please the court my name is stephanie potter and i'm here on behalf of jose nelson cruz the pollen in this case and his eleven year old son stephen mr crewe served as a salvadoran national police officer for ten years until he and his son were subjected to repeated threats including death threats by the body of eighteen gang in el salvador after that they fled the country and requested asylum so we're here today to discuss errors that the board made in reviewing emigration judge's determinations and this matter that briefing sets out many that there are two that i would like to focus on today the first error was that the board of immigration appeals incorrectly applied a clear error standard of review to the immigration judges legal finding with respect to the past persecution mr cruz and you do you agree that that's a fact question no not in this case in this case mr cruz provided corroborated uncontroverted incredible testimony regarding the threats that he experienced and so in this narrow set of facts there were no fact questions about the threat that he experienced what remained was the legal question of whether or not those threats constituted persecution under the law and in a similar case and twenty seventeen in the middle this case this court decided that whether a prior assault gross the level of persecution was a legal question subject to the novo review and here similarly believe whether these threats gross level of persecution was a legal question that should have been subject to denote a review instead the board been around thirteen years we said the past cures persecution is a question of fact i think that case is is the most often cited for that proposition establishes their asylum claim is a question of fact and most cases there will be fact question but the test of my case also recites the typical standard of review before this court that legal questions are subject to and  michael as well and so i've believe it is perhaps the rare case like this one where there are no fact questions about the the harms that were suffered and the only question on past persecution is whether or not those arms constitute persecution of the law but i believe that those are the narrow facts that are presented the is the impermissibly high legal standard of proof that the board applied to their analysis of mr cruise's ability to internally relocate in the country and how that impacted their well founded fear analysis th board required mr cruz to prove that he would have continued to be targeted for harm how do you tempted to relocate with an el salvador which as we know is a very small country that's not a burden that's an impossible no person can prove the harm that might be suffered in the future the actual burden is to prove that internal relocation would have been and reasonable are intolerable  has three mandated cases even in the face of an adverse per past persecution finding for applying that impermissibly high standard of or proof before or for purposes of asylum not protected classes mr cruz a member he's asserted both at the time that he was at initially threatened he was an active member of the national police force and he's also started that he's a former police officer now and the board did not address the particular social group or or nexus day and focused their inquiry on past persecution and internal really the internal relocation aspects of  applied by the board and so i think that's the distinction here we have a unique set of facts in this case and that deference that the board gave to the immigration judges legal findings was and was important here because the board was then able to adopt the demographic and judge's findings that and the threats that my client experienced in constant persecution because they were accompan possibly conceive of verbal threats being any more and extreme than these were these were repeated threats that were escalating each threat got a bit more extreme were there were there really three threats is that right there are three separate incidents that were at issue in the last threat for a gang leader called my client on his personal cell phone and and said he'd already given the green light to kill him and would kill his son as well couldn't get out of here and  and with that threat and given him my client's experience in in the country the police officer and what he'd seen and that made him afraid enough to to flee  former police partner had been threatened by the body of a teen a year before and he did not flee in two months later was gunned down on his way home and so that an event certainly colored my client's perception of how serious these with regard to the internal relocation analysis which is really where the board sort of began and ended its well founded fear analysis and the board held that mr cruz did not submit evidence that he would continue to have been targeted for harm had he relocated that as an impermissibly high standard mr cruise does not have to prove that he would continue to be persecuted if you relocated he has to prove to a reasonable degree that return would be intolerable the regulations provide for a multi faceted review of of what constitutes a reasonable ability to relocate harm is certainly one consideration but strife and country conditions are another and economic conditions in the kingdom so that administrative and economic conditions in the country are our issues as well and so they're supposed to conduct this complex reasonableness analysis there they're not supposed to require a asylum applicant to prove that they would continue to be persecuted because that's that's an element that nobody can do you can't prove what will happen in the future had they applied that correct reasonableness standard that i believe there's compelling evidence in the record and undisputed evidence that relocation wasn't an option in this case so this is a case of death threats where the the stakes are very high had had mr cruz attempted to relocate and been wrong he or his then eight year old child would have been murdered and so the what a reasonable person would do in this country is exactly what he would do well what the being we are a said about that is that cruise quote did not testify that the gang made countrywide threats against him rather he reported that they did not want him to be in the same area as they occupied from that statement it would be reasonable to infer that the threats would not apply to other areas except the areas to if they get the gang arc and there's undisputed record evidence that the gang occupied the entire country up to ninety percent of us have it or is under the defacto control at the gangs and that there's no governmental support for those that attempt to relocate in country other small size is pertinent to a death threat case as well so for lengthwise is less than two hundred miles long it would fit between austin and dallas and mr attack a look at which is the middle of the country so he testified that by bus he couldn't get more than it was two and a half hours away from his hometown so while the geographic bret's of the specific threats was not well defined had he wanted to interpret that narrowly and not go too far away he didn't have an option in country to get very far away and when his child's life was was threatened by a gang his experience carried out their threats there's certainly evidence the reason a person would not have attempted to relocate internally you can bet if one of my children were threatened i would not relocate to waco i would try to think that and so i think all of that  and i believe that had the board applied the proper review of reasonableness rather than in possibility which was the standard that they applied that they would have found that  necessary that that is an erroneous heightened standard of proof and even in the face of an adverse past persecution finding this court reminded for analysis of well founded fear and edouard similarly in an in the the court reminded to the board could correctly analyze whether an applicant had a well founded fear of future in both of those cases that remained happens even with an adverse past persecution finding edward was similarly a threat case but the threats there were not so extreme they were not death threats they were merely harassment and even then that the court room into the not so here i believe that the heightened standard of proof applied to the internal relocation please the court i'm matthew glover i'm here on behalf of the respondent the attorney general this court should deny the petition for view because the board there was substantial evidence to support both of the board's conclusions that petitioner failed to show he suffered past persecution and they failed to show it was unreasonable for him to relocate within al salvador in addition the court should deny the petition for to reopen and petition for reconsideration because the board did not abuse its discretion the i'll start with the standard review judge smith as you pointed out the test for michael predates morales and does a stablished of the standard of review in this court is for substantial evidence because it's a mixed question and so we think morales i believe you  defined described as an outlier we think it's an outlier and in fact if you look at the nine times that this court has cited morales since it was handed down in a few of those in none of them visit cited for the de novo standard but in a few of them it's cites the substantial thousand and three point one de suggesting that novo review is required but if you actually look at that provision it's got to sub prongs the first sub prong says the board will not apply to novo review to factual may apply de novo review to other judgments or an administrative things or legal question so there's no law or regulation requiring the board applied to novo review and as explained in our supplemental brief and citing the supreme court's description in village of lake ridge for what constitutes a mixed question that's very factual this is a mixed question it's very factual and thus the clear air steamer was appropriate for the board to apply to the i j a and it's appropriate to be applied here i'd just put in her declaration she states that there were other police officers in el salvador who were transferred when gangs threatened them and their families for extortion or murder or so including death threats and those police officers continued to serve and she states on page five twenty nine as well that it was quote standard for officers covering crime and homicide to relocate in your liam biannually and i think this is record evidence that supports the board's conclusion that the threats here did not ri persecution but also supports the board's conclusion that it would be reasonable to relocate internally as we explained in our brief there are a number of cases in this circuit and elsewhere stating that you typically in more than threats alone you need some  be carried out here we had three independent threats i'm happy to answer any questions the court has but i'm also happy to rest on our briefs and i guess i would before i rest say my friend on the other side suggested we didn't cite any cases that in which the court applied substantial evidence standard to the determination about whether past persecution or current sharma versus holder is cited in our opening writers first the government argued that the regulation that regarding do novo review of legal questions is discretionary however in this case the board interpreted that regulation to say that it would apply to novo review to questions of law judgment in fact and the board is entitle to deference on its interpretation of regulations as as i've said there's also just dozens of fifth circuit cases that recite the standard that says that legal determinations are reviewed to know about the government also said that they quoted me is arguing that i that they did not cite any cases that applied the substantial evidence standard to pass but that is  recognize that there are cases that have applied substantial evidence to past persecution findings because in many cases it is a factual question i believe that on the narrow facts before us here we have credible and controverted  testimony about the discreet threats that give rise to the past persecution finding in this situation there is no fact question and in this situation to nova view applies and the govern also cited an excerpt from my expert affidavit that was part of the record regarding certain police officers that relocate anyone buying uli to remain safe with salvador there's no evidence that those police officers were threatened what my client experienced he testified was somewhat unique certainly there is some practice of targeting police officers but my client testified that the direct threats that he received were relatively unique in his department and it was certainly common to experience threats in the course of your police work you might hear that a gang threat different and informant but what my client experienced was threats that really followed him home and the gang threatened him when he was off duty when he was in a nearby town with his family they brandished a weapon in front of his eight year old son and they somehow found his personal cell phone number they came to his home so this is not a typical case of a police officer experiencing casual threats in the course of duty he was personally targeted because of his profession and that's partly because without evidence that other police officers that were targeted like that were able to successfully internally relocate there really doesn't rebut our humans on internal relocation  the government also cited said that more than threats are typically necessary to establish persecution i don't i don't disagree with that and in typical case it is difficult for threats to us level of persecution there were more than threats here so we do have these three targeted threats but on top of that we have a an actual physical act where a similarly situated after a police officer was threatened in very much the same manner and murder the previous year so we have more than threats here that the threats that occurred here are simply far exceed the threat cases cited by the government that were mere taunting or harassment and with that i'm happy to answer any other questions you may have heard thank you mr potter places under submission