conservative muslim country in africa about the size of pennsylvania mr ty ruined his thirty's went online already married with two children and sparked up a relationship with a frenchm online they proceeded to not only establish a business together but started an affair as well that affair was exposed by some of tyra's cousins who became privy to his social activities this resulted in mr tire being invited out of the capital and into his parents village of origin where there is a village gathering harassment continued there is a home invasion after which mr tire who left his house that home invasion resulted in injury to his child and abrasion a minor injury to mr tire himself the home invasion corrected and in the record that he received two death threats yes your honor at least two one was verbal the other one also i think more direct and verbal i think he got to during the during the village gathering i don't believe that there were any death threats at since the home invasion i do recall that next time will the threat was next time his relatives would come back with a knife and harm him that would be the second death threat after that point he did get knock in runs i don't like instead of a doorbell running off and also telephone calls mysterious telephone calls there's did not amount to threats but they were certainly harassment mr tire eventually had his family moved out of their home the j for some reason described this as being able to be relocated within been in that's just fine if you don't have to work or ever leave your house if you can live by avoiding your family by hiding in your parents house  so what happened to yannick that is the name of his french lover is that he was also exposed he was chased out of been in a crowd came to him after which he sought assistance from the police and from the french authorities french representatives and been and they advised him to leave in fact country conditions in the immigration judge acknowledge that homosexuals may be arrested and been in on pretext of activities between you know consenting adults yannick was able to flee he fled immediately he did not return here mr tire did not maintain any relationship since then that should give the court pause in an indication for how severe and traumatic such an encounter a group encounter in a small african country may be once yannick left mr tire spent his  time first applying for a us visa and then getting visas to other african countries to build his travel credentials so then he could get the american visa he came to the united states and timely applied for asylum the immigration judge found that mr tire was credible and that he had adequately corroborated his claim however the immigration judge did find that what mr tyree suffered up until that point did not qualify as past persecution and that he did not have a well founded fear that is a ten percent or greater likelihood of being persecuted in the future meanwhile respondent faces at least a ten percent rather i believe this court would agree greater than a ten percent likelihood of having such a violent encounter in the future whether or not it's with his family whether or not it's in the village whether or not it's in the capital there is no truly safe relocation as the immigration judge found it's rather puzzling to have somebody hiding in a house in a country in the size of pennsylvania and call that safe relocation other countries in africa that this man visited are no more safe or excepting for homosexuals they also have significant muslim populations and even when there are other religions they are quite conservative  this evidence was offered not extensively discussed in the country conditions but it is there for this court's reference tire mr tire who fears that he would be essentially pursued again by his own family members even though it's been a while since he's been in your family doesn't change and he has family that disagree with his lifestyle with his with his preference for a frenchman apparently and also with his drinking alcohol now while some people can get away with this in the capital if you have an extensive conservative family this is practically harder to do in this case mr tyree already experienced a home invasion by his family  they did not give any indication that they would let up if he if he stopped what he was doing in fact yannick was already gone by the time the worst of the harassment happened so simply stopping his liaison with yannick was not enough the he's still going to be himself and the harassment is going to continue the harassment will become more and more violent just as it was promised i think the pattern of escalation is clear but unfortunately it was ignored by the immigration judge i believe that the record compels the conclusion that the i g erred in not considering or apparently not adequately considering record evidence that indicate escalation you consider harassment the same thing as not at all your honor harassment would be if this person had just received phone calls or perhaps just received knocking runs  persecution require implicit or explicit explicit government involvement no your honor it does not persecution requires the government be government be either unwilling or unable to help somebody who is being persecuted or harmed on account of their protected ground and it looks even worse when the government would refuse on account of that very protected ground to refuse to help somebody in this case this case  to leave and then indicates that the police are either unwilling or unable to protect somebody who himself stands out bright as day in been and on its origine yes your honor his situation is not really  well he was in been in and he was engaging in a homosexual lifestyle there i think that the treatment would be the same across the board the fact that the police were not able to or not willing to confront the people who were confronting old or no your honor he went to the to the hospital after the assault he did not contact the police often people who suffer persecution do not contact the police in their home country when it would futile in this case i think the record evidence about country conditions and the experience of yannick indicate that futility that the petitioner felt  in this case the government being unable or unwilling to protect mr tire only compounds their refusal on the basis of him being gay i think they would taken more seriously than a lot of governments that have indecent exposure crimes under which they persecute gay people i believe that their refusal reflects their public policy in this country  good morning change hoffner for the respondent he took up just a little bit short sorry thank you the record does not compel the conclusion in this case that mr tyra experience get familiar with the circuit long i am familiar with the circuit law that a death threat can constitute persecution right the record is unclear as to whether he experienced death threats we have  declaration for which there is no original in french at page two zero six to two twelve of the record we also have mr tyra's testimony before the immigration judge during testimony found him credible correct he did find him credible the the facts as articulated by the immigration judge make no mention of a death threat at the encounter in the village do they constitute are they a statement of his it is his testimony before the immigration judge he said that he was slapped he was ridiculed he was scolded he was  impugned his family members pulled his ears so the government's position is that he did not receive any death threats is that correct he did not receive a death threat in the village when his family members i'm sorry i'm asking a really simple question is it the government's position that he did not receive any death threats he did not receive any explicit death threats his cousins showed him a knife when they were leaving his home after the encounter at his home and they said next and the years in prison for things like that we certainly acknowledge he was threatened for the first time during his merits hearing he claimed although this was not in his declaration that during his encounter with his family in the homosexuality is not a protected class no not at all no the government concedes right correct ok the the the problem here is that  when reasonable minds might disagree about whether harm rises to a level of persecution courts are required to defer to the agency in whether harm rises to the level of a persecution is a judgement call committed to agent agency discretion the fact that two people might disagree about whether harm rises to the level of persecution does not prevent first is in his hometown with the group of people around him and the second was i guess it is house when he was shown the night and we've already talked about the night and you think that showing him the night and saying this is what's going to happen to you next time that that's not a death threat in your view correct is it implicit that threat they are it is an implicit threat what about two ten when he says they threaten to kill me and that's and that's the point i was trying to make before that we have the declaration and we have the testimony that the declaration your trial lawyer as well as appellate lawyer do you do trials as well as appeals i do not  let me just tell you as my years of a trial lawyer your witness often says one thing one place and one thing another they don't contradict each other but there's it information sometimes when they get on the stand they decide to tell the world something they've never told you so i sure that's any indication of anything except it appears one place and not another plea we didn't say we're duty you tell me did he say in his testimony he did not receive any he did not deny receiving death threats he simply didn't mention any death threats in his encounter in the village he said what he did not he did not mention having received any death threats when he testified in or the immigration i did not receive death threats that's the i'm sorry i've lost my train of thought no no no i'm sorry i apologize the the the experiences that mr  had in his village at his home the knock and runs in the calls that he received afterwards certainly unpleasant we would ask the court to be mindful that persecution in this extreme concept that it does not include every sort of treatment that is regarded as offensive that the cases that petitioners cites in his brief as examples of persecution all involve conduct far more severe agree just than the conduct he experienced here he  started a relationship with another man in two thousand and seven there's another man in addition to yannick a man named gilles with whom mr tyro had a new relationship beginning in two thousand and seven and he claims continues to this day there's a letter from gilles in the record at page one sixty they had a relationship from two thousand and seven until two thousand and thirteen and again going forward mr  problems occurred in august of two thousand and thirteen after going out with a cousin and that cousin reporting to his family that mr tyro who had been openly affectionate with ya nick and had been drinking alcohol mr tyra who had no problems again from january of two thousand and fourteen until he left the country in march of two thousand and fourteen today for the first time tyreese attorney says that his wife never left the house after the very located in january of two thousand and fourteen there's no record evidence to support that claim at  all she submitted a letter at i believe page one fifty seven and she makes no mention of whether she leaves the house whether she doesn't leave the house in fact there's conflicting testimony as to whether she continued to run her business  mr tyra claims today also for the first time through counsel that a crowd chased yannick out of been in there's simply no record evidence whatsoever to support that claim all we know is that  mr tyra testified at pages ninety seven to ninety nine that two policemen came to yeah nick's home told him he had been denounced period they did not arrest him there's no testimony that he was threatened there is no testimony that he experienced any violence mr tyreese declaration said that yanick spend a few days at the french embassy there's no indication that the french embassy advised him to leave encouraged let me back up just second admittedly can use a little bit this is the government concede at this point that threats of death were made is that what i we recognize that the court has held that death threats constitute can constitute persecution we recognize that brandishing the knife is an implicit threat we would still argue that humility of only his experiences did not constitute persecution particularly given other cases where individuals have experienced far worse treatment ok you can always find cases where people have experience or worse treatment than the matter before the court and i'm still not quite clear on the government's position here when the knife was we have we acknowledge that the fourth circuit has held that death threats can constitute persecution humility of we don't believe that what mr tire experienced here constitute persecution if explain to me why not the that the court must look at at all the events humid of lee he maintained a homosexual lifestyle from two thousand and seven to two thousand and fourteen and had  specific encounters over that many year period and after relocating with his family never had any other problems while continuing to maintain a relationship with another man not yannick if the court concludes that he did experience past harm rising to the level of persecution we would ask you to remain to the agency to determine whether that persecution was by persons the government is unable or unwilling to control that is not an it and an issue the agency made an explicit finding on i'm sorry that is what i couldn't quite hear you sure that is we would say if you concluded that he experienced past harm rising to the level of persecution we would argue that remained is required for the agency to find in the first instance whether that harm was inflicted by persons the government is unable or on willing to control is there any finding by the i j or there was no finding yes that would be appropriate or right an additional finding the i j a may need to make upon remain and is whether there are changed country conditions or whether any presumption of a well founded fear can be that and i'd like to make the just very quickly address that the the immigration judge did in his decision consider the fact that mr tyra's son was hospitalized we would note that this case is different from many of the cases cited in petitioners brief because there's no indication that mr tyra's cousins intended to harm his son he mr tyra admits it page ninety four the record that it was an accident that his son got in the way it was not like so many cases where a persecut intends to harm the victim by harming a family member as i mentioned there's there's no testimony in the record at all about what hiding means  is that the cousins the cousin said you know if you continue in this path next time although although mr tire discontinued his relationship with aeonic he continued a relationship with with zeal notwithstanding his cousin's threats he never saw his cousins again after the august two thousand and thirteen out to his wife in two thousand and nine she admitted to him at that time that she is also bisexual he has said that they have both have open relationships with with other people the two of them it was in evidence today she was about around other people knew about her relationship we don't know what other people know about her relationship what i mean by record right we seems to me like you've of the immigration judge did that was incorrect which was not deal with these death row i mean there's no really no way you can do that we can you can be a fabulous appellate lawyer but you're stuck with the record you have right i am certainly stuck with the record i have you know there you go if there are no further questions i would ask you to deny the petition but if you are compelled to conclude if why he could be denied relief but we have to go on the basis that the j came up with and to be ira we can't go outside and find additional reasons correct they found no know well founded eight or what they say what they said and we that's all that worse that's the rationale you're stuck with correct right now yes and and we would argue that the record simply doesn't compel the conclusion that his experience past persecution and it certainly doesn't compel the conclusion that he doesn't have a well founded fear with that i will sit down thank you oh says if you think you need a thing in response to the government's argument i just like to submit for things for the court's consideration which i'd like the court actually not to consider because they're not very relevant not being outed for six years is not relevant the fact that he wasn't outed during a previous relationship is not relevant you can't unring a bell so not having been outed in the past does nothing for a ten percent or greater perspective of encountering violence on account of one sexuality the egregious conduct is to come the government mention raised the prospect of change country conditions there's nothing in anybody's argument up to this point to to support raising that issue at all you finish the government indicated that cousins did not intend to harm mr tires son we're all lawyers and we know that specific in general intent when it comes to insult to assault it doesn't really matter who you're after it matters why you're doing it and whether or not you've actually assaulted somebody the fact that the harm fell just short of mr tire is irrelevant the harm existed it was perpetrated and if there's