horrible judges of the united states court of appeals for the fourth circuit oh yea oh yea oh yea all persons having any manner or form of business before the honorable the united states court of appeals for the fourth circuit are too modest to draw die and give their attention what the court is now sitting that's say the united states and this honorable court the warning having to your argument in our first case mr is not  a morning your honour's my name is michael result i am the attorney for the petitioner in this case miss miss ruth your honor this is an appeal of a decision by the baltimore immigration court as a firm by the board of immigration appeals denying my client her request for asylum withholding of removal and protection under the convention against torture this case has a very limited range of issues as  was about to ask you what what has already been established in this case your honor there was a stipulation at the trial level as to the viability of the social group in this case right so that the government's conceded that that has been conceded the only issue in this case is whether the government of will solve it or is willing and or able to protect miss oriana now with respect to this issue your honor there's two distinct and separate issues with respect to say the government could see th like a social group think they want to change something if they get it if they have to do it over they want to back off what want to withdraw their concession on the social group i don't remember the record saying that i do not believe anything that they want to withdraw we seem to be legal error in the analysis main by both the i j and the b i with respect to the analysis of government on inability or unwillingness there must be a separate distinct analysis of both of those questions first which questions is the government unwilling right and nor is the government on a will have there has to be some sort of rational explanation unable they could be unwilling but possibly able and the petitioner could show i could establish their claim on the either scenario and that's why from a legal perspective it's very important to make that analysis at the trial level so that if there is an appeal as there is in this case this court can then determine and and understand the analysis made by the trier of fact or the b i now this is very similar your honour's to a ninth circuit case that has been cited in our brief and i'll briefly speak to that because the short case but it's it speaks to this point madrigal beholder is very persuasive where they held that a committed legal error because they only focused on the willingness of the government of mexico to protect the individual there was no analysis made as to the ability of the government to protect the individual ok that's a fair point but are you that is to say the government will solve it or has established some sort of legal framework it is clear from the record the petitioner was able to seek some sort of recourse before the courts we would not concede however that there is a defacto willingness and that goes to that is shown by the fact for example in two thousand and six the petitioner goes so the court up tains a six month protection order the record clearly shows that her abuser was notified that he must show up in july of that year three months later for hearing the petitioner shows up to that core informs the court my abuser has been threatening me and to withdraw this complaint informing the court that issued its order the order said is a criminal offense to buy a lease such order the court is informed of such a such violation and they smear the reschedule the hearing they don't do anything about it they don't hold to the abuser in contempt they don't attempt to have him arrested for violating its own order so there is a danger willingness by the system however when you delve into the fact that they didn't do anything at that point to attempt to enforce its own order we were not can see that there is a willingness for how long to continue for how many years your honor the record in the case of the abuse herself she fled to her mother's home she built a second property on their own property as a sort of mini bunker to escape his his abuse the record is very clear on that once he was informed by a shelter that there were new legal protections around two thousand and three that's when she attempted to seek these legal remedies and all sought or unfortunately her first experience she reported the abuse to the court the court did nothing she did abandon that process now the government would have us take that abandonment of the process as showing that she wasn't availing herself of the protections of the government the same government that didn't do anything regarding her her plight at that point your position is she has that's part of the analysis i could have been made by the trial if i should have been made by the trier of fact this possibility that was never analyzed by the trier of fact or understood and in particular your honor the trier of fact ignored the and the question is not whether we would go it is whether there is some clear arrow that compels us to reverse it so so tell me what is it you say is clear arrow that requires reverse that would go to the second issue  and that would be your second point that when if the trier of fact had actually considered all of the evidence the b i even recognizes in its own this last decision i believe is a burning decision they contradict the evidence cited by the i j a they list out some of those contradictions but then just merely saying we see you know we discern no clear air or this job and i'm not sure i understand your answer to judge when it's a question which i think lies at the heart of this case is what you're saying there is both legal error yet which we review under a different standard a less we were less evidence here you maintain that the way in which the ministry of agencies dealt with the legal question of whether the whatever which they don't consider in any way the inability of the government given that she's been abused for over ten years she sought the help of the government the trier of fact is not in any way address the fact that the abuser continues to abuse continues to violate the orders continues the pattern of behavior established for many years he basically this is a private actor that has been acting with  and different standards by which they we don't agree with do we impose our beliefs in that context of that we look at it from the context of the country which the person is it i believe in what impose our own view your hon particular in a case of persecution based on gender in this case the particular social group is rooted in gender violence and the the expert declarations do go to what your honor is mentioning regarding the norms and who if the nexus was an issue we would be look we would look at the what the country is doing with respect to their norms do they ignore women for example in these kind of situations but i thought that i also thought that was a question but haven't the party stipulated that her be disqualified as persecution yes yes so there are in this particular case we maybe don't have to and to follow up on your own the question the culture norms could also inform the trier of fact as to why there was an unwillingness or why there was an inability so for example in el salvador it could  i just briefly want to address the parts of the convention against torture in this case would that i j did was basically bootstrap his analysis of the young willingness and inability into the analysis of the convention against torture which we do can see there could be some some of the facts some of those questions of government willingness and ability could be the same as under the act u s and standard in the under the protection against torture h r if the if the i j a decision is read there is no actual analysis of the facts as in particular in light of the fact that after two thousand and nine there were several refusals or not or events of not help which if analyzed on the founders of the convention against torture it could be interpreted as acquiescence on the part of these officials despite their previous help so the idea is reasoning is basically that ok she received some help in the past and that negates the refusals for help at the end of her life in el salvador and we do believe that this is this is a clear legal error not to make any separate legal analysis of the protection against torture so i briefly want to address that before my time right now because we do believe that sometimes the standards of the convention against torture they get sucked in by the by the analysis on the asylum withholding stands but there are two separate questions and we do believe that the idea and t it please the court rebecca hoffman philips on behalf of the united states attorney general what i wanted to first start off with is what you started off with which is that in matter of a p which was decided since the board decided this decision and since the government conceded the brief points out in the footnote toward the end of the argument that if this court were to disagree with the bases relied upon by the agency that it should remain and for a determination of the other issues which would come into play under ins versus ba asked by the supreme court has said that courts in agencies are not required to rule on matters that are unnecessary to the conclusions that they reached and with case they decided that that issue wasn't necessary at the time you're familiar with the  and any other case here we have an attorney general dissension trumping board process and so on and therefore any agreement that was reached to limit the issues in this case and at the time they were focused on this issue because that was the  pending after the matters that the case law changed between the time that the government agreed to something and the time that that when the case returns that the court can't revisit an issue that wasn't required previously well just suppose these were two private parties and there'd been a stipulation and if it were one reason or another gets reversed and goes back the can do the stipulation you would recognize that so that's the situation it sounds a lot like we're in except that the attorney general united states is asserting well i can make new law and i can withdraw stipulations  it seems very odd that we're trying to stipulations with drawing a board precedent upon which the stipulation was able but it is just there's a stipulation that exists right i understand what you're saying but they made social group of domestic relationships and then the position of the government and then the government says no objection to us so no no objections your honor to you that particular social group that's on the two eighty five and then this government stipulates that this is a qualifying next this is on the next page and she says yes your honor so it's a little bit do you know what i mean we don't have here is the government saying well there's board authority now and so i agree so there's no in location you know you kept saying to us will change but there is no indication of law here there is just a simple stipulation but it was rebranded specifically  particular social group they are c g by the we're not dealing with disclosure group issue right now right i would have but i'm what i mean is that they were specifically that was the basis why it went back after the first board decision because the particular social group law had evolved and the government oh he was agreeing that matter of a or c g exists at that point where is that was unsettled particular social group law was unsettled initially and so there's been multiple decisions in this case so they were ability and willingness willingness is investigation it's willing to take reports and so it's an interest it's willing to take your complaint just to get that one second you acknowledge you must show both the government must show bo but actually the petitioner it's actually not the government must show both i take that back it's at the petitioner must show that the government is unable or unwilling so it's her burden to show either as the applicant she bears the burden of proof and i want to that very clear so please i take back what i just said that's not the government's burden i got you it's her burden and that's what's really important about this case because we need her to explain why the procedures pacifically the legal remedies that were offered to her were not why she could not follow through with them as that demonstrated both the willingness and ability willingness is is willing to take the report investigate the ability comes from the protection order the arrest the criminal proceeding so they were wrapped into one in this case because the willingness went hand in hand with the ability in terms of the legal remedies that were offered to her well and vigilance just go through these incidents this record i think is incredible when they arrested him they told him not to leave the residence leave the residence and he's the court just told him not to come home when he was drunk they also return  five five sixty seven that she agreed and since all she wants she entered the mediation because quote since all she wants is that he stop threatening her and then when he's drunk he not arrive home so she's saying that she's that's what she wants she didn't say that she wanted him to move out she said don't come home when you're drunk this is her agreement she called the police for protection yes they came and arrested him and then they tell her to go to family court what she called the police arrest and detention prosecution for criminal charges of resisting arrest and a domestic violence component at the hearing she agreed to a mediation and she set forth the terms of that  and this is page five sixty eight and so what she did was agree to certain terms she said you know this is how i want to handle my complaint and the judge said well we can do it this way we can have a mediation and the judge more in turn that if the accused does not comply with the accepted conditions i'm reading right from the order she will have to present herself before the court to notify it of the violation in order to have a special hearing so she's being told that it's going to require a physical and person presence to modify this order because she's agreeing to it and if he doesn't follow it then she has recourse so her recourse was to ask for a special hearing so we'll never were never told why didn't she do what the order said she was supposed to do she went back to a court we're not sure what she told the court we're not sure if she reminded the court about anything with her and so why aren't we sure because in her testimony she just says they didn't listen to me so she says well we don't know what what she told them or how she explained her situation we also don't know what effort she made to follow the rules of her own mediation order and this is critical because we're not talking about absolute protection when we're talking about i'm able and willing we're not talking about guaranteeing prevention of all harms that's impossible it doesn't even happen in the us that way we're not of course we're talking about ability ability to do yes and yes the ability here is in the form of criminal prosecution protection or that went to the police over twelve times which they didn't i mean she's got a long history  dispute that this is such a horrible circumstance and that she is extremely sympathetic and that it's absolutely terrible that she had to endure what she did and as the law was changing and progressing i mean as i pointed out of my brief there were reasons why in the beginning she wasn't reporting the incidents the law was evolving she was getting more support from women's groups and changes in the law that were allowing her to have a better ability to seek legal remedy is and so it's really only the later portion of her calls to the police that matter here because even though she endured a lot of harmful circumstances you have to look at what the response was under the more recent condition is very much  what is going on being reflected is much more and part of the you can probably explain away in terms of she should have done this she should have done that but all of the facts of this case th what you mentioned earlier about the standard of review here which is that there could be more than one possibility under substantial evidence in terms of you know whether the record compels the conclusion of the board i think the sympathy is expressed here first of all in the g s decision that i have the first i j even says want you look into deferred action and i actually asked opposing counsel before here before this argument if he had followed up and he had not which is this is fine but long predates p d and little close closer here and i agree with that but what we have to remember here is that this usually when you just talk about the home government being responsive or not it's a case where the person has a less specific type of claim i'm not i'm not saying that she didn't go many times but the point here is that when you actually have legal remedies offered to you we're talking about the un able and unwilling requirement and so we're looking at the ability and willingness and and whether that's a harsher standard you know than them you know maybe it could be i mean that's what we're looking for here we're looking for ability and willingness and when the court gives her remedies and she doesn't explain adequately it doesn't show the inability and unwillingness that we're looking for and the important thing is the standard of review and the fact that the general conditions are not so great there the government doesn't dispute that it's not a good situation for domestic violence victims in general what the board was making clear that the i j a did was that the general circumstances give way to the specific in this case and so the fact that there's a little bit of competing background evidence we have to look at the remedies she was offered and why she didn't follow through with them is not specifically adequately explained on this record she didn't explain i just you know anything other than you know i didn't go back because it was prank done a little bit yes she says that she went to the police many times and she gave a lot of testimony is that your position is not legally sufficient to show that you went to the police there was not sufficient well it's a matter of what they did did they show the willingness and ability but what we have is showing that she went to the police many times without giving relief in her position that she's found credible i'm just not true where you go from there you go with the fact that she was offered legal remedies there were no room of these no legal system is perfect i think as judge wind pointed out before sometimes we can't impose our standards of what we think a system should be of how everything should be addressed this is the legal system that they have and it has the knowledge it is an imperfect system that always deliver the results but that isn't the inquiry here at the increase was whether she met her burden to show inability and unwillingness when on this record she was offered legal remedies that she did not follow through with and it's totally unclear in two thousand and six why she was given a protective order i mean that's complete ability that's complete ability that's exactly what you're looking for a fairly long your argument your time is up so i'm taking my time and not  yours she could have applied for something that she hasn't yet applied for what is the oh i'm sorry your honor i was mentioning you were talking about a lack of sympathy on this record and the i j a and i can even tell you maybe what page it was on  basic only said something about you know that he was urging the government about deferred action and of course well the government's position seems to be that this isn't the united states of america and this government did not and she didn't come back and she didn't follow some of the instructions so what you say about that you don't know we're going to very strongly dispute this notion that there was no follow through in two thousand and nine she does obtain a detour protective order from the government as it were knowledge that subsequent to that protective order she contacted the police for threats she went to the core albeit one time she did go to court she did it so this idea that that can be characterized as no follow through i think but what has happened i just don't i i don't even know how to explain how that doesn't match up to what she did on the record i don't think i understood the argument to be that she she got the relief she wanted that she signed on to it any arbitration or whatever it was and then she didn't follow through no your honor if she were aware we recognize that there is a process and also what or what argument is that subsequent to that process where there was finally a glimmer of some sort of remedy and hope for her finally after ten or ten years she attempted to follow that and the government is arguing there was no follow through how can the government argue that when the facts show that she did a time to go to already once again multiple times to the police depletes informs her you have to go to court these somehow didn't recognize a previous court order and at that point she goes to court and they say come back another day if this were a simple civil dispute where something john owes paul ten dollars i think that that would be an adequate explanation you're talking about a life and such situation where she's pleading for her protection for her life and for this government to say that we can turn to what we have the reason they want to renege on this your honor is because matter of a b basically takes this government on willing and inability stand there and turns it on its head and uses the word condone and it's cited in the government's brief they're attempting to boot not changed a fair reading of matter it may be does overturn or precedents giving some sort of contours to the domestic violence particular social group circumstance but it doesn't preclude it matter baby if you actually read it does not at during the previous administration as a policy basis as a matter of grace from the executive branch is not a judicial remedy it is basically an exercise of grace and discretion by the government appeal can you pursue deferred action that could be that could be pursued your honor but we don't believe that that should factor into the government's decision excuse me the court's decision i think that as we do believe that her all of her legal rights are implicated here and we do we do