immigration judge did find that mr checco suffered past persecution by his father on account of a protected ground however the i j a also found that the government had submitted enough evidence to prove a change in circumstances sufficient to  three and five correct your honor so to get to that point your honor one of the most one of the factors that the judge did rely on to find change a fundamental change in circumstances is the fact that my client is now an adult and not a child but this court has repeatedly held that there must be a fundamental change in circumstances and that means that the government does not meet their about the presumption when there is a pas persecution where the evidence indicates that the persecution is similar there is still persecution similar to that experienced by the petitioner and in this case while the petitioner is no longer a child there is  evidence that there the father still wants to harm the father holds animosity anger towards my client and that he still wants to harm my client that we know sir that the immigration judge didn't consider those things well by the mere fact that she didn't mention them in her analysis she says she clearly states that there is no evidence that that the father is interested in harming my client but that's simply not the case there are the letters in the record specifically one from the uncle who lives in the same town that the father is and who has had personal contact with the father recently and whom the father has told has threatened to the uncle that you need to tell me when mr chacko arrives and that uncle clearly states when he went through the asylum officer interview with respect to two thousand and six he only said that his father didn't want him to return he didn't talk about it or risk it that well he did state that he was not directly threatened when he was deported back in two thousand and six but the message from the uncle clearly indicated to him that the father didn't want him around and that he was still at risk now the letter itself the  uncle letter that was written just six months before mr which echoes hearing that states that his life is at risk because of his father his father still wants to harm him and why would the sorry your honor and his your phone no i mean why would the father threaten the uncle to tell him when mr checker arrives i mean he's not wanting to mr checker to arrive to throw a surprise a birthday party for him or something like that maybe surprise maybe an ambush but this isn't something there is definitely  that the message from the uncle is definitely that his life is at risk because of his father and still is and then there's a letter from the mother to who states that they have received threatening letters from their father and that they continue to receive these threats threats to checco directed from the father didn't your point live in mexico with his mother in the same state where the father resides for about seven years he did your honor however g overlooked several facts that made that possible one was they didn't simply they weren't simply able to leave they actually escaped when the father was called on duty for the military while they were living with the father the mother tried to report abuse to the police several times but the police ignored her request for help so they were only able to escape once the father was called on duty and they weren't they weren't living out in the open they were traveling in a circus they worked for a circus i know they moved around with  this every two to three months and say we're in the same state is there any evidence he could relocate to a different state in mexico well the issue about relocation your honor is that the i g didn't actually reach that issues she didn't make her decision on the basis of relocations only made her decision on the basis of fundamental change in circumstances that are fair inference well i think that i think the point that fact that they were able to move around alternately was that the father no longer want them the father was no longer interested in looking for them but in fact while they were traveling with the circus mr project could testify that the father was looking for them the father was interested in knowing where they were the father simply couldn't find them because they were well hidden in their transit lifestyle with the circus also the father was still on active duty in the military and then subsequent to that the father went to prison and therefore once he was in prison they saw that it was safe for the children to return and the mother took them back to the grandfather their maternal grandfather while she went to the united states so i think these are all concrete clear facts in the record that they're clearly overlooked to show that ultimately there has not been a fundamental change in circumstances they were able to this court has held that the mere fact that the person that the applicant hasn't has been able to escape and hide from persecutor doesn't undermine their fear of persecution especially when as in this case the persecutor had been looking for them but they were successfully able to hide in different in various places over just short periods of time is there a question of which issue we look at because if we look at whether substantial evidence supported the decision which was essentially adopted by the b i a in large part that's one thing or if we look to see whether there was an error because not everything was considered that's kind of a different question which of those are you asking well your honor i think that  i think that the government's burden here was not met i think that evidence compels it because the letters clearly indicate that there is still a risk of harm by the father the other point is that  checco testified that he could not relocate he would have to he would have to live in the same hometown that his father lives in an immigration judge did not find that to be untrue or not credible they just did not find that he could relocate therefore we must assume  that he would be living in the small town of cujo a very small town as he described it and the father could easily find him there so we have the father still wanting to harm him we have the father being able to find him in such a small area and of course the father is now protection under the convention against torture simply put the record in this case falls far short of demonstrating let alone compelling the conclusion that it's more likely than not the mr pacheco will be persecuted or tortured if returned to mexico  support of his claim mr project though testified regarding a single unfortunate incident of physical abuse by his father at a very early age as well as verbal abuse between the age of three to five at which time his mother took him to pursue a job in a traveling circus he described discrimination and harassment he suffered on account of his rescue in the city and one incident effect but no physical assault or abuse as a result of the stress go ethnicity although they may judge in the board agreed that he suffered past persecution by his father on account of membership in a particular social group composed of children lacking effective familial protection substantial evidence supports the agency's further determination that there has been a fundamental change in circumstances rebutting the presumption much as the father still looking for him the father's no member of us those kinds of things the government try to rebut any of that the hearing was quite short but the record evidence in this case included a testimony by mr before the asylum officer indicating that when he returned to mexico he had heard that his father did not want him to return but not that his father was threatening him and the immigration judge weighed this evidence accordingly concluding that because there was that disparity between the testimony before the asylum officer and the testimony immigration court she was going to give more limited weight to the testimony in immigration court because of that disparity of the asylum testimony is not necessarily inconsistent with the i g hearing testimony that the father still looking for him correct one could take that approach but even if we use the most generous interpretation of both the testimony and the letters in the record if we provide all benefits of the doubt to the petitioner there right here in this case simply it still does not compel the conclusion that it's more likely than not for withholding of removal and protection under the convention against torture as a boil down to the two thousand and six letter in large part  like you to address that the two thousand and six of the letter from that the threat was still out there from the latter letter uncle's letter and just turning to that page  indicates that the father is now part of a gang and it says his father has also made a threat to us that we don't let him know of his return indicating perhaps that his father wanted to make sure that he would find out if mr p returned but again in this case even if we reach the conclusion that the probability of persecution by the father is great as indicated by the immigration judge and there's one and only one reason for the father to want to persecute mr pacheco and that's the reason that mr pacheco provided time and time again in his in the south in his asylum application in his interview for reasonable fear and before the immigration court he indicated that his mother had told his father that she was having an affair and this caused his father to believe that mr pacheco was not the biological son of his father or the individual who his mother was living with and on this basis he says the abuse began and so the immigration judge concluded that any probability of future persecution was on account of this personal vendetta and i were just blotted and feuds run so i'm not sure why the passage of time would actually change  son doesn't believe that only his son my son or even if we assume that the probability of persecution is high as i indicated he still has to demonstrate for withholding of removal and that it's more likely than not that he'll be persecuted on account of a protected ground and the protected ground there was found to be the basis for the past persecution children lacking effective familial protection no longer applies as explained by the agency because mr pacheco is no longer a child therefore is no longer a child lacking effective familial protection here he is now in his thirty's or late twenty's at the time of the hearing and therefore does not qualify anymore for membership in that social group now substantial evidence also supports the agency's determination of the mr pacheco will not be persecuted or that there is not a clear probability of persecution on account of his to rest go ethnicity that mr pacheco doesn't challenge they don't see the determination that he didn't suffer pas persecution on this ground and instead he points to the state department country reports indicating that there's a pattern or practice of persecution of individuals similarly situated but those reports as indicated by the agency even if they demonstrate marginal discrimination don't demonstrate a pattern or practice of persecution and again to establish audibility from withholding he has to have that nexus to a protected ground and finally substantial evidence also supports the agency's determination that he failed to demonstrate eligib for protection under the convention against torture to be eligible for that form of protection he would have to establish that it's more likely than not that a government official or other person acting in the  you just ask you to go back yes i understand your argument that he's no longer a member of the protected group because he's now well into his majority but it didn't seem that that was a basis articulated by the b i it's a logical basis but the be i a was taking it straight up here he was as a kid now he's some time has passed but as i read the  i i really didn't embrace the argument that you just made maybe i'm missing something and you can point me to where in the decision i should log that he fell outside of that class i don't think the b i i mentioned that the board adopted the decision of the immigration judge and the immigration judge concluded that the da just met its burden to show fundamental change in circumstances because the applicant his mother left his father when he was about five years old traveling with the circus they were able to successfully scape abuse by the father and he's now twenty eight years old by indicating and the change in age but i mean i understand that but it seem to me that's more of a passage of time argument as opposed to the more legal argument you make which is he doesn't even qualify under one of the protective grounds and well know we're not supposed to go outside the bounds is of course so if we view it as a passage of time matter than it's the same conclusion merely that there is a fundamental change in circumstances whether we view that as he no longer falling within this class or no longer eligible for the presumption that he'll be persecuted on the basis of the original claim because this is how the presumption works in the withholding context the regulations provide that if you suffer past persecution you don't have an all encompassing presumption of future persecution meaning if you've been persecuted on account of your race you don't have a presumption of persecution on account of your religion and said you only have please be your dish and that the passage of time alone is sufficient change in circumstances yes along with the other circumstances that have been mentioned by the immigration judge and adopted by the board regardless of how we interpret the language in that decision this is a fundamental change in circumstances because he is now twenty eight years old at the time of the hearing and so no longer a child and whether we view this is a determination that he no longer falls within that exact class or whether these change circumstances merely provide that he's no longer going to be subject to the same type of persecution that he was subject to a child it really is a distinction without a difference in the sense that both support the conclusion of the immigration judge in the board that this change circumstances really no longer allow him to be eligible for and benefit from the presumption that's provided in the regulations by turning to catch do you think that the i j a gave sufficient consideration of the evidence yes the immigration judge considered the record evidence and concluded that mr father still wants to harm him and that he will send members of the gang to torture him but he presented no evidence substantiating that klein can you address that was that a rejection of the evidence that we have with a letter from the uncle immigration judges explaining that the record evidence doesn't support the conclusion that reviewed the evidence in the record but concludes that that evidence is insufficient to substantiate the specific claim that's not to say that is presented no evidence  support of his argument but simply no evidence to substantiate the claim i mean i read it to mean that she was basically saying that he hasn't presented any evidence about acquiescence or participation by the government which would be required in the cat claim  because well he did present evidence he didn't present any evidence on that is that how you read it the sentence before indicates that he speculates his father wants to harm him and will send members of the gang to torture him there's no thank you so just to point out a couple clarifications one is that the government has repeatedly provided there's a standard more likely than not but the initial issue here is whether there was a fundamental change in circumstances if the government as they s d assumes that the probability of persecution is still great for mr checco then he wins because that means that there has not been a fundamental change in circumstances the father the type of persecution that he suffered was was extreme persecution by the father the father's animosity towards him because he does not consider him his child this is the same animosity that the father still holds in he still wants to harm him in fact he wants to kill him and that has been from the letters issuing threats to kill and he could certainly do that with those that those in terms of being able to in terms of the cat claim for acquiescence respectfully that there is evidence that the mexican government would acquiesce and there are a couple of articles in the record specifically stating that local and state police officers help and directly work on behalf of drug cartels in their criminal activities and this these drug cartels include law set this which the father is a member of and they specifically say that local police are the most vulnerable to be infiltrated by the drug cartels and in a small very small town like show it's no stretch of the imagination that mr pacheco's father could get with his connections of us at this corrupted officers to help him or turn a blind eye towards the tortur lation and train of events to get to that conclusion well to meet that clear probability i mean most cases aren't going to have specific evidence that that and he doesn't need to prove specific evidence that a police officer would actually acquiesce in his own torture we need to show is that there is a likelihood of officers that would be corrupted such as the evidence in the record indicates that they are easily correctable specifically local officers and i would just say that it's a very high not rely on the fact that he was no longer going to be pursued on a kind of protected ground in the b i in fact in a footnote said that they would pass on that issue and they did not actually address the issue of whether there was a protected ground and so i don't think that that issue is before this court if the court somehow feels that that is an issue remaining and needs to be addressed well then i think remain would be proper but i just don't think that the judge in this case found that there wasn't a protected ground and it doesn't need to be the same protected ground just needs to be one protected ground based on similar persecution in the same way because you can hear again is the father thank you thank you the case pacheco asensio versus sessions submitted i think both of you for your arguments this morning