you posed the birth control officials who took his wife away for forcible abortion he as a result you want to a hospital for about two months and suffer sure some severe injuries and and the n b a said well there's a new regulation where they're not they're no longer a there's a if you have a disabled child you can have a second child which his wife did then and changed circumstances in the country  and tell us why that was wrong well as pointed out in the brief to the board that regulation if you read the preamble in that's reproduced in the state department report it appears if it didn't exist but as was argued in the briefing we believe that the regulation did exist based on some of the president decisions of this court and shareef and there's another one about change of government  georgia where there is very large changing and government and this court held that that was not a sufficient enough change of circumstances to rebut the presumption of past persecution also as that regulation indicates which is reproduced in the state department report it says if it appears that the child will not grow up to be normal and when mr wang's wife testified that the second reminded hearing they were asking her questions about that and she said why i don't really know but i speak to him i call from time to time and he may in fact be normal it was kind of like it wasn't that clear from the record as to whether he would be normal not and if you were normal then the implication would be that they wouldn't be permitted to have a second child but this is as was mentioned in the briefs kind of like mixing up two different standards mr wang was determined to have supper pas persecution because of his resistance to a chorus of family planning policy and if you take a look at the both to two thousand and eight in the two thousand and seven state department reports which appear at the end of the transcript of the remanded hearing  first few pages of the two thousand and eight state department report indicate a very deplorable human rights condition in china we took palatine regime torture is widely implemented it's a horrible situation it doesn't sound like much of a change of circumstances analogous to the conditions that still existed in i guess it was liberia after charles taylor left the country and was being prosecuted elsewhere which is i believe those were the facts and sheriff case  the government still exists there it's the chinese communist government but in the second state department or through two thousand and seven report there's more details about the coercive family planning situation in china and it doesn't seem as if it has died down at all there are passages in that report for example that say that women feel so much pressure that they have no other option but to agree to go along with an abortion there's a specific language about fujian province page one ninety the joint appendix which in one sentence it says in some areas violators of birth planning regulations were held and abused in quote population schools which were nothing more than unofficial prisons and that's mr wants this he was the violator of the birth planning regulations he already has a track record in china of having posed the policy there are other passages in there that say couples seldom receive permission to have more than one child although the government maintains that members of urban couples  ninety of the joint appendix so despite the existence of this regulation state department also says a couple seldom get that permission but that what mr wong was determined to have stuck been involved with was his resistance it's a separate issue as to whether or not they would get permission down the road to hell you have a presumption of future prosecution of persecution rather that's right and they're saying the government has to rebut it yes that's what we're trying to say with what they presented which was probably wouldn't be a problem because you have a second trial in the united states in that there has been there has been some changes in china but family like to point out that when somebody returns to china and with us passport they're there on a visa they can stay sixty or ninety days they can get an extension of that visa maybe for another ninety days but you can't stay there longer than that on your u s passport otherwise you know you'll be deported if you if you want to remain there longer you have to switch into the household registry system and that's true as soon as you want to get any kind of benefit or acknowledgement from the government of your existence and it says here on page one hundred eighty three of the joint appendix that if not registered as permanent residents of china i e not enter to the into the parents household registration they're not considered as permanent residents of qana and therefore not counted against the number of children however it says later our understanding is that the parents of u s born children who choose to register their children as chinese permanent residents in order to gain the create occasion would not be able to exclude these children from the number of children allowed under chinese family planning policy however mr juan has gone beyond that now that he has two children there's no suggestion that he would be exempt at all from having you know from having our he that he would not require permission once again if they were to have additional children mr brumby how do you deal are precedents we've decided several cases involving chinese nationals who spend some time in the united states and have children here and then are repatriated to china and those precedents generally hold that china treats them differently than people who did not have children in the united states and we've written in several opinions that rather than forced sterilization  forced abortion there is a monetary price to pay ten thousand twenty thousand renminbi something like how do you how do you get around those precedents in this case well this two ways we do that in this case the first response in most remain to mr wang is that his he was he resisted of course a family planning policy he's furious what are the consequences of doing that regardless of whether you had a child in the united states or he didn't have a child in the united states that's kind of like a secondary issue that just with the state department court that the passages that i mentioned have present a lot of evidence to show that the policy still exists that there are  there is tortures there's these types of arrests there's this type of reeducation schooling for people who have violated policy so they go in after sixteen years well he would be known as somebody who had  posed the government that the government in this case would have had the burden to introduce evidence to counter that the presumption and the evidence in the state department reports is contrary to that but on the second issue about  children though i would respect lisa meant that as i mentioned you can only stay so long in china on a u s passport and eventually you have to come into the household registry system and this state department court in the case that once  occurs then you're counted as as part of of the course a family planning policy policy program if we granted the petition and we wanted to  would submit that the government has shot to introduce the evidence and it's it failed to do that and the record is what it is right now and it would permit a decision to be made  good morning your honor signing this nancy treatment on behalf of the attorney general as the court already noted talking with petitioners counsel the issue that's facing the court today is what ok what exactly you have that goes ok let me distill it as you say by looking at what the board said and the board said a couple of things that is that the policy regarding a child a first child that has some disability came into effect and the other thing the court said and let me point to that very correct your honor i agree with that the mere passage of time is not enough but i think that there is more in this case and let me go back and focus on what what happened to the petitioner and why there was a finding of persecution it's because in nineteen ninety six there was this incident where he got into a fight with the family planning officials and was injured and so for that that's the   well of course the incident with the family planning officials was in one nine hundred ninety six he stayed in china until two thousand and five and nothing happened to him during those many years what i understand the case the be is that that he has a fear that if she becomes pregnant again they're going to do to her exactly what they did to her before and in turn they will do to him what they did to him  well i'm not sure if that's correct because what his testimony is and let me be specific his his testimony is that he fears he'll be specifically asking what are you afraid of if you return and he says the couple of things he says he's afraid because he has a second child and he's afraid that he'll be fined or incarcerated or tortured because he came to the united states using a smuggler a snake had he doesn't say he's afraid because i'm afraid the family planning officials will come and beat me up you as i understand the burden for the government needs to point to evidence to indicate that he will not be mistreated the way he was mistreated  before and i'm with you speaking only for myself if the question is having had a child in the united states returning home we have ample case law that that shows why you here this is this is a sort of an interesting challenging case because how does the government prove where can you tell us in the record as to didn't work when i asked you would while ago were the record do we have any confidence that he will not be beaten etc again if his wife becomes pregnant again ok i agree with your thinking there and so i'm going to go back to where i  started this morning and that's saying buy or what is the government need to show to overcome to rebut the presumption how much is enough and what what the evidence was that the board relied on here is is a couple things the fact that there was the the log revealing dealing with first child having a disability and the second was that all these years have passed by that he remained there without anything happen happening to him and there's no evidence to say you know him his wife would get pregnant again and that would have another fight with the family i'm just not sure nothing happening to him in china between ninety six and zero five helps you at all because you don't we expect him to be mistreated if his wife were pregnant again and there's no evidence that th end another question i have is i don't see anything in the record as to when these laws were changed or how they were changed there's a troubling evidentiary void in my mind there because i can can you tell us when don't see anything in the record that would tell us that what's in the record was that there were the amendments as as late as two thousand and one i think it was and we don't even know what was amended  i can't i can't tell let's see if i mean that's you know if we're if we're going to hold somebody liable for ten thousand dollars foreign on a tax case can we on the grounds that the law was changed you know can we can we point to a change in the criminal code and say well hey the united states code the law was changed well but if the law was changed in a way that's not even remotely germane to the issue how can we rely on it all well i not i'm not completely convinced that it matters when the change happened but wouldn't it have an effect that the law is that today you know whether whether the change was in  would in a case where they have the burden but what it what i find interesting about this case is if you are mr wong and this be fell you in the ninety's what confidence should he have that there are going to treat him differently merely because the law may have changed in the interim well one answer to your question would be the fact that he i think he and his wife both testified th didn't know if there was such a law or you know they they didn't they were aware that they would be today and could potentially take advantage and that should give them confidence in in their former argue we but this presumption the future persecution well let me answer that by going back to what is his fear of a persecution based on hat not looking at the past but if you returned to china tomorrow what are you what what what do you fear and why and he answered the question in his fear so to rebut the fear of that he expressed the government introduced evidence of a couple of things what the law is for somebody and his specific situation and the fact that he was in china for x years from one thousand nine hundred six to two thousand and five he was supposed to go to some riyadh occasion classes i mean the the family planning officials didn't operate in a way that said you know we know what you did to us you beat us up we beat you up and we're going to punish you for it they knew where he was he was supposed to go to reeducation classes he went for a couple of and then he said but i never went back so it wasn't a case where he was trying to hide from officials all these years went by and he was fear right he articulate says that he's fearful because he has a second child you produced a two thousand and seven country reports and other evidence that show that that's not going to subject him to persecution so you seem to be on somewhat of solid footing on that but i'm i'm just not fully convinced that that's the the scope of your burden does the government's burden only require the government to come forward with evidence to counter what he testifies at the hearing or is the government required to counter all reasonable inferences to be drawn from what past persecution he actually suffered i think that government is required beating everything that has associated rate with that your honor i agree with you there but the record also as a whole tells us you know that years went by and he wasn't followed or pursued by wasn't pregnant only bad things it might correct in understanding that he was persecuted only after his wife and because his wife got pregnant yes but she's not pregnant from ninety six to five it's remarkable that he was not persecuted during the time she was pregnant not necessarily your honor because i think they were all they were persecuting him because he got in a fight well he lost his job because yes he lost his job because he was out of work for a long time well not because they were punishing him specifically why was he out of work for one because he was injured from the right i'm  china the i you d's that they insert are different than the ones united states and it's not really point out in the record but i've heard many cases where the syndicated that those are health threatening just being required to wear that type of i u d and that's of course why she didn't become pregnant but the state department reports show that there's a broad societal system set up for example at the workplace to documents that were submitted in the record allegedly to rebut may be true but the presumption of the state department reports show the contrary overwhelmingly that the policy still exists and and that's very brutal but what about the fact that client didn't express any fear about his wife getting pregnant and him getting beaten again that the record cited by the government is that he expressed the fear that he would be punished because his failure to mention something is not evidence that and in other words the government had the responsibility to come up with evidence to rebut what's in the record and the review by this court of the records of the record as a whole  contains the state department report if mr wang didn't have an opportunity to to go into the information that's in the state department porton unless it's it's part of the record if if there were any hearing when when the petitioner testifies and says i'm afraid of x or i'm afraid of x and y it's not enough for the government to rebut x and y the government has to rebut a through g and other things not imagined or i mean what it's not how do we how do we define the government's burden i guess is what i'm asking a by preponderance of the evidence that's in the entire record and what's the scope of it what the government need to rebut everything imaginable based on the pat what the nature of the past persecution was or does the government have to rebut only don't want to have a solid piece of evidence for example something that says there's an amnesty anybody who was beaten in china has nothing to worry about or that policy no longer exists but the information and the state department reports the pages that i mentioned overwhelmingly show point that the evidence is all in one direction and that's the policy exists and that there is beatings and there's prison camp the one child policy yes i mentioned the the education system in that quote from that page and state army point says this which is basically an unofficial prison so they had to come up with some evidence and a person silence is not evidence in some sometimes it might be in the immigration context but in a very brief hearing relatively brief hearing where they don't take the time to go line by line through state farm report and ask them if you've heard of this and if you know this to be the case or not but the evidence is contained in the state department report then that that's not evidence that rebuts the presumption of persecution the government would have to come up with some kind of report or witness to come in and say that it's nice that he and his wife can have as many children as they want when they returned it or that he's going nothing to fear the he'll never be beaten again well isn't it true that he is nothing to fear unless she becomes pregnant no i don't think so because what he why would they care about him sixteen years later if she doesn't become pregnant why do they care about them well the government would have the burden to show some documents that the chinese government forgives him for gets but by what's contained in the record shows a government that punishes brutally punish is and murders people who oppose  it who speak out against the government in any any way imaginable so if the evidence just is not in the record that the government should have come up with something if there were sounds like you're asking for per se rule that anyone in china who has suffered pas persecution is the how could the government possibly carry the burden as you describe it big she should write a report and submit it into the record and the report would say what china has repealed its one child policy and that there is reproductive freedom in china they'd have to get a witness and show that this witness has a basis for having some knowledge and that witness could say whatever the witness knows to be the case but that was that's not in this r seems to me you're you're asking for something that might be impossible to give but i'm not sure you have to the government has to do that much for you to win this case all right well if there are no further questions let me you know the questions good thank you ok thank you arguments were excellent we will take the matter under advisement