would like to start with the heart of the issue which is whether or not mr garcia established persecution on account of one of the enumerated grounds in the immigration and nationality act immigration judge found that she did not satisfy the nexus requirements so that's what we're going to focus our attention on today pattern and practice great look women in this small village of two hundred people in the third critical fact is that the military's pattern and practice of systematic rape of women only began after guerrilla fighters began forcibly miss garcia testified on direct examination that the reason that watermelon military soldiers broke into her home tied up her family and gang raped her it's because they thought that her family and the village were aligned with guerrilla fighters that is that the administrative record of pages two thirty four and two thirty nine she repeated that testimony on cross examination she again said i think the reason they raped me is because they thought i was on the side of the nexus requirement but even if he hadn't provided that direct testimony about the motivation of the military soldiers who assaulted her she provided circumstantial evidence of the events surrounding her sexual assault she relationship between the appearance of gorillas in her village and the forced conscription of twenty men from her village of two hundred and the subsequent appearance of the quantum on military soldiers that som pattern on the part of military soldiers of raping women in this village she testified that the military came roughly once every eight to fifteen days and raped a woman she testified the fifth went on for a period of years persecution of a particular segment of the society that individual that an alien individualized showing is less and not more the court can find that standard in this court's opinion in chant which  systematic pattern of rape is the temporal relationship between the guerrilla activity and the military soldiers we also can look at documentary evidence in the record which establishes that the military soldiers in guatemala used question which is what we're here today discussing is whether there was a nexus true crime but why did they seek out this village why this woman to commit this crime against her family that's the question that the immigration judge failed to answer but the evidence compels the conclusion that it was because this village was identified with guerillas the second reason the immigration judge offered simply makes no sense she said there's no evidence in the record to show that this was a force the government was unwilling to control well the military is the government and its garcia did not have the burden of establishing that the government could not control itself that that standard only applies in cases involving non state actors didn't she also were just to find that people reported just to the local police and the police would tell the army and the army to go in and take that people who would report to the police would later have the military come back and kill them she provided one graphic description of a family of eight people who were murdered and left on their front lawn for the rest of the village to see now there's a message there's a military came in was there a time of relative peace before all of this activity started by the military no that was not your honor her testimony was essentially the guerillas began forcibly conscripting individual men from the village twenty out of a village of two hundred she said after the guerrillas came the military came but they didn't come to protect us she said they came and killed the women and children and they came and raped the women so they weren't there to protect us the one event of the arrival of the military follows the leaving of the guerrillas and it was close in time or something was it well she didn't describe exactly how many days or how many months involved is slightly different we know under the course opinion in hernandez ortiz for example that where the military is involved or the state is involved in persecuting an individual unless there's a reasonable basis for concluding there was some justification for their did not apply that inference in this case and that was a mistake as well the other reason we can't see this as mere criminal activity is because we have to look at what happened to this family that night this was not as the government  yard and they forced her mother to cook for them while they gang raped her nineteen year old daughter that is not mere criminal activity on the part of the soldier the obvious message in that take one piece of this evidence that should be enough to compel the conclusion that this was persecution on account of an enumerated ground but when you take all of this evidence together and consider the record as a whole we have a pattern assuming she established past persecution which she did what should happen well miss garcia is eligible for humanitarian granted asylum under this course o and also more recently in law but the court has recognized is that rape is an atrocious form of harm particularly when it is at the hands of the state particularly under the circumstances here where she was raped in the presence of her family her father was tied up in the back her mother was in the kitchen cooking she testified about the horrific experience she testified about her continuing fears over that experience and her fear of the military under rape is a violent act that and achieve course presents a sympathetic applicant there's no doubt about that we'll also construe that rape can constitute persecution in an appropriate case but the law clear on less than asylum applicant can demonstrate that the abuse that he or she endured be it rape meeting or what have you was on account of a statutorily protected ground that applicant will not be entitled to asylum no matter how d the fact that she actually believed why the soldiers attacked her does not mean that is that is why that just means that she literally believe it doesn't establish the actual object  subject of facts and we can take what she the facts that she testified about as being true and one of the key facts it was not addressed in the initial argument and that is what her attackers told her that that really comes down to be the key piece of substantial evidence that i believe are you saying that if the retribution is delayed it's not retribution oh i'm saying that if the recreation is the way there is retribution just because one falls another doesn't mean that it was caused by the other  testifies credibly that that she was beaten and what someone said something to her or did something then yes you have to accept that is true and you have to accept that she believed that she established the subjective component certainly but there are two components to it to stand listening style and she has to her village but i invite this court attentions page two forty three of the record see this was actually talking about what happened on that particular night and of course the real question is is there substantial evidence in this record to support the immigration judge for this court to find the record compels reversal this court would have to ignore ms parsons testimony that she didn't know why she was being attacked but she guessed that it was because her brother been kidnapped ten years before and you have to ignore the fact that she testified that her packers i think you talked about a presumption that maybe at least an inference politically motivated can we take anything from there i think what i would or i would point to are i know there are cases from this court that addressed the issue of seven eighty three was my brother was a kidnap so i guess that would be about three or four years later and so she said that the military had never come to the village before that point before the gruel it's not coming so i guess that's about three or four years ground and i don't think this court can hold that because the whole that would be to read the on account of requirement out of the statute it would also be contrary to this court's decision you know tommy page eight sixty four that i mean where the court said that even if you grant the victim of a rape you still have to show that the assault on account of a protected ground zero what do you make of the testimony that the petition it that when some of the neighbors report everything she was everything she believed she accepted that mrs garcia actually believed those things that doesn't mean that those things occur on the basis that she believed they occurred so what language she has shown past persecution and therefore she had there was a presumption there rose a future future persecution or what kind of fear of future persecution under the regulation and by definition if she doesn't meet her burden of showing past persecution the government is no burden to her but showing a future persecution in fact a novice a case in which she relies on reply brief this court suggest that it's quite reasonable for the agency not to address those matters if the immigration judge finds that she hadn't shown past persecution that's what happened here  of change in country conditions or things of that matter how much prescious there is in a reply brief there was no evidence presented addressing the issue of the possibility of future persecution which is contrary to immigration judges actually talked about some of that different particular social group in this course no jurisdiction to consider this different particular social group i would like to be clear the governor's position is not that rape is not a horrible crime it is not that women who are going to race on account of a sexually statutory picnic ground cannot get asylum i case that has considered violence by the military has treated as state action this case in particular they broke into her home perhaps had they been on the street not in uniform we wouldn't be treating this action but they were in uniform the power that he was bringing to play in that dynamic was the power of the state in the military so i hardly think that we can characterize this experience where these individuals broke into this perseus home and beat her father and mother said i think maybe it was because i was attractive she later was asked again and she said i think it was because of my ethnicity that testimony on direct examination was sufficient to establish the nexus in that case and true it may have been subject of belief but it was her credible testimony which elevated out of the realm of mere subjectivity into the realm of you know evidence to establish next yes requirement but we don't have to rest just on that testimony that is enough military were there to protect us but years after the guerrillas started to come the military soldiers also started to come to harm the people they beat the men women children they rape the women now she didn't stay there with the three year laughs between when the guerrillas came and when the military came she said her brother was kidnapped in one thousand nine hundred three the guerrillas continued to kidnap men from the village there were twenty men total now in this testimony she says true years after the guerillas started to come in the military started to come record now as far as documentary evidence and the records the government suggests that what we have done is try to stop comment the record on appeal and that is not at all the case and i will direct the court to some documentary evidence which the immigration judge had before her the eyes of the state the victims were not human beings so there is documentary evidence in the record and we are not resting merely on the end i can spray paul though that certainly paints a picture which is quite compelling in light of the facts in this record which is what we are relying on in terms of the question of the testimony about the brother she did testify that her brother was kidnapped that obviously was quite a scarring experience for her but when she w why did you think you were raped by the soldiers she said because we thought that the soldiers thought we were on the side of the guerrillas true her brother was kidnapped by guerrillas but she didn't leave it at that she talked about the other nineteen men who were kidnapped as well so that was the context that she provided to fill in the detail which is what the government leaves out what's interesting is that the government suggests that the soldiers statement that they just wanted to eat and be with a woman provides object of evidence of their motives and yet her testimony that they came because of the guerrillas does not supply adequate evidence of nexus now i think it would be hard for us to believe that these military soldiers singled out women in this village on the systematic basis and this family in particular merely because they wanted to be with a woman and if we look at the particular experience of this family it clearly was not about c