morning your honors my name is francisco gartin with the office of public defender of san francisco i'm here representing the petitioner there he'll go articles who's been in custody since february two thousand and sixteen his partner and his daughter are here in the courtroom i'd like to reserve three minutes for rebuttal your honour's there are two issues key issues in this case one relating to the one year bar and the nd relating to  this case poses the important question to this court of what an applicant who suffered lifelong powerful racism culminating in a brutal and violent incident of racial persecution needs to show to establish that the government mexican government is unable or unwilling to control his persecutors and there is no dispute on this record that mister suffered persecution and the key question i believe here is whether substantial evidence compels this court to reverse the b s hold it i think we can start st with the four corners of the and i j decision which held that the mexican government was significantly hindered in its ability to protect indigenous people to do lack of resources high levels of corruption and racism towards indigenous people there is a reason why the b a and the high g held that is because the country condition is established that and i'd like to point to a page twenty five of the record the state department report which finds that human rights abuses against indigenous people is a significant problem and that impunity for human rights abuses remains a problem throughout the country with extremely low rates of prosecution for all forms of crime and bring us not only look at the government's ability to control private actors but they also look at the government's affirmative persecution against the disfavored group and i think while most of the briefing is focused on the government's inability or unwillingness to control private actors what we haven't been focusing on is the government's persecution of indigenous people whether it's putting false charges on indigenous leaders where their evidence in the record of of that point yes your honor on page both in the state department report and page one thousand and seventy in an article page one hundred and seventy describes a two thousand and fourteen incident where police fired guns at night scaring people during a land dispute burning down the home of campaign headquarters for indigenous people dr feta she testified that she had helped heavily militarized police officers and known to receive benefits certain political players to abuse people engage in physical violence intercommunal conflicts we also have mr alvarez own testimony where the police falsely accused someone from his community of murder and then  tortured him and the community literally set up barriers so the police couldn't come in to the home we also have a situation where the police didn't did not investigate the arson of those own home mr also testified why are you afraid well and i think his his words specifically were it may seem odd for me just mention this but basically it's the truth basically i'm afraid of authorities because we're targets of authorities for example let me give you example if someone is killed they look for a scapegoat someone they can blame they can focus on us who are indigenous and poor and have no one to defend us that's not some point they took him to the hospital and took a police report i believe yes this is mr arcos when he was injured a fry addresses the issue of when a police officer does provide menial assistance to an individual but where overwhelming country condition have been and shows that there was a lack of resources establishing in that case in ghana countries an inability and unwillingness to control here the that is the only evidence that the i j in the b i relied on to show that the entire mexican government is willing and able to protect indigenous people and if you balance that up so there's no evidence of a prosecution they certainly didn't protect him from persecution and if you look at his lifelong discrimination in the racism that he suffered that incident is simply overwhelmed by the remaining evidence that shows the mexican government is unable and unwilling to control rampant impunity for prosecutions in mexico  we have the amnesty international report the government the mexican government has not taken concrete measures to achieve this and he continues to deny to this group true scale of human rights problems facing the country indigenous peoples continue to be routinely denied access to justice and again this report if you look at a fry a police officer did take a report but was unable to control the persecut of a lack of resources interesting in a fry that involved must extremists attacking a christian minister but ghana at the time was christian dominant and the police force was christian dominant here the opposite of the case where the mexican government is has a long history of warring with indigenous people a long history of racism that even the i j a and b i recognize and so if you balance those two things this one time incident with the entirety of the record i think that the case is quite clear on that issue i'd like to address the one year bar your hon r the st issue as to the one year bar is whether this court has jurisdiction and there are of course jurisdiction stripping provisions in the i and a that precludes the court from dealing with a one year this court has jurisdiction because the reasonability analysis of the extraordinary circumstances prong is a legal question for this court to consider this is sort of a conclusion i'm sorry the ultimate conclusion is a legal veteran that is that is correct and the court need not go beyond page twenty three of the government's brief in determining what the actual dispute is but i because i think the government rightfully acknowledges that the reasonableness determination is the dispute there is no dispute of all of the facts that led to the delay in the asylum application mr alvarado is a mentally disabled person there is no dispute about that there is no dispute that in addition he was able to maintain employment and be the head of the household there's no dispute about that there's no dispute he testified that he was unaware of the deadline but if you look at the totality of circumstances substantial evidence establishes that someone with post traumatic stress disorder and borderline intellectual functioning should not be charged with a responsibility to a minor of applying qualify as extraordinary circumstances yes that is unlikely and they then went to the next question which was whether ten years that's true in filing the application was that exactly correct yes that's exactly right and they concluded that the ten year yeah it's just unreasonable absolutely that's exactly held at the same time we're looking at here have to look at the facts of all facts and circumstances in the case mr alberto is legally disabled the psychologist presented a report talking about his phobic response if you even look at his testimony why didn't you mention why don't you talk about it because it hurts i don't like to remember these things now we can debate about what the actual cognitive functioning of mr is but the congress has stated that minors don't need to apply for asylum till they're eighteen because until they reach the age of majority here we're talking about someone who is mentally disabled and so ten years of course your honor if i were here in a normal situation ten years is a very long time but this is someone who is mentally disabled and i believe that if the record compels a reversal on that application which has a higher standard of proof clear probability as opposed to a well founded fear the the the what i were unwilling requirement is not dispositive also asylum in this case to use asylum having a lower standard and so we do have to address the when you're judged by an issue for purposes of mr alvarez asylum application are the government's position is that the court lacks jurisdiction because there is a carry out during the ten year delay and determining whether or not that delay was reasonable or not suggests that this course decision has yet and i say have makes a reasonable this is a question of law it is true that ultimately it's a question of law but there the court stressed that it had jurisdiction to review because the underlying facts were not that they are the but what is the competing evidence usually when there's just beautiful fact you look there's one version here and one version this is the trier of fact resolve the after applying credibility you know all the standard tools that for fact do it well it all comes down to i think a factual question which is how heart how was he affected by his mental disorders and his cognitive has his intellectual functioning and so that is a factual question also when he testified he well so you know he is counsels to that there and said he it doesn't seem to be disputed he doesn't dispute that he agrees that the petition was able to help his family in the the fact that i did hear michael my opposing counsel mention confidence there was no you know there he was happy immigration judge level when competency can be raised in compensation also be raised there was no attempt over into the box of competence and so there is a suggestion here that you know he simply his level of functioning is at issue you know he has these disorders but they're not so severe that he's incompetent he's not sat so severe as the immigration judge found and the board found that that ten year delay makes sense and so that is a factual question in the government's view i would also argue though in the alternative substantial evidence if the court does fin your stiction substantial evidence supports the agency's finding that ten years or ten year delay simply doesn't make sense mr alvarez case due to how how how much function he displayed during that ten year period where as you point out he was able to among other things navigate the criminal justice system with the assistance of a lawyer just as he could have done in bringing forth an asylum clean in a timely manner and with the assistance of a of an immigration attorney i would i also want to argue that's quite a high standard and mr overall tries to go around it by arguing that there is legal error here to the extent that the agency in his opinion conflated inability and unwillingness he makes he draws comparisons to the st circus decision in recently sr which is a very distinguishable case compared to this one in that case the the the petitioner was the victim of extortion threats in by organized crime and his child was murdered by the organized members of the organized criminal organised a criminal organization here the police were very much in investigating the crime address the inability at all it simply focused on the willingness of the mexican police to investigate this this crime the board has not done that here in this case where it has not explicitly focused  on on and on willingness if we look at the board's decision it states while any quote on page five of the record while an alien's ability to file a police report suggests that the police were willing to protect him it may see little about whether they are able to do so and so the board is explicitly recognizing here that it can't just rely on proof of willingness it also has to examine the issue of inability therefore it turns to the country conditions evidence and looks at whether or not m seems to have a hand in some of the corruption that takes place in this particular state if you're referring to chiapas the persecution that mr although has focused on for purpose you know the most serious incident that attack in progress but when it comes to chiapas you know respectfully the country conditions i wouldn't which does show you know the significant harm xix and mistreatment of the  the indigenous community in that state in in terms of also a longstanding conflict there it isn't as relevant to mr arc of our of our ills case as he would like it to be he has not shown  that the government of mexico is unable or unwilling to control persecution and into the type that he suffered which was serious with physical violence at the hands of private actors he in his opening discusses the fact that he is trying to put his case under the bring us prong of for unable or unwilling requirement that he has shown private persecution is widespread and well known but not controlled by the government but he hasn't made that showing here there is not nothing in the record evidence the substantial car record of one thousand two hundred pages that documents that chat show my hands are subject to serious physical attacks as he was on a of well widespread and well known basis or that the mexican authorities are are are are an able to seriously are unable to address these types of crimes we simply actually have no evidence about police responsiveness to in this in this record and that's why we see the board in the immigration judge focusing so much on what the police officer there is there any evidence in the record after he made his report in this case and his own situation that there was a follow up investigation there isn't any evidence because mr of oral has not put forward that evidence  just i don't know what happened to that investigation you're right that there isn't anything in the record that tells us what happened because mr of our who has the burden of proof with regard to be unable or unwilling requirement he hasn't put forward that evidence  and again i just want to emphasize why we see so much of the just so so much the agency focusing on that police report and it's because it's the only evidence that the agency has as to how police in mexico would respond to the type of harm that mr  aral suffered there's nothing in the in the record to help him and so you know that is why the agency talks about the fact that here the police took mr r o in for medical care opened an investigation by writing up a complaint in certainly you know applying substantial evidence review there is no record of events that compels the conclusion that mexican authorities are unable to protect victims of the persecution of our experienced respectfully a free hoping hopefully pronouncing that correctly that decision is an apple because although the agency was reversed in terms of focusing exclusively on the military of the guy in police to address the persecution experience by professor because they were willing to write a police report there was also a significant and individuals evidence in that case about the canadian police forces or unwilling to protect the petitioner and others like him there the police station had only one gun for the entire station people in a free is church group who had been murdered their crimes were left apparently investigated and certainly unsolved and the police required brides before they would provide their services so this is not a case like a freeway that is are comparable to a free  unless there are further questions i would just like to conclude the court should uphold the agency's denial of asylum in withholding on the basis that there is no jurisdiction over the extraordinary circumstances reasonable in this inquiry here the agency did not commit legal er for for the board to then consider whether the government can rebut the presumption because he's trying to get the presumption of past persecution he had there was a showing then let me think this really because he did court found jurisdiction that says the opposite though i mean that that there is jurisdiction if there are undisputed facts right but it doesn't say that there is no jurisdiction if there are just pitted facts correct it does s that though in my opinion because they make clear in who say that the facts were not in just a few they point out that because he has adverse credibility determination was not challenge he there were only a limited number of facts for the agency to look at in terms of analyzing the one year bar and they put so much i think of a stress on the fact that these there was not a factual dispute in that case but also those are brief mentions the cusp arrian case which is the the  petitioner there argued that her her p t s d post traumatic stress disorder was an extraordinary circumstance that that excuse for her failure to comply with the one year bar but there was contradicting evidence about you know whether her language abilities and her lack of funds also contributed to her failure to comply with the one your deadline and so there was a factual dispute and the court said that there was no ability to review i just also want to point out that the mr all borrow in his testimony he did not testify to the fact that his psychological sorters and cognitive problems were the reason for why he failed to comply with the one year deadline he actually he merely indicated that he was unaware unaware of the one year deadline requirement until his immigration lawyer told him about it and so there's you know another fact in play whether or not it was lack of knowledge that contributed to his five of the record you united states state department report a significant human rights related problem or threats and violence against some members of the indigenous community impunity for human rights abuses remains a problem throughout the country with extremely low rates of prosecution for all forms of crime the amnesty international report again indigenous people continue to be routinely denied access to justice the  ash testimony on page three hundred and forty the mexican government doesn't have the resources to protect the indigenous population the record at one thousand and seventy an article again where indigenous person was attacked in chiapas in this a country wide basis can make that determination in their home city or area and i think the government is confounding that we don't have a burden to show every single cation in mexico we have to burden to show that it alvarado and the psychologist were deemed credible their testimony were taken as credible mr alberto did say he was unaware of the sound that question and that is why he one of the his explanation for his failure to apply but he can't be charged with the responsibility of understanding a complex concept of his own mental condition that was detained for one thousand three hundred and twenty two days when asked why he was fraid to return to mexico he testified because in mexico i have never had a place that was safe for me i asked the court to consider the issues i believe that's true all right thank you thank you for your arguments that are submitted at this time