consider all the evidence in the record and not considering the country conditions that the luminous country conditions that were submitted and relying exclusively on the state department report to find that deportations had stopped in eritrea at that time  at that time to one side for the moment the testimony of the expert can you describe the report that all the documents in the record that support contention that the start with the state department country report which the judge has relied on fully and if you actually read the state department report it says in there that seven hundred seventy four so billion ethnic eritreans were forcibly two thousand ok ok and then further down actually the next paragraph down with the paragraph that starts with the government towards the end it says the i c r c which is the international red cross also regularly visited civilian eritrean national her graph thirty that the deportations of a rich three in ethiopia have slowed to a relative trickle compared to a few years ago yes your honor certainly when the forced forcible expulsion started in one thousand nine hundred eighty i believe within the first year a quarter of a million had been forcibly expatriated and while that may have slowed down it was certainly error on the part of the judge to determine that the deportations had stopped no reason to expect that she's going to be spared does that mean that i should understand the expert to say that the there's a let's go to going to happen to her with extreme likelihood is either she's going to be imprisoned under the under  well either get imprisoned or expelled and even if they are not imprisoned there is evidence in the record that states that ethnic eritreans must attain incremental six months residency permits in order to for thirty one's streamer likely she's going to be imprisoned but then moving on to paragraph thirty three she writes as how names family was deported it is likely she will also be deported i assume that evidence do we do we know what's happened to that case has to be a world on it i do not know independently i looked that up your honor it looks like there's no decision yet that was earlier this year and that the i can't take a very long time does that mean  any other identity documents that you could find that she has high like high risk of being individually targeted individual targeted with what consequence when she is targeted what's going to happen to her based on the record your honor your honor it's likely that she will be detained and while she isn't detained as the expert affidavit states she faces horrible conditions in prison and possibly rape or some other forms of sexual abuse and i would i would say that that constitutes persecution and let me make sure i follow what you're trying to say you're saying then even if it's likely that she will be deported or tria it extremely like that the part of the petitioner to establish the basis for fear of future persecution that's what the i g found well your honor we're we're arguing that the record does support that here and in addition alternatively if this court were to find that the record didn't support that then we still have the open question of whether forcible expulsion amounts to persecution that the hypothetical excludes the latter so the question is if the i j a found as a matter of fact that there was a failure of proof to meet her burden then why would we need to remain in that we basically have to to decide whether or not there is the central evidence that supports or i guess a lack of evidence that supports your and if you look at the basis of this decision he says there are a number of errors that he made to come to that conclusion and therefore it's my contention that his finding it cannot stand scrutiny but if the can the immigration judge expressed some concerns but he did address the merits of the silent claim when you look at the board's decision the board went out of its way to say that we are taking all of the testimony of the witnesses at full weight and still deportations going on i mean that's not within our area of expertise so that's a different question you know what happened to her we just take that story is true absolutely and i think she's not even a hundred percent sure what happened to her parents and she's very candid about that at times she's not so we don't even know her parents were actually deported if this family is necessarily been any way targeted we know the family was most likely imprisoned we're not exactly you know for testing on it she went back went to the family house they're not there they're some ground her own expert testimony showing and also that there's a trickle of deportations going on at best at this point the main basis for asylum really no longer exists her own testimony is that she herself was never harassed never harmed neither family that she knows of was actually harmed or harassed in ethiopia by the ethiopian government on account of heritage she does prefer to use her muslim name and under that name she saudi arabia is you know as far as i know yes your honor she did and there's no there's no dispute that she doesn't have a passport now from anywhere because i don't believe she does she will have to go in under her own name but she was able to live be in the country for fifteen days and that does undercut some well founded fear issues now how do why does that under kind of had trouble with the i just conclusion to that effect and let me tell you why i had trouble with it and then you can respond she goes in with any with the saudi passport not with a muslim name i gather not questioned or detained at the airport she sends in and she's there for fifteen days making inquiries and she leaves now that doesn't strike me as telling us very much if anything us what's to happen if she comes back to ethiopia without a passport and under her real name rather than her sort of a sunni muslim name and you help me out as to why that's irrelevant i mean to me that i just put that to one side is less likely to happen to if she goes back into the c dances yes right i mean and i'm sure the court is well aware of case law where we have talked about this before when a person goes back and they're ok and i think this is not as close to those cases where they're traveling with their own identity and that's right thing but i think it does show that she was able to go into the country shows and she was able to go back to her neighborhood to a home that was rented from the government by her family i know she didn't contact the government directly but there is some indication that she was able to be in the country perhaps the name and traveling under the different passport help to a significant a great but i still think it at least falls generally within that body of case law it's as if you are permitted to get back in your country there are some undercutting of your case perhaps not as strong as others your honor but there is  as i said i think the biggest thing is that with the deportation issue going down to a trickle at this point the basis for the asylum which was main fear was deportation and we're not even sure if deportation itself constitutes persecution  as opposed to waiting for the the i eight to rule maybe the best thing for this case the court to do if it has to if it comes down to whether we're sufficiently convention going to be deported and we're not sure whether deportation  persecution and i think the best course maybe is to hold in advance and wait for the board to answer that question but it's hold in advance or in the end of the board or just hold the man's ferments to i mean i think we can hold it here if we want to innovate it's the same issue but basically going to come up from the board but i think you have a one trigger question is at this point in this case where we're down to a trickle of deportations do we even have a sufficient enough concern that the deportation  at one time there was a huge flood of deportations and now there are relatively few and does that make a difference in this case that maybe the poorly or the reservoir is now empty because they have done all that they're going to do well your honor i mean that could certainly be the case but i think what we're talking about is the deportations that were the concern with the product of the war between these two nations and that war has been settled and one needn't nation is very strong nor very stable i don't think we see the wholesale issue of deportation just a purely on heritage or ethnicity the fact that the deportations are down to a trickle and ethnic purging of ethiopia because i don't know if that's actually an accurate description of what happened during the wartime you courtezan so i think the trickle is very important because it shows certainly the government policy why the state department reports give us a figure of of ethnic makeup of ethiopia right now but i think a fair reading of them is that the government's policy that was held during the war time of mass residing you know judge i'm not one hundred percent sure i don't want to guess i'm it may be in the materials that were submitted to the board that didn't go to the i j i'm not one hundred percent sure that your honor i'm there were some of that going on here well i'm looking  deportations has slowed to a relative trickle but her statement in the same statement later on the same page she says but it's likely that in fact because of her circumstance she will be deported well i think you know obviously since that is not her testimony it's not accept this fact it is expert testimony it's up to the court's away expert testimony motives of experts to testify and things like that i think if you compare this to her statement she will certainly be arrested she was the state department says which we don't have any indication the state department two thousand and two or the two thousand report although which is not really properly before because it was it was entered in fro board i don't think that if you read those reports you get the impression that the government is throwing every person who shows up at the airport of this ethnicity into jail and that's basically what the expert is trying to push on this court and i think the courts have to make its own determination  quite what the expert says  family likely she will be arrested immediately so it's not that their arrest she's not saying that it's extremely likely that they arrest anyone who's treating their arrest anyone who's traveling without a passport and then figure out the t's in this family now your objections may remain the expert didn't say at the airport they have arrest every actually shows up i think that's almost i think it's one of the ways you could read what she's saying if you show up in eritrea and i mean you know the funny thing about the expert testimony and the experts statements that they think it's not really testimony is that why this family what this family do to deserve the i are of the government you just said because she's a member of this family what's missing is a causal connection between the member of this family and something that would cause the ethiopian government to seek them out you know that's missing there's that one extra thing missing in each one of the responses from the show was well you don't necessarily need to reach the question of deportation because if we take and the expert statement that is extremely likely that she will be arrested  deplorable you know in my travels with the navy i've seen some pretty deplorable prison conditions but and while it's unfortunate that people have to suffer in those conditions suffering in a prison is not persecution sufficient to grant asylum unless it is connected to a protected ground and in this case we would have to show the nexus that the suffering in that person is connected to her ethnicity as opposed to just showing up without a passport and being detained until we can sort things out about her so it's not one hundred percent sure it's just the fact that she is going to be in deplorable conditions alone because she's going to be detained for reasons we're not one hundred percent sure of yet i don't think that is going to qualify persecution of the law in this country and what evidence do we have in the record and conditions in ethiopian prisons to which eritreans might be subjected and particularly female relative to the rest of them in prison population i don't believe i saw anything along those lines around and i'm sure mr b this may be just a crazy idea but what the attorney general or the secretary of homeland security have to grant humanitarian relief in a case like this well there is humanitarian grants asylum your honor but i mean how how frequently is that i experience around or if i could i don't have a sophistic with me and unfortunately the cases i see you know i don't see the overarching where you know i know i can give you roughly i believe some in the neighborhood you know forty or fifty percent of to mediation that maybe the attorney general or whoever it is that makes that call that or you would consider that because this i mean we've got a stateless person here i don't know what's going to happen to her when she goes back to ethiopia but what with the because it was because they were retreating actually that is in the records are all find out but the neighbor did say later on i'm sorry miss said he did testify later that the neighbor told her it's because they're ethnic passport it was an ethiopian passport that was a pain under our muslim name that was obtained for her through the agency that employed are in saudi arabia and also you are honest the government says that at this point the eight nine through ten and indeed the i a brief this with discussed in pages in the record pages fifteen three sixteen and eighteen through nineteen were also seeking a motion these are events that occurred after a briefing was completed and this court is also held why hasn't the change in status a proper or grounds for reopening before the agency because these are events new events that should be considered by the agency and the only reason it's not being considered is because the government refuses join in a joint mission to reopen this site can file a motion to reopen with the b i a but it would be futile because it would be denied not on the merits but reopen exactly honor but again exhaustion is not required where the remedy itself is inadequate or insufficient and i'm arguing that it is insufficient because the b i will not attract the motion to reopen on the merit neighbor says your parents were arrested because of their heritage thank you yes that oh my question is what's your response with regard to this motion about the systematic persecution of a group targeted by the well i mean certainly the new legal theory your honor that is for the most part as i've seen from the motion based on the sale decision it needs to really be aired before the board fully and argued before the in any further questions you know ok thank both sides for a very useful argument in this case he's just sad mr holder is now submitted for decision and we are