morning your honor may please the court my name is mary beth kaufman i'm appearing on behalf of the petitioner maria not you have to type i would like to reserve three minutes of the battle simply put this is a case in which the immigration judge ignored the plain language of the relevant regulation and longstanding ninth circuit precedent furthermore the board of immigration appeals through summary of permanence fail to address mr tice claims of procedural the facts denial of due process in his decision immigration judge clearly found that mr thai had suffered past persecution in romania once he made this finding he was required by the regulations and ninth circuit president president to presume that mr tight is eligible for asylum he is then required to engage in an individual life analysis shifting the burden to the government to rebut the presumption by a preponderance of the evidence we believe that it i clear that the immigration judge did not engage in any such analysis under the regulations and once the immigration judge found that mr thai had suffered past persecution she was entitled to the regulatory presumption of eligibility for asylum the presumption as i mentioned can be rebutted if the government shows by a preponderance of the evidence that there has been a fundamental change in circumstances such that the applicant is no longer no longer has a well founded fear of persecution the judge did not reasonable possibility that she may suffer other serious harm upon removal to her country has suffered very severe psychological and medical consequences of the persecution that the judge found that she had suffered and the regulations were were brought in and by the department of justice to allow the judge to exercise discretion in cases of past persecution where the applicant has either shows compelling reasons for an unwillingness to return based on the severity of the past persecution or a a reasonable possibility of other serious harm and that harm need not be based on a protected ground and  we believe that mr tigh has a very strong case under this standard and furthermore we would like the judge to consider the evidence for example in mr tice case the judge failed to consider that the the president at the time of the hearing was the former president a communist president that had violently repressed dissidents during the period of communism and the the baseline conclusion the question then is whether even the presumption that it rises from that whether that in fact you know has been rebutted and the difficulty i have is even though the i j a seem to say things that sounded like the burden was being placed on her if in fact the record with respect to country condition did find that that in effect showed that there wouldn't be anything down the road what are we supposed to do with that because that seems that you can divorce it from possible evidence  lighted well your honor is our position that we can't look to whether the immigration judge judge's decision is supported by substantial evidence if we don't if he hasn't laid out the standard of proof he is applying so she has not demonstrated that she is going to be persecuted that's what you're claiming is actually the misapplication of the standard the only time that the immigration judge mentions the word presumption is quote of the state department state department country profile he makes no mention that the standard meet needs to be individually apply to her that he must make an individualized analysis under one circuit case law comparing but we don't know that well as i mentioned your honor we believe that titled to asylum under the regulations that allow an applicant who has been found to have been persecuted on account of a protected ground in the past to be granted asylum because of a reasonable possibility that she may suffer other serious harm this is a regulation that was not mentioned by the immigration judge was not mentioned by which that regulation could be invoked before the immigration judge the counsel in her closing statement before the immigration judge referred to the presumption that  r tie why it's in title two and once that presumption is applied the following regulations that the judge must follow clearly state that once an applicant has been found to have suffer persecution she may be granted even where the government reports the evidence of eligibility by a preponderance of the evidence she may be eligible under the two additional standard in the same regulation which is home telephonic anonymous death threats because of their participation in the christian democratic party what was the threat to do kill her if that she would that they would be harmed if they continued the welcome back thank you move please the court let me get right to the burden shifting issue since the court asked a number of questions about that i grant that the i g his decision does not explicitly refer to the presumption and the burden shifting but i think it is quite clear from the face of the i g decision that he did not in fact place the burden on the plaintiffs to show an absence of change the country conditions beginning on page forty eight of the administrative record that's the point at which the i g begins talking about the state department reports it's clear that he is looking to see whether there is affirmative evidence in the record that would rebut if this were a case where the g had said the plaintiff has failed to prove that conditions in rumania have not changed then i think that arguably would have been prejudicial error ok let me have you jump to page fifty one where in effect that's what the i j a saying the court is compelled to conclude that she has not demonstrated that she's going to be persecuted if she is sent back to romania yes but again i don't i don't see that is i mean that she does she have a did she have that burden well certainly she has the burden of proving persecution in the first place once she proves past persecution and did the i j a find has persecution during her teenage years yes back in the sixt past persecution so then she has a rebuttable presumption of a future persecution correct that's correct but then the i j a says here that she has not demonstrated meaning she has not met her burden as to future persecution and so i mean you're obviously left with the record your doubt but that seems quite clear to me that  j a was mixing and matching the appropriate burdens and whether it would come out the same way i don't know well yeah i guess i don't quite sure that seem reading that you do you're on a well if you could that's either where the anywhere in the opinion that  the term a nation that the government has met its burden and that it's done so with respect to a particular i just application of country conditions well with regard to you latter point about a particular ised application i do think that the peers threw out the i j s four page discussion beginning on forty eight and going through page fifty one where he is you can see he basically takes statements from the country simply doesn't quote the country condition and say case closed but actually applies those change conditions in the context of the individual's claim that's the fish and that's how the analysis should go forward and i think again the fact that the  four pages of discussion of this pointing to specific evidence from the country reports shows that he was looking for affirmative evidence rebutting it i think it's it's also important to emphasize again here the the the current the current era and i think of course this court standard review is not is there evidence that the reasonable fact finder could have used to support the petitioners knew but rather the question is is the evidence compel that conclusion and i think that the state department's two thousand and two report is dead on in this respect and that it talks about how rimini of course you know well over a decade ago overthrew the repressive communist regime it is now multi party hundred ninety communist regime rather it's situations where the police are allegedly abusing street criminals who are in detention and they may not have full access to courts and things of that nature so to the extent that problems still per are different in kind than the repression that the petitioner allegedly suffered back in the one nine hundred sixty s i think it is abundantly clear that at a minimum there's evidence to support the i g view that country conditions have changed and that a woman process violation and certainly this court looks to whether there's precious arising from that violation and i do think that it would be largely empty exercise where this court to remain and to say have there been government and conditions of changed you could still under the regs you would have the burden or the opportunity to prove precisely why there is quote a reasonable possibility that she may suffer other serious harm upon removal to that country which can include psychological harm and mr ties entire family has immigrated to the united states she has no remaining family in romania and very severe ongoing psychological issues as a result of the persecution that she so that he finds then your argument correctly even if she would not be subject to persecution because simply going back to a place where she had been persecuted would cause her psychological or emotional trauma that could provide a basis for her to remain in the united states correct or not go from a year with the cases stablished kind of exception they eligibility for asylum might be established the first two which i believe you are referring is compelling circumstances due to the severity of the past persecution the second which was more recently added to the regulations is a reasonable fear of other