claim or the st main issue i see under this holding is that miss out just put forth two particular social groups that should have been analyzed separately and it seems that both the immigration judge and the board have co a when they conducted that they conduct that in an improper fashion that rd and last thing under withholding that i'd like to discuss is the failure to address the pattern and practice claim that was specifically requested both before the immigration judge and the board with regard to the protection under the convention against torture really no analysis has ever been conducted and that pretty much sums up the argument for tat going into each of those individually i know that the government's position is that it doesn't  don't think that can be minimized and it adders because d when they were bugging the fundamental change of circumstances they should have conducted that separate analysis with regards to each and looked at the risk of future harm with regards to each one and by conflating them they've somehow been able to then combine those together to push back on the presumption that they may not have been able to do individually so when you look at the evidence that they used pacifically to rebut the presumption they point to that there is a  congresswoman in one of moloch who is lesbian they also point to the fact that homosexuality is not illegal the problem with that is then their only reliance on the jenner identity particular social group is that they point to a law allowing people to change their name of the fit but that again is the only thing supporting the transgender it shouldn't go to supporting the homosexual claim that was put forth on the sexual orientation the other sort of issue with the is it ends up leading to you know sort of a mishmash of all the evidence and again i understand that we refer to these groups often in the same term but it doesn't actually go into specifics and interact with the record with regards to what the expert declaration says between garst what the state department says and the state department report actually says that even though the law has changed with regards to registering your gender identity at the record at page three  it specifically says that the officials were blocking transgender individuals from being able to change their identity so even though the law may exist in practice it's not actually are the lawmakers asked and answered reality is not actually being practice and the other thing that is problematic about the fundamental change of circumstances analysis is the board sets no baseline so we have no idea what they're using as the basis they say ok well homosexuality is not illegal well if you look in the records you'll find out that homosexuality never been illegal in guatemala so i mean so if she wasn't if she's established past persecution on account of upright protected ground how can it then be a fundamental change in circumstance when no changes as ever occurred so i think that those are  the main problems with fundamental change of circumstance with regards to the improper rebuttal there seems to be a significant focus on the actual persecuted problem is bored law requires us to look at harm to the social group so regardless of if we know where this persecutor is true unfortunately rage misato is when she was twelve years old have country conditions change with regards to these two different particular social groups and i think that the massive amount of evidence points that it doesn't the other problem is with the improper rebuttal is the burden is on the government to rebut that presumption the government put forth no evidence in this case and so now the burden has in the properly been shifted to miss scientists to provide evidence of why that fundamental change hasn't occurred when the government should have had them or even the government in this case concedes that the evidence is equivocal and that's why the father twenty eight dollars j let it with the court because once they can see that it's equivocal how can it be more convincing to choose equivocal evidence if the burden is on the government and so for those reasons on the fundamental change of circumstances we believe that the remand it and again the pattern in practice claim is very similar to our cat claims that what amount i mean  you'd said i'm sympathetic to the record supporting that there hasn't been a change circumstance but the independent finding was that that she she was regarded because she could relocate but  court's own president and seeing the sessions the government has a burden to the employee to a place where she can relocate and so i'm in my review of the record i don't know where the government is pointing to that she can relocate she was living in san pedro so lonely with her family but before she left after she was raped she visited there twice for the death of her family and when she was removed in and to say goodbye to her mother but i again given that the expert declaration seems to indicate that that it's not localized the violence against transgender individuals or against homosexuals or vigils i don't know how if this is taking place countrywide discrimination why balance wise that the government has put forth anything suggesting where she could lip the department at one point did ask a question about ninety one during the individual hearing substantial evidence land just regarding what evidence has been submitted for the rebuttal of the presumption i think that is going to be very difficult for them to argue that this equivocating answer from my client isn't going to be sufficient to rebut the presumption when you have all of this independent documentary evidence from the state department from the human from all these human rights groups so you know in consideration what's what is the quality of her answer if she's sitting there saying i don't know and she repeatedly states that she's always scared to go based off of my review of the record apologize i can't point the court to the page it looks like it was an expedited order which means it would have been taken place right at the border and if she didn't trigger the c f i process the credible fear interview she wouldn't have been given an opportunity to apply so if she didn't raise it or maybe should know to raise it she would have had that opportunity before but i don't see anything in a file that would indicate she applied for g asking them to dan utilize the proper standard on rebutting the presumption and place the burden on the government and then also to consider the pattern in practice claim and finally to conduct a cat nonces and i know that's a mouthful and i hate honestly bringing that even though past fear is supposed to be a proxy for future persecution so that's why we're always looking at what country conditions the individual would return to and also why we look at a fundamental change in circumstance so i can get unfortunately i don't know that this court can outright grant i believed it before the board the board could have done it outright grant but at this point i think and fact finding has to go back in and take place so i think it unfortunately has to be remanded back to the immigration level of the immigration court i'm also very troubled by  this sort of blanket statement of the idea that able to say and say that i've considered all the evidence and that be sufficient so they cover her from actually having is to engage with the documentary record and engage with the expert decoration or any of the country conditions will work the board of the same thing does they can then put no two they then say ok you know we know that the i just said this statement and that's going to be sufficient for us to support her but how can you support the decision when she specifically says i'm discounting all current country conditions how can she possibly not have ignored relevant evidence of she possibly have considered all of the things that should have been made in that individual eyes determination and  for that for me is really at its core the flaw in this decision i think that the board did the right thing obviously on past persecution but i really don't think that they should have ever engaged in the rebuttal analysis because that should have been a fact finding mission  with regards to the pattern and practice claim it's sort of unclear from the record again which you know whether they ever ever conducted one or not because they do mention at one point  a government not in their brief that's not actually right standard even though i cited at one point it should be whether there's a clear probability of harm but there are two ways to establish protection you're either the individual harm that the individual has suffered with the individual harm that that person would likely to suffer based off the backs their specific background and history but also you can look at the particular social groups and i think just the fact that we were very explicit both before the immigration judge and the board of immigration appeals that we wanted the pattern and practice claim to be analyzed given the significant country conditions affecting both gay guatemalans and transgender guatemalans i think that it has to be remanded again just for the court early for the immigration court and the agency to make those  recording with the particular social groups at issue here once the board determined that there had been passed far and in fact there was a nexus between a particular social group and the far that that issue largely recedes because there's been found a finding of past persecution and it is at a point that we should we believe argument really picks up here today it is of note that as the board turned its attention to the question of whether or not there had been a rebuttal of the presumption of future or that the factual findings the board relied upon regarding the change conditions were entirely those made by the him or immigration judge and the point to be made basis of the original claim the original claim to find past persecution here was a rape of a petition or when she or he was twelve years old that's the claim that the court or excuse me the  had to analyze for both d change conditions and ability to relocate and another point i would make about changing circumstances change of circumstances as per the regulation under twelve had ben the country of guatemala was causing threat to life and personal life and freedom which is the withholding stand well then we might have an issue but the past persecution was a rape of a twelve year old and so when the board turd to evaluate the question of the change of circumstances it focused on that question and appropriately so because that's what the regulation requires narron the question on relocation was much more difficult the immigration judges findings on relocation had not come in had i been made because it had not risen to the immigration judges analysis because of course the immigration judge found no past persecution and persecution and relocation was never an issue in her decision but the department of homeland security cross examine the petitioner and petitioner acknowledges saying probably that she could relocate simply that's enough that's essentially an admission or a concession now the question which were wrestling with here today is whether the board had the project chips to look at that mean page seven of the record i want to make a point here that in my brief in the government's brief at that time two years ago we cited the right hand page of the record however i know the court in the clerk's office has been very stringent lately on making sure we cite the record on the left hand side which is the court's hit pagination so for the purpose of this argument when i cite the record i will cite the left bottom site nice substantial evidence to conclude that she could relocate and the evidence is that response statement to me that's very thin right you don't deny that eleven pages earlier on direct she categorically said she gender lifestyles you would rather move to those cities than one you lived in correct yes probably there is another place where i could live down there but i don't but i don't but try to stay here to get you would you prefer to live in china the law if it existed instead of the city where you were raped that's the hypothetical she's at and she says clearly yes and the government is comfortable that the next fragment of a sentence that says probably and ends i don't is a concession that she's now recanting what she said i direct then there is some city and want to model that she could be safe then is that your position well your honor i would take her statement on page one hundred and fifty one of the record would you say she changed it and said i don't i've read that as a hesitation in her responses but i don't but i try to stay here in other words my belief that she was turning her response to saying but i don't want to go back i want to stay here with him protectionist i don't read the i don't as a rejection of the st half of this production she's asked me is is there wouldn't you rather be in a safe place than where you w and the answer is yes the rest isn't even something that was asked and it starts with probably but you haven't answered my question underworked did she say straightforwardly no  if you have this eight page site run right now not recalling that specific snippet of the record i'm sorry if she did say that when that it all concern about relying on this fragment is it me or a policeman who said well again i mean we are you haven't said that they failed to exhaust in a motion to reconsider where do you think it isn't in final because it's premised entirely on other findings made by the i j a you see what i'm getting at i i believe i i do ok so i believe what we're dealing with here d is the war had to consider the record it had before the question would be if this were returned to the  you have a record that already exists where the parties had the opportunity to process and to do direct cross examine and cross examination on the question of withholding so the record is what it is at this point both parties have had the opportunity to make that call so the board has to question the war is facing do what we said it back for the i j a to look at the same record we're looking at here to make that determination when in fact that would be a year after the hearing conditions the board made a finding or excuse me made a legal determination on rebuttal and change conditions based on clear factual findings of the immigration judge and they cite those very clearly  a very good question you're right i believe that in this situation it would be a question of substantial evidence so it would have to be whether the facts read any reasonable fact finder  make it in other words your point until it's been a long time and at least thirty dollars guatemala many treat people equally there are counter factors to her claim on the other hand there's this pregnant of her response this seems like a perfect rest for the j now that it was worst on the fundamental premises to revisit but my point is that both parties have had the opportunity to present on this issue wrecked relocation was a matter regular of the regulation even at that at the hearing stage i mean they had the opportunity to develop the evidence immigration judge didn't reach it so the board is in a sense in not much of a different circumstance in looking in about you waiting the evidence and considering the evidence before that as to consideration but it's interesting because that court talks about the parag it tip of the board to consider the record in the legal question before and so might my argument here is that p that's just a case where records were lost and so the court you know you know what it stands for that doesn't relate to that's all well the problem is that the case law in the regulation the two thousand and two final rule  when it's talking about the board's fact finding opinion or fact find it before he or lack thereof it is really talking about extra record evidence it is really i was reviewing the final rule today i can give you the right but you're right i do believe much of that case law is built on matter which it refers back to this rule making and i say i agree that the clear unequivocal standard is the board does not do fact finding but there is it myself in my review of this writ based on the contrary sluggo case is that there is some small amount of discretion for the court to look at fact finding  believes the fact finding is clear or the facts in the record under its consideration are clear and here the poor used the word acknowledge and used the word acknowledge when it started the st sentence in the last paragraph of page seven the nd nd cretans in the paragraph on page seven in the st paragraph on page eight of its decision accuse me of page eight of the record board was looking to see what the petitioner herself was in fact saying they reckon i agree with you if your representation of the record is prepped that i can't remember offhand that you know yes she have in a broad sense said she couldn't relocate but that's what cross examination is about cross examination about testing testing the direct examination to see how strong it is and to see the factual i don't see that fragment to be an acknowledgment at all myself and i would expect the government would be able to say well here is the safe plates she was right when she knowledge but instead she's hiding in her parents home and we're still going to build our case omatic knowledge meant  i believe your honor the evidence in terms of her visits back to water indicated yes that she did it but on the other hand she was able to twice to return to guatemala and that's a subjective i don't believe that to be an objective piece of evidence as to her safety in her community but then again we're talking about relocation and the safety in her community is distinct from relocation the question was being asked was there another place she could live in out if your your representation is correct in one situation she said no she could relocate but in another she did acknowledge probably she could although we may dispute whether or think that is a very statement i appreciate that's a fair statement of my concern i'm still slightly wondering why it would be best to get a straightforward i j determination win or lose on this just square up is there a place you can relocate or not rather than again it withholding hearing has been conducted the board in the i j a stand in almost the same position if this goes back to the i j a the ajay's going to look at the record and read it to make that factual finding the bo country conditions of the country reports and the voluminous material petitioner put into the record on country conditions and i would note that i disagree with petitioners counsel to the extent that he says that the immigration judge dismissed the country conditions d evidence i believe that if you look carefully at pages seventy two and seventy three of the records that the immigration judge considered the country conditions evidence the department of state report and said this is a past persecution case going back one thousand two hundred and fifteen years so this country conditions evidence doesn't really answer but at the very end of that discussion on page seventy three she did address essentially the present or the future in saying that the respondent has spent time in guatemala and it didn't experience discover a ship discrimination now as we talked a little bit ago you're on you can take you can take objection to that given her hiding but nonetheless she considered d the evidence there on the as we did in our go back to our briefing just point out that we did go through a number of the positions in the reports of the country condition  we that the war and its decision on page eight of the writer clearly turned its attention to the cat plane and discussed it to make sure that there was substantial evidence it was it overlooked and that the unknown territory before this court so if again if the burden is on the government to rebut the person presumption and the government has conceded that the evidence that evidence is equivocal they then and it has to be more convincing given the government's burn and then under the novo review than miss and should have an opportunity to go back and present her claim or at least force v h s to point to a place that she could possibly be locate d with regard to the motion to reconsider that was was possibly mention as the government conceded and it's open and in this brief it page fourteen essentially are vi a brief was requesting additional fact finding and to the board saying you shouldn't game engine fact finding we've already pointed out that the idea is the finder of fact and that fact finding needed additional fact finding needed to be conducted so i think that there is a slight deviation from omari with regards to that and again if this is a purely legal determination that the board addressed on its own this court has then also said that if the board inserts an issue as well that it brings up on its own that it has been exhausted  and is it a factor sure what legal issues again i think whether undisputed facts rise to to meet a legal standard it would then be a legal issue before this court but i think i do think again if it becomes a substantial evidence there the overwhelming evidence that is in the record would compel this court to different and i see that my time is concluding so i thank you for your time