other had proffered particular social groups turning to the first point when the board disregarded the immigration judge's findings of fact and supplanted those facts with their own this was engaging in standard of review now you're the same counsel this is a legitimate question this is not like the earlier case because the board opens but very clearly saying what stand review is and very clearly doing a traditional b i a review right first when we're talking it when the judge immigration judge found that the threats that mr miranda received were credible specific and not exaggerated later the board then says that they were not immediate or severe in these threats were vague these fine these are findings of fact in the boarding gate and it sounds like conclusions i disagree how can you tell because those are issues of fact they are not legal conclusions the legal conclusion is when they said these threats do not rise to the level of past persecution that is a legal conclusion that they may be reviewed in november when we are looking at the character of the threats we are looking at the evidence presented to the immigration judge the i j a stated in complete opposition to what the board later found the i j a stated that they were credible they were specific they were not exaggerated and this is the requirement under the law so than the i j also moved on to find the correct legal conclusion there's a second place where the board also supplant the immigration judges findings of fact the immigration judge's findings of fact supported his decision that the particular social group proffered by mr miranda and the i j a was a cognizable particular social group in matter of l e a the board found that when looking at the cognitive ability of a particular social group this is a fact based inquiry made on a case by case basis so while the cognize ability is a question of all it is  undergirded by findings of fact that the i j a is in the correct role to make the i j a stated that this was a particular social group because it was in fact particular it was distinct it was immutable these issues that undergird the concept of cognize ability are issues of fact that can be found by the immigration judge the board then for its part stated that these were not particular distinct  evidence and testimony that the immigration judge used to reach their conclusion here the board did not say it was engaging in clearly clearly erroneous analysis and while it did hurt the issues of some of the evidence and testimony it also didn't directly say this is where the immigration judge was wrong and we are now taking our own fact finding into analysis this court in waldron v holder i think threaded the needle of this nuanced situation the nuanced relationship between the immigration judge in the board and walton view holder this court said that there is a difference between weighing the factual findings as the i g found them and really weighing the underlying evidence and testimony that the immigration judge relied on here we're looking at a situation where the department in its brief says you know the board is only very weighing evidence you can only really weigh an immigration judge the underlying evidence for these reasons this court should reverse the board's decision even if the board did not engage in this didn't novo review of the facts which it did but even if it didn't mr miranda still show that he suffered past persecution the board misstated the law on past persecution when it said that mr miranda did not suffer past persecution because he was not physically harmed and had no physical confrontations this is a misstatement of the law and also a mis characterization of the facts in this case this court has repeatedly found that there is no requirement for physical harm in order to have suffered past persecution long of the holder lobby holder schol of regan's all this corrado v ashcroft specifically says that single death threats can constitute persecution if it is not exaggerated nonspecific or lacking in immediacy again these are those same findings of fact that the immigration judge already found but more importantly this is showing that there are instances when threats of death are enough to constitute past persecution when the immigrant excuse me when the board of immigration appeals stated that because he did not suffer physical harm he did not suffer past persecution this is a misstatement of the law it is also a mischaracterization of the facts in this case to say that he did not suffer a physical confrontation mr miranda was seated next to a boy in his taxi this boy was shot from the back seat directly next to him that shooter then turned the gun to mr miranda and threatened him they then shot the boy more threaten mr miranda again this single incident of a death threat fits the care the characterizations of a threat that rises to her persecution ok was it momentarily you know that's what the board says the board adds momentarily the gay members momentarily pointed the gun at the response i don't know what the definition the board is finding with momentarily find momentarily the same way the border you know your honor that is in the back like the long apparently or whatever the other word is yeah i'm pretty sure that's what the i j found always it was an immediate threat and it was credible and it was severe i don't know what the i a finds credible severe and immediate but whether that gun is held to you for seconds whether it is held to you for hours it is a serious threat mr miranda does not need to be shot or held hostage for three hours in this gun at the responded and threatening yes your honor i don't think momentarily is out of the question right i also don't think that momentarily as a finding of fact made by the i j a there if there are questions about the length of time and if that were a material then they should have reminded to the i j a the other thing is that we look at past persecution in cumulation after this point in time in this taxi we have mr miranda we have the boy who was murdered we have the shooter and we have another man this other man then s mr miranda in a local market and says they're looking for you this is from a gang member a known you know associate of murderers saying that they are looking for mr miranda this is another thread and then i disagree i think your laws that the immigration judge as fact when they are not clearly erroneous must be accepted in the facts are that this threat was not or this threat was not exaggerated it was severe it was immediate and it and then the conclusion the legal question is did it to persecution then finally the board did not address a third threat that should also have been taken into account the boy that was shots family later murdered the shooter of the boy they then began threatening mr miranda through his family and stated you will be the next victim this is a very clear credible threat now we're looking at three different instances in the multiple threats of against mr miranda's life by people who are capable of killing willing to kill and shown murderers that was seduced sister though correct yes your honor i believe there are also phone calls to his mother that are  said to him go not directly to him he was in hiding already at this point which is so when in this these threats were called vague this is a mischaracterization of these facts further it's supplanting the immigration judges fact finding looking at looking at this we see that mr miranda did reach did rise to the hit what he suffered rose to the level of past persecution but importantly the board of immigration appeals did not address future persecution and the immigration judge found that more likely than not mr miranda will suffer future persecution upon return to old salvatore well now wait they did they they do talk about future persecution i know they say on account of social group but they're addressing it in that paragraph i think they are  be future persecution less on account of membership the group right they go together but there are two different legal conclusions so if he does not have a particular social group it is correct we don't need to arrest richard persecution however when we're looking at particular social group we've already under chevron we have to know under seven we have to defer to their analysis of if the facts rise to the level of a particular social group we do not have to defer to the board in their fact finding because they do not have a fact finding role here so because they have improperly engaged in a dyno review of the facts their legal conclusion is false it's not based on a legally valid premise so if if this board is going to rely excuse me if this court is going to rely on the board's decision in a particular social group as it should under chevron that can only be when that conclusion is legally valid here that is not the case finally if the court did not like the particular social group proffered by the immigration judge that the immigration judge analyzed the board should have reminded to the immigration judge to address the other proffered particular social groups the department argues that this this issue has not been exhausted that's incorrect it was the protect the particular social groups were stated in pre hearing briefs stated at trial and also listed in the board of immigration appeals greif the b i a brief did focus on the analysis of the in that case that was that's a distinct from our case here we have some very market differentiation between these four groups the board is not the correct body to engage in this fact finding parsing of facts between these particular social groups because as the board has stated in a matter of l e a it is a fact finding inquiry on a case by case basis that is not the board's role that is the immigration judge as are all of them specific social group approach these are tough cases tough sad cases that non citizens present to immigration judges in the first instance where they say life or death consequences are on the line and somebody in the first instance immigration of pills is charged by the attorney general has a supervisory role in that regard it says the attorney general's regulations say questions of fact are the domain of the immigration judges questions of law a judgment of discretion are the domain of the board of immigration  these facts and say these facts do not add up to past persecution or cognizable social group those are appropriate decisions by then by the board of immigration appeals because they went to the trouble with that is it doesn't reflect the refining industry enjoyment from reality facts about him is thirteen game but the social groups that were provided and the social group that was axed to be addressed by the board was witnesses from this person's hometown who witnessed a murder in says again murder  gang murder in their taxicab and i don't this larger taxi driver former taxi drivers who are witnesses to a gang murder from that very place from that from that very place that was what that was the only one that was presented to the board of immigration appeals there was no cross appeal from petitioners to the board of immigration pills raising the other social groups but taxi cab drivers is really incidental here what that really the focus is as witnesses and i think that's key from the board witnesses may become a cognizable social group in the context of did they testify in open court or is there some indication in the society in the particular society in question that we as a whole are vulnerable but the main point is that in their supervisory role the board said these facts do not rise to the level of persecution these this particular set of facts don't add up to pass a tertian persecution value judgment call it what you will and i guess your responses if not are of the court's with these are tough sat cases where the immigration judges start in the first instance here in these cases the board has a supervisory role never got to look at that particular set of facts and say what is persecution because it's not defined in the  particular social group it's a term of art if you will but the board has a supervisory role is what extended the concept of persecution subject to judicial interpretation it's subject to judicial to interpretation every day because the board and in this case also at these particular questions in terms of questions of fact and question question of law but i think also my mind is going up on a plane or question i guess a simpler question which case do you think is closest let's do past persecution the board list several which of our cases you things cl supervisory role here said this particular set of facts do not have to pass persecution and this particular set of facts did not establish a legally valid cognize will particular social group that's perfectly within the board supervisory role with respect to questions of law now turning to the merits with respect to the substantial evidence question of whether these facts do in fact rise to the level of persecution they weren't sufficiently missing to rise to the level of persecution and the borders of the program are probably decided on the ground and also with respect to particular social groups the board cited the case of which is also another witness case here did not testify in open court and the board is inciting the case in the case that witnesses in el salvador are particularly but rather indicates that the evidence is available in any case will certainly very and important to be drawn from the evidence whether group is socially distinct remains a question of law so that's the board's answer to matter  whether it's a question of fact or a question of law and we would ask the court to deny that one didn't answer well it is another matter what the board's role in looking at that is to begin to answer whether a particular set of facts at ups to as up to past persecution or whether the group is legally cognizable particular social group and as a matter of a question of law and maybe it's also this what is a question of law or question judgment or question of discretion are fungible statements i think in my mind and my interpretation it's a question of judgment and that's i think that's a better way of understanding what whether something is that the past persecution or cognize all social group the board certainly uses the term question of law but you really question of judgment because let's get again these terms or not there's a come down to a matter of value judgment correct and whether that's a question a lot of value judgment it's a matter of discretion overall for the board to say what the law is in terms of its supervisory role here happens in the real world i suppose not know who follows the victims of that were no and that again that's where i started with in the beginning that these are tough sad cases that the immigration judges on the border charge in the first sense of figuring out what the law on what the facts are g figured out what the facts were the board said it didn't disagree with any of the facts here and it made a value judgement as to whether it was passed persecution or two and two and just also that these are hundreds of thousands of cases of these immigration judges here to track hundreds of thousands of cases is an entirely adopting matter but aliens are skinny non citizens have a way of bringing that information to the board through a motion to reopen say hey i went back after i was removed i countered further difficulties here's my motion to reopen saying there's change country circumstances please hear my case again so there is an avenue in that respect are those cases frequently brought i'm sorry do you get many of those oh yes and you this court sees motions to reopen all the time i mean after they've gone back yes or she or it ever did or you never get any more scenes from those who went back and got killed of course well that's an answer is itself of course but certainly aliens excuse me non citizens who have left to return to their country or who counsel for the department has made a very eloquent argument about that past persecution or a particular social groups of questions of law but counsel has not done either here nor will argument or in the briefs has a direct address the fact that the board supplanted the immigration judges fact finding with their own they are not allowed to do this in this case as he said a very sad tough case an immigration judge decided that more likely than not he will be persecuted in specifically said death upon removal to el salvador the board is not in the role to see this evidence the immigration judge refers to testimonial evidence documentary evidence affidavits country condition reports in specifically address why taxi drivers as a group in el salvador are treated differently the immigration judge is the fact finder the immigration judge found that more likely than not he will be persecuted upon return to el salvador  highly specialized just the social group which is exactly what the law requires the require the law requires that a particular social group is distinct that it isn't that apart from society to just family members of kelly hewitt are a particular social group is the closest here in our case most importantly the board supplanted the immigration judges fact finding and counsel has not rebutted that fact here or in their