first as a matter of law that the i failed to follow its own presidential decision and matter of fellow g and matter of l o t is clear that when and be presented with an application for the first time when an applicant is asking for the that those cases are different because they did not involve an applicant who was presenting his application for the first time it involved in all three of those cases that involved an applicant who had either declined to present their asylum application intentionally unknowingly an applicant who had withdrawn their asylum application or an applicant who already had the opportunity to present their application and coelho they had the opportunity presented to close the and they want to the second opportunity to test their evidence but in matter of  kant was asking if the sent their application for the very first time before an immigration judge and l o g said in that instance the they look at all of the factors in the case and they do not apply such a heavy burden and that's what we have here today in barrage case is she's asking the court she was asking the cia to for the opportunity to present her case for the very first time before an immigration judge because she was denied that opportunity based on the ineffective assistance of counsel and the b i and her case did not follow  not form her that she would have an asylum claim that right yesterday is one that would be subject to the lawyers judgment i even more may have thought she didn't really ha however in this case if you look at the previous attorney's declaration he said very clearly that he just wasn't familiar with the law and that until he was doing the research on his second and one of his briefs he realized that asylum was available to people who  at that point he called for again and sat down and spoke with her and asked her if she was afraid to go back to the philippines based on her sexual orientation and she indicated that she was and that's when he referred the case out because he realized that he had failed to previously advised her of the opportunity  hear the evidence in a case for the first time an applicant hasn't had the opportunity in the past that the immigration court is the place to hear the evidence to develop the facts when there's questions of sufficiency of the facts when there is ambiguity that the case should be remanded to the immigration judge to make a decision on those factors because the live testimony of the applicant is the most important thing and the immigration judge is the only place to hear the live testimony to develop the facts to give the applicant the opportunity to standard i doubt it i would say a matter of elegy is that the applicant needs to present specific non conclusive very allegations supported by the affidavit and other documentation that would support a review reasonable likelihood that the statutory requirements may be mad but that again elegies that really clearly that when they reopen a case in this situation it doesn't mean that they believe that the applicant is going to be successful on the merits but that there is in fact a matter of elegy they said that you look at all the factors you look at whether there is still a tory factors involved you look at whether it's the first time the applicants presenting as happily cations and you look at whether there's a reasonable likelihood and when you include all the factors hide it she wouldn't be able to find work she would be ostracized from society which she was in any case because she was not able to completely hide or sexual orientation and now after having lived in the united states she's in it been in a relationship for the last twenty nine years if she  return to the philippines she's even less able to hide herself and she's noticeable as a lesbian and so she would not be able to find work she would as she explained in her affidavit she was not able to practice in her profession because she yes i think she believes that she would be entirely without work which i believe she gave up her profession one because she was not able to practice in the philippines and i don't know that she was able to practice this here and i believe the country conditions support as well although there certainly can be developed for an immigration judge but the country condition reports are fairly strong i mean they talk about times when gays and lesbians are banned from towns when they're being hounded for having caused tornadoes there's  paramilitary groups that were involved in both of those and you're one at this well actually in manila there were also incidences of hounding of gays and lesbians where they hang out and so i believe that there is a country to condition that's again to show so at least that there's enough to develop this record further before an immigration judge and that's what i think and lo she really goes to elegies that when there's when there's a question about the sufficiency of the evidence such as an elegy there was a question about whether the children's folks spanish for the spoke english and what elegy said was that you reminded to the immigration judge to develop those facts before a body in addition i am going to ask that i can reserve two minutes for rebuttal but in addition there when the ineffective assistance of counsel led to the denial of an opportunity or the failure to file an application that the prejudice in as if the outcome of the situation might have been different and the way i see the nice work it is looking at these cases that the failure to file an application suggests that the outcome would have been different even if it doesn't mean that the applicant would have won and i think dear injured castillo and so rodriguez laris all go to that point that especially  more than her still bigotry by her patients and the case was clear that there has to be some either governmental involvement in the in the actions or government willingness to tolerate it or unwillingness to stop it and there's a no indeed i think the honor at first before again the test is that she has to make a prime official case before the board get emotions to reopen and she did not present any indication that she had such evidence that she could develop before the immigration judge they don't have any any moment well there is she didn't present any evidence about the laws of the philippines and how they would have prevented her from achieving redress for her injuries what the evidence shows that the country condition evidence that she showed in the case that well yes there are some isolated incidents of mistreatment of homosexuals in the philippines but you know as your whether there are those here also that it's shows that there is an active gay rights movement in the philippines i nine hundred ninety seven there was a weeklong gay rights demonstration and that was supported by many straight people and businesses in the philippines there were fifteen gay and lesbian rights organizations not been in the philippines since one nine hundred eighty eight and the country condition evidence is much more recent and shows that life is tolerable for gays and lesbians in the philippines as far as the economic harm as your honor pointed out cashier and she's currently working as a security guard these are types of employment that it should be you know there's no evidence that she wouldn't be able to find employment doing those kinds of works in the  held that that was not sufficient to constitute persecution again in this case there's no evidence that she would fall into the narrow category of people that couldn't obtain any work at all until she had presented any evidence of that at all she merely talked about her applying for a form of relief and in addition i think that this back and forth over the country conditions because i would see this country conditions show that from one thousand nine hundred four until the present that there has been mistreatment of gays and lesbians in the philippines there is evidence in the record that officers in the western district i believe monella had put officers were under surveillance in the police force for homosexual activity that's in the record is no contradictory evidence to statements in her affidavit that if she were to return to the philippines she would not be able to find work and that is something again that needs to be developed before an immigration court  other people who also make statements about the situation in the philippines there are statements such as people in the philippines do not tolerate these life this is considered abnormal and a mortal sin and so there are several other affidavits from other people that that that can rise to the level of persecution just as if somebody were forced to hide their religion their entire life because they were afraid of mistreatment based on their religion it's the same thing in terms of being forced to hide your sexual orientation and you know according to this point if she were to go back she would be in that same position of having to live essentially in hiding and not in hiding over sexual orientation