it please the court my name is judith what i represent the respondent mr park this case presents a very dramatic scenario mr park was in russia when he was declared to be a refugee by the u n h c r this was in the early ninety's he had made the mistake he didn't know the consequences of listening to a recording from south korea and because of that he was arrested in russia and he was going to be deported to north korea at which point eventually he tried to commit suicide and then the u n h c r basically rescued him and he was declared a refugee at that point he really couldn't choose a country the only place he could go was south korea and so what in the record suggests that he couldn't choose a country well the record the record suggests that he was asked where he would like to go and that he said he would go to south korea well at that point in time the only place the only country that was accepting north korean refugees with a lot of duress was korea does that in the record that the only country that was accepting north korean refugees was south korea  i don't remember seeing that in the record or any findings by the i j a to that extent everything i've read read in the record suggests that he was that he said he was asked where he would like to go and he said so korea he may have chosen  wasn't there when he was asked which became but that's not but that's very very different from saying that he wasn't given any choices and that no other country would have accepted him other than south korea that doesn't feel like a fair representation of the record findings by the i when you're claiming persecution in country a and you're now in the us and you resettled in country b and the idea is well you can't claim persecution from country a when you resettled in country b why does resettlement have anything to do with this case when his claim is that he would suffer persecution in south korea so why does resettlement have anything to do with this my missing something well he resettled in south korea as a result of the fact that south both south korea and north korea ricard the peninsula of korea to be one country and when a person arrives in south korea they are considered to be a citizen of south korea they go through a training they arrive at a place called hollow want and then they are given some sort of training because as you know north korea is a marxist country and south korea is a capitalist country so they receive some sort of training in this case in this case mr park was not only admitted into south korea but he was initially very badly treated during his interrogation in one they beat him they stripped him of his clothing they intimidated him and they threatened to kill him this went on for a matter of weeks but he was detained for six months then after he was released from ha he was able to give speeches and he gave speeches throughout the time that he was in south korea until finally he stopped he refused to continue doing that and in these speeches he criticized the regime of north korea and so he became visible to the people and you know in south korea and south korea there are a lot of north korean dissidents who some of them who have been also granted citizenship in south korea and a friend of mr parks mr lee was assassinated by such a dissident and so mr park became very fearful for his own life and addition he was not just an ordinary citizen in south korea he was published his work was published he was on t v and when he decided that he no longer wanted to give these speeches on t v he was threatened again even if even if we were to agree that he persecution of return to south korea now well when there's a finding of pass persecution the burden shifts to the government to show that the country conditions have changed and that was not done in this case the government did not prove or even present evidence that south korea is better now than it was then that was not that's not in the record the government did not do your positions and it would need to go back to the agency with the  and this case presents is a very humanitarian aspect in so far as this person has suffered severe psychological harm and he thinks mr park thinks that if he sent back to south korea he will suffer number one assassination and if he's not assassinated he will suffer severe mental abuse and physical abuse and he so fragile he is he's very sick right now actually he's he suffered some this is not in the record because it occurred later but he has suffered from severe liver disease and he's extremely fragile and he doesn't think that he can survive in south korea at all for a number of reasons the primary reason being that he was a political figure in south korea in so far as he gave political speeches on television and was coerced into doing so so i think that in this case you must remand it so that the judge can further adjudicate the issue a firmer settlement because he has not formally resettled even though he was there for many years go back to my earlier question why does resettlement matter if the country that he's claiming that he's concerned about persecution is the country where this is how it works in immigration court or usually a person from north korea applies for silence from north korea and south korea because they were he was sworn in with career so he's also and some judges give me the benefit of withholding of removal to a national of north korea in this case that didn't happen and so a back up position as well you have to apply for asylum from south korea as well so he did but his original application was also from north korea i see but you're not claiming now that  there is no risk he's going to be returned to north korea that refugee well not really claiming that because some people are returned to north korea from south korea i don't know if that will happen to him but he certainly terrified of that reality states return anybody to north korea i don't have all the to sit statistics on that but i do know that the the north korean human rights act of two thousand and four which was promulgated right and then renewed in two thousand several years the latest was two thousand and twelve says that the united states should not really look at refugees from north korea as people who are coming from south korea and then i actually went to congress and spoke to senator brownback and there was a discussion about whether the north korean human rights act should apply actually to people who coming from south korea and so the united states returning anybody to north koreans or any evidence of that i was under the impression that the united states did not return people north korea because of the north korean human rights act of two thousand and four we do not we except north koreans however it's very difficult and very rare that a person comes here directly from north korea ok but we're not at the question was is the united states returning anybody to know is there any danger that the united states will return and your theory i was under the impression that we do not return people to north korea might do something also but we don't return them to north korea well your impression is based on the fact that north korea is very horrific country that has a horrible human rights record and we have passed the north korean human rights act however i don't have the statistics as to whether any north korean has been returned to north korea i think the judge calls question if there's no danger that we're returning him to north korea then the question of being firmly resettled in south korea is irrelevant well i don't i wouldn't agree that there's no danger because in fact if you return him to south korea south korea could return and i know that would be the act of the united states though that would be the act of south korea honor so i'm i'm just trying to figure out what u s laws are i can't i can't i can't i can't try to comprehend what south korea was that's just too much for me well south korea will return people who they consider to be threats to south korea if they find that someone there's no there's no evidence here that south korea regards him as a threat or as as as the just of it he might be returned to north korea no but there is is there is a suggestion in the record that he could be assassinated by other no back but that's that's a question as to whether south korea is prepared to will prepared to protect him well the thing is can they protect him because other people in his situation like his friend lee were assassinated the question is can they protect him they may not be able to protect him but you have any evidence of any other assassinations of north koreans in south korea other than mr they're not in the record but i have thought that means that in the last twenty five years we've got evidence of one well other other people have speeches members of the korean south korean government came to his apartment and beat him and threatened him in this was after he was away after he was released several years later yes what what what is the  and the treatment he would have faced if he had returned at that point to north korea the case absolutely does present sympathetic facts but based on the record in this case it does not support an application for asylum withholding or for movable or cat protection with respect to south korea can you answer this resettlement issue because there is you know tremendous discussion of roussel men and it struck me potentially as irrelevant then that my wrong in thinking that if the only claim is that i face i have a well founded fear of persecution in south korea is it relevant whether he resettled in south korea your honor i absolutely understand the point behind that question but unfortunately the best answer that i can give you is that we're limited to the decision that the agency actually rendered here and the agency didn't look at that question i don't think because it was raised i think what the agency did is that it juki to the claim that mr park put forward and it said you know he claims for a marriage settlement doesn't apply it applies i see  the point behind your question i really do but i'm not aware of a case and mr parker has inside of one that answers that question it is odd for an alien but you're not claiming that even if he faces a well founded fear of persecution in south korea that he loses the ability to make that argument because he resettled in south korea no you are not arguing that he absolutely has the opportunity to make a claim a well founded to do that so even if we found resettlement that's not a grounds by itself for denying the petition for review your honor i'm not sure i don't think there's a case that answers that question and i see the point you're making based on the statute the best i can tell you is that even if we set firmly settlement aside the board indicated that based on the facts as found by the immigration judge mr parks asylum application with respect to stand ok i just want to make sure is it a two step ruling because the board seemed to think that at certain level that the resettlement issue was dispositive on its own but i don't see that even if you resettled we're not done with the petition we have to go on to address the other  i wrong in that i don't think you're wrong as i read the statute i think that point makes sense but again the agency didn't find that i haven't read a case saying that so i feel like i'm going out a little bit on a limb here and saying that the whole former settlement analysis is sense i understand your point i know that is where we have to assume that the resettlement point dealt with his claim that he didn't want to be returned to north korea where he probably wasn't in any danger of being returned anyway interestingly your honor yes yes i would agree with that yes the  the one way that the agency's decision makes sense otherwise you're defending the defense i understand your point and that's right and you know what this court has also held that if an alien suffers persecution in the country to which they would have in the country to which they may have been firmly resettled the firm resettlement bar doesn't apply because by definition anyone who experiences persecution in country b is not firmly resettled in country b so yes the court does have to look at that aspect of it i'd like you to i'd like  address the persecution question but before you get that i have a i have a really off the wall question but i want to get it out of the way now i welcome it your are there does he have any remedy because he's teaching at the d l i m i was very surprised to see him teaching in monterey for the defense language institute and not have had somebody from d o d sort of come to his defense and say hey this guy is really useful to us for a variety of reasons don't we have some kind of i don't know some q b star something that whether there's any sense there whether that d o d came to his defense and said if there's anything you can do to keep this guy here he is a very useful to have in the united states there's nothing like that in the record and i'm not aware of a visa like that but i would point out that the facts of this case actually show that he worked part time for a contractor that provided translation services that were used by the department of the army so it's not as if he were working directly for the duty and to be honest the record doesn't indicate if he's even still doing that job so i am totally happy to answer the court's awful questions but i don't think the facts would lead us in that direction but dress the point suppose we i think that the treatment that happened twenty five years ago when he st arrived in south korea in the mid and ninety s suppose we were to conclude that that did constitute persecution past persecution would that mean that it has to go back to the agency at that point to re evaluate with the burden shifted yes was going yes it would or on of the past if the agency if a court were to find that the record compels reversal on the question of past persecution then under the ordinary man rule the case would have to go back to the agency for it to analyze the case with the per the burden on future persecution shifted to the government even though it was twenty five years ago yes you know that's just how the burden shifting in the regulation works however the record does not compel that conclusion based on the facts that are actually have to find past persecution on this record and the facts that are actually in the record just can't support that holding this case is distinguishable in a number of ways from if the real i d act doesn't apply does that for the record allies that i absolutely feel to your honor's recollection on that and either way i'm sure that he is predict pre date of the real i d act by decades so that standard absolutely does govern here and under that standard this record would not compel reversal mr to not experience economic deprivation where he lost a job like the facts in the gluco he didn't suffer a persecute tory restriction on his liberty he wasn't detained in order to force him to do something to stop practicing a religion  his life in a certain way he was not subjected to physical harm that would rise to the level of past persecution he was slapped or kicked the records not clear which but twice in the st two weeks of his ten years almost in south korea and then on one other occasion he was slapped by a police officer when he asked to stop giving speeches and here i feel i really do need to correct i need to be clear on what the record supports and i want to push back a little bit against opposing counsel's characterization of of what the facts actually are with respect to this incident mr park testified that he was asked to give speeches for one year you about ten speeches a month that's at page five hundred and nine of the record he says he was asked to give these and he didn't mind giving them at st because he wanted to speak to south koreans on what the reality of what goes on in north korea that's a direct quote ages five hundred and fourteen thousand five hundred and fifty two he was paid for these speeches and as time went on he grew more pessimistic that's his word about them because he felt like he was getting an unwelcome reception from students and his audience so on one occasion he said you know i don't i don't want to go out there i don't want to give the speech he had two police officers with him is the time at the time as part of i wan protective detail mr parks expert witness and he himself testified that these police didn't drive to his house and beat him they were with him the whole time one of them was a protective officer to keep him safe these officers were support in financially watching how things went on at his bank account because mr parks an expert witness testified north koreans who arrive in south korea are often overwhelmed by the difference in those two societies they have trouble using a t m using buses and things so these these officers were around him to help him acculturated to protect him and when he said i don't want to give these speeches any more one of the officers said i'm seeking early retirement and if you stop giving these speeches i'm going to get fired and slapped mr park and the other officer broke in and said stop doing that and try to stop the beating  and mr park was then asked why did you report this and he said no superior officer already knew about it before even filed a report in the superior officer came and took me out to lunch and said what happened you know where did this why do you want to stop giving speeches and mr park didn't ask at that point to stop he said he wasn't angry anymore you know he felt like maybe he should just keep going so this is pure officer didn't force him to keep doing the speeches mr parks didn't ask at that point to stop so we finished up the your tour of speaking and that was it so other than to slap your kicks in the  st two weeks of his time in south korea and that one incident that's that's all the physical harm he suffered this more than korean refugees to what does the record show about the process of receiving north koreans into south korea had been more formalized and eventually that program was called hana won and there are very favorable facts about that the record but it wasn't called that at the time mr park got into south korea in  four at that time the process was a little bit less formalized because this was such a new phenomenon the record shows that in one thousand nine hundred excuse me in one thousand for north korea and south korea with the end of a nuclear crisis only about a one thousand refugees had made it in and most of them were not low level defectors as mr parks an expert witness referred to him and so under those circumstances and prior to the formalisation of the head on process mr park was held investigated for six months to determine whether he was a spy and the expert witness said that was not quote a legitimate concern spies had come in from north korea prior to that as refugees and mr park unself concedes that was the point  his being held in this facility for six months exactly it's a long detention your honor but it wasn't a punitive detention in the conditions of it were not as harsh as we've seen in other facts where this court has held a record to compel a conclusion of persecution he wasn't held there to coerce him into doing anything he wasn't held there and subject to repeated mistreatment he was slapped twice in the st two weeks but the other facts show they were just trying to root out a national security problem they hooked him up to a lie detector and asked him what do you  do here do you have anything you have to do here you have a new mandate here are you a spy they asked him to fill one hundred pages with facts about his past who are you where do you come from who are your family members they were looking for a national security threat and this court has you know i think it's kind of analogous to this court's holdings that prosecution or forced military service don't necessarily equal persecution this is not for a person tory purpose it was for a legitimate national security purpose and this is the conditions under which you were detained were not sufficiently harsh to constitute persecution other than that his only claim in the briefs and i guess now an argument of past persecution are that he didn't like having these police officers shadow him but the record shows that was but he was one of the handful of refugees at that time who had a high level of education and that's why he was picked to do this along with one of a few other refugees but again being asked to give speeches and being paid to do it is not persecution and the fact that an officer slapped him when he asked to stop i mean that's the certainly shouldn't have happened but that fact has to be weighed this is a totality of the circumstances analysis and it has to be weighed against the other conditions of his residence there he was there for almost ten years he held multiple jobs here and money he was allowed to live where he wanted in an apartment in seoul he married and they use that word with air quotes because there was some discussion of whether it was a legal marriage either way he took a partner there they had a child he had the opportunity to leave south korea and did so three times and every time he came right back and he didn't he testify that it wasn't until two thousand and three that he formed an intent to want to leave the country and he said and i'm quoting now from a decoration at page one thousand four hundred and twenty seven of this lengthy record i fled because of hostility and cynicism by south korea no one was sympathetic and i certainly feel some sympathy toward mr park for having felt that way but that's not a that's not past persecution that's not a fear of future persecution this record just simply could not support under this financial evidence standard holding that you know a reasonable fact finder could look at this record and find and only find that mr park suffered past persecution or well founded fear future korean government would acquiesce and torturing him at this point which really undercuts that entire claim you have to have acquiescence for a cat climb mr parks conceded to counts on the record that he doesn't meet that ultimate thank you thank you you believe that mr parker has proven that he does have a ten percent because he was detained he suffered physical abuse he was slapped by the police also matter of s p stand decision  publish decision stands for the proposition that maybe one of the grounds was permissible i mean one of the reasons for subjecting mr park to the abuse that he suffered in harlem one was permissible insofar as an investigation however they went beyond that and they threatened him with death so the combination of the physical abuse being naked in a foreign it's a foreign country to him south korea having just been rescued from committing suicide by that and being rescued by the u n h c r and declared a refugee and then being subjected to this horrific treatment while it didn't last forever it lasted long enough to make an indelible impression on his  e together with threats of killing him they said will kill you and no one the birds or the wire or the mice will not know that you're dead that's enough for a finding of persecution definitely according to