case several of which the respondent does not attempt to defend in its and answering brief house i'd like to point you to what to me just speaking for myself is a pivot point in this case and that is whether the substantial evidence supports the determination that the honduran government is neither are unable nor unwilling to control the yang there certainly is evidence in both directions in this record when there's evidence in both directions even if we would have made a different choice why is it your position that every reasonable fact finder would have to agree with your position on that issue i i would like to start by just pointing out that i think the bigger legal issue there is that the agency applied in correct standard for reviewing that effectively just focusing on whether the government was willing to but to respond to your principal question there i think that while there i'm sorry where do you see that i'm looking at a our fund where the b i a says the immigration judge correctly determined that responded did not show that the am eighteen young is aligned with the honduran government or that the government is unable or unwilling to control that yang and then it goes on to discuss so why do you think that they didn't look at both prongs and i recognize that the the board use the language on able  its decision however the authority that it cites from this court immediately after i think clearly reflects that the agency was affectively reading out that latter half of the standard it's not so much the is not constant persecution of the activists not condoned by the government and if the government takes reasonable steps to prevent and respond to it both of which seem to read out the enable this reckon i misspoke i don't actually know what the made efforts to curb corruption and to reduce gang violence although significant challenges remain so that has to do with an able and they're doing something about it i would argue  the police showed up and saved this you know your client's life and they got there faster than i've ever seen the portland police get anywhere you know so that to us i think both know they're they really don't want to have to confront the police they're going to go away if the police are better they certainly didn't want to stick around to be arrested but that was after they had shot thirty times which i think is severe harm in and of itself well but  you have to separate out the harm from the government's willingness and ability to deal with the harm that they don't folding to each other i mean looking at the government's ability to deal with harm presupposes that there is harder and my question presupposes that there is harm but then i guess i'm maybe stuck on this one issue but it seems to me that if that issue is supported by substantial evidence the game is over if the government is sufficiently willing and able to try to protest act individuals who suffer this kind of targeting them we would have to nor to find in your favor we would have to determine that every reasonable fact finder would come to that conclusion under a standard of review that would be true except again i would i would point back to the fact that the the misrepresentation of the authority that the agency uses to support its conclusion reflects that it was applying an incorrect standard and effectively the judge talked about there was good faith efforts being made the board of immigration  said it's sufficient if the government doesn't condone and takes reasonable steps i think they're conflating whether the government tries at all with whether the government tries affectively and i don't think the one off instance of the police happening upon the shooting after the shooting had as the shooting was occurring rather is reflective of affective evidence and i think the other country conditions i wouldn't stand be any opinion says that  are photographs that were taken that were passed along to the petitioner that were taken at the crime scene showing there were police there and again that's not in dispute that the police were there but i don't think that reflects that they were effectively able to protect  the amount of shots that were fired just so i understand because most of the briefing was whether or not to extend or narrower standby enrquez reavis but on this particular issue am i right that your argument is that the be i opinion you think legally erred miss apprehending that efficacy has to be looked at rather than just sort of willingness i let you but aren't you also saying factually once the i j a credited this the testimony here the testimony leads to no inference other than that the only reason he gets shot at sprayed with an a k forty seven dollars is because the police themselves must have leaked it so there is this sort of twisted aspect to this particular element which is the only reason the man is being shot up behind a trash can is because the police themselves somehow couldn't keep cooperator information private i thought that was essential to your argument on this the air on the nd on the nd element that sort of secondary yes it honor and i think it strongly reflective of their inability despite again the immigration judge talks about the good faith efforts they took to protect petitioners anonymity but mere days later they he was  unanimous testimony again that was credited that somehow the gang had found out that he went to the police and offered to set up a sting so so again i don't see how there could any any reasonable person could construe the police as protecting him when they're the ones that caused the kid to shoot i would agree with that your honor and there's at least no finding to the contrary that's correct or my problem is sort of again back on the henriques point what it is it's a sweeping ruling and thirteen it was a pretty lopsided on by a court ruling but surprisingly there's really no court that issued a published decision extending it to people the report and cooperate as opposed to highly formalistic lead those who do testify so you'd be asking us to take a step beyond is that fair to say that it's fair to say your honor i would note that confident can we be to do that is just on the logic of it i think the the logic behind  as it applies to whether group is defined with sufficient particular area and social distinction is illustrative in this case if you do get into floodgate problems the government's right to say that how we going to distinguish people who just call nine hundred and eleven and express a willingness to be a good citizen from those that call and say i want to come stake out my store i think the line that would delimit who is in the group and who is not that would delimit the group is the existence of official documents in this case  witness protection laws which and rick israel has cited as a strong indication that a society recognizes a group as being socially distinct applied to people who are participating in the criminal process not just people who are testifying at trial in the records calls somewhat protected the police report lists him as a protected witness complainant which is again strong indication that he falls within that socially does a lot of pressure on that word a form stamp protected because if it were just witness complainant cases like escobar you probably know the case and published last year wouldn't qualify so it's got to be that word protected that creates the social  visibility i'm not entirely familiar with the facts underlying that case since it was unpublished and it was but you remember only in american society there is a perceived difference between people who call the police who complain about a crime and a cooperate sadly as we know in america that's a highly mutable characteristic people choose to stop cooperating the the question of whether there's an immutable characteristic lies in the shared past experience and that he had already cooperated at that point and that's why he was targeted and he had stopped cooperating he was in hiding for five weeks by the time he was shot at so i i don't think that there's any image ability if i can just ask you because there's so many elements to this case and times then it is seemed to me that the ira also was saying it would have been reasonable to relocate and we know that once he goes to his cousin the problem goes to his sister no problem for weeks it can't be that a petitioner just says well i was in hiding they are so i had no problem that can't be the law that they are for that defeats reasonable ability to relocate just when you say well i decide not to go out of the house can it without more no that wouldn't be sufficient what's more because during all those weeks gang in the vicinity which is why he didn't dare said what it says once you intone him eighteen relocation is not an issue in the case because there is sit countrywide like i don't think that could be a law either so it comes back to him saying well i was in hiding will get this standard is is whether it was reasonable for him to and he did remain but i would argue that it's not reasonable to expect him to remain in hiding for the rest of his life it was back to then anyone can defeat that element if they just say i stayed indoors general it's immigration case there are three issues the particular social group issue unwilling and unable to relocate and the relocation issue any one of these other is that you're throwing in the towel and some of the others which do seem fairly ridiculous  however they misquote those cases which they do misquote various but it's not only that they misspelled the cases it's that the we heard that from petitioner and his argument and the board doesn't address efficacies so he's claiming that they mis side of these cases they nonetheless addressed advocacy they acknowledge the police's efforts to have his play sport be anonymous they knowledge  claims that are testimony that nonetheless the gangs found out or inferred that he was working with police and they've knowledge these efforts of police took to address these and what efforts were taken so whatever that was gangs inferring that he was in working with this investigation so they found out but at least on this record not through the police themselves no evidence of that your honor what we actually have is credible fear into you from a petition when he was st asked about his claim by united states authorities and they were asked to how do you think the gangs learn that you're working with police his st explanation was i believe they saw strange cars pulled up in my welding shop and strange people there and they inferred i was working with police never stated there was police corruption and in fact what he stated his testimony was that he was working with a special anti extortion unit of the police that made these testimony he said his friend relayed to him that this was investigated by the police and his friend provided him with these photos because friend was also a journalist and that's how he learned about his investigation that they're investigating what they went there so what we have at every turn when petition or police are given the opportunity to help petitioner they more than capably protected him when he st reported these threats to police they spent undercover officers to his welding shop two days in a row ninety minutes apiece to help identify the people that were threatening that wait a minute the testimony is on page one hundred and eighty seven did they conduct an investigation no because no nobody pointed anything or  are fact that the police could not further investigate the shooting without witnesses does not demonstrate that the government is unable or unwilling no it's just i'm saying it so i thought i'd accurate statements seem said it was an assault rifle took place in a matter of seconds and they sprayed thirty shots in a matter of seconds and police were then on the scene to intervene that as a parent pointed out a very good response even united states i mean lurking behind this case is a very big issue of the enrquez standard so i'm a little surprised o l is defending this b i a ruling that seems riddled with you're agreeing it is persecution court was wrong about nexus sounds like you've agreed or lly that they miss cited magical and bar us whether they applied it or not it's not a great vehicle to make a big decision about the scope of enrquez would you be agreeable to a remain and to clearly look at efficacy in other words if they mis cite one circuit law do we really want to pick out and say well they must have meant this it looks to me like the police were willing and hopeful to investigate this but clearly they failed miserably he gets sprayed with an a k forty seven dollars and it's a fair inference also that the only reason he gets shot at is because the police couldn't protect the cooperators it leaked so why not have an exploration where they're citing th circuit will correctly rather than reaching this very big and difficult issue about enrique eavis and requests rebus really plays a part in this case i think with particular social group i know it could but that's a big ruling if you agree of the posen counsel that we've never extended beyond a formal witness so if we have such difficulty with half of your oral argument time about with a willing but unable but maybe can we see an inability even though the b i misidentified circuit law that to me sounds like it ought to deserve to remain so they cite the law and  nd it could just apply to the facts on this case you would any as i understand your argument earlier any single one of those rulings would suffice without reaching the other issues social group or unable unwilling or correct so if any of those is supported them game over so you wouldn't have to reach social to reach the other two correct and that's why when we acknowledge past persecution nexus we will still go forward of the case because of other dispositive issues as we do with many other cases where you've picked as your strongest one that actually has to be nd to social recognition we would never get to i must say that i mean given the fact that i understand i think it's commendable that the department of justice is not defending those the other bases but the notion that both n the unable and unwilling it seems to me that there were operating from some strange place in this case in general so that reinforces the notion that and then they go in they mis is protection laws that don't clearly least one standard view don't seem to apply the petitioner why is he called a protective when i think we're looking at that complaint we're putting much too much weight on what is says the top the complaint protected witness because it could very easily be referred to the fact the information inside the complaint is protected all the identifying information is protected as part of places efforts to protect him from gangs they kept this as an anonymous complaint kept away from the local police and filed came to his shop and were no record he cooperate with authorities and he did let them investigate we're talking a social distinctions we have to look at society as a whole where they set this group of people aside and if he's not subject to witness protection such as people seemed i mean his girlfriend the old rule about social visibility they recognized him personally they saw him as somebody been threatened by gangs that social visibility we're talking about social distinction the only thing that gets him squarely and then weak is if the government indicts and the government gives him  do anything about either of those actions that is correct so once he they they indict and once they put a subpoena on him he squarely fits because that would be saying that under the logic of america's regus that society has chosen to recognize him as a member of a protected group because the laws recognize him as a member of that group so if the laws don't recognize them in honduras as a member of this protection program then he doesn't mean rica's reba's he hasn't shown the laws separate him out for protection as a particular social group and we don't have that in this case we have background evidence on the honduran witness protection program which by all indications seems to only apply to witnesses at trial so he wasn't a witness to trial an investigation was  prosecution never started in this case so we can't show there's laws that protect him and moreover there's documents in the in the in the record that indicate that it's not so much that they're recognizing this group that the witch protection program is meant to assist the gang so and you go further in the document when it goes through three paragraphs down it talks about who else is subject as protection estates the family members of witnesses who testified so it seems to be contemplating the fact that a prosecutor is going to select someone for this program because they have a criminal prosecution started which has not started in this case yet he said an investigation and for witnesses who testified and there was no testimony in this case there's no prosecution yet so no indication at least records to compel the conclusion zero excuse me it's onto ninety seven it's some proceeding paragraphs so it says in the nd paragraph or the rd paragraph the part progress protection extends the spouse common partner except for a dude who are threatened due to the witness's testimony you're assuming referring to makes clear it doesn't have to be a trial should the investigation or the trial well also there's another item in the record the insights a report from a group called insight crime is at the rio two and it simply seems to envision that when you talk about which protection program this applies to the prosecution itself to people they're going to assist in the prosecution because they're saying that it's  endemic and i do recognize people who file police reports in that same article and they say they are potentially witnesses in the criminal prosecutions i mean to show them that their discretion program is effective during the prosecution thank you counsel you've thank you very much regarding the issues that the government has argued are dispositive one of them was relocation however i would like to point out that because the agency erroneous lee found that there was no past persecution didn't properly shift the burden to the government to show that internal relocation would be so we have to understand on that basis we have to remain and i don't think we have to but i think that is a basis to remain and i think the record evidence compels the conclusion that even if the that's correct the standard is not whether someone was physically unharmed during that period i would argue that there was also obviously emotional psychological harm that he's experiencing being in hiding during that period as well but but that's correct and  going off of your line of questioning judge a person in the social distinction i would point out that two hundred and ninety seven dollars describes the witness protection laws as applying to witnesses in the criminal process which is a more expansive