerations are present when applying the one year bar in cases like this where somebody arrives here as a child that they don't know that they can apply for asylum until all of a sudden somebody tells them they can apply and then they apply in this case if somebody had prior knowledge that this one year bar was there and didn't apply then obs obviously it would apply to that person so it's well i think that it's clear that if you arrive as a child in effect there's like a tolling yesterday you know till you get old enough but then the question is what's reasonable after that  what are the countervailing points that you would raise here or the president that you think would make this i think it's eleven years there's no precedent  all the president is against this argument however i think i think it's a chance to revisit it because i believe applying the one year bar to cases like this is arbitrary i mean isn't there i mean if we were s argument regarding the one your bark that's a statutory rule here we have an immigration judge and the board who gave the petitioner the benefit of the doubt that he wasn't required to file as a minor but we have a nine year gap between when he reached the age of adulthood and when he actually filed his application for asylum and we have really no explanation as to why he didn't do you know didn't file within a reasonable period of time we don't know why he was unable to have an explanation of ignorance of the law but as this court has held that's and inadequate explanation moving to withholding of removal it's the government's position that this case does not have to be remanded for either bring us rodriguez or barajas regarding barofsky both the immigration this may not have been the motivation for his sexual orientation may not have been that the record just wasn't developed along consistently along the lines of the stand that  bomb court has now and then ca did well your honor i understand your concerns and i think here we do have a we the record would support the government's position that he did have a fair opportunity develop the record i mean he was given several continuance is to obtain attorney he did not do so i chose to go on by himself and the immigration judge didn't really curtails testimony anyway he allowed him to he asshole you know he asked open ended questions he asked him why he was raped by this individual garcia you know he initially said he didn't know why he was raped and then you know when asked you know you mention in your asylum application that you rape because you think he's a pedophile he said yes and that so so it's not that he wasn't given the opportunity to identify the motive he just the dentist had the motive as pedophilia and later on regarding the attack on his home he had benefit of the motive as you know mr garcia threatened me not to tell the police i told the police and then he came after me and that was that was what he had done a five below even aso because of these sexual orientation it doesn't eliminate the motivation for sure and it doesn't but i think we can we compare the records here and it brings us we have just markedly different records i mean we have teased because i was gay and then surely there after he's asked why we race and he says oh i because mr garcia was a pedophile so we have the he has had the opportunity to make the connection he just he didn't do so and i think that's the important difference here you know and us rodriguez he he testified that you know it was rape because it told me that i'm gay and here we don't we don't have that he says he was raped because he's a pedophile and maybe we don't have the immigration judge saying well you know are these one in the same in his mind i mean being a pedophile and a pedophile against a gay kid in his mind then maybe one in the same and so what is the i j at least need to acquire because we now have these two pieces of evidence which are that doesn't get to the point of linking up the evidence for the immigration judge to make the inquiry welsher i guess my point would be is that i just don't think that he was not afforded the opportunity i think he had the opportunity to make the appropriate than really actually making that merits ruling white and your honor i guess i'm just going to have to respectfully disagree with that i think i think that we've had we have a fully developed record here i just think that the case evidences is markedly different from what we had in bringing us and i think even under the bras change in the withholding of removal standard i think we have an immigration judge and board finding that there is that homosexuality or sexual orientation played no part in this and that  are and that's fair and i guess my point is that i just feel like the record was you know that mr palafox had a fair opportunity to develop the record and this is what it was developed as a mode the motive for the rape was pedophilia and then the motive for the later attack on his house was an act of revenge and without that the nexus connection in the past persecution we don't have the presumption of a clear probability of future persecution so then we look at what mr palafox presented in the future he basically before the agency alleged that he feared that garcia would still seek revenge and also he alleged that he just your general conditions and mexico now we think that the second argument to general conditions was waived  appeal but regarding the first one he hasn't seen how facts i'm sorry he hasn't seen mr garcia in more than fifteen years hasn't doesn't know anything about him testified that he didn't know what happened to him doesn't know anything about him and also a fear of revenge doesn't establish an access to protected ground also regarding that evidence of future country conditions mr palafox never set forth and individualize fear he didn't set forth any evidence suggesting that he had to end a vigil i fear based on the general country conditions he just argue the court have any specific questions for me i would just like to point out then let's let's assume that my colleague is right and that the record is fiction i'd like to posit a hypothetical what if my client was a woman and she is a lesbian and she suffered a heart attack by a man when she was which is look it well would we come to the opposite conclusion mr powell foxx is gay he always has been gay he always will be g the case just argued is