good morning and welcome to the th circuit before we begin judge nelson and i would like to welcome judge naan malloy district judge from the decision of montana who's here helping us out today and tomorrow judge my welcome and thank you will thank you for having me and we've got several cases a minute on the briefs i'll just read those out of housekeeping lou versus barr submitted wegner versus wells fargo submitted so manelli versus commissioner internal revenue submitted united states versus friday the government filed a twenty eight j letter with the court i'd like to address that st inciting matter of a b the government forgot to mention that general sessions said in so many words of page three hundred and thirty seven of that opinion that the unwilling to control standard is met if the government in question condoned the private action the case saying the bar cited by the government is completely in a political to the case now before the court in saying the court took up the issue when does whistleblowing constitute political activity sufficient to be an expression of political opinion the court held in that case that the aliens opposition to broad forms of government corruption might be political opinion but is optional position to isolated corruption or to the views of an isolated official usually does not constitute an expression of public opinion and so that case really has nothing to do whatsoever with whether a so called rogue official's actions could be imputed to the government can i ask about the twenty j letter is there any reason for us to consider that it a minimum is that something that possibly could be considered  but if the b i a didn't rely upon it we can't look at it can we well i agree i agree that and so i my only point is there's no reason for us to even weigh in to say it does apply here it doesn't apply here we just can't consider how much evidence do we have that i know we have one point urged the neighbor she calls the police the police she testifies i believe credibly that she sees  man paying off and then it goes away and we have other evidence of condoning that would help you know what we have here is the one incident where and her testimony as soon as you know the  found her testimony to be credible and so her her testimony should be accepted as true for our purposes as it was with the b i and the i j what happened was as he said she complained to the police after about the th time where he beat her up and worse two police officers with the wherewithal to deal with the situation actually went out to her home and if the officers had any doubt about the truthfulness of what she was  asserting those doubts were certainly put to rest when ronald offered them a bribe not to protect her so they were with full knowledge of what was going on with the full ability to protect her if they chose to do so  and with full knowledge they took the bribe and they left and so i believe this constituted agents of the nicaraguan government acting under cover of law giving ronald their unspoken permission to beat her and rape or do we have other evidence in the sense of her testimony that she did not believe over and above this and that the police would not protect her well that's right she's extremely  record is replete with her being extremely suspicious and extremely cynical about the police's willingness and ability to protect her and as it turned out she was right and what about the evidence again indirect but the evidence that rather than call the police to protect her daughter the mother no mortgages her home in order to pay for the smuggling to get her out of the country  trying to help you out here i think you've got an argument and that is if we're trying to figure out what the belief in the community was it's pretty clear that the mother says if i'm going to protect my daughter i'm not going to call the police i'm going to mortgage my house and use that in the record there is information about how the the the victims still are vastly under reporting these crimes and so the people who are withholding do we need to remount on social group well the be i i did not interview in reach question right right and so i guess the answer is yes and what about like what about cap we don't need social reform cap that's true well if it happened you know if if public official  acquiesced to karla's torture before there is certainly a chance that it could happen again so i would argue that you could resolve the say so is domestic violence torture certainly in this instance it was is it torture within the meaning of the law well i would i would think so the you know the message violence as you know in the fifty states is defined in lots of different ways certainly the domestic violence that  and fifteen country report shows that nicaragua has made positive strides in protecting women from domestic abuse and then you have the credible testimony found by the i j a of the petitioner in this case so when you have a generalized statement by in the country report and specific credible testimony by the applicant one controls the applicant i mean here she asked her government for protection at that at the time that she asked the government for protection and at the place she asked her government for protection to agents of the government appear with the full knowledge of what was going on in the fall where with all the do something about it and an ambiguously refused to help or i think that is good morning your honour's and may it please the court michael high some behalf of the respondent substantial evidence in this case supports the agency's finding the petitioner failed to satisfy her burden of proof that she suffered past persecution or establish a well founded fear of past persecution are well founded fear of future persecution given that she failed to establish that the government of nicaragua nicaragua is unable or unwilling to protect her what do we make of the unchallenged narrative that she calls the police the police come or indifference by the government because the statute speaks of the government well not not an individual yes a government agencies with two representatives of the government yes he's a government representative but as and believe is asking should we show the court consider a b in this instance yes because the attorney general is discussing the standard for unable and unwilling as applies here it's a question if the court is concerned about getting ahead of the has to do is she supposed to call them again would you call them the st time round goes out and pays them off and she was subjected to a particularly severe beating for having called them so she's supposed to call him again to demonstrate that exactly the same thing is supposed to happen again how many times you have to do it before she can demonstrate to your satisfaction or our government's satisfaction the nicaraguan government is unable or unwilling was the immigration judge noted in the board agreed she had other options that the government the nicaraguan government has made available other options to address such as contacting a local prosecutor contacting perhaps national law enforcement pursuing any of the mediation services available you know that just writes me a fantasy the country conditions reports belie that that is fantasy you know i've country conditions reports for twenty years now and it's fairly common for the country condition report to say the government is making strides and the evidence in front of us it is very often well they may be making tried somewhere but they're sure not making strides in the case in front of us i mean i see this over and over again but the court has consistently found that the state department's country reports evidence is compelling if not the most compelling evidence of country conditions i don't there are i do not think that's an accurate description of our jurisprudence i would be glad to pay attention to what is clearly evidence but if it's contradicted in the individual case by i called the police the police did not respond yes that's a different proposition in this one instance yes there was a bribe paid and what happened there in terms of alerting police well that's a very specifically factually different situation in that that matter involved the child is the question is whether or not a child would be expected to report the abuse the child was suffering this  is not a child this is an adult that is of course in an abusive relationship and you're saying she's supposed to do it twice three times what your honor is describing is contacting the same people that felt the helper whereas she had other options that the nicaraguan government in the totality of the circumstances the totality of these circumstances show that there were other options available to her she moved to another town there's no evidence that she contacted the local police there she didn't contact prosecutor there she didn't seek a protective order anywhere she simply claims that she that just a quote justice for sale was her testifies and that's when she testified truthfully that justice is for sale and that if i go to the police in nicaragua again the same thing's going to happen that's a that's a subjective statement of course and asylum and withholding require objective proof and that was judge moore's question is what carries the day do we have this country conditions report that suggests that nicaragua's making strides and we have an individual that had a very unfortunate incident where the police did nothing to help or on on one occasion thirteen years ago that's a wait that's a classic weight of the evidence question and applying the substantial evidence standard this court can't reweigh the evidence we do with the other evidence that is to say she says i know we know that the police the authorities will not help us what do we do with the evidence that her mother is so distrustful of the authorities that instead of contacted the authorities her mother trying to protect the daughter she mortgages or home in order to get enough money to get her daughter out of the country where we do with them that's arguably assuming facts not in evidence but in terms of what the mothers are think your honour's a step ahead of me in terms of as we have full knowledge of why she did that yes protecting her daughter was a huge factor is that the factors is kind of getting into the central reason a reason very very similar type of analysis there's a whole host of reasons individuals want to come to the united states certainly this individual had a compelling reason to want to avoid further domestic abuse and they were not to speak disputing that that's a reasonable thing to want to get away from the question is did she sufficiently avail herself  what the nicaraguan government was offering to her no protective order didn't contact the local police when she moved didn't contact the local prosecutor didn't contact the national prosecutor didn't pursue mediation she had a lot of other options and context is to say by a government official or someone with correctly essence would this constitute torture that would certainly be something the agency would have to consider and the st is the agency is denied kept right the agency didn't make a constituted persecution it was whether or not that the sole question that they didn't see addressed was whether or not the nicaraguan government was unable or unwilling to protect or so if we would you conclude that both within the meaning of asylum and withholding and within the meaning the cat that the government did not would not could not protect her so we got over that hurdle are you saying with respect to cat we need to remain with the determination of whether or not there's abuse  the level of torture yes you know i question that if this abuse had been inflicted by the government officer that this would have been or would not have been torture again that's not for my not within my does the fact that it's domestic violence really and violence inflicted by someone else make a difference as to whether it's torture if i were to say my my personal belief i would say that doesn't make a difference at all if you're representing the government right doesn't make a difference domestic violence is horrible and doesn't make this difference in terms of whether it's torture depending on whether it's related torture is a higher standard than than persecution and again requires government acquiescence you know i would please answer the question the question is we have this level of violence inflicted upon this one does it matter is it torture or not torture depending on whether it's domestic violence or violence inflicted by someone else i don't believe that's the standard i think again violence is violence ok got  that i'm going over my time ultimately the question here is a weight of the evidence question we have conflicting statements we have credible testimony yes but that's a subjective belief nicko our government is making strides to combat a b her particular social group remains viable thank you thank you  for the question is not weighing of the evidence that the question is how should the unwilling to control standard the applied and in looking for guidance on how to be applied i would look to the regulations for the convention against torture level what acquiesce in any torture the ailing us likely to suffer this satisfies cats requirement that a public official acquiesce in the torture even if the national government would not similarly acquiesce i think that acquiesce and unwilling to control either mean the same thing or very very close to the same thing and i think that the same approach should be applied in asylum and withholding of removal ason cat it's more consistent it's more clear and it's much much easier to review the problem with this you have to go back to time to she have to go back three times if she have to go back just you have to go to a completely different agency before we decide that she's met the unwilling to control standard is that it's more for us it's speculative it's completely subjective one judge may say ok three times and of another judge might say oh no two is plenty a rd judge might say well if the cops don't give you  satisfaction then you should go to a different agency how do you review that i think applying it looking at the same way that it's looked at as a court does and cat is a more concise clear standard that this court can review i'm over my time pianist you have any questions for me i think not thank you thank you thank both sides for your argument thank you ron is going to versus bar submitted