it please the court joseph the grounds of four petitioner this immigration appeals this morning presents two issues for the court's consideration the first issue is whether the board of immigration appeals abused its discretion in denying a timely filed a motion to reopen to speak adjustment of status on a marriage based petition and the second issue is whether the immigration judge's findings that petitioners incidents with native  in march of last year at a at about the times of the briefs were due and he in fact naturalized in may of last year and i've been speaking with government counsel outside off the record and apparently there has been an interview scheduled on the one thirty petition the merits of titian what what makes this case so compelling in light of the velocity board's decision governing motions to reopen in these situations is that we have a marriage based petition that was filed by a permanent resident spouse husband back in two thousand and two and unfortunately the petition languished or fell through the cracks as i indicated to the court he has since naturalized the motion is not barred by the matter of shaw shahr rather or on any other procedural grounds and the service did not oppose the motion of that time and i believe that's that's what is critical here also your honor we have a lady  the board could have read mandan back to the immigration judge and if it was within the power of the i j a possibly administratively close the file if the government had joined in a motion to do so and that way kind suspend the proceedings until the husband naturalized which he did last year and then divvies it would become immediately available otherwise we have a situation where this lady had unfortunate been waiting two or three years three or four years which i know in the immigration system may be not considered a long amount of time but what we're trying to do here what we're trying to do for the petitioner is try to of avoid having her removed from the united states and having a consular process from out of the country recently d h s s unfortunately has not agreed to sign off on a motion to remain and there were numerous attempts to to ask the h s to remain on this case and that would have taken care of the whole thing and made the whole matter removed but unfortunately as potential was credible she credit testify credibly but he found that the incidence described by petitioner at her regular hearing some four or five incidents some involving violence involving native petitioner is east indian from fiji and the court is aware of the long history of racial strife involving native jobs were which in our opinion and before goes into that in some detail yes and the history of at least two coups one in two thousand so if you view the petitioners incidents in light of the long history of racial strife and not just consider current country conditions it would seem to compel the finding that this lady has in fact suffered persecution and in fact also has a well founded fear of persecution if she had returned to fiji she in fact testified at the hearing that she fears attorney to fiji because of the natives and because she's indian  we make of the i j s somewhat passing reference but he did refer to the fact that the after the telephone call threatening the daughter not named apparently with rape he sent the father sent the petitioner out of the country but not her younger sister and i think who i think was around nineteen the time and apparently for all the records show she's in the family she's remember family members who remain in fiji the fact that they may not have suffered persecution similar to petition or is not the relevant consideration here because they've what i meant was that i understand but the r j was so that it was a anonymous threat and nothing's happened d d noted that the daughter remaining did remain that whatever the substance of the threat was it wasn't enough who rise to the level of persecution and whose view because of the sort of them an anonymous unfulfilled threat well your honor i believe the circuit has also held the threat so long without physical violence and constant persecution  it's of interest to know that she testified that when this caller had had spoken with her dad on the telephone with i believe the quote was we will kill and rape your daughter without specific references to to which daughter there were two two daughters in the family including petitioner we would submit that the fact that the family remains behind but has not fortunately suffered persecution as fisher does not that central now says here if they had suffered persecution sure that would be part of the consideration of whether there is a well if we have incidents of persecution or incident the rights of level persecution by forces by government by the government or forces that the government is unwilling or unable to control that  granted if it's granted then the next step step would be for her to ask d h just to join in the motion to reopen her proceedings she cannot she's too late to move on her own for a motion to do you engage in any discussions with them to see if there's a way to resolve this so amicably without inviting precedent from the ninth circuit well if it's something that they are not willing to consider to that i want thirty's approved and then they look at whether she is eligible for adjustment and then all the discretionary factors that they would consider at that time so you're saying mediation would be useless in this case i don't think mediation would be appropriate at most i would suggest a court if it wants to information about what's going to happen with with that part of the case but that's that would be the most i would think would be appropriate at this stage thank you i don't know if the court wants me to address the motion to reopen up the  we see there's no basis to conclude that it compels such a conclusion immigration judge found that she had failed to establish half prosecutions for three reasons first that the incidents of she had suffered were not severe enough to rise to the level of past persecution and he said judge look at those both individually and collectively the judge also found that there was insufficient evidence that the incidents that occurred to her were on account of her ethnicity and the third was there was no immigration judge found there was insufficient evidence that the government was involved in the incidents or that the government was unwilling or unable to control the perpetrators of the incident here seems to be  of events that occurred in one thousand nine hundred seven during the ethnic unrest in that period of time in her incidents occurred while she had the one incident the one occasion of stoning in one thousand eighty seven and then nothing happened to them for the police said that they were investigating the incidents and we just find the page number of the two nineteen to two twenty of them are data records she says the police said they were investigating of they didn't other than they said they were the incidents were just two muggings basically brief incidents where she was overcome and her wallet was taken or her groceries were taken as you know even in the us the police don't put those on the highest priority and the difficult to solve she didn't know who her attackers were the case therefore can be distinguished from the same case where the alien gave the police names of his attackers he knew who they were and yet nothing happened so that is evidence that the police escalating degree of persecution and goes from what you call simple muggings but she said that she does happen five to six times per year to her members of her family and then she gives her father just as threatening phone calls threatening murder and rape persecution and the persecution has to be something that individually targeted at the petitioner and there's no evidence here that to compel the finding that she was individually singled out for persecution let me take the other side of that you said th they didn't name which daughter the daughter who did leave i thought there was a shooting and nothing's been carried out against the remaining daughters ergo it was individualized against her she left so the threat succeeded and she left the country but also a friend her father said you know you have to leave the land or we're going to do things to you and the father as hard you know they remain in their residence and nothing's happened to the father either if you got a phone call or to we're going to murder your daughter and rape or would it take more than one phone call to make you feel that you've been persecuted or singled out i get a daughter are there mischief in this case they know they threatened the family they didn't indicate that it was on on account of that's an estate which is what is the requirements in the act and you testified that she recognized the voice or father recognized the of the uncomfortable relationship that this is a indigenous problem to the c g of ethnic violence and discrimination which the country report still threats or continuing threats and there's no evidence of that here so the the court is held that just the mere threat without evidence of more is not sufficient to compel a finding of persecution or a well founded fear of persecution this case i think if the family really thought that my time is up but if they thought it was a real threat they would have sent their other daughter away and they did not knowing the only reason was they said she was not she was