rather the government is disputing whether the statements must be accepted as true in the first instance and this court answered that question and to silva and that case the petitioners affidavit merely stated i recently found out that they killed my true but there's been no fact to be i e is not a fact finder there's been no fact hearing that's why it's required on a motion to reopen if it's going to disregard affidavit evidence  it can only do so if the affidavits been found to be inherently unbelievable i'd also add to here that the affidavits did not just say my cousin was mistakenly murdered in mexico they say a lot more they explain why my client believes his cousin was mistakenly murdered and it's in the brief but among other things he explains that he used his cousin's name for since he was fifteen years old his mother calls him by that name his his wife calls him by that name the affidavits further explain that they got the implication is that he was the one that they were actually after correct your honor the affidavits further explained that the cousin was involved in construction his whole life he was a hard working man he was not involved in gangs ever in his life in those could not have been the intended target of the gang and that was one of the issues was hers in terms of speculation we don't know he's intended anyone's intended target of a gang we know that the cousin drove away from the house and we don't know when and how of if assuming everything he said is true there's still a lot of speculative gaps to link him up with the cousin the timing when it occurred and that's i think what the b a it was talking about right well and the b i i think was kind of piggybacking off of its opinion in the first filed appeal where it held that this is all speculation and i would i would note that credible testimony is not speculation and fact credible testimony with bullets and then finally a person drove by and pointed a gun at her and then drove away and there too the government said this is all speculative how do we know these incidences are related to one another and this court said that the only inference to be drawn from the evidence is that the incidences are related there's no evidence to suggest that they're unrelated and the same is true here the only evidence in the record is that these incidences are related to the gang everyone involved in the gunfight was arrested including the man who shot my client in the leg the only person who wasn't was my client and this is the only evidence of any interaction that my client ever had with gangs and so when he goes to mexico and he's warned hey the gang knows you're here you need to watch out there is only one reason why that could be the case subsequently at least two different occasions the gang is standing outside his house and importantly one of the people one of the people in mexico there aren't at least two occasions one of the people they did who are on at least two occasions the gang stood outside his uncle's house and one of those individual i was involved in the gun fight back in the united states which my client witnessed and he recognized him from his involvement in that gunfight so he knows him to be armed and dangerous and my client is again all cited garces was not required to walk outside the house and provoke some kind of armed confrontation that's not required here in the ninth circuit he claims that this is a social group that is entitled to protection and are first filed appeal correct that is the contention that  informants are a particular social group there is a lot of briefing about whether or not my client is an informant or not of course i know a lot of out of record information that the i j a should have but did not inquire about given that this was a pro se petitioner and this record should have been fully and fairly developed yet it wasn't so even a mere question were you an informant or not was not even asked regardless when you're honor i'm the particular social group to which my client belongs as demonstrated in the record is someone who cooperates with police as for example demonstrated in this police report so that's a  snitch for example a person who cooperates with i guess i was having trouble defining that he was quote cooperating as opposed to just being witnesses to what happened well your honor is the the record i will admit was not fully and fairly developed as it should have been if it had been you would have been privy to a lot more information and for example i'm aware of but which is not a part of this record again this is all with states that that that there was a police report which was generated there is no follow up questions posed how many times did you talk to the police what did they ask you what did you tell them so the extent to which he cooperated with police is not in the record that's before you want to save your remaining time i  would please the court i'm just wised up for respondent attorney general in this case the court should deny the two petition for you start with the underly petition substantial evidence supports the agency's no past persecution finding specifically the experience petitioner experience does not rise to the extreme level of persecution persecution is an extreme concept generally demonstrated by the inflict some harm and suffering here the whole basis of petitioners claim ro around the two instances where the persons were loitering outside his uncle's home and an attempted robbery these do not rise to the extreme level of persecution as a general rule this court has found that past persecution is compelled in instances generally where there is multiple beatings detention things like that of course he says the murder of his cousin is is an act that should have been taken into account because he he asserts that he was actually the intended target well as far as you're referring to the murderer only yeah the motion or open is a separate whole separate internet that you can actually constitute that because this is the underlying petition and only petition for past persecution just involves us three and students the motion to reopen that was the incident in regards to that so there are two separate petitions the past persecution is just in regards to those instance if you want to talk to them about the motion  more i can go into that if you prefer well let me just ask you to have this case reheard its own as far as going back on or where we can talk about whether the case should be reopened as far as again you have the board operator operate on abuse of discretion standard whether the board abused its discretion and denying a motion reopen so to be able to show that a motion to reopen should be granted the petitioner has to show reasonable likelihood that there were if there are instances for example you can have certain you know this case this case yes your honor now if if the if we were to determine that the speculative determination is wrong as a matter of law then he would at think at some point there's a line right but here what you have to assume you have to assume the killers were gang members you have to soon their members from the gang in the phoenix shooting to soon they suspect the petitioner informed on them you have to assume they still believe this is important twelve years later you have to assume that where the petitioner uses that name in the united states his cousin's name so these are the suppositions there is something there would be something specific for example maybe the at had had conversations with her nephew about gangs being after him think something like that direct knowledge as opposed to these affidavits which are oh he's all in just saying he's warned he sees a gang member outside the house in mexico the month and one that he saw during the incident in the united states and he's using the name and then the cousin who uses the name was shot and killed after leaving that know it's not that circumstantial evidence i mean putting it all together could lead to the conclusion that if you made like nine or ten steps that's it i guess that's the point when you see the court where you actually see the court finding is where you have an affidavit which has a more detailed you know basis for it for example that has direct knowledge and testifies as to that maybe had conversations with the the nephew in regards to things like that but here you have just speculation and a long line of suppositions well it's not speculation what happened in mexico is it's a came to interview him after he was shot he was in a coma for two weeks after the shooting they came to interview him what does he say he says it was an error it was a mistake i was shot in the leg adeptly there's nothing in the record showing that he cooperated there's nothing in regards to that and opposing counsel said that multiple times he's privy to extra record evidence but there's nothing in the records regarding that he was actually in for i can see why that would not want to be made public information correct your honor but i mean even in regards to that so for example the reasonable likelihood this court again hasn't for example what was a particular social group being considered their actual informants i actual witnesses and who have testified in court and again in an area k reba's what the court did is it didn't make a specific finding that that was a socially distinct group it said the be considered the wrong group it remained it for them to reconsider that informant is a particularly social group that's how you we've backed in the reasonable likelihood finding so what you have here is you never have that there's no exhaustion there's no easy option he testifies according to the p in the record is the police come to talk to him when he's in the hospital but i thought later at that there was an excerpt from pre sentence report where he actually supported the guy who shot him is that and he says oh the accident was an accident nothing else in the testimony about that nothing else in the testimony about a natural informant also know that he's never before the board claimed that he was an actual information never exhausted that to the board that's completely new in this instance so again just in regards to the motion reopened there is no objective evidence of the identity of the killers i mean the idea again it's a complete supposition that the killers were gang members that they were those specific phoenix gang members and again the best thing you have is the ads affidavit that they present that says my cousin was my nephew was never involved with gangs it is common i mean it's seems to me it's well know that there is a great degree of retribution  gang members they were the gang members from the phoenix shooting and then keep going on warrants that they were aware that you know the cousin was using this day and there's no there's no record evidence that they why they would know that how they would get down that again it's yes there's a generalized atmosphere of cop crime in mexico we're not denying that at all but that and then saying that when the healing routes from two thousand two thousand and three shooting in phoenix it would be more specific  retribution against informants exactly from the two thousand and three shooting in phoenix where the petitioner was shot in the leg and it's not a clear exactly clear why there would be retribution he never actually informed on anyone may i ask you whether this reference to the pre sentence report that i think is in the brief is that also on the record as a part of the record my client when he was pro se introduced like a pre sentencing report that was submitted in connection with his friend's trial for shooting him in the leg and we noted in our briefs that even though that pre sentencing report was in there the government nor the i j a ever asked him well did you test if there i don't the answer to that question but that you know so we don't know if he testified what you know i see a character witness and then again i'm not sure that the answer to that question is not in the record ok thank you i'd like to briefly note that even expressly states that it is there is no blanket rule where the victims of gangs cannot qualify as us as a socially distinct group and it gives the example of a gang started targeting homosexuals they could be a socially distinct group to your answer to answer your question on the motion to reopen we submitted numerous materials and i would just cite to the record in the motion to reopen they are to thirty eight to thirty two thirteen to a one in one ninety five in each instance showing this group's niche being discussed as a snow a socially distinct group that is meaningfully distinguished in many ways i mean if they're killed that their fingers are cut off and stuffed down their throats as a telltale sign that they are snitch so on the motion to reopen the court had clear evidence showing that this group of snitches or informants is socially yes your honor his testimony is sufficient even if you really did he said he was just as the records show that he himself cooperated with reporters the record shows that he spoke to police in that and which resulted in a police report there are no follow up questions about what exactly did he tell the police but there's ways report says what he says it was an accident but no the police report is that there is no discussion about what the police report states he goes on to say that he also stated that the person who shot him in the leg did so accidentally the police report is i know referring to something else which is not in the record there are no follow up questions unfortunately in the record to demonstrate what exactly is in the police report how many times did you speak to police what did you tell them you i would like time is expired and i've given you an extra minute or two so thank you very much the case just argued of lopez versus sessions is submitted the next case for argument united states versus bell