substantially so in any event i have some questions and i want you understand i am in no way suggesting that you personally have done anything wrong or whatever but i want to understand a little bit about these cases here first of before the i j a and the do you or your firm have any financial arrangements with either of those folks ok as i mentioned in these four cases you've got situations where  each of these people were members of the man party each allegedly received several beatings by either the police or members of the congress party or both the police looked for both the father and the son and threatened to beat them or did beat them  they were threatened and beat alongside a road by members of the congress party and then each fled the united states at the insistence of their families have you profiled petitions for review file before the idea of v a by mr wall or mr ryan the heads of stanley demichelis facts to those in the cases to day except for these four cases no idea you're i'm sure i've represented people on appeal that had been represented by r diary wall at some point but now i have no relationship i can see i represented mr diary walt when he was applying for asylum ok some twenty plus years ago but other than that now i don't have any ok for the boys what concerns me and i've just beg my search on this but that it appears to me that in the cases of man's vs sessions the sabers as linge singers as holder a different sing versus holder by gorra versus holder and other on in our court between two thousand and seventeen and two thousand and eleven where the facts are substantially identical to the facts in the four cases before us you were there counsel do you know whether either mr de wall or mr ryder were counsel for the  any of those cases no idea ok and i ask you as an officer of the court that to your knowledge are the allegations that were submitted to the b o i or to the i j a in the b i a into our court in each of these four cases true and correct i certainly have no reason to disbelieve them i do understand your point about the similarity you know all of them claim to be members of the same political party the facts of their persecution do differ to some degree but yeah they're all claiming to be active in the same way one could infer from that that this is a pattern of persecution that's occurring in india people who belong to this party and it's a very small political party   not by the cheap but where they were in the jeep and it turned out it was a scam and i'm not suggesting that that's what you've got here but i am concerned about what appears to be at the very least a repetition of allegations that in terms of probability it's really improbable that all these people could have exactly the same thing happen to them so i'm concerned and again you're i don't i don't know that i've even met be the threshold question and it may well be that there are people that are inventing this claiming that they've been members of this party at that point so the threshold question is always credibility hasn't been right now in every one of these cases the judge either found the person credible or assumed that they were credible and i respect that i respect what my colleague you're saying and i respect the fact that something could be consumer but as you know have just picked the johnnies case there were as a as a ring of lawyers in new york who were arrested and indicted for for immigration fraud in the armenian case they were arrested for fraud so that's my only concern and i you know i'm not suggesting anything whatsoever about you personally but lawyers may have they may be just as pure as the newly driven snow but this doesn't smell good it just doesn't smell good it doesn't it defies logic that you have so many cases where it almost exactly the same types of abuse like the one that sticks with me is the motorcycle drive along on a motorcycle they stop him and they beat him up a member of the congress party well once maybe twice but five times i don't think so i hope that's not going to taint your no no i  trying i'm trying to understand how that fits in the whole thing i'm going to judge each of these cases based upon the facts of the case i'm going to judge it based upon the factual determination and the credibility determination by the i g but i wanted to find out if we could more about this apparently you don't think about it so i'll rest my questions but i you can understand i'm concerned about this i understand that you are but again i hope that doesn't taint your view of these cases because in each and every one of these cases these individuals have been deemed credible their testimony has been accepted and given full i'm going to grant them that way so and going back to the facts of this case in our view the board committed  three fundamental mistakes here in applying the presumption first it didn't can it didn't presume that mr singh would be subject to country wide non governmental persecution even though it was accepted as true that he was attacked and beaten twice by members of the congress party second in assessing governmental persecution it focused exclusively on whether the  government would pursue him to some other state and persecute him it ignored completely the question of whether or not mr singh if you really love kates and continues his activities as he indicated that he would would suffer abuse at the hands of the state police in the area of relocation just as he did at the hands of the state police and punjab but with respect and we're talking about mr and sing at this point right exactly so as i understand it at the hearing he testified he would continue advocating for the man party were ever he lived that's what they are one twenty six and one fifty four but the b i a when it considered that  it took that into account and was in a forward looking way saying that looking at what the likely to happen they talked about that all it seemed to be happening to high people were high profile militants outside of jabber the only ones that were likely to be persecuted why is that why does that not satisfy the requirement to consider what was going to happen or potentially happen in the future you're looking at the board decision page for your honor if you look at that see again this guy was persecuted by both police and congress part of the board's decision it mentions the fact that he was persecuted by the congress party but in assessing countrywide persecution it never comes up its folks the boards analysis is focused entirely one hundred percent on governmental persecution it didn't apply the presumption the fundamental error here is if you look at footnote one of the board's decision it says here that the immigration judge did not make any conclusions about past persecution and that's the that's the the original sin here because if there has been past persecution and it would if you accept the facts it's true there's no doubt he's persecuted in the past you have to presume that he's at risk countrywide both from the government and non governmental actors because of his political opinions the board didn't do that here instead if you look at footnote three or foot don't want what it said was because he fears the government we're going to presume that he's in danger countrywide from the government but that ignores one half of this gu claim the original claim if the board had gone ahead and made a finding of past persecution which is really the original starting point you know after credibility in these cases it would have had to presume that he's in danger countrywide not just from the government but from private actors as well but even as even if its analysis of governmental persecution was flawed because again in assist sussing governmental persecution it focused entirely on whether the  police his original persecutors would track him down it didn't it didn't analyze whether if he moves to some other state and he continues the same sorts of activities that got him into trouble whether the state police in that area of relocation of did he really raise the issue of police other than the poor job police not originally you're on in the future that's true but then we when we took over the case we immediately filed a motion to reconsider and in the motion to reconsider we laid out what we thought to be the fundamental flaw here we argued that singh had credibly testified he's going to continue the same activities that led to his persecution we argued that there has to be some showing that the police and whatever looked relocates to would treat him better the board denied our motion to reconsider but didn't even address our argument that portion of our and it's for that reason the case has to absolutely go back to the board if you bring in if you bring a motion to reconsider and you raise an issue for the first time that was not raised in the initial proceeding can you bring something admonition go and still have it count basic well the board concluded that the immigration judge committed no legal heir right that was its conclusion we went back and said well your honor you're wrong about that we believe there was a legal air here's what it is in the board didn't address the argument but but is it not true that doesn't have to i think the language is a net reform and actually jesus of every argument that's made as long as it considers the thrust of what was said in other be relocated recently within the country you don't then have to mention everything as long as it flows within the concept to talk about it doesn't have to like in the exercise of discretion it doesn't have to mention every conceivable factor but this is the principal reason that this guy would be afraid all of his persecution occurred at the hands of state police if he's going to relocate of course the obvious question is would the state police and that new area treat him any better the board never member of the man party no not if the board did as we asked and ruled on the past persecution claim but i screwed in the past persecution claimed the board the board made its analysis much more simple because that way it was able to focus exclusively on governmental persecution if the board had done as it's supposed to and addressed whether there was past persecution a different presumption would have applied and that presumption applies to both governmental and non governmental by skirting the question of past persecution the board avoided the appropriate presumption that's its fundamental legal air ok why don't you have a seat we'll persecution the presumption was to his benefit and that presumption mr singh's argument that the agency erred in applying that presumption really focuses instead on his argument that the agency failed to consider certain parts of his claim that in other words from from the government's perspective the record seems to reflect that the i j and the b i a did credit mr and sing with having suffered past persecution right that's right you triggers the presumption that's exactly right and we don't even get a relocation unless there's a finding of past persecution so the only distinction here is that the agency instead of doing a full is that the agency simply presumed that because they determined that if they presume that the relocation analysis would be dispositive but where that gets mr seeing really is just into his claim that the agency erred by failing to consider i think what he says non governmental harm ignored harm by the local police and other states we respectfully suggest that the record just does not compel that conclusion and i know the courts already aware of this but i'm going to remind it anyway that the standard here requires the substantial evidence standard that's applicable here at least with respect to the agency's initial decision on mr singh's direct appeal requires mr singh not identify evidence in the record that compels reversal of this relocation finding and that's that's an uphill task for mr singh here today i mean this record contains statements quote there is no mention of discrimination against punjabi including sikhs by police by police in india i mean it's two forty two fifty five to two fifty six of the record what about what about mr job's private actors concerned if i understood him correctly he's saying well the police that's all well and good but you know you've got people within the congress party that used to control the government of india that are all over the place and why why it doesn't mr sing have a reasonable fear that some private actor will go after him when you're out of the agency decisions that are on review here didn't discuss that at length because mr singh didn't raise that before them you know the  are i think they did fairly acknowledge it in their statement that mr singh hadn't put forward any additional arguments in his motion to reconsider that met his burden to show an error factor law in the agency's previous analysis i think that's the sentence after the one about the specificity in the next sentence they say he hasn't presented any other argument that meets his burden here and your honor this it bears repeating that this case requires the court to consider two separate agency decisions but those two  decisions are in two different procedural postures they have two different standards and in each of them there were certain issues that were exhausted and some issues that were exhausted so in the motion to reconsider mr singh's burden was to show that the agency had misap d something that it had made an error a fact or law in its initial decision and the arguments he made if i recall correctly were number one the argument about specificity based on the board's decision in m z m r number two that  agency had not considered whether mr singh would face persecution from state police in other states and india and number three an argument regarding cat protection and the board correctly said you know they address they just gave the m argument a little bit more discussion but they said none of these points shows that we erred in our previous decision these are the basis for us to reconsider c r i think the agency gave that argument all the treatment that was required  are to return to my earlier point mr seems argument before the board on his direct appeal here was that the punjabi police would find him was that they would find him through the tenant verification system and you know before the agency he said i'm going to continue to spread the word of my party abroad and the immigration judge specifically quoted that and said you know incidents of harm suffered by the petitioner either spahn excuse me at that point and his continued involvement with the man party upon return to india will not make him a target for harm outside the punjab i mean that's a page eighty one of the record and then the reason the board doesn't dig into this argument about other police in other states and in the level of detail that mr singh would now prefers because on appeal to the board he was the one shaping the issues for decision and his challenge but in addition voted for reconsideration he was very specific with well that's true your honor but at that well he was specific as to the issue of the police in other states i  at that point he did not raise an argument that the congress party nationwide would be a separate form of harm that would target mr singh but at that stage again we have a different procedural posture so the question now isn't did the immigration judge  you consider this the issue is in the board's previous decision was there an error of law or fact or did it you know did it err by failing to consider this new argument that i'm raising for the first time i mean i suppose the question have who raised or didn't raise the issue but they  kept focusing i guess through in all of these cases well the put the police won't go after a low level parson and therefore we're not worried about tenant registration are any of that but the issue is in terms of his say whether he can safely relocate i guess is if he can to come to news to do the same kind of thing get involved to the extent you can find other people or are goes out by guess by himself with his own placard or whatever you would would do and say where there should be a separate state even though it's far away from the area where he had suffered  past persecution whether he would then what is the likelihood that he would suffer persecution in the future and it is the government's burden at least if he'd raised it all to address this  right your honor the government's burden was to demonstrate that there was an area where he could safely and reasonably relocate and i think that does touch on the issue you're talking about but now here mr seems burden is to show that this record would compel reversal of the decision the agency rendered when it sifted through all the evidence and made a decision that mr singh could safely and reasonably relocate but doesn't the agency have to have at least addressed are we don't we have to have some reason to think that it actually thought about persecution by somebody other than the punjab police you know your honor i think that we do have that in evidence in the record and i think it's pages seventy six eighty one and one twenty six a minute ago like i mentioned where mr singh specifically testified wherever i go and spread the word of my party the immigration judge quoted him on that and then said the instance of harm that you suffered and his continued involvement in the man party will not make him a target for harm outside the punjab and the evidence supports that finding your honor there is evidence in the record that shows mr soong will be safe even if he continues to practice his support for the mac true you are well at a minute ago i quoted pages two fifty five to fifty six there is no mention of discrimination against punjab he's including sex by police elsewhere in india where the library of congress report from two thousand and twelve page two sixty four several experts suggested that only those considered by police to be high profile middle excuse me high profile militants are at risk even if they were to relocate simply holding procol astonied views would not make an individual high profile suspect issues what that means i suppose holding views all right that mean acting out on them what does that mean sort of cut you off but i think in context the report that quote comes from answers that question that reporters discussing how you know the sort of raise on d'tre of the party that mr singh belongs to is advocating for an independent seek state in the punjab that would be called palestine and the reports the da just submitted talk historically about the roots of that conflict and about how it's treated now and when they talk about holding procol astonied views they're contrasting that with the type of behavior that the police in other states including the central police are predominantly interested which is essentially terrorism there were a number of acts that could fairly be considered terrorism that were committed by sikh separatists decades in the past i think that's what the report means when it says holding procol astonied views i don't think that means holding them quietly in your heart never speaking and i think that means holding these views and doing things with them that just don't rise to the level of terrorism because that's what draws the eye of the indian central police and the police other states were to take the position that the evidence that is produced by the petitioner must come hell a different result that's right your honor the burden of proof before the da before the agency was on the d h s to show that mr singh could safely and reasonably relocate that there's that and that answers the structure of the regulation is if in if an applicant for asylum demonstrates that there are refugee by virtue of having suffered past persecution then they are presumed to face future persecution on the same protected ground unless the d h s s meets its burden to do one of two things to rebut that presumption one of which is showing the possibility of safe and reasonable relocation that's what the agency did here at the burden was properly placed on them and properly just charged and so now here after the agency sifted through all the evidence the standard is substantial evidence does this record compel any reasonable fact finder to reverse and hold that he could not safely and there seems like the real issue here isn't they didn't expressly mention the possibility of private actors  trying to persecute the petitioner whether the agency minutes were in with respect to that those people who got a first name and i think that is mr job's argument you're on going that's his argument i'm just asking your government's position our position is that the the immigration judge stated that he or she excuse my camera the gender of the immigration judge in this case that the immigration judge had considered all evidence in the record and just mentioned that that seemed most dispositive and then the reason the agency's decisions from that point forward don't discuss the possibility of persecution by private actors in other states and more detail is simply because that argument wasn't advanced as a basis for error in the earlier agencies decisions the agency goes where the arguments lead them they resolve the arguments are placed before them let me ask my colleagues do either my colleagues have additional questions for the government i do not ok thank you very much for your argument thank you your honor so mr job will give you one more minute on this you've got three mark aces to continue the dialogue with you have one more on this one one more minute the government's entire argument hinges on its mis apprehension of the board's decision the government keeps insisting that there was a finding of past persecution but foot no one says exactly the opposite foot no one of the board's decision says the immigration judge did not specifically consider whether the harm experienced by the respondent constitutes past persecution on account of a protected ground however as the respondent fears being harmed by agents of the indian government the immigration judge correctly allocated the burden of proof of establishing that he could safely and reasonably relocate them and that's a different presumption  understand are you you're saying that because of what no one that passed persecution was not established i'm saying the board never addressed it and neither did the immigration judge my or did they assume  minute the whole concept the relocation is a response to past persecution is it not now there are two different presumptions set forth in the regulations one that's based on past persecution which is a much broader presumption and another even if you don't even if you've never suffered past persecution but you fear the government there's a presumption that arises that you're in danger countrywide at the hands of the government now here if you look at foot not one the presumption that the that the board is applying here is simply because he fears governmental persecution their need of the need of the immigration judge nor the board ever actually ruled on past persecution that's the heart of our motion to reconsider because if there was pas persecution a different presumption applies it's much broader and the government cannot afford to have the presumption compare the two presumptions for me than the one on the path persecution and the one that is applied in this case a victim of past persecution is league with the government right now that's part of the other presumption is governmental presumption also pertains to non governmental actors who are government sponsored but there's no finding here that these congress party act government sponsored so the presumption that was applied here it's not the presumption that normally arises upon a showing of past persecution the board applied a separate presumption and that's why if you look at the board's decision they never even don't want to go ahead and finish your argument here on this one then my final point because i said the board made three errors my final point is that even if you accept their framework that we only look at the punjab police and the central reserve police they miss apprehended the record and the government does this is well in the government's brief they cite the exact same provision they cite just page two forty eight it's a two thousand and eight report from the united kingdom that says there are no reports that members of either a colleague or the s s f are specifically targeted or discriminated against as a result of their membership this is exactly what the government was referring to when it stood up ok well let's just say argue know that you're correct you would want to sit and what back to the with what direction the whole case has to go back they have to first assess whether there was past persecution and whether that presumption applies then if that presumption applies they have to assess whether this individual would be safer at the hands of both state government officials which they've never considered and private actors in the area of relocation can you give us a case that involves the private actors aspect of this  not off the top of my never heard of the split before i was that it was private actors if the police would not intervene to protect that that would constitute persecution if the government is unable unwilling to protect us but the presumption that applies there are two different presumptions that apply to private actors one is if they're government sponsored that doesn't require any past persecution it's set forth in the regs the other is if you're a victim of past persecution that's also set regs but the final point that i wanted to make is that the government's entire argument here with regard to this report they're looking at the wrong political party this this is the section that they're referring to that the immigration judge relied upon and the government relies upon in its briefing is talking about a cali doll bottle it's a separate political party we know that because the section that the government is referring to says demands for an independent seek state were dropped that's a different issue no they're arguing based on this your honor and the immigration judge cited this expressly in his decision that members of a colleague don are not discriminated against but the section that he's were quoting in his decision and the section the government's