morning honors may please the court my name is anna brand new i represent petitioner jobs one nursing this morning today the court's review into agency decisions both of which unlawfully shifted the burden of proof to petitioner to show that he could safely and reasonably relocate rather than applying the regulatory presumption that in fact because he suffered past persecution he automatically was presumed to have a fear of well a well founded fear future persecution on account of of his political opinion and based on the original claim we're talking about a reasonable guess well yes ron are also talking about safety relocation so both issues are ones where the government bears the burd is the dollar cost issue only go to reasonable notice no i think it absolutely goes a safety as well although the presumption that he's entitled to is that he will again in a new location in india be politically active for his political party as political beliefs not on account of his dolly it's not us because that's not a basis of past persecution the basis of past persecution is his political activity and he was arrested and tortured by the police he was also persecuted by private actors and that's the same thing that is presumed will happen wherever he goes so the safety his safety as a political activists a new place he it's this court must assume as the courts below should have that he would again be politically active however we've got lots of cases of the same kind of stuff as a relates to the safety or relocation and we have in those cases said every time the office is unlikely to look for persons outside of punjab and therefore not a problem i agree and i think why is this case any different well it's not actually different it's just that that's one part of the inquiry whether the well i understand what i'm just trying to get through safety because that's where you want to go first well i'm going to go to reasonable most of them to go there sure we'll talk safety first so the officer whether the punjabi police will pursue him is certainly a question but if they won't and just assume for the sake of argument here for a minute that they want that's not where the in korea and i think it's this court has on many occasions how say in a case of religious persecution if i'm a christian and i am persecute on account of being a christian i move to a new place the question  only whether officers are going to hunt me down for being a christian they're going to go seven thousand miles to my new location the question is also whether and the presumption that i'm entitle to is that i will also suffer persecution as a christian person in the new place and what was the overwhelming evidence that he would be persecuted in other parts of india for this political activism but he's entitled to a presumption that he will be so the question is what is the evidence that he won't be and that's what the government must come forward with his evidence that  in this record that that in the new place that when he is again politically active that local police in that new place won't act the same way as they did before that's the presumption to which he's entitle i understand your argument i'm not sure i mean so it's really a matter of us just looking at the evidence that's in the record and see if in a substantial or not it is except that in this case there are like six or seven things that show you that  a gratian judge and the board misallocated the burden so rather than looking oh i don't think they had a burden problem as a relates to the safety well you might be saying what you want to say about reasonableness but i guess you'd have to point in the record where they did that on safety happy to it comes up in a couple of places jump to the dollar cost the reasonableness i think you might be on stronger ground are you talking if it's both and it's the government's burden on both things so with regard to the dollar at the board itself it's expressly sa now just a minute they didn't say anything about raise the claim necessarily but they really were saying and i reading now for what they said it was reasonable for the i j a did not specifically consider the respondents alleged dollie class affiliation because the respondent himself explicitly only mentioned that is inability to locate was based on the fear of being tracked by the police they didn't say anything about dolly they went on the board then went on to say quote he did not specifically raise facts to support a claim well of inability to relocate and then your honor they cite think about let's think about that supposing that your client had a health problem and that he couldn't relocate because of the health problems if your client didn't actually put the health problem in the record would the government to have to do something about that would the government have to respond no but this case is different cause he did put the fact of his dollies that i said well is the fact of the dolly status anough to suggest that there's a difference then i mean with the dolly be treated differently in any other part of india than they would in the part where he was also there's his testimony that he was a doll eat and there isn't evidence in the record about how  treated and the board itself said he didn't raise the claim they cite this court case and i give larvae gonzales i realize the past persecution case where respond in that case our petition or in that case bore the burden of showing past persecution to the board is clearly saying he needed to raise his dollies that is as a claim but it's the government's burden well i'm trying to do you can go to the end of your argument if you want to would let's concentrate on what i'm trying to get at here i don't know that this can show that they shifted the burden only that he did not raise the fact enough to make it happen i mean he says and i'm trying to give him every credit i fear of being tracked by the police sure doesn't say anything about dolly right but it's the  has own testimony doesn't say sure that's a fear of being a dolly right but he is a dolly and i know they understood he was a dolly right but he never said anything about it the regulation requires the judge to consider a bunch of factors including his social status and there's evidence in the record that shows that dolly suffered throughout india and so the combination of those two things means that the judge's failure to consider that is because it misallocated the burden it didn't it didn't it instead of requiring mr saying instead of requiring the government to prove why delis can safely and reasonably relocate it required mr singh to affirmatively come forth with evidence about his status as a doll even what that means but that's the burden then where are you on this issue that he brought up the fact that he was a dull lead and he did all he needed to do or he given the government's alerted not bring up the fact he was a dolly in response to these questions but he knew he was a dolly in his testimony talked about how he had had an affair with a dolly woman and that he had suffered as a as a result of and so she was not and i'm sorry problem i think if i was so that he had an intercalary affair and that as a result he suffered so that the fact was raised it wasn't like a secret illness it wasn't a secret cast there were like later bringing up that would be a different scenario might i reserve the rest of my time thank you so much i'm surprised you didn't say anything about the humanitarian be right back well i would hope that he would have given him a chance to respond to your argument  please the court victor lawrence on behalf of their terms general your honor substantial evidence supports the agency's petitions applications for asylum and withholding on relocation grounds this issue of the dalai cas that the court was  clearing about is one that was barely raised to the government in the first place and wasn't raised with any idea that the government was that the petitioner was suggesting that he was going to have trouble relocating as a result of this class is it part of the reason that the burden is on the government to show reasonableness of relocation that someone in the situation of having been persecuted in one place and only having lived in that one place might not really know i mean how is he supposed to know whether he can relocate to some other part of india it's part of the idea is the government's burden if they're going to overcome the presumption to show that he can and he'd put in the evidence that he's dolly so why isn't it the government's burden to deal with that as part of their overcoming the presumption because there's absolutely there's absolutely no and doesn't the government have to take him as he is with his social status any known health consequences all of it and prove that he could reasonably ok and one of those essential components of him is what caste system he's well actually the critical burden on the government is to show that there was some sort of individualized analysis with respect to relocation in comparison with the record evidence and that is what the government did here the government looked at his individual characteristics the fact he is young able bodied the fact that he had pottery skills the fact that he had computer skills the fact he spoke to job and the fact that he spoke some english the fact that they were sikhs in very  in places all over india communities and all over india so looked at his individual characteristics and also looked at the record evidence which showed that six have no problem outside of the pun job  you know my opponent really pointed to no evidence that there would be some national effort to find a sick a low level sick of it that doesn't you haven't said anything about the dalai class issues so if the government has the burden to overcome the presumption then how did it meet it burden on the dalai class issue when when something is not raised except in tangentially such as the doll it class the government cannot presume that that years later that this is going to be the focus of the court's inquiry with us how did the government take him as he is with his social class and everything else how did it take i don't hear any response to the question about how it accounted for all of the factors of who this person was in burden again i think it did an individualized analysis by looking at what this what this who this person was the and that includes you know it may not to mention the fact that he was of the dali class but they knew that he was a sick who was going to be in an area outside the plant just say he was a single woman just change the circumstances with the government have to consider whether a single woman could relocate to a particular part of india with the fact that it was a single woman be something that the government had to consider without the petitioners saying single women can't live in that part of india your honor i kind of resist the hypothetical i mean i would have to know all the facts i'm just trying to figure out and an essential part of a person that the government does not have to consider in its analysis unless the petitioner waves his hand and says hey what about this part of me right i guess to answer your question this is that could be a factor that the court the government could consider or it may not be if there's a wealth of other evidence that shows it didn't individualized analysis and found for various reasons that that safety it would not be a problem in his it's i mean how do you prove the reasonableness of the relocation if you don't discuss all the circumstances and i think we have to look at the basis the agency gave the basis the agency gave is not that being doll it's not a problem the basis they gave is he waived it but how can he wave it when it's the government's burden well he waived the issue with with the doll it cast by not bringing this up before the immigration does doesn't that put the burden on him to make arguments that really are the government's burden to be making you know because because it wasn't until post all this briefing that we realize now or at least it before the board that that petition is setting forth this this defense to relocation the fact is that a member of the dalai class but he knew at the time and he was represented by counsel before the immigration judge who and his counsel at that time knew what the law relocation was and  if he thought that this was a important defense to indicate that he was a member of the dalai cass certainly he would have raised that in the questioning of his witness but instead all the witness talked about was his fear of the tenant registration drives he didn't say anything about the fact that well because i'm a doll and i'm concerned about going to any other area of what so he did but he did say that the lo created problems with regard to relationship with the female right yes yes he did but that's a far cry from being persecuted if we're talking about whether he has a well founded fear in other areas of india outside  him for credibility but he so we assume that's the case but does he have a well founded fear outside a punch up well the problem i guess comes in this is where in my book it's kind of a tipping question there's no question and when being asked about whether he could relocate he doesn't say anything about being dalai carets no question there's no question and he only says that there's a fear being tracked by the police and there's only other one testimony in the record at all it says that is low caste creates a problem and that's with that lady right so i mean it seems to me that what what your opposition is trying to say is simply because the government knew he was dolly and he didn't say that that was a problem with being located relocated the government nonetheless has a duty to suggest that dolly is a problem because they knew it was one and deal with that situation what your response to that my response is that it's not fair to put that overwhelming burden on the government to predict that this is going to be an argument that had to deal with when the board's opinion when the guy didn't even raise it except for the fact of the relationship that he was and you have a case that supports that i do not have a case except to say that look there's an i think it would be a far reach to say that the government didn't meet its burden of doing an individualized analysis of the record evidence with everything it did by looking at the individual circumstances of this individual just because it left out one issue with respect to his dog class there's no indication that that's going to be any more of a problem for him than anybody else in india that's a member of the dolly class so why should the government have the burden of discussing that specifically when they're perhaps millions of people in the dolly class in india generally so there is no reason why the government should deal with that issue when it's an issue common to every member of society not just mr so i mean if all those people who are dolly are really suffering then that would be relevant wouldn't it and there is record evidence that that may be the case just because there are a lot of them doesn't mean they're in a good right but does that mean that every individual of the dalai class is welcome to get asylum and i know that he proved past persecution he did and i don't want to go too far but he proved past persecution with respect to his dealings in the pun region and we're talking about not relocating him to the punjab or talking about relocating to any other part of india where there are sick communities all over the place who practice their religion and practice there are members of the political party the humanitarian asylum what was that being used for i'm sorry if you tell me exactly where there i think that i j referenced the country reports in denying the humanitarian asylum claim and i'm wondering what your understanding is of the reason for citing the country reports what they were being used to show i don't know i don't know the answer to that we do think that immigration judge did not abuse his discretion in determining that he was not going to grant him well i guess the worry i have is that in general maybe one would say that but if the jury applied an encrypted standard to twelve o two point one three b one three a then there is an abuse of discretion well we don't think he applied an incorrect standard he well maybe he did if you're not supposed to consider ability to relocate and maybe that's what he meant by the country conditions i mean it's unclear what he thought he was relying on or what the legal reasoning was that he was using to deny this claim it's possible it was incorrect legal reasoning well what i would say is the fact that he cited the country reports i don't know what was behind the immigration judges analysis when he cited the country reports or what is the other places he cited it for the ability to relocate but it's not do you think that ability to relocate is a proper consideration for humanitarian asylum not necessarily but again i don't think that's what the immigration judge was going for here he was looking at the record evidence and determining  that on the record as a whole doing an individualized analysis of what this petitioner offered that humanitarian cylon was it was not something that he would grant and i think it's there's nothing to say that it was arbitrary irrational or contrary to i'm going to pick up right where we just for humanitarian relief is it your position that there was nothing in the country in the country report that the i j a could properly have considered and humanitarian relief yes your honor that is my position that the country going to things are totally inappropriate for that part of the analysis that the regulation only ask that you look at his harm and whether he suffered a specific severe type of persecution that would warrant it even in the absence of a well founded fear that's exactly what it says forget the well founded fear forget if it's been rebutted even assuming it's been rebutted has he suffered such that you shouldn't compel him to return i think it's very clear that every man is required here on humanitarian based on both the immigration judges miss application of the regulation and law and the board's sanctioning of that without any explanation of why they were sanctioning it because one could not allow the consideration of country conditions considering the severity of the person exactly that's the whole point of humanitarian asylum and going back one minute to this part of provisions as i just think it's the judgment on us let me just ask if we agree with you on humanitarian asylum and we need to remain because about is there any reason to discuss anything else yeah because only because in this case if he isn't granted humanitarian asylum for whatever reason then he's done and in this case it was so the burden was so improperly shifted to him that this court must remain and on the other issue you asked my opponent about a case for the need to go read it it seemed to me that the case in free said where the panel cannot determine from the record where the b i properly shifted the burden or whether the b i considered the factors set forth in there says he at least got to say what my problem is and he did that even though he didn't say anything about when we came i mean there's nothing in this record to suggest that when we came to the decision of why you can't relocate he said thing if you don't have the facts if he's going to sit there and he supposing he was as i said supposing out a health problem and he didn't say anything about it but that's a secret when you're under here when the fact that it was so the fact that everybody knew he was dolly that means even though he doesn't think that's a problem and reka locating because he doesn't bring it up the government's got to none the less address it just as what is the meaning of the bob kerrey says that well the burden of proof on the government all i'm talking about we know what the burden of proof cases are but what cases there that suggest the government has to address something that's in the record that the  case one five seven three six nine six is submitted we'll move to case one six one seven zero zero five ellis versus j p morgan