future persecution on a protected ground and whether he has demonstrated claim for relief under the convention against torture the immigration judge held in the board of immigration appeals affirmed that petitioner testified credibly at a hearing on the merits of his application the petitioner is a native in citizen of ethiopia and he's a member of the magenta tribe in two thousand and two he was appointed to government employment and he moved to the capital city in order to negotiate on behalf of his tribe in a water dispute while he was residing in the capital the ethiopian government ordered five villages to be burned down the petitioner didn't personally observed this but he was told about it by his tribe who said that due to the fact that the tribe did not want to relocate in the water dispute they were specifically targeted by the government for harm in december of two thousand and three in the gambell region the petitioner witnessed ethiopian national defense forces begin killing a list of four hundred members who are believed to be educated and influential after three days the national defense forces moved into the villages to continue the massacre positioner was gathered with living government employees and moved into a military camp the immigration judge held that he was merely sequestered in this camp however he had no communication with the outside he was not permitted to leave there was no permission information about the outside region that was permitted and he was not permitted to even whisper to other people who were detained in the camp with him he testified at his hearing the guard stated why had his group been left alive and not executed like the rest he was detained for ninety days before he was released with instructions to stick to the original story was that the end of act massacre had occurred due to intertribal violence rather than government sanctioned genocide petitioner completely opposes killing and he refused to conform to the intertribal violence story which was intended to cause more tension and more violence between tribes in ethiopia he continued to work for the government and he came to the united states in may of two thousand and eight with motto bang along who was the president of the region he came with five other men who were chosen this government representatives at a community meeting the petitioner was asked about the massacre the and try and he said that the government killed the tribe members according to a list that they tribe members had been killed in their homes with machetes and the homes were burned in order to mimic intertribal violence rather than government violence which uses firearms he testified that he saw an our tribe members attempt to run away and that they were shot and killed but that bullets were cut out of their bodies with machetes in order to hide the cause of death because the petitioner spoke out at this community meeting in minnesota he was severely punished when he returned to ethiopia he was fired from his position at the education bureau he was forbidden from speaking before the house of federation he was fined for his trip to ethiopia even though this racial quired by his government employment he was basically surveilled after he was kicked out of his government housing it was clear error for the immigration judge to hold that he did not experience past persecution on a protected ground this court has defined persecution is the infliction or threat of death or injury to one's person or one's freedom on account of race religion nationality particular social group membership or political opinion it's well established that persecution is an extreme concept and that minor beatings and brief detentions even those lasting two or three days do not constitute persecution even if three day massacre his political opinion is that he opposes killing and any government policy then clude inciting violence among tribes the department of homeland security said this was merely a recitation of fact and that he was failing to consider the political climate but this is a government that's very careful about its image and its potential liability for war crimes so its retaliation is usually gradual and under the guise of intertribal violence it's only a matter of time before they're going to find a way to dispose of the petitioner he couldn't be executed in this camp because of his bill of visibility and his his government will so they held him for ninety days in order to isolate frighten and traumatized him into not speaking his political opinion what about the point that the government may sit there's an old distinct social group that he really is just a group in and of itself you are the social group i think is a more specific way to define how his experience persecution we've defined his social group and government officials who witnessed but opposed genocide however i think in this case the size of the net depends on the size of the fish that we're trying to catch  here i think the social group is different from his political opinion because he's viewed as having more information in his society because of his government employment he's a particular danger to his government because he has double credibility both as a government witness and  say there's a group the group is that he has a political opinion and that he is also a former government official and also a witness the political social group is the most specific way that we can delineate what is  occurred because of his political views i don't think that's what you're arguing or what i think that if he had had political views that align with the government they would have released him right away because he would have had no issue with excusing their actions and sticking with the official story th would have been no reason for him to be detained if he had agreed with the actions of the government that it occurred is i but what i hear you saying is the main thing that he's been persecuted was and may be in the future is that he's a witness he's a witness to some government atrocities is that does that really why you think he has been and will be persecuted your honor i i really believe that it's more specific than that not only is he a witness but he was appointed as a government official and he worked in the government for a number of years this gives him more credibility in his side and it was also a unique position they came with a lot of visibility in his position also considering he was residing in the capital  has a duty to show that he's going to be persecuted when he goes back and in our precedent indicates that he has to prove particularized persecution is not only possible but probable than he can based as a well founded fear of future persecution could be a successful claim for asylum if he's established past persecution then there's a presumption that there is future persecution but even for the sake of argument if he is not going straight past persecution he can sensible claim and in the past persecution that you referred to as his being prohibited from speaking and after he spoke out once and at the next opportunity was not allowed to speak is that is that think we require him to go back there will be a this will happen again to him and he won't have a place to live is that what you think the evidence stablished is here or is that important your honor i think that  secrecy and this has been reported by human rights watch they have a tendency to kill anyone who voices a political opinion against them which is evident by the six hundred sixty nine people killed last year in peaceful protests most of them being civilians that your honor is that that has not been proven that it's reported in the country reports and by human rights watch that torture is common in detention and that is why the petitioner today is still proceeding on his claim of the commit chance torture it's been reported that there is torture in detention it's been reported that ethiopia has not made any kind of meaningful investigations into these abuses and the petitioners testified that he believes that he will be detained immediately in the airport there hasn't been any evidence offered by the government that former government employees are exempt from torture specifically when they found in the united states speaking out against their own government your your client though was never subject to torture correct i would argue that being detained in the military camp where he was told that there was why was your group left alive when the others were executed the reason that he was held was because the high visibility of his political position as the only member of the tribe present in the government it would have been noticeable if he ha held and virtually reprogrammed or attempted with reprogramming by the government to follow the story of intertribal violence which was meant to incite more conflicts between the tribes and the opiah if i make it all the time is getting short but on the issue of the have membership in the particular social group it appears that before the b i the social group that you had to find was someone who personally observed the massacure of the annual act tribe and gum bella how was that a particular social group your honor i think that it depends on how you want to define what has happened to him he's but was detained because he saw the massacre if he wasn't there he would not have been detained however he was not executed deny the petition for review in this case because the record does not compel reversal of the agency's conclusion that the petitioner failed to meet his burden to show that he experienced either past persecution on account of a protected ground or a well founded fear of future persecution on account of protected ground i'd actually like to begin by focusing on the fact that in terms of the past persecution claim the immigration judge did make a finding that there was no harm that reached the level of persecution however the board did not do did not direct did not address that and instead focused on the fact that whatever whatever past harm  e petitioner experienced when he was sequestered in two thousand and three did not have a next to a protected ground so persecution without a nexus to a protected ground is not a basis for explained that he was proceeding on a political opinion claim when he had initially filled out his asylum application he had he had checked the box for social group and then in proceedings that he was no longer he was no longer proceeding on that basis so the immigration judge didn't address the social group because there was no social group in play at that point when petitioner filed his appeal brief to the board at that point he least generally and he and he was claiming he because of his tribal connections he was sort of when the out group and he was being forced to do things that were not let be done because of that your honor i don't i don't know what the agency would say about his tribal affiliation being a particular social group because it wasn't something that was raised to the board under the i and a person is required to administrative exhaust they're there in ministry to remedy it in order to give the board the opportunity to address something like you've pointed out but in this case because that was not the claim that was raised to either the immigration judge or the to the board to take a look on the under those circumstances rather than affirm them or say they were totally wrong just remain and for a look based upon the record no you you wouldn't be able to do that your honor because the because the i a e a said that the the the alien has the obligation to raise those issues in the first instance to the board and he didn't do that in this case so he's lost the opportunity to do so based on the based on the terms of the statue in a while since i looked at those what what do they argue to the i j a say just political political opinion yes he they are he told through council he told the immigration judge that he was proceeding on a political opinion claim and that is the way that this was framed before the immigration court explains why the immigration judge set out his decision in the way that he did he was addressing a political opinion claim and then this is this is an issue that does sometimes come up in immigration proceedings because the we now get to your honor's and the claim has morphed so much that we don't we don't have what the immigration court and the and the board would have needed in order to in order to render a decision on that and so i would i would ask the court not that i would not not simply ask i would i would say that this court's precedent and the i  dictate that the court can remain and for the board to address a completely new basis for asylum that the petitioner could have and should have raised through his attorney when he was in immigration proceedings but what about the persecution why is ninety days jail sensually detained in the camp military camp would leave some evidence account of a protected ground it would need to be in that instance it would need to remand to the board because the board did not address the immigration judges finding that there was no pa persecution in this case the board not required to address issues when it doesn't see that they are necessary to address it in order to dispose of the case so in that instance it didn't it did not board relied on things that the immigration judge found you can you can look it gets term sometimes in looking behind the board's decision for the perhaps a longer analysis that within the immigration judge's decision but it cannot it cannot reach an issue that the that the board did not actually address however if that is i would distinguish that between your your other honors concern about a completely different  next to be in this next meeting when you had asked about a different basis for harm on account of a protected ground where that was something that was never raised the past persecution issue was know subject even the object he talks about is fair wreath you open and then it talks about what i asked which was in light of the passage of time since he spoke out against the government and then about two thousand being massacred and so on and so forth they conclude that he's not entitled to it looks like that to some degree they considered the persecution they considered it so they went when evaluating an asylum claim the the past persecution portion includes not only whether harm reached a certain threshold for persecution but also whether that harm occurred on account of the protected grounds so perhaps the well that's what they may have been careless writing but that's not they didn't t the do together i understand what you're saying but the paragraph paragraph i was looking at only talks about persecution and not untap i'll grant you that the point of that page two starts with the respondent next contests oh ok so i might my point is they do discuss it in some to some respect they do not tie it to the social group that i can see but they do talk about this passage of time ok i i understand i understand what you're getting at that paragraph doesn't deal with past persecution that deals with his separate fear of future persecution so that's not addressing whether that the question that he experienced in two thousand and three was persecution it is instead saying he can also make a claim even if there wasn't any pa asylum can a stablish it based either on a past persecution ground or based on having a well founded fear of future persecution that well founded fear of future persecution must be on account of a protected ground and he has the burden analysis here isn't addressing whether the harm would occur on account of a protected ground it getting at whether he met his burden of showing an objective the reasonable fear of future persecution and it points to  several reason that that fear is no longer objective lee it is not objectively reasonable they talk about how the massacre that occurred in two thousand and three there has been the passage of time in this court has relied on the passage of time as the basis for determining that a person does not have an objective lee reasonable fear of future persecution they've they also focused on the fact that it's been widely reported at this point that the two thousand and three massacre was done at the hands of the the government so it's not like it's not like the petitioner in this case has information that the the community or that the world essentially has not been told about there's lots of evidence in the record the human rights watch various articles that show that there's been widespread awareness  against the that massacre have been persecuted and and that makes that makes sense his testimony indicated that between two thousand and three and two thousand and eight he spoke out against what the government was doing and while he had experienced some threats nothing nothing had happened to him and then even after see he came to the united states in two thousand and eight he returned he says that he's afraid that if he goes back to ethiopia soon if he shows up at the airport they will they will find him and harm him but he was able to get a visa to come to the united states again after he returned in two thousand and eight using his own name he went to the were making not others do i understand that you're arguing from what you were saying a while ago that in his quest to stablish a protected interest had been harmed he had inadvertently or unknowingly offered evidence of violation of harm to another protected harm that he hasn't raised that we couldn't take that into account i'm understanding that you keep saying you keep saying well they have raised that so even if it's true that's too bad but if it seems to me if there's evidence of a protected harm that the statute or the law provides raised inadvertently we can take that into account rar well he hadn't but he ha couldn't take into account whether or not he did what he has to actually exhaust his argument for his basis for asylum and he hasn't done that in this case and in which case you are  correct the statute congress has determined that in that instance it it's something that this court doesn't have the jurisdiction to address he was given he filed an asylum application affirmatively and that was then referred to immigration court i think that i'm out of time may i may briefly answer that he had and asylum interview in the in the asylum office he then was in immigration court represented by counsel he would then represented by in front of the board again by counsel so there has been a lot of opportunity for him to have his claims addressed and he even had a social group claim a d by the board even though he did not raise that in immigration court so i did conclude and answer your question you are correct that if because there was no race or ethnicity claim raised  court does not have jurisdiction to review it and should not remand to the immigration court for that purpose and i would ask the court to deny the petition for r asylum in mistreated lee in his interview in his statement in his testimony before the court particular social group however is more narrowly terrill tailored then political opinion because he was detained due to his visibility and not immediately honor i think that he has also demonstrated a completely different claim for asylum under a well founded fear future persecution due to the torture in detention and the likelihood that he believes he'll be in detention i also believe he has an independent claim for relief under the convention against torture due to similar things have been reported by human rights watch thank you we're very grateful be here arguing in front of you and thank you both thank you both for your arguments we will take it under