and there's nobody on this panel who's necessarily excited about having to make a decision in this in this area but we are guided by a matter of j s we yes you know which is matter of j says the spouse of a woman subject to forcible abortion may qualify only if he was persecuted for his fai refusal to undergo an and voluntarily procedure or for other resistance and number two if he has a well founded fear of being forced to undergo such a procedure or for other resistance and three specific facts so are you going under number one yes and so you're suggesting there is other assisted other resistance yes on ok so the be a says merely having a baby or merely having a chance to have a baby without more is not an overt act of resistance so one i believe so it's where the plaintiff got married under age had some children prior to being allowed attempted to conceal his marriage and court our colleagues said that does not that is not a showing of other resistance required for defiance so how do we go around that at this case  well but it seems to me that if we look at he just hiding or contempt attempting to conceal what happened is not enough but one's got to do more yeah he did more he asked his wife to go to a private get his wife continuances from her job up so she doesn't have to go in the parks parks or at the aunt's house you know he does a number of different steps that at least for me are no for resistance but the problem i have with the case is what is the evidence that shows that he was persecuted while i count of that resistance because he wasn't a m f w n l g here this was a female petitioner rather than a male petitioner so that really isn't a political here if i look at the record it's my understanding from the record that he did not resist a policy when she was first supposed to be sterilized in fact it's my understanding from the record the that time he did not resist that they even stole people they didn't intend to have a child do you mean my demon my client the petition when you're in june when when june or scuse me when june was fired and openly criticized at a public meeting and then she was unable to get employment the director of the birth planning came to the home and said if they ever attempted to be sterilized at that point seems the records suggest that he did not resist but said he didn't intend to have a child and they inserted the i clear i mean all i've got to have a substantial evidence to sustain what was down below and so i'm looking at these facts and i'm saying why is that not substantial evidence at the time when they were going to put in this i u d and she was fired they said at that point well we don't intend to have a child so that's not a problem then he he thereafter once they got pregnant then he says he's stressed but i guess my worry is if i'm looking for substantial evidence to sustain what happened below there it is  was resistance was there past persecution because lamb says unfulfilled threats without any more is not passed persecution only talks about extreme cases repeated and than him with the realization one that's right yes once yes yes and one because the threat is so severe that even one time threat is sufficient good morning your mayor please the court my name is don kinder and i'm here today on behalf of the u s attorney general and this case the record does not compel the finding that petitioner met his burden of proof for asylum withholding of removal or cat protection the board probably found that petitioner did not demonstrate other resistance to china's population control policy other resistance is not defined in the i and a but has been described in the case law of the b i a and this court as church smith pointed out earlier in when the court defined it as an individual can resist physically or vocally and matter as l l that be i defined it as expressions of general opposition attempts to interfere with the enforcement of government policy as sell oil ok ok well under the standard you just read why wouldn't it be an overt act of resistance for him to get her a continu work to get a doctor to take out the i u d secret her away at the ads house now he's taking a group of coordinated steps to not just to hide her but the they could get a doctor to take than you do you know which was probably illegal in china and i don't see why that isn't sufficient under the standard because what we see and the case law is that the petitioners that demonstrate other resistance are doing something that brings them to the attention of chinese family plane officials and the problem with this case is none of the resistance was discovered or nothing was discovered until his wife had an abortion and that point away why isn't that what goes so what i mean so they didn't discover it but he did it and sort of these are over it actually may have some problem with whether sufficiently shows persecution but i don't really understand why he has to do the resistance under the nose of the authorities well the pattern is that in order to be persecuted it has to be shown that it's on account of the other resistance and he hasn't shown that that he was persecuted we agree with that your honor and also that the person concerned that is his wife lost her job and that the famil says that there was severe economic disadvantage as a consequence i don't believe there's a lot of evidence in the record about what kind of economic disadvantage there was but his wife did lose the job her job but position has not shown that that rises to the level of persecution or that affected him significantly well i guess we're in severe economic sanction that's what  or rises to the level of harming life or liberty so the records show whether he whether he have a job himself yes his wife was a search up does their work in show whether he had a job and sufficient income to live on i don't believe there's any evidence in the record about his income but yes he did have a job and that's actually how he arrived in the united states he came on a visa to attend a trade show so he was still employed as of the time he came to the united states it seems to me that we have two issues that are of some importance here the first is whether he used if you will other resistance are you suggesting that doing what he did with his wife is judge gould as outlined plus secretely her as my at three am and doing also just looking at the general case law of this court where there has been other resistance found jang lynn levy those are all cases where the petitioners vocally or physically resisted the enforcement of the family family planning policy in front of family planning officers or government officials and in those cases they got the court all found that other resistance did occur so you're saying it doesn't meet the burden government officials became aware of at that showed other resistance in some way either vocally or physically interfering with the enforcement of the policy council i understand your position on that but and and you can patch together a number of prior cases where that's in fact what is involved but i as have so much trouble seeing that as a prerequisite to resistance like if somebody secretly steals money from a bank they don't do it visibly they don't march in with their guns blazing in front of the police or guards they secretly get the money out of the bank are and they actively resisting our policies against them so yes your honor but then the police would presumably know they were doing that when they were caught there would be no question that there had been other resists are there had been a crime committed in that case and the situation could be different here if the petitioner had vocally or physically resisted his wife's abortion or brought himself to authorities attention after his wife's abortion there might be you know such a example of other resistance but in this case you don't have the authorities having any knowledge that he was resisting the policy i think that  voice alone on this but it's going to be difficult for you to persuade me that this isn't resistance so if you are my vote i'd like you to focus on well the persecution on account of what he did right yes you are now it's going to be my next point is that we agree with you that there has there's not really evidence in the record that there was any persecution as a result of the resistance you don't have any evidence that there was a fine imposed that he was he was never arrested detained sterilise physically mistreated or fined by family planning authorities we have one threat of future sterilization that was speculative because it was based not on his wife's current pregnancy because of course at that point she had already had an abortion but as as a threat to what might happen if they were to have another child and if you look at cases where there has been a finding of past persecution and in jang the alien was expelled from school detained by officials heavily fined and his marriage ceremony was interrupted by family planning officials in the lynn alien was stopped i'm sorry and leave the alien must subject to in a very intrusive physical exam and issued an order that she could never have a baby so we're talking here generally about asylum do you think that this is also as evident truly solid as it relates to withholding yes your honor because the burden a heavier different there's a different burden right with that scraggly that's correct your honor he has to show that it was more likely than not that he will face persecution on account of a protected ground and because he has you know in our position f will that's a good question i would argue that there are but there are always things that he could have resisted besides just the abortion but i think i j is saying that he didn't physically result i think you would agree that he doesn't have to have been there and and have you know protested so they seem to suggest that there was nothing food resistance what was absence in the room is standard that they applied i think there just the i j a perhaps it could have stated it better but was talking about that one specific instance the board looked at it correctly of whether there was a general pattern  other resistance however conducting i would appreciate it if we could let mr frank have thirty seconds to a minute of the bottle because i'd like to hear what he says in response to the good arguments made by the government i'm glad to do that judge gould you are after absolutely the preside or and the conductor will follow right along behind whatever you want but i was going to do it anyway you have thirty seconds you really need to get to you've got why you've at least got one convert on that judge gould he's even told you what is vote is going to be get to pass persecution if you're going to get him you got to get there what result of this your client lost my last her job as a result of this yes i did what happened to your your client that he lose his job i cannot tell from the the fact that he's alive lost his employment cost economic difficulty to him well but i wonder where in the record you argue that the the i care the b i i saw it in your brief you stated in the opening brief one one sentence about it but i then went to the i j a or the b eyes records to see where you'd argue for economic relief he konami carman that and i didn't see anything nothing  boss all right thank you case ten seven three four nine nine who versus holder is submitted and we'll move to case ten seven two seven two five chai versus holder