evidence that persons in the situation of the petitioner which is somebody who's a child be positive and suffering from aids face the risk of persecution in the future should he be deported to mexico now the immigration judge we know did not consider pattern of practice evidence because the immigration judge decided that position or that persons with h l v aides who are not get which is the position of position do not qualify as a pattern or practice or disfavored group claim exactly so the b s a overturned the i j a and said he is a member of a protectable group that you don't need to be gay for hiv aids sufferers to said the hapless kind has not made a pattern or practice or diff does favor group claim and therefore did not analyze either so what i've got to decide it seems to me is whether there is any pattern or practice claim or disfavor group claim that he ever alleges sr absolutely made a pattern or practice claim he submitted over one hundred pages of evidence to the being very specific he filed one brief and went back are you really even indicating that i have to look at that first brief i think the question of whether it was raised below simply was the administrative court on and that's why i asked question it doesn't seem to me that the first brief is any argument of being on notice if you're not going to get to the second brief then we're not going to have any notice because first brief was filed and it was sent back was off the table you're going to have to tell me where in the second brief where did he say anything about pattern or practice in the second  another appeal from what they did and that was the december two thousand and thirteen brief that's the first one i'm going to look at well in the december brief well in the in the third brief he did state that the risk of persecution for the respondent as a man with aids is extremely high second the evidence that he submitted to the i j a was still the evidence before the b i a in all instances and it's very puzzling of the b i would say we've looked at the country evidence but only reference one letter from needed to repeat everything in his second brief well i am not going to be hired counsel who filed the brief he hired so my firm came in after the first two priests were filed it only came in late in the states to file a supplemental brief on the eighty four on my record it begins with we're all just because he suggested that is there i mean we're looking at pattern or practice we're not talking about social group we're talking about pattern or practice here well if you look at this brief on page eighty four he says he's eligible for withholding of removal to be free and then he cites that is is life or freedom would be threatened in such a country on account and he cites the twelve weight sixteen beat and under as the court knows look under first brief i simply don't understand but they don't ok but this is assuming they have to consider the october twenty third team break after it's already over and the new graves are file i mean in order for you to prevail on exhaustion do all three brace have to be considered together i think we're asking you can you make a standalone argument that it's raised in december twenty thirty nine april twenty fourth claiming that you have to have october twenty third teen more fan and if so i think judge smith is saying you know if that's already over and then you file new briefs you know we don't it that's like saying well i race in a case before w believe the exhaustion standard here is the exhausted standard simply was that was the court below on notice that this could be even an issue now that that's kind of like a marriage that johnny carson skip the great car makar carnac's or whatever and you put a card up here and you're supposed to know what someone is thinking don't understand how the could think that there's such a thing as considering future persecution without looking at a pattern or practice evidence one is one hundred pages of it in the record i mean what could they possibly think was the relevance of the hundred pages of articles about persecution in mexico if not to consider future persecution how could they say we looked at future persecution and in their own ruling they misstate the rule they say in order to show future persecution future persecution you have to show you will be singled out ok that's half the rule but i  october twenty third teen you're still saying if exhausted absolutely it's inherent in the future persecution analysis if and any time the fact of the rule says if you get it under the future persecution section there's two ways you can show it by individual being singled out or showing pattern or practice there's no requirement that you have to explicitly say to the court i would like you to consider a pattern or practice evidence but but the but the the respondent representing himself pro s possible harmless error discussion here clearly we have an individual that didn't have counsel and then does have counsel so we have two phases of the case and we have multiple briefs going back and forth but ultimately in none of them does he ever suggest i'm raising a pattern or pack practice clean well october twenty third team you could sort of do you think that's a special that yes it is best shot is it enough though something your honor was also mentioning earlier is the agency on were we have several reasons to not be too concerned about it something else judge smith was talking about earlier is the harmless error consideration based on this court's case law and your customer tina's talking about the situation generally as a a i'm looking at the december two thousand and thirteen and april two thousand and fourteen briefs an african need not show that she will be singled out individually for persecution if the applican n statements and documents that were submitted to suggest there's a widespread discrimination against persons with a me this test don't these are these statements consistent with the pattern or practice how in his own statements of his own experiences or on all the statements in the brave that there were in december two thousand and thirteen statements documents that were submitted to suggest there were widespread discrimination against persons with aids and there are also statements in there and i'm not a why is this not consistent with a pattern or practice argument that could be consistent with the pattern practice argument except they were raised in the context of a particular social group argument this court has an extensive body of case law discussing both standards they are obviously similar you're talking about defined by the fact that it is persecuted establishment of a group is then begs the question of whether or not that group or this individual has demonstrated an excess of persecution because of membership in that group disfavor group analysis or  practice claim involves a whole separate analysis it's similar but it essentially assumes that there are these individuals are somewhat routinely subjected to persecution because of their group membership so it's a different now since they have to demonstrate individual things like that that's ten people on karri long have you those are separate from tical social group now so it seems to me and i i'm just wanting to hear what you're going to say about this  orona talks about a social group analysis and i'm sure that's not pattern or practice he also talks about this favored group is braves and yet there's no evidence about a discrete favored group analysis was ever raised but what he says in order to get to those points is the worry to me he says a lot of statements a lot of documents to suggest there is widespread widespread discrimination about people with aids and that he's in the group that seems to be a pattern or practice argument is that if it's enough if  troubled by that the government certainly would welcome a reman to the agency to further discuss this question unless the court agrees that it's on with their situation based on caster martinez which discussed the identical facts i me ask another question on a question he did not really discuss the i j a file found that this petitioner was truthful right yesterday and finding this person was truthful then the i j a looks at the kind of things that were going on here i'm worried that the i j a did not give that particular petitioner the full benefit of his truthful finding respondent described how he told the ospital staff that he wasn't feeling good because this has already been a few months without my medication and he continued on to testify that he told them that i was full blown aids the immigration judges dismissal of respondents testimony as purely speculation and conjecture therefore is clearly erroneous and prejudices the respondents claim my worry about that is the same i read from serranos brave if i am held truthful and there's no evidence on the other side how about what the hospital thought or did not think how is it that the or the b i could suggest that it is then speculation and conjecture it seems to me that it's truthful testimony and no testimony against it in my court we just said no foundation but nobody said that here so here we are what is the emphasis of what i've got to give to that withholding is under twelve thirty one b three c points back to the asylum statute requires that testimony be both credible and purse ways of so credible testimony yes is important but the question is whether or not it's persuasive is it enough testimony was that he was told by the hospital that he was denied care because he lacked that if they're right but but what i'm saying if he's truthful from his perspective he thinks that it was  there we had a similar type situation the petitioner was was truthful and he testified about the presence of a nonpolitical motive or not and we said hey if he had truthful testimony and there's no evidence on the contrary you got to adopt his truthful testimony and you got to go forward when we went to sebastian sebastian versus zionists we said where the asylum seeker testifies he was persecuted on account of a political opinion and the i j a makes an express finding the testimony was credible the petitioner has met his burden because it was not called upon to do so which is the original argument is whether or not he raised this issue to the agency yes he argued that the weight of his test if i don't agree with you that it was not in front of there do i need to re man this back to the b i made to provide a reason t split nation why they did not accept his truthful testimony but judge did discuss the evidence offered by the government on cross examination regarding judge of here has sustained so he's never had any legal status as far as i know in the record so would that be something that might make that not less likely that that it went in that mediation wouldn't be a possibility few minutes for rebuttal thank you first on your last point i have not seen in the record any evidence of anyone raising mediations a possibility it's incorrect he's had nine prior drug offenses that's i think counsel's referring to testimony has been arrested nine times i'm aware of what he did to get prior convictions that are all now misdemeanors since the passage of prop forty seven in california we've brought these issues before the board in seeking to get on for  incarcerated for almost five years but the finished look petitioner's life is a stake here your honour's i think he's right has a right to do and full fair process to due process here before they reach a decision on either future persecution or past deference should be afforded to him as a pro se litigant it frankly never occurred to me that the october prefix repeatedly over and over again says please consider my passport my future persecution pattern or practice evidence would be disregarded as notice that just i don't see the relationship between that and the purpose of notice which is the p a could never have addressed the issue so every case that was appealed to me as a district judge gave me notice the when their condition or comes back again i have notice of everything you've said in this past brief that's what you're arguing i think they were and i mean i had many plaintiffs come into my car room and sue this guy and the next guy and the next guy and every time they come back i'm to give have notice of what he said before but it was the same case your honor same it isn't the same the first one was sent back he won it was sent back to have a review and now he has a chance to come again and he was sent back for further clarification the court said you haven't given any detail on past or future persecution please give us more detail and then the court did but regardless of whether there was noise i think in those briefs i think the fact that he submitted all this evidence was more than sufficient it's in the statute that they should consider pattern or practice events on the past persecution i grew with your honor that they did not give they didn't just not dismiss his credible testimony they reached a conclusion directly