emitted before her merits hearing the immigration judge decided her case based on her written declaration we were not given an opportunity to have a full and fair complete hearing decision was appealed to the board the  for a firm the decision and we have fewer than we are now here before the ninth circuit on whether or not the proffered particular social group or a nexus to a protected ground for her to be eligible for asylum decide if they can still proceed and adjudicate claims based on violence based on someone's gender our position is that there is no meaningful distinction whether the petitioner was violated because of her gender and whether the gang sought to abuse her for financial gain and group or revenge her gender is indisputable e y she and not another person was threatened by the the i j a and the board focused too narrowly on the immediate trigger for the models acts of terror at the expense of considering her gender so your contention is that there was a mixed motive here both gender  believe it definitely should have been considered at least that hatred against women massage any in others in other words is a motive and that what happened to the respondent being held against her will for three days and rape repeatedly why would someone want to punish a little girl that severely if she's unable to pay the explosion being the mat against her it's not like she has a means of sustaining herself economically on her own she's a young girl wouldn't that be more cognizable than the one that related to gangs i believe you're correct your honor i think it should be that simply succinct that gender alone can stand not that was particularly because of the that it hasn't been laid out that clearly for us before we've been waiting for a rule to come out that the finds particular social group and whether gender can be and in particular the file a motion for reconsideration as contemporaneous with your request for an appeal in which you indicated that you objected to the fact that denied that right and yet from that point forward that issue seem to be dissolved just seemed to disappear and i'm i'm interested to know whether you still the appeal on the underlying denial of the of the claims for relief that the board would recognize that the inherent due process violation i did not spell it out specifically enough that i'm sorry i did not despite the fact that your client did not give testimony that i j and b i e s decisions refer to her testimony as credible as as though she had given testimony isn't that just a blatant error when she was allowed to testify and they're both rely on the immigration judge assume for purposes the respondent testified credibly as to her personal experiences there was issue well i believe there is a code of federal regulations statute that requires a full and fair hearing with testimony to be taken under oath and that's after the i five eighty nine application filed unfortunately i didn't have that when i submitted my opening riff i would have included that information which is very relevant to this claim the i g also said that there must have been some communication with the court that you had with the i j a because she basically said that she informed you that she had this particular statement from your client and she seemed to suggest that you consented to to for her to go forward with the hearing or at least did not raise any objections you know based upon this communication that you had with her is that is that right do you remember that i have been review s when i reviewed the transcript at one of the preliminary hearings when we submitted details declaration the judge asked me so her written testimony is the same will be the same as your oral testimony correct and i responded yes and based on that she had she said ok well then we will have an american state on such and such they are so your intention was not to say to the i j a you don't need to have a hearing because hearing was in fact scheduled for her testimony you still wanted hearing but then you made no further objections at any time after that no because i did believe we were going to complete our next date so the first time you learn that this hearing was canceled was when the i j a issued her written order before that you had no idea that there was going to be no hearing after the i g issued her written and unfortunately it's taken this long to to resolve this issue but did you raise it to the v a not succinctly enough i did not spell it out like i should and was there a particular motivation on your part not to raise this due process concern that you had in the briefing to us unfortunately in my briefing i was focused on have please the court i'm christina grier on behalf of the attorney general your honour's asylum in withholding of removal are very narrow forms of relief and protection that are available to persons not everyone who's been harmed in their home country or to all victims of crime but they are limited to specific types of harm motivated by specific grounds that are a numerate and we understand the general law of the silent light we get to this case yes your honor your matter of law in cancelling the hearing without a stipulation that there be no hearing knowingly and voluntarily entered into by the petitioner no your honor and there are multiple re specifically two reasons why because or one reason because it does appear on the record that there was such a stipulation there were wearing the record was there  each one thirty seven of the record during the second hearing that counsel was present for  a discussion where the immigration judge says provides a summary of a discussion that was off the record counsel came in and requested an additional continuance after a continuance was given in november this was in march requesting another continuance of the merits hearing this was supposed to be her merits hearing and the immigration judge states that off the record they had a discussion determined that this could be determined based on her statement the immigration judge said it became unclear that we have the issue of the threshold threshold matter of eligibility which is that even assuming that her claim versus her regarding her factual experiences are correct whether or not she's eligible for asylum and so this is consistent with the idea of waiving testimony which can only warrant to an applicant's benefit your response to the requirement of the c f r section one thousand three point two five b where the i g is required to find that contrary the waiver of rights was voluntary knowing and intelligent and that the government met its burden of proving a valid waiver if it sought to remove by stipulated removal proceedings that stipulated removal which is a different procedure than an asylum application so for stipulated removal the idea is that your full going or removal hearing entirely right but what about the finding that the i j a is required to make that the waiver to the hearing was knowing voluntary and intelligent that's a different  i believe i know the regulation you're talking about it's not in the asylum realm it is where one entirely forgoes a agrees that there were movable forgoes any applications and stipulates to their removal but still within the same category of obligations of the i j r in the form of any immigration proceedings whether regardless of the particular point part of relief reciting an off the record conversation that is at the immigration judge also or two things actually your honor the immigration judge did ask both counsel to whether this in exchange for the summary was correct  the court talks about the regulations and what is required for an asylum hearing and it's required that the applicant be put under oath swear to her application and that as long as the parties agree that the testimony would be consistent with the written statement and believable then testimony is not necessarily required and again that can ignore to an applicant's benefit where an applicant does not want to relive the trauma does not want to go under cross examination here perhaps the applicant was very young and she even previously stated on the record at page eighty seven that she had never been harmed or injured in her country so there could be numerous reasons why be credible where in the record is there a stipulation as to that so counselor first off there's the summary by the immigration judge that counsel agreed to that says page on page one thirty eight of the record the immigration judge says and then will come back for a decision regarding what is essentially a motion to pre term and respondents applications for relief and he was given until june to petitioner has a right to a hearing isn't it incumbent upon the i j a and for that matter the court in assessing a waiver of that right that the petitioner be present the petition to be placed under oath and the petitioner be questioned as to whether or not that waiver is free and voluntary that hasn't been a requirement in the past matter  to put an applicant under oath and have them do that for example if this is a paper hearing because the applicant is not competent but this isn't that case it's not but she was put under oath she was sworn to her application and her counsel was asked whether it's on page one fifty of the record that her written testimony is her oral to is basically her oral test of the issue is a legal one and then she was deemed credible which as this court knows many cases rise and fall on credibility here all of her statements were taken as true and she also got the benefit of being able to put forth a statement that she had worked with on worked on with her attorney in the light most favorable to her and it was all accepted as true and her attorney chose not to pursue this as a claim before the board or before this court there was you agree there was no colloquy at all between j and the petitioner with regard to her giving up her right to testify orally that whatever colloquy there was was between the i j a and the petitioners counsel yes at least as far as i remember in going back for supplemental briefing which is due on thursday i will make sure to address that and i have one other unrelated question can you tell us why the reconsideration motion was not a part of the certified record on appeal i believe i don't know for sure but i believe what happened it was filed with the immigration court one day before the appeal was filed with the board and it's possible it did not make it to the file before the record was sent to the board is there any reason why we shouldn't treat it as if now that we have a more is there any reason why we shouldn't treat it as if it were part of the certified record on appeal  i can address that more in the supplemental briefing but it at the least i don't yet have i don't know any answer to that question right now but i will address it in something that really should have been part of the record yes it should have made it to the board and then the regulations states that the board may treat it as a motion to read a motion to remain and so that we confess error that it should have been included in the record initially and in reading the board decision i mean there's nothing within the four corners of the writing where the board describes the fact that there was no hearing at which petitioner testified orally it may not be inconsistent with that but it doesn't say that explicitly anywhere on the board decision correct correct your honor there was no argument to i see that my time is expired you can finish a question thank you no there is no indication in the board decision because it was never raised to the board and even though the wreck the motion to reconsider itself cites the regulation stating that if it's filed before an appeal it will be sent to the board in the borking considered a motion to remain and that wasn't put forward to the board and so at this juncture the board had no indication that this was an argument for sake it seems that from that reading that motion for reconsideration that t council did not agree that there should be no testimony otherwise he wouldn't have made the argument that is due process the due process rights of its current been violated by the failure to get her testimony it's possible but we also don't know specifically why the arguments from that motion to reconsider weren't been put forward to the board it could be that after seeing maybe because it's supposed to be transferred to the board and the government didn't transfer  ut it was rejected so it was returned to him and in his brief to the board it states that it was rejected so council knew it was rejected and didn't raise then raise those issues and it's clear that due process was not raised by those terms before the board and petitioners brief yes your honor in petitioners brief to the board gets mentioned in one line which says that she would get to complete her merits hearing which on the record that the judge said multiple times i'm setting it for another day for decision page one forty nine of the record at the very last hearing the immigration judge said i'm setting it for a decision not i'm citing it for merits hearing and additionally then on the next page on page fourteen of the record it states that a motion to reconsider was filed and that it was rejected but no further that you would be necessarily making at the hearing but is this an accurate statement and he's of course replied yes it is there is no question that was raised to him about the impact of that particular response that is by responding that this is the same as the testimony she would give it hearing you were there by waiving a hearing there's nothing about a waiver of hearing in that particular there not that i see again looking at the contacts the context is that there wouldn't be a hearing but even so that use you should have been raised to the board the agent this is a produce process violation allegation that first should be put forth to the agency because it's something they can remedy but it wasn't where you heard representation from counsel that he did not understand the consequences of the particular statement when he said yes this is similar to where she testified to a hearing he didn't understand that that would necessarily mean that everything would be pre term it'd and in that situation and it should have been part of the brief to the board but it wasn't responding i'm just going to briefly refer to the transcript of that we've been discussing the part where i agreed with the off the record discussion with the judge about her written testimony hearing she suggests may thirteenth at one pm the government counsel had a some difficulty making sure she was available and then the judge says you're next all right period is may thirteenth two thousand and fourteen at one should you fail to appear for your hearing at that time and you will be ordered to move in your absence you understand she says yes and then the judge asked me so the respondents written testimony is basically her oral test is basically is a legal one correct yes that's because she had already suggested that there was a threshold eligibility issue i was just trying to make sure that you know we had a position to say to stand on that i would say this was what our claim is based on i agreed that her legal ever written testimony would be the same as an oral testimony because i had already in my mind accepted a merits date where she would be allowed to testify thank you counsel ok