made a ruling supposedly looking at the facts that we disagree with the i g is finding and so now we're before the court again the primary issue in this matter is whether the petitioner guadalupe diaz  ques belongs to a particularly social group which has been persecuted we believe that the family relationship is well founded if been discussed in the case and we believe that the facts of the petitioner are in line with the hernandez avalos case in that matter which the th circuit ruled upon the mother was approached by gangs because she refused to allow her son to be targeted so because so in that situation there was a maternal relationship between the mother and the son in guadalupe situation he was a twelve year old boy his father had been  approached by gangs for monetary reasons that his father then fled and then the gangs approached the son and asked him for the whereabouts of the father and then went to some school which is a petitioner and attempt to cut off his thumb so his harm suffered was even greater than hernandez avalos we believe the key issue here is whether this qualifies the familiar relationship the issue that the judge  immigration judge had was that the immigration judge felt that there was in a familial relationship that there was that this could have been anyone that the gangs could have approached any member whether was family or non family to ask about the whereabouts of the father but we believe that that is opposite to what the ruling in hernandez was and that the immigration judge should have ruled that guadalupe was approached because he was a son he was the eldest son of  you agree under the crews case is a question of fact yes yes and then migration i think as you pointed out concluded that the  incident and with your client was not at least the primary reason because of the family relationship but was for the primary reason it was for the reason that they were trying to determine the location of the father and my question is under her now and under the hernandez case the court lays out that there were three threats made to the mother and the nd two were because the mother w while the son to be a gang member in the court clearly said that was you know basically there's a no to a difference between that in the family member but in footnote seven it talks about the st threat which was the reporting of the gang activities in this court talks about how they all issues involving family members you know are necessarily due to the familial relationship and i guess putting all that together it looks like the we have a question of fact  issue and the immigration judge you know conclude and we have hernandez that seems to create a legal possibility that it's not due to the familiar relationship and the immigration judge then list a the immigration judges conclusion yes or no on the cruise case does outline this judge is responsible for the fact finding here in the situation the other family members were not approached they went to to law enforcement officials to get help they couldn't get any help but the key issue here is is his belongings to that family one reason and one central reason and that's what the crest in case addresses and the christian case basically the quote from the question case was is it unreasonable to assert that the fact that the her net her and her son's mother is not at least one central reason so equivocating that with the matter of guadalupe we can also say the same thing is it not true that  they a situation where a family member does receive persecution and it's not you know sufficiently connected to the familiar so in a situation where you've got for example the matter of matter of in that situation the court found that there was some familiar relationship but they also approached the individual for other reasons for profit making so in other situations where you've got family members but they're being approached for other reasons that are not directly linked we believe that's an exception to what it would stand for but i think in this situation he was only approached because of his connection to his father they asked him forty eight hours before do you know where your father is he wouldn't respond in school he was approached and he was attacked at that time so because of that situation we believe that he squarely falls within the one central reason argument which is the crest and ruling and because of that we don't think that  judge made the proper decision based on the facts that were that were presented think it's a legal error or a factual issue i think it's both i think i think the judge first of all there was no testimony taken when the case went back down he basically looked at the two thousand and twelve testimony and based on that on that original testimony said well i don't think there's enough here and then he made a legal decision and the legal decision was that the that the fact aereo of guadalupe situation was different from her end of avalos and we believe addressed squarely within the same kind of a framework where you've got a family member that's approached only for the reason for being a family member that's your question we have a bunch of cases s applied that case several times we should be looking at those cases as well right yes that's true yeah i don't have a specific case the trauma refrain to the prison certainly washer of this case is unusual because we sent it back and said look at this one but right that is not confine our consideration today because we have since the hernandez avalos was announced we have construed it in many cases and we have rejected efforts to narrow it to cases where the family member who is specifically targeted has authority over the family member the gang's really after so we've got that was not our last word there's there is more after that that's true donna that's true but i haven't found any case that actually contradicts the facts in this situation remain and have further testimony taken to clarify exactly what this relationship was but we also believe that this case should be overturned if you're going to let me i'm sorry let me try to be more specific just assuming only for the sake of argument that we qualifies for the relief which is withholding the removal of doesn't there still have to be a threat of future persecution the the law for withholding of removal is if there is an establishment of past persecution  that qualifies for future persecution so if i thought it was just that there's a presumption of future persecution but the government option yes exactly yes and in that situation we've had cases where it's gone back down of the court and the i j a then asked the governments rebut it if their burden and at that point that if the government is not able to establish for example relocation or any other alternative for him then the judges have ruled in our favor and that has happened in rd circuit so you're saying what you would want us to do is remain the case for evidence on future persecution exactly yes that would be that would be the other option is i presume that's also the your answer to the board's sort of alternative holding that you failed to establish future persecution is that analysis was done without the benefit of the presumption and here that we couldn't as an alternative is does fall under footnote seven of the hernandez case because the and as as a question of fact we think substantial evidence supports the finding that his family relationship was not a reason that the gang members threatened him about that if you judge here is his right i asked that question we have the crews and we have the case and others if you could near our government you know address facts to cases where the particular person being persecuted has an authority position over the other family member correct ok so well thinking about cruz and sell gado sosa there are there two distinctions between those two cases and in this case is that the gang members in those cases threatened the family members because the family members were in a unique position o to events that happened ok there in in cruise for example the mother was the only person who had the type of authority that would would have motivated her to to make the call i'm not going to let my son join these gangs cell gado sosa so she was unique among all the people that the gang could have approached because she has she had the one thing that they wanted was there and in her snacking is that there was no other person who might have had like a persuasive effect on the son there wasn't a teacher or there wasn't a friend there wasn't someone else who might have been able to persuade the son not to join a gang i don't remember that i dony i don't know off the top of now has it just but the question is  agency framed it here i think it was something like it could it could they have tried to find someone else who knew where the father was soon the gang could have tried to find someone else who had the son's you're right but i certainly don't remember just from reading the case that anyone tried to eliminate that possibility right which you have to look at is the motivation of the persecutor and is it the government's position that this boy would not have been targeted but for his relationship with his that he would have been targeted even if he were not his father's son is that the government's position they would have gone to him anyway if he if he if he were not his father son his yet yes if that is the gang thought he knew worst with this man why has a gang thought he knew where this man was if he wasn't his son is there any evidence that this boy that the gang had some other reason to believe this point might know where the father was or that the father might come out of hiding if this boy were attacked i don't know if there's any other evidence but well here what the point is relationship because the point i'm trying to make your honor is that you have to look at the motivation of the persecutor it is not for is a motive on the part of the persecutor to overcome the protected characteristic of the victim and that that is what the board said in a costa there has to be a protected characteristic that they have to overcome the minute ago you said you know in trying to distinguish cruz you say the same idea right the relationship that motivated action by the son right but it seems odd to say that the mother control over a sign which in my experience is often quite limited except perhaps in judge tears this case is is somehow greater then a father's love for his son such that that would motivate the father to take that action i mean it seems like to me and i don't want to get a little bit flippant about which one of those bonds is stronger but it's hard for me to see how they're different in kind that if the question is is the relationship such that being mother to saw and or son to father or that it would motivate action by the father that seems like the same kind of motivation in cruise well there's rete is a read hernandez have a los which which the court asked the board to do the key factor was the control of the mother had over the son the agency in this case found that the son had didn't have the same control maternal control over the father but let me get back to my other point here if i may this this discussion is getting a little bit too far too narrowly focused on causation as as as in terms of the family ships are could say that better yet look going back to matter of acosta which is the board's decision you have to look at the motivation of the persecutor to overcome the protected characteristic that it can motivate action by other family members or the father or somebody else exactly the future doesn't care about the son and his relationship to the father it doesn't have a person to tory motive against the family in the same way that do we have a bunch of th circuit case law on this we've said over and over again we don't care what the immediate trigger is right it doesn't matter if he hates the son and it doesn't matter if he hits the family because of something to do with the family what matters we and we've said this over and over all that matters is whether this person was singled out as among all the other people the gang might have gone to to try to flush this guy out of hiding because of the relationship with the father and i i mean i just sort of feel like if the government isn't on board with that he's like you got to ask us to go on bonk but is there some way well we would like to we would like to it when we find the right if we find the right opportunity itself is noted the jurisprudence on nexis in the th circuit is different from other circuits and it's because in our view that the court has it has gone astray from looking at the persecutor emotive requirement t board st set down in matter of acosta i'm getting that from your argument but what do you want us to do about it is a panel of three judges as a panel of three judges we would like you to look at the board's decision ask yourself a question to substantial evidence support the agency's finding footnote seven that you asked boortz in hernandez i have a loss that you asked the board to look at controls this case so under this court's case law you can and should find that substantial evidence supports the board's decision bank a little bit of both you see what we're doing here is we're arguing about other cases that the board was not asked to address and so for me to to basically make an argument for the board that it did it like we're talking  this principle is larger than one family member having authority over another right but not to answer judge bombs question with this case can be resolved on the facts unique factors created by the familiar relationships in those cases the victims of the threats were unique among everybody else because of the familial relationship but because the gang was motivated by something that the familial relationship prevented them or somehow hindered their goal in this case the gang had no beef against the family percent the gang had no quarrel it was like a hatfields and mccoys type of family feud it was simply a gang wanted money and they wanted land and they figured that his son would know would know where it is they have no beef against a family how do we know this well this wasn't a finding made by the agency belief or characteristic that the persecutor seeks to overcome i don't understand why you insist on say and those cases are wrong i don't understand why you don't point out for example in cruise that there was evidence that the family relationship was a central factor because they continued to persecute for two years after the threat of going to the police was wrong or stamp why you are saying and so and so got us that after the people left that t continued to follow not just the one person but the whole family it seems like you're and i was about to say that but i got interrupted i was about to say that yes we know this because it is part of the board  finding looking at the family that still down and guatemala they haven't been touched they haven't been bothered all the since now that the father has no land he has no money he's confined to a wheelchair the gang hasn't family well i guess we're going to have to agree to disagree on or again we say that our point is our position is that persecutory motive is required as as stated by the board in matter of acosta and it the family when the land in the money was no longer present is the distinction you're trying to i'm really trying to just understand the distinction you're drawing here but in essence are you saying the result would be different if they and these are hypotheticals right they took the son and they held him for ransom right in one instance versus they took the son and tried to beat information out of him right and if we knew those were the sole motives right there w overlapping motive but in one instance was literally just to get information we want the code to unlock the safe verses we want to ransom the child it is that the distinction you're trying to draw such that in the ransom case there's some sort of as you call it you know motive about you know prosecuting those folks but in the information case they're not is that sinks in i don't think that that case is distinguishable either because in both cases the neither case is official correct because the ransom case they want money they're using the son in his relationship as a tool to get that money but the relationship is what is not the spark checked a characteristic that they want to overcome that's that's the key factor about percy tory motive it's to protect a characteristic that the persecutor wants to overcome and it's present in either of those cases and he's not president and it is worse is because what they're overcoming is fidelity to his mother's wishes yes that's the right so you square that with hernandez yes thank you very much  very briefly some of the points that council made i do disagree with this issue of the gangs being versus the family i don't think it has to be the entire family as a whole and you don't have to show every single family member being persecuted i think is something that just qualcomm addressed also even if one family member is threatened or harassed for the sake of the family i believe that's enough referring to guadalupe was threatened for that relationship with his father i do think that the government is trying to draw a distinction between a mother child relationship as an hernandez avalos compared to a son father i don't know we can draw that and one thing to squirt i would want to draw that that only people of authoritative nature the parents are the only ones that could suffer persecution if a son the eldest male knows the whereabouts of a father and he's being threatened this being cut off to get information on the father we believe that's just as viable as a mother being threatened for the trial as a factual matter you're obviously far more familiar with the record than i am is it fair it seems to be you just used the word to get information is it fair to say was to get information because you could imagine two different ways that you could find a father right one is he's at this address right the other is you know make him come out of hiding or we're going to kill your son right those are two very different motives it seems as if the i j a in the record supports the st option that is we're just trying to find out where year but there's a little hint of the nd motivation both of which are trying to find the father but one is information focused and one is trying to force action exactly what i don't i don't believe the i q which exactly can't be the answer it's a mask in which of those or both exactly can't be the answer so is that the is it just about information is it about action or is it about both i think it's by both unfortunate the judge didn't address that what if it was just about the st what if what if the reading of that was it just a motivation to get information and is with that in your view be appropriate basis for determining that the familial relationship was not the a central factor i believe it is if a family member knows the whereabouts of someone i still believe that falls within hernande aabs i think i think that's how broad we should be looking at particularly for within hernandez if as in this case the family member doesn't know where the fall or is right because now the assumption the question has to be with the gang could the gang with the gang have done this to someone else who didn't in fact know where the father was the answer seems like it would be no the only reason they picked this boy is because they thought he knew where his father but it turns out he didn't right isn't that what the record shows that he did not know where they don't believe that's correct either in the record doesn't reflect that this was some kind of retribution because they couldn't find the father then asked to respond the petitioner forty eight hours before would your father who he didn't respond to went to school kidnapped him and then did what they did that's the relief you're seeking we believe or not yeah that's a correctable with that involve a diff would that involve taking evidence or would that be based on the record that as it now exists why no in the past what's happened in the rd circuit is that they do take evidence and the government's to provide some evidence of presumption so that they are right now based on the record there's twenty five years of non incident  twain the mother the rest of the siblings and the father and so is there any evidence on which that presumption quite frankly couldn't be rebutted based on the record we have  now it would be very difficult to rebut i mean only because of the time frame that's that's a lapse an unfortunate as it is it does it does happen that it this much time does take place in quite a bit of situation but i probably want to address that and have  talked to the witness and figure out if anything else has happened for example have that minute missional fracture or letters made subsequent to the twenty five years ago incident