reviewing an agent says denial of asylum well i thought the standard view is decided by law what are the issues that you're arguing this issue that i'm arguing is that the immigration judge both record and the immigration judge mischaracterized parts of the record in order to reach the conclusion that he did let me be more specific are you arguing are you arguing are you do you wish to argue past persecution or well founded fear of future prosecution or both thank you for the clarification your honor i believe in the question of past in the cole of appeal right and the reason that i asked you that years that i don't it is not you does not appear to me that the past persecution claim is before us because i don't believe mendoza raised a future persecution correct correct in that in that instance there is no presumption your honor i ask you about your cherry picking argument i know i watch and may be particularly relevant in this case but i also  evidence supports a well founded fear of persecution you know i don't think there's any you know but i thought what chen argument specifically as i understand it is that when made and have made throughout is that the evidence does not support the judges decisions and if i may i would like to give a couple examples very specific examples of the cherry picking that we see one of which future persecution we're not asking for the presumption but it supports his past experience support the real subjective and objective reasonableness of his well founded  seriously they did not seem particularly predisposed to help him what we have to show though is that the record compels a different conclusion here do not yes so what is your support of that argument my basis in support of that argument turns on the future persecution in the immigration judge's decision he knowledge a large amount of evidence that was submitted showing that the mexican government is unable or unwilling to prevent attacks and homophobia  that discrimination based on sexual orientation and gender identity is prevalent there is still stigma and prejudice the government doesn't always investigate and punish those complicit in ending discrimination against homosexual individuals and one of the sources quoted by immigration who are noted that mexico is to be applauded for having taken positive steps in recent years amend its constitution and to enact federal legislation prohibiting discrimination on the basis of sexual orientation and it was one of the first latin american jurisdictions to legalize same sex and police officers in mexico city are required to participate in training designed to sensitize them to issues of intolerance toward the gay community you are quite right that there is evidence is responded to specific evidence in the record of the state of the steps that mexico is taking to combat that intolerance so i fact of passing of legislation has had little to no effect on me daily life of gay folks in mexico and i think that it isn't it somewhat oversimplifying the issue to say that all he'd be individuals are treated the same in all parts of mexico one problem that i have with the evidence compelling a finding other than what the i j a found was that the evidence you produce was sometimes civic to geography sometimes specific to a particular event and no evidence connecting in a concrete way as the i j a determine the petitioner to th particular ills that are still in pockets of mexico what can you point us to that is contrary to to the way that i just described the record well i think one way to view that is to view those as part the home territory for my or my client and you know mexico city is held up as the most liberal of the moral and yet there was significant evidence made it still that mexico city as say really is in placing so much reliance on statutory reform and i know that this case came out since the board made the decision but contend that that is that that is not sufficient given the bulk of the evidence to the contrary that discrimination still continues in a very serious way including by police officers not just with the complicity of police officers as shown in the record and i see the time out of time i reserve by five minutes thank you very much you did indeed thank you very much  good morning your honour's may it please the court catherine smith for the respondent this record does not compel a finding petitioner one demonstrated harm rising to the severity of past persecution his past persecution  into one about child abuse that is definitely not for this court as it's completely on exhausted to the extent the court does consider the issue of past persecution the three incidents of street harassment that petitioner experienced in tw comes from also notes that two hundred and fifty l d p individuals between two thousand and ten and thirteen as well as defenders were murdered and it is you know self evident from the report that it was because of their status that's in the one report then there are many other reports that the petitioner included that the i j a makes passing reference to but in no way as i watch and compels that gives us any rationale for why the i j a elevated that one paragraph over all the other evidence why is reversed and remanded and watch i'm not familiar with i issue was not raised by my opponent and her opening brief i didn't read into her specific response ok i'll give you sort of the skinny on it it's our it's the cherry picking case so it's it's the one in which this court determined that the i j s failure to look at the two thousand and nine report on forced sterilization in china in favor of the two thousand and seven report was was a deficient record that the is this not why is the same result and this goes to the second issue a well founded fear in the absence of any past persecution or any evidence individualized risk so what position are has to show here is a pattern or practice claim and under this are the specific instances to hatch petitioner was subjected to that form the basis for his argument about an objective a well founded fear a future because he has to show he has to show a well founded fear future persecution sufficient evidence to demonstrate a reasonable fear of being singled out individually as i understand it for chen provides a list of examples of what individualized risk would look like maybe there's a judicial summons waiting for you in your country or specific people who are waiting for you there's no such individualized risk here so the only thing left  is for petitioner to show that all people in his group face the requisite level of risk and here looking at the totality of the circumstances the record doesn't compel that conclusion even the article submitted by the immigration court  future prosecution albeit subject isn't that then inconsistent with saying later objectively this evidence doesn't pass it's not your honor the immigration judge is recognizing that there is offensive conduct regularly committed in mexico there is discrimination and these things are in the record but the record does not compel that there's such a systematic burrowed degree of persecution to create a pattern or practice claim  and then a top of page eleven of its decisions record a r fifty six found that considering the totality of the evidence on both sides doesn't add up  the ground i don't know how the immigration judge consider that exact piece of evidence but typically it's presumed that an adjudicator considers the evidence when they say they have and reaching their conclusion but the immigration judge is not required to look at look at the evidence itself your honor there's an excellent example record page for thirty six to four forty one this is a record document the petitioner submitted below titled mexico's t community basis violence despite major gains in civil rights and this article goes into depth about statistics the the rising murder rate the judge has cited the backlash from the legislative improvements but it also paints a contrast in very positive picture of mexican conditions for members of this community it states that the raids that used to happen again nightclubs the teasing and beatings have stopped as a result of police training that's been very effective as what the article states is states that many supporters of the legal changes say that the real victory is a revolution in social norms and in many places the social revolutions are affirm the board's factual findings unless you need it or would be compelled to conclude it has the contrary so it's not even a question of whether we disagree it's whether the record compel to conclude that the i j a was wrong and that a pretty dalton standard whether we agree with the i j a or not you're not right it is a very deferential standard your honor and i don't believe this record compels the conclusion that every homosexual man in mexico has a well founded fear persecution of facing harm that rises to that level of severity if it may be that there's a significant amount of discrimination facing the average person but the average person might not face murder or such a or other forms of persecution that are sufficiently severe but would you agree that the arguments you're making  now which are very cogent very well these and are not in the ideas and and the only alternative way that this goes back to the ideas under i watch where if we find that the i j a just simply did not engage in reasoned analysis when looking at competing pieces of that if we find that there really was no rationale behind it then i watch and can tell us we are we must   and so that they be i a and b i j can offer quote a specific cogent reason for rejecting evidence whether testimonial or documentary is it lacks credibility so in other words the very balancing act that we yet to send and i would agree with that but i'd also argue that the i j did do that at the top of page eleven where it said that it was considering the totality of the evidence and found the harm is speculative at best considering the degree of risk stated that the future harm is not objective really reasonable because it lacks solid support in the record and is merely speculative at best and that there is no concrete specific and there certainly are people who face serious risk of harm in mexico mexico city is also a huge city of over twenty one million people so i'm not sure the sane two hundred to show past persecution that the government is unable or unwilling to protect are willing to but yeah but not necessarily that there was no finding by the agent this case that the government would be unable or unwilling to protect and that was the issue in bringing us rodriguez that he's discussed earlier where the ninth circuit criticized the agency for over relying on the state department reports stating that you know emphasizing the legislative changes that's a different issue in the case before us here we're not concerned about whether or not the government would protect us there was passed persecution demonstrated there was a well founded fear and the only issue remaining was whether the local police would protect here we haven't even gotten to that stage we're still demonstrating trying to demonstrate just a general pattern or practice claim in the legislative and act minutes it's just one piece of evidence in the total characterization of mexican society that goes to demonstrating whether or not there's a i don't have any particular reason for this case to challenge the old and i think it makes sense that you shouldn't overemphasize legislative changes and ignore evidence that local police in mr rodriguez his case would not help him here we don't even get to that stage because there is no evidence that mr mendoza as experience past persecution or that local police are unlikely to help him if he does experience harm rising when he was testifying to the asylum officer and his credible fear interview he mentioned some person some sexual abuse by a caregiver in mexico but that evidence was not incorporated into the immigration courts record and not testify at his hearing he simply incorporated the declaration that he submitted to the immigration which does not discuss child abuse the focus this is claim on you dolt street harassment that he faced me ask about me read a quote from the evidence that the police are being required to undergo training to address those instances of behavior so they haven't there was evidence of these individual instances in there was the evidence of the police department's respon or not there is a pattern or practice of persecution so it's an interesting comparison but not directly on point where here we're looking at everything about mexican society the laws that presumably were created by mexican citizens reflective of some portion of society compared to you know what the police may or may not be willing to do in the event it does face harm rising to the level of sufficient persecution in some this record does not compel the conclusion that mendoza has established a pattern or practice of persecution that there is such a thorough or systematic persecution on the ground in mexico such the his sallust a well founded an adult the group of men chased him of this boyfriend into a subway station calling them names yet the police searched him roughly after seeing him with this boyfriend without explanation right i  police response was unhelpful or negative that's correct are there other instances a fact and mr mendoza well i i disagree with but i didn't i didn't make the child abuse i'm asking you i believe and you know it's i think what my point is more that they go to reinforcing my client's well founded fear of future perspective but i see it but the object you know the objective reasonable nurse is a reasonable person you know would a reasonable person in this instance you know the mystical reasonable person if you're to persecution and with that persecution be more than ten percent likely and handed and then that just gives rise to the question about the difference between harassment and persecution as a pattern and the problem that i have to keep going back to here is our standard of review a full review of the evidence i'm not sure that is necessary in this case there is a very very complete record of evidence which i have argued compels a different outcome obviously remand is an option before this or my position is it's not necessary and i see i'm out of time again thank you very much