withholding of removal on four grounds first was credibility the second was a lack of evidence of past persecution the third was a lack of evidence of a well founded fear of future persecution and the fourth was that it would be reasonable for her to relocate elsewhere in romania i will go through these very briefly and i would like to spend al based on amazingly enough her appropriate demeanor that she would not be combative enough not be able to stand up to any police  offenses and basically would be in your and take it therefore he discounted the fact that these events happened as to the second point evidence of past persecution despite the evidence that the police beat in this wise on unconscious on three separate occasions sexually assaulted her twice and then threatened her with if she ever continued to proselytise she would be raped despite all of this the judge did not find evidence of severe are such as to raise to the level of past persecution further he rejected the notion that she had shown any well founded fear of future persecution despite the fact that country reports were very agree with you on the first two points that is that the agencies endorsed credibility findings and supported by substantial evidence and that past persecution occurred obviously opposing sides want to do with them but let's assume that for the moment when we get to future persecution wouldn't we have to send it back for the agency to reconsider it in light of what would then become a presumption in favor of your client in other words they looked at it without the presumption because they found no past persecution but if there were past persecution it would have to be viewed through a different lamb's could we do that here all we have to send that back i'm glad you raised that issue your honor applicant to prove the future fear yes but if there is past persecution it's up to the government to disprove it exacts so they looked at it as i understood what was going on they looked at it through the not so favorable to your client way of most actually in fact the government here improperly shifted the burden right but then since they've never looked at it through the correct legal standard how could we do that in the first chance could do it by looking at the record be no more complete because the judge in fact did address in other words the matter is already on the record well we thought that in thomas and we just got reversed again so i guess that's just a knowing when to do this if if the agency has looked at an issue but through an incorrect legal standard now hanging over all of these things the fact that she could really also the issue of whether she could reasonably relocate to remain in romania the judge determined that because no state action was involved and that the police were not agents of the government that there was no need to go further she could relocate in romania continue her proselytizing activities and report any future difficulties to the police hanging over the entire analysis is the judge's insistence that for some reason this liaison resided in dover there is nothing in the record on this in the judge's mind this was an alleged haven to which she could relocate even though she lived in bist for this reason his determinations concerning credibility past persecution exceeded credibility well founded fear of her future for his her creation and also relocation are inextricably intertwined with this matter though brooke so i would like to move on now to severe harm the record is clear and details that petitioner suffered severe harm she was beaten by villagers while being cursed attacked and beaten to unconsciousness by the police who made slurs concerning her  out to see her molested her sexually and then threatened her with rape should she continue her eventual activities given the fact that this is a protected grounds religion i'm going to move on to the next prong i do not see how any reasonable finder of fact could state that there was not severe harm in this  case as for protective ground that she was a pentecostal each of the attacks that she detailed all were a direct result of her proselytizing and the people who beat her made constant reference to the fact that instance it was the police who spearheaded the persecution and where the judge got the idea that in fact she could raise this issue despite the fact that state department documents and country conditions state that if anyone goes above someone's head in order to report renegade activity by the police that in fact it is not renegade activity by the police and the police often in her ass that there is no need to go on to remount given the fact that the government has not raised any evidence which would suggest it and that they had an opportunity to do so at that t essence the judge is saying if only she would a veil herself of the help to reach the higher authorities then she could be protected from the police and go on and continue her proselytizing activities in romania the or eligible for the relief she requests even after three opportunities to present her claim to an asylum officer the immigration judge and the board of immigration appeals the agency nonetheless determined that she was not credible and went and eligible persecution on account of what was well here is there before we even get to the issue of past persecution or because it is troops she has attested that she was detained by these two village police and that she was slapped on three occasions to the point where she fainted all in the seven hour detention and that they did make slurs against her based on what her or her ability to practice her religion was curtailed which was instance was this last time in july of two thousand and one where she did go to a prayer meeting and the altercation actually started with villagers and the police got involved when she confronted them about their fusil to stop the fight  that it did not rise to the level of persecution in this case ok the next next step if we disagree with that and and if she were in total to a presumption because of past persecution the presumption of her reasonable fear of future credibility in your hypothetical if the adverse credibility were reversed where if the court here were to find that no reasonable fact finder could fail to conclude that the treatment  presumption switch and it would be the government's burden to demonstrate that she despite the presumption of a well founded fear future persecution that it would overcome that presumption with evidence  as far as country conditions and especially that issue that was discussed to some extent but again not in the same framework the issue of whether she could relocate within romania based on the fact that she does still have family there she has friends there despite the fact that she may or may not have to register her moving with the with a government agency we're talking about two village police officers who after five years may or may not have any continuing interest in petitioner however while that is all on the record it was not in the framework of it being the government's burden to rebut the presumption so the government's position to answer your question would be under the case law  that it should go back to the agency if the court were to reverse both the adverse credibility finding and the finding that there was no past persecution if that's the court's inclination would need to send it back to to the agency for  instance this may be based on what the court been discussing a moot point but i feel it's as its jurisdiction mr i would like to raise it even though it was not raised in our briefs and i apologize for that and i would like to give the court an opportunity whether this is truly jurisdictional in the sense of having the article three power over something or whether this morning the nature of a waiver for a record memories and even at this late hour it because it is a jurisdictional argument that cannot be waived the government would submit that the court could still take it under consideration but in fairness to the parties as it is in this late hour i would propose if the court's convenience i very short limited supplemental briefing on the issue of exhaustion as far as the specific adverse credibility grounds which were not raised to the board below therefore the board did not have an either supporting special money or sending it back and saying this isn't enough because these grounds weren't specifically raised but again i understand because it's being raised at this late hour if the court doesn't want to take the time to discuss it now i'm putting out there because it is a jurisdiction