decision of the board of immigration appeals which adopted in affirmed the decision of the immigration judge which denied the charges requested relief under the convention against torture judge looks like me may not take it these issues have been pretty well briefed by the parties with the permission of the court we'd like to focus today on three issues that probably lend themselves a little better to oral argument we have before the convention against torture that is correct judge  review the charges affirmatively demonstrated that they were abandoning their claims for asylum and they were banned in their claims for withholding under the immigration and nationality or the only thing that is before this court is their claims under the convention against torture  because there is a timing problem and candidly there is a problem with the on account of portion of the statute demonstrating that the charges might be persecuted on account of a protected ground what they are suffering  is is going to be physical mistreatment that rises to the level of torture but it's not necessarily going to be on account of a particular reason so we focused instead simply on the torture convention grounds so you've got these prior incidents one hundred eighty seven i think unrest you know put all that together seems not questions as to how that rises to the level of more likely than that the judges would be tortured upon return to appreciate the opportunity judge a lot of this comes from the testimony that we receive from the chokers expert dr robert block whose name i say blunt and blunt but apologise for that but what we have in this case is expert testimony that demonstrates that over a period of time the chiggers were subjected to various incidents and the court has already brought those out to get nine hundred eighty seven one thousand nine hundred six in two thousand and two the massacre in the charges village that causes them to eventually  ethno nationalist violence which is it's not a word that i had heard it taking on this appeal but that they could suffer from either ethno nationalist violence or s g m of the f and f g m being female genital mutilation mutilation and that obviously relates only to shann lot of the violence perpetrated by this group this monkey group some of it sort of state sponsorship but a lot of it was just this somewhat  independent group that wanted to return kenya to wore traditional values and didn't like a lot of the more modern stuff i guess and so what support is there that  what is demonstrated by the record both in terms of the historical evidence of presented from the corroborating materials and from the direct evidence from the church's iceberg is that at least the modern moon share a somewhat veiled but very present relationship with the state you see that in the wake of the two thousand and two election where the kenyan state is kind of directly sponsoring the geeky activity and then that's not successful and so they start attacking  but then another election comes around and now the kenyan state is sponsoring groups of men geeky warriors or whatever they were calling them to go out and try to either do battle with people who are not supporting the current government or not supporting the current political party or otherwise are being sponsored by the state so what the charges expert i think appropriately described is this on again off again relationship with the state but at least over the past two election cycles although there may if i'm doing the math right there may have been one more recently in two thousand and fourteen  but over at least the two that we have is record evidence we do have state sponsorship of mungiki action i think that's where you see the relationship between the kenyan state and i'm geeking now part of the problem is that the agency for whatever reason basically ignores the expert there are seventy pages of expert testimony when you get to the immigration judge's decision it's about twenty three pages long granted the immigration judge does take a look at what the expert said when he's doing well here's what the facts are here's what we heard but then we get to the analysis portion and the expert testimony vanishes same thing happens at the board of immigration appeals they adopted affirm the immigration judge's decision but they never bring up seventy pages of expert testimony not seventy pages of testimony ignored by an agency would be concerning in any event but it is most certainly concerning when it is the testimony of an expert who is offering an opinion that at least in terms of the expert qualifications has been stipulated to by the department of homeland security and is then ignored by the agency and that's a significant problem and it's not a case where we can say oh there's no prejudice it's not a case where we can say this is harmless error the expert for the sh but the other members are a family because of her age cannot just play in the dark or if she were a little baby maybe they could figure that is correct i don't believe that i think they're too old to be honest i think you have to be thirty one or under as of two thousand and six or two thousand and seven and by two thousand and two andrew was thirty two or pages of telephonic testimony as decoration can you point me to where i could find that it's there is sufficient support i guess the standard is more likely than that miriam or cheryl would be subject to you know lation judge i thought you might ask that what i have it as is it certified administrative record page five seventy four i will i will grant that i'm not exactly positive what page that is in the transcript itself but that's what i have is the sort of item in a straight of record that's what cited as support in terms of the brief and it is where he responds to a question from counsel and he and let's be clear because i want to make sure i'm not misstating anything dr blunt didn't he's pretty clear about it to these threats are in an election year only so that cyclical violence that we see really mirrors that kenyan election cycle in the end dr brown is very clear he's very candid with the court that in a non election year the chargers are probably not at risk but in an election year his testimony is that they absolutely  are and when you take a look at the risk for after i am clearly that rises to the level of torture there's a rather it's a legal whether it's only been practiced on thirty percent of the population makes zero percent difference and g m is tortured there's no way around that that's that's pretty clear i believe that's correct i don't i don't know that much about kendall tribal affiliation but that sounds correct as far as the practice of it's pretty much universally held whether from an administrative a human rights or court of appeals opinion that the practice of f p m constitutes torture when you're doing that to a child when you're doing that to a woman and that's not permissible it's illegal in the united states it's illegal in kenya it should be illegal everywhere even though it may not be but how do we determine the threshold for when it's more likely than not curse to five percent the population fifteen is there a sort of a threshold percentage is that how we should look at it and i was hoping you would ask that no there is not because that deval does not require respect we know the law does not require that a certain percentage of people be persecuted prior to a time when other people can seek relief and that's a problem that we get when the court looks at this expert's testimony they don't analyze it in the decision but there's some cross examination of by the department of homeland security with a puzzle this idea that perhaps it's not more likely than not because fifty one percent because perhaps torture is not more likely  not because fifty one percent of the nation of kenya has not been tortured yet but that's that's absolutely not the standard but they say as we know you would just location your and again you're right that's absolutely correct the law that when you're going to be sent back to some place if there are significant parts of the country that are not subject to problem and you can't claim asylum  you are correct that is the standard that is typically used and if somebody can successfully internally relocate they can not claim humanitarian protection but the record evidence in this case demonstrates that they cannot and that receive directly from dr blunt the pines that they family could not be safe even if they were to leave their locality of the rift valley this is where we get into the situation if you needed to take a law student if you needed to take a young attorney i'm so young attorney younger attorney than me and say this is a primer on how to prove up an asylum claim that's this kicks you have credible testimony and we know how rare it is to have credible testimony usually the first hill we have to climb is an adverse credibility determination that credible testimony is backed up by corroborating evidence not only from the human rights reports from the department of state but also independent voices all of that is backed up by expert testimony which specifically addresses the standards but is ignored by the agency the substantial evidence in this case compels a contrary result and we'd ask that the decision belong reversed i see my time has expired if the panel has any questions i'd be happy to answer right now so thank you very much you'll have your rebuttal time thank you judges nor been outlawed f d m has been outlawed and the record at one point says that he had been have been crushed if g m is not favored by this family it's opposed by christians in opposed by this try the try is like eighty percent of the population the petitioners are christians nobody in their family oh yes nobody in their record but i thought i saw a couple of places and the record that there still might be as many as a million there if he round i don't know how we're going to itas are active they are but i didn't get the impression that they are completely crushed and not i election year so i wouldn't say that they're crushed but they they already illegal if he him is illegal so there's so our argument is it's clear that there's there would be no state support for reference to the extent of testimony declaration of testimony of dr blot and the b i a i think no reference to dr blot and the other the evidence upon which these petitions rely is argument is there's very little position argument from petitioner that dr that dr blunt supports their claim dr blunt is declaration in his testimony is very broad it's i shouldn't say confusing but it violence that in an election year would face an increased risk of death ethno nationalist violence will ever know nationalists violence is not torture it doesn't write it between the petitioners the family in this case and d h yes it's news to me that sharon has doc i did i didn't know that it's not in this record it was not presented well it depends maybe who gets appointed to the supreme court i don't know but it's not part of this record it's it's not something that we did approached i did approach t judges i will be extremely brief simply as to the point that ethno nationalist violence is not torture that was raised by mr norwood i think that's a valid point to address we have in the charges case though is that the ethno nationalist violence that we're talking about is extreme we're talking about a group who uses beheadings dismemberment and forced female genital mutilation in order to forcibly intimidate the populace and cause fear so that people will comply with what they want there is specific reference i should run my other notebook in the record that demonstrates where one of them indeed the leader says we do this on purpose we do this to instill fear and we do this so that people will obey us because if you don't listen to us you're next and that is what we're talking about yes judge the risk needs to be fifty one percent or greater and that's what the expert testifies to and that's what the agency ignores and that's the problem that we have today is the support for the risk that the charges would face which is testified to by somebody stipulated in accepted as an expert by the agencies and ignored by the agency it's not harmless and it should be taken into account if the court has anything else to be happy and thank you very much both of you counsel for your arguments today the case will be so that you may call