reserve two minutes of my time for a bottle the central issue is not selling case issue just i just am i can oriented the i want this to determine if there was no persecution but was there a question about what the protected ground is and whether that has ever been litigated here what is a protected right well if i may i think the central issue in this case is the fact that  the petitioner revealed for the first time in court that she was violently gang raped at the age of eleven by five men and i think what the judge did not take into consideration was first of all that this was a revelation and miss more of martinez stated that this was the worst possible thing that ever happened to her and wife so there was only two pages of actual testimony in this case i said kathy and no one answer my question ok my question is all right given that or any thing else what's the protected ground here the nexus or death is that not in the case because nobody's litigated it yet no one stated what the protector ground was she said she filed an application right she did file an opt in the application she knew she checked political opinion she did and that social she did not i mean it was not clearly identified from the record that i saw that she identified that particular social group in terms of the rape the political ground was because of the grill activity past persecution at all which if you read through the her declaration her first declaration as well as her second decoration plus her testimony on the stand it's hard to believe that there was a past persecution if i may if you turn to the record on her testimony she revealed that she was gang raped at age eleven and a half by five men from her community she knew three of those perpetrators she was taken to the hospital she reported the crime or the police came and interviewed her about the crime and yet nothing was done to protect her from those perpetrators she continued to see the perpetrators in the community after thought if i may she was eleven she was female she was poor she was also an orphan she had a second grade education and no one no one to protect her we don't know the extent of her injuries because that was never asked the judge gave very short shrift analysis of what happened to her in fact when reading the testimony it appears that they just wanted to get through the trial  several times the judge said let's move on even after the petitioner revealed that she had been gang raped and turned to her attorney and said let's move on so i think there was not a full analysis of what happened to this woman when she was a mere child following that the petitioner was their decision and in both cases that it was just you know a few encounters but by reading her first declaration and her asylum applications really clear that this was an ongoing  assault what she testified you could get that impression by reading the declaration but when she testified she said quite clearly that they came four times and that was it i mean four times four times but that but i don't think one can read back into the declaration something more than i understand your point on that and i wondered about that myself but nonetheless i mean her testimony was admirably specific  general i mean it and she was very specific about that she was she was specific i agree however it did it did take place over an extended period of time and i might point out that in garcia martino's versus ashcroft one of the cases talking so i think if you read the declaration you would think that she was heard it all she never said anything in the declaration about her being hit or shoved around a thing else of persecution are not exactly do not exactly understand of what what we as lawyers are looking for or what the law requires so she wrote that petition or that declaration back that's why i'm saying that's why the testimony is much more specific about the injury and it's also more specific about how many how many times they came and so on so let's just take that i i understand your point i think however if you look at you know cases like garcia martinez versus ashcroft a two thousand and four case it notes th a lot of facts that have not been disclosed about what happened exactly around the rape in particular and how that positioned her for the future we don't there's just not enough information in the record represent her at the hearing i was not i was not i did i was not the attorney at that time so i  what i've read is from the record but i am struck by the fact that this woman revealed for the first time that she was gang raped at age eleven and a half and given what we know today about sexual assault especially of children this is pretty much a jaw dropping revelation in my view so how do you put that into a legal structures as  a request for humanitarian asylum well what is it exactly because presumably it's not there's no connective with a well my argument is that there was indeed past persecution in this case i want to count of an account of political opinion in the terms of the rape was on account of political appeal and now the rape is on account of a particular social group being if you look at perdomo versus holder it was held that women in guatemala represents a cognizable particular social group i think you could argue and that she suffered a horrific gang rape it at a tender age what the i g found about the right was that it wasn't on account of what wears on that is exactly what he found actually if you go to his decision he made it very clear that he thought this was a random criminal act carried out by individuals that the petitioner gave for being afraid to go back for example to call them all up was a lot of violence in our country her or her son might be thinner for having money because they're coming from the united states may be targeted for that reason that they might appear wealthy they cheney also be social group appointed to its own case law and the circuits case law in stating that this is been firmly rejected it's all telling when the immigration judge address the issue of rape he did find his exact words this is a deplorable he recognizes a berry he was not being dismissive but he was looking at the facts of the case and there is no protected brown even opposing counsel has i'm able to point to the record and identify a protected ground instead of she's leading h you could speculate that yes that would have little testimony was it was that the girl was were looking for her brother in line confronting her where they were looking for her brother in law who had been a member of the military then had left that and taken a job working time to the gorillas came no incidents of violence the third time they did roughed up a sister and the son four times she was roughed up when during all of that it was looking for the brother in law they never once mentioned you know his role of government  particular case the board of immigration appeals adopted affirms the immigration judge's decision according to matter bravado which means of all the decisions that the in immigration of the immigration gave the judge gave in this case are also before this court as well the grille incidents the hard did not rise to the level of persecution so for this reason for these reasons the ija determined that should not a sound was passed persecution then they turn to the question of whether or not she has a  concluding that the individual the petitioner in this case is not eligible poor asylum and there is no evidence of a record that kemp held a contrary conclusion which is the standard that this court must find th a more legal version of that legal question version that when she was undoubtedly threatened quite bad and quite seriously a couple times and as were her sister signs that right with death threats or you take all your teeth out stuff like that and so why are we looking why don't we look human i mean the the reason as i understand it from looking at the physical harm when you're dealing with threats is to get some measure of whether these threats have any credibility essentially and if we have so i would think that you wouldn't look only at the harm physical harm to her but the physical harm to the sister and the sister's son to see that these really are pretty violent guys now i mean why would just looking at the fact that the only shoved her in the father to they apparently pushed to really push very hard against the wall and so  on whether you look at the harm depositional or self experience in a personal capacity or whether you take the horror collectively that the family experienced it still is insufficient to sow his past persecution like for example in you think that there ought to be a letters or something the government knew this one was in the system for twenty seven years she ran her life and she had her children and she lived her life and she's not and there's no criminal  thank you your honor well i'm frankly a little dumbfounded that the judge did not find past persecution in this case i read the testimony and a child being gang raped at age eleven is he didn't say that wasn't persecution he said there was no nexus there was no nexus to a protect right graham you have not i looked at your brief again you know you may have told us now why there was a protective grab but it's not in  prayer isn't correct correct cell until you stood up here you have not told anybody what the protective ground is with regard to the right correct however i think at this point the judge gave a very short shrift analysis of what was going on with the gang rape when this woman was i think what judge present is saying is that it doesn't matter because you didn't press that in your brief well you did press in the break in your brief is the death threat plus the violence so why does that rise to the level of past persecution well you have to look at it at the in the backdrop of the civil war that was ongoing in guatemala about civil war lasted for thirty six years thousands upon thousands of people lost their lives in that war is it still going on it's not so going on ok so is there granted she suffered past persecution and a kind of the civil war but it's no longer going on so is that past persecution under the relevant case law and the statutes a basis for withholding removal or asylum where the situation on the ground has completely changed well i don't think the situation in guatemala today is very good i mean why are it's not the point though the point is is there out connection between the persecutions she suffered many years ago and the switch situation that's now ongoing in guatemala well i would say yes in the sense that when you come into play in any rebuttal the government would have to make wouldn't that wouldn't their argument that conditions in cup guatemala ern thai really different than they were back in the eighty's isn't that how the government would show change circumstances rect i agree with you on that but i mean even the country condition reports from two thousand  and two thousand and five showed that the situation guatemala had not improved at all there's still a guerrilla there's still a civil war going on there's not a civil war today well no but the civil war ended in ninety six but there were still a vast human rights abuses occurring in guatemala problem of course is that our asylum laws are very limited you know and that's a lot of what the whole debate is about immigration right now we have all these people who are