her feminine traits didn't like them created rules for her to follow to make her more masculine and follow those masculine gender roles more closely and that when she broke those rules quote in response to respondents disobedience in the quote  beat her as much as six times a week also found as a matter of fact that kelly's principal told her that she couldn't come back to school unless she cut her hair and dressed like a man again quote dressed like a man all of that is an acquired short appendix page nine police and security forces found that once and that the government was able and willing to control that persecution and that kelly did not have a well founded fear future persecution i'd like to discuss all three of those findings in a little bit more detail this morning  as they do not comport with the substantial evidence of the record considered as a whole first i'd like to talk a little bit about what's not issue in this case kelly the be analysis assumes that kelly's testimony was credible that kelley is credible it also assumes that kelly was persecuted in the past it also assumes that kelly is a member of at least two particular social groups l g b t children without parental protection and transgender women so i'd like to adopt the part of the reasoning about one central reason in other words why was kelly persecuted was one central motivation of her persecutors her status did it up that part of the opinion and that is not supported by substantial evidence dispositive reason are the words that persecutors use in this case her uncle used slurs against people as he beat her he told her he was beating her to quote make her a man and the principal told her she was not being allowed to go to school because she quote dressed like a man says of public school principal so those words are could be dispositive honestly but there is more going on there is also evidence of the circumstances surrounding the abuse particularly the uncle's abuse the uncle made rules clearly noted her feminine traits clearly was bothered by them made rules about not watching soap operas not hanging out with girls beat her more when kelly would wear her sister's clothing would be kelly's sister when kelly sr tried to intervene and protect kelly during these attacks all of those circumstances and more that are in the record and discussed in the brief show that one central form a way to infer persecutors motive is the form of the abuse on occasion it's sort of rare that that occurs but this case is one of those cases where that occurs the uncle actually forcibly cut kelly's hair which was a big form of contention because growing her hair was a feminine trait and it didn't conform to the gender roles expected of cali as someone who was born male and this is analogous to the karuna case out of the th circuit which is cited in our briefs where a gay man was shot in the box and the form of that persecution sort of gave insight into what was causing the persecution similarly here cutting the hair showed that the failure to conform to masculine gender roles was part of the cause how  does the uncle's persecution play in on a on a deportation when one we don't know of the uncles there are any more into your client as an adult now so your client so i know that from your briefing but i mean i just i who were talking about the uncle here so i mean how does that even play and it seems line that's that's remote she's not even a member of that potential class anymore of children who were case where that's true when it was a family member or someone in a custodial relationship that was doing it use what if it was her dad instead or her mother that was beating her i would say the same result if it's past persecution and one central reason for that persecution g which in this case it is that creates a presumption of future persecution on that basis are you are you aware of a case though where where the where the asylum claim was based on persecution by your own family member can you repeat that question one more time are you aware of a case where the past persecution was based on abuse by a family member yes i don't know that it's cited in our brief and i would have to do twenty a j letters but there are cases involving for well founded fear of future persecution that rebuttable presumption don't lower makes any sense because guilty is no longer a child in this case your honor it makes even more sense than before i entered that question i'd like to talk about another reason itself that being said in this case kelly's claims of future persecution are even stronger because number one there's the evidence in you know the state department reports multiple places where transgender people are completely unable to find employment you know that's not a problem when you're a child it's a massive problem when you're an adult and again the evidence involving past persecution and future persecution is that the government is one of the key of abuse against you people and as an adult that is more likely to happen to you you're more out in the world but you have a disputed batchelor record as far as that goes you have on one hand someone an expert saying that that the police and the government are the major persecutors and on the other hand you have a government that's passing legislation providing training to officers deploying a special police force to investigate crimes against certain class of people so i mean doesn't that create sort of a factual dispute that the b i a and the immigration judge were was entitle to rely they think they could choose i respectfully disagree with your honor's interpretation of the record as it being a disputed factual issue because if you look at both the expert report and the country conditions report they make clear that although there are people or laws that is in the record they are not translating to on the ground protections for people and not only those two reports but multiple rd party reports and newspaper reports in the record reflect the same and those are under  so for example the state report itself says that security forces are perpetrating these abuses in the very same paragraph where it talks about that law it says security forces are perpetrating these abus from the expert talks about public brutal frequent d systemic persecution of people and that they are among the most vulnerable people in society particularly transgender women and i would add  point that kelly's future fair claim is even stronger than it was as a child because now she has begun transitioning she has been taking hormones she looks more like a woman and will have to navigate the world as a transgender woman and she has been quoted now talking about being transgender you know someone could do a google search and find out she's transgender she's living as a transgender person which was not true of her as a child one other thing i'd like to talk about on that pervasive persecution point is that it does show that the government is unable or unwilling to control and that is because i disagree about the record being of two minds on that i think it's of one mind and it shows that where the police are involved that to me should be dispositive that the government is unable or unwilling to control this ask any tort lawyer if your agent goes out and does something do you then get to say oh i don't have any responsibility for that no you don't that's that's your agent and they're the ones doing it in fact the primary persecutors according to unrebutted evidence on the record do you agree that there's there's some evidence in the record the under and government is trying to address the issue for murder ok but again according to the state department report very reliable unrebutted sources over ninety percent of crimes not just murder crimes against people aren't even thank you your honor may please the court i'm scott steward on behalf of the attorney general in this case the agency denied petitioners applications for asylum withholding of removal and convention protection under the convention against torture those are fact found just terminations on with on which the petitioner carried the burden here and did not carry it to overturn those determinations this court would need to hold that the record compels the conclusion that they were wrong the court cannot reach that conclusion on this record and carson emphasized kind of a key theme in a very good point here about the issues on appeal are quite fact bound and we have before us a record that could support more than one conclusion million thirty two thousand and seventeen country reports from honduras if you were not a lot of other documentary evidence that shows that there is widespread persecution including perpetrated by law enforcement so what exactly one of the administrative record this is this is a part of that report that's addressing acts of violence discrimination abuses based on sexual orientation and gender identity the report does identify look there is a law that provides that states that there's that sexual orientation and gender identity merit special protection there is some still some discrimination but there is action to show that the government is is addressing these issues there's a report of yes two hundred and eighteen cases of violent death since since two thousand and nine but there have been over a dozen convictions and a one hundred and seventy one of those cases still remain under investigation and in those convictions were for murder two thousand and thirteen law although it's been touted as one of the most progressive in the region there is an extreme lack of political will and resources to implement it the principle governmental institutions in charge of providing protection to children and excerpt that the i j a relied on this part of the country report for one door as the principal governmental institutions in charge of providing protection of children are weak highly bureaucratic and in many instances private actors so do you have any documentary get any testimony that says that anybody is is in forcing this two thousand and thirteen law and i think it does provide i mean look just that piece of the country report stood on similar footing with the herrera declaration they got the court didn't treat that he said it  look that's going to be something about background country conditions it's not specific to petitioner you know all of the you waited and the court did say well look even even this is as you know from from the declaration itself it's quite long and it's it is not of knowledge different features in here and i think that really shows the even handed and very sensitive treatment that the i g gave to the rather searing facts presented in the case some of it is that i just it was roy on the decks are saying that the two thousand and thirteen report law support look there is a government ability to address this the i g certainly didn't proclaim that this is perfect or or anything like that but this is when you have a situation your honor where the petitioner can't really point to something very very concrete and you're looking at competing general conditions the i j a here very permissibly in reasonably said look i think that this is the better view of the evidence here that there are that the government is willing and able so that it's one of those points i think judge carson was was  was kind of homing in on where you have evidence going both ways the i j a has this before before him or her and it can reach either one of the conclusions and there's just not a basis to disturb at that point so i do take your point your honor it certainly i culturally there is a lot of discrimination in honduras i think that there is there's certainly evidence to support discrimination particularly against this  p i think the harir declaration again against against this class i every time i start spouting out the letters i get tongue tied by the end but so what do you do if you have a situation where the where the discrimination is so widespread that the government even though they may have a willingness to address it just visibly can't keep up with with the discriminant with the  discrimination i mean i think the law does recognize either that specific threat a specific threat situation but or the pattern or sort of systemic pervasiveness your honor and i don't think we're quibbling that a sufficiently we're not disputing just standing here david you know that pattern or systemic abuse could satisfy could could could be a permissible showing it's made what we're seeing here is that there just is not enough evidence and it's one of those things where again it is i was as i was noting we in the colloquy with judge back record when you don't have much in the way of specific evidence as to the person what they did how the government responded were they able to do anything it becomes hard because you have to rely on these more generalized statements i believe my friend to believe or get on the st about the st circuits decision relied on the st circuits decision in who stole which i involved a situation where i believe as i recall the st circuit rejected he said like look even if somebody was government was willing to help they were able here and you know it's they did a little bit of investigating but they really couldn't protect people but it was pretty specific as to that petitioner because there they is this is of course the petitioner's testimony this is where the the the petitions homing in on you did you go to the police what do you do when she said no no i want you the one of the more concrete statements from the petitioner regarding regard so when she was nine and she didn't know to go to the police right i think i think it was your kid if that age she didn't know that any one could help or didn't know anything about it and look we don't want to overly you know fault somebody for that but it does get at this absence of concrete evidence as to what the authorities may have done or would have done or would have tried to do if they had been presented with somebody who's been beaten you persecution because she just that when she was a child she did noticable please know your i know i think i'm focusing i'm focusing more on what we know about the what the government is willing and able to do and the evidence essentially all of that the only testimony that there is about how the hunger in government is applying the law but again it's in the nature it is as the i j a noted of background country conditions and in therefore it's not specific to to the to the police here's what happened when i went to the police here's what didn't happen we have so all we have is this more general competing considerations about how to weigh the evidence and that's really an agency determination the agency is really best situated to pull apart you know was the government willing to write an able what would happen that those kind of things that's the point i'm getting at your what if the testimony was when i was nine being beaten by my own call i went to the police there was a policeman and i went to him and said hey my uncle's beating me and calling me all these names and the policeman said go home i'm not going to do anything about it does that does that change anything for you  nonspecific example it would certainly would it would provide more support your honor and i think courts often reach i think different i think we see courts reach different conclusions when you have that kind of st hand account and you say like oh you know ok white the police you know you're didn't take that seriously these are really holmes in on me this is how somebody responded to that so i think it's just my concern with what you're telling us is that the the petitioner here would have to basically has to go get beat up and asked the police to do something and them saying no before before she can have a reasonable fear of persecution i don't think so your honor i think all we're saying is that not to adopt kind of any sort of per se rule really saying is that it's a fact bound question the petitioner does have the burden the agency ruled against the petitioner on that fact bound question and given that and given the lack of say that kind of concrete evidence or evidence of more content just pervasive harm the record just doesn't compel reversal of the agency's decision i see that i mean i'm up over time it discusses that issue a little bit the other case that i think really is highlighted by the government's argument and really goes to the issues in the case is this court's kharkiv decision that decision made crystal clear that the b i a needs to consider the record as a whole and it needs to you know address contrary evidence and explain why that contrary evidence is not sufficient in this case i would submit that the b a did neither here with regard to the experts declaration i just encouraged the court to read paragraphs thirty three through forty of that declaration and if you come away thinking gee there's no that law is really protecting transgender people and we just have different reading comprehension i think it's not what that report says in any manner the report is extremely clear that there is widespread discrimination and at minimum i think under harkey the court has to remain and make the b i a do its job and explain why that's not right and why it's rejecting that evidence which didn't even bother to mention not only did it not bother to mention the very evidence it's talking about you know also look at the entirety of the country conditions reports the country conditions report very clear that you know there are there are very serious dangers including inability to be employed essentially if you are a transgender person and that was not even discussed the educational issues were not even  persecution how is educational persecution when kelly had been qualified otherwise to attend a public school how is that relevant as a as a window into future persecution because it contributes to st of all the employment issues that are already pervasive you know if you can't get a job generally you certainly aren't getting one when you haven't had even a basic education it also shows general societal and government attitudes towards transgender  no no i think the arguments are well well christians think your are thank you both sides did an excellent job we appreciate your excellent this is this