threat for identifying him our gang leader in a police lineup as the person responsible for extorting his uncle's bus business the fear that my client experience that caused him to flee as homeland was reasonable genuine and understandable according to the immigration judge the death threat that mr assad on a received and the need to flee his homeland as a result constitute past persecution under this court's precedent such as the novice case he reported criminal gang activity to define the group little bit more narrowly in order to have him not be similar situation well we've identified it in the sense that it is not just the reporting of the crime it's the or the witnessing reporting and assisting in the investigation and prosecution of that crime my client was not just a victim of a crime who reported the crime he of from an employee participated in the investigation and prosecution by participating in a police lineup and it was only after the police lineup that he received a death threat in fact he made that testimony really clear in response to follow up by the immigration judge that he was not threatened before he actually went down to the police station and identified the person the individual the anonymous caller who made the death threat made it very clear the reason why he was being targeted he said the death threat is because we want to send a message to other bus drivers not to be informants and cooperate with police so here there's no question as to whether the death threat the past persecution was on account of a protected ground the person who delivered the death threat made clear that our client knew it was on account of that protected group and yet the board of immigration appeals found it found that the immigration judge had correctly denied asylum in a two paragraph decision that had no fewer than six separate factual and legal errors and then continuing on in just one conclusory sentence denied my client's cat claim his claim under the convention against torture without any discussion whatsoever of country condition  in the record directly contrary to the regulations implementing cat which required that all evidence shall be considered in deciding a cat claim there was evidence in the record that people similar to similarly situated to my client would be killed for assisting and identifying witnesses in fact in the record a page with error one sixty two the current then current country condition evidence show the killing of three witnesses in three separate cases and a period of just thirty five days  none of this evidence was considered or discussed by either the immigration judge or the board of immigration appeals and summarily denying the cat claim and cases such as coal and camel toss make clear that that kind of the kind of boilerplate legal standard in denying a cat claim is not sufficient and for that reason i don't ask you about the kind you just mentioned the country reports that he submitted i didn't see that he first question there were no country condition report submitted from the us department of state there was country condition evidence in the form of two articles that were provided and i was specifically referring to one of those two articles that were submitted by claims for example i think the article states that eighty percent of the cars driven in salvador were stolen in the united states and that illegal immigrants are responsible for most of the violent crime in america's cities you know i know that you're probably probative evidence that would've been very useful to the agency below and should have been provided by both sides as for the ineffective assistance of counsel i think the record speaks for itself the judge had admonished counsel to stop texting during the merits hearing  the counsel and to make a closing argument counsel initially refused to make an closing argument there's not been a matter of lozada claim filed i was appointed by the corporate bono but certainly i believe that the quality of the  counsel below effected the result unfortunately those are things you know there are there is evidence that i can't bring to the court's attention at this stage of the proceeding i do believe though that there is you know this evidence was admissible it was admitted without objection by the government so the court was obligated to consider what evidence that did have and this is highly probative evidence where it shows that similarly situated individuals are being killed with impunity around the same time that my client assisted in identifying so that evidence was not considered by either the immigration judge or the board and particularly with respect to the cat claim where this court's precedent makes clear that country condition evidence not necessarily country condition reports but country condition evidence in general can sometimes be dispositive of one of those claims instead what we have is a one sentence summary denial that does not begin to comport with the type of detailed in consideration that this court requires let's not let's assume that the one anonymous death threat was not enough to establish past persecution maybe you can argue little serious arguments to why you think on the left there was a reasonable fear future persecution i think that the evidence shows that what limited evidence there was of the country conditions shows that individuals who are similarly situated are killed i think that  you know with the passage of time here we sit today in two thousand and sixteen these are events that occurred in two thousand and six i see i'm down to two minutes but let me answer your question i think that the evidence shows that the that the gangs retaliate against witnesses and that even if the actual death threat itself doesn't constitute past persecution which i believe it doesn't or novice that he would have a reasonable fear of persecution having been specifically identified as somebody who cooperated with police in a police lineup but i do think that a presumption of future persecution was triggered by the death threat and that's not something that was considered either by the immigration judge or the board but what's your most compelling evidence for  good morning in may please the court attorney seventeen o f leo on behalf of the united states attorney general i think the critical issue here your honors before pivoting on to the merits claim merits of this petition is really with regard to the exhaustion issue that was raised in the brief below i'm not so much persuaded by the exhaustion issue maybe perhaps you can answer the question i have regarding the what i've been asking opposing counsel about and that's the  country reports or country conditions do you not have an obligation to produce any country condition reports your honor if you want to pursue interested to statute and regulation it's the burden of the alien to produce this information now although this court has recognized that the agency also has the responsibility to provide country conditions evidence there is simply been nothing presented to the agency below with regard to the convention against  regard to convention against torture claim that individual be tortured by or with the acquiescence of the government that you represent department of justice so you want justice done in every case and so was there any bench report that you could have given that would have been helpful and just just curious because normally typically the government does it and you are correct and as an officer of this court remember the partner of justice i believe that justice should be done and in this particular case there is there is simply the evidence that was presented showed that was presented what did you find unfortunately i will report review unfortunately with regard to my own independent review versus m s thirteen gangs what i what i can say your honor as you your honor ask the question with regard to all the it is a in the record is that the government has continued to do what it is able to do with regard to stopping or preventing or or ensuring that individuals in el salvador are protected and i think if you look over the course of many years from the founding i think in the one nine hundred ninety s with regard to m s thirteen and i know a lot of it translates back to the united states up to and including the date of when this hearing was held that the government is continue to take strides in order to prevent that criminal strike from going i'm just curious why you would just submitted that think it seems like he would be a candidate for prosecutorial discretion have is there any any consideration for that your honor there has been consideration with regard to prosecutor prosecutorial discretion administrative closure or whatever discretionary remedies are available to the yielding in this regard and it would be our position at this time that that this particular petitioner does not warrant it and i guess i and i and what i what i would add do understand the question and the concern with regard to this particular alien and i think it's important to to i guess recognize this particular early and then the fact that we have so very little to go on with respect to the country reports and to determine whether the salvadoran government is able or willing to control so viciously m s thirteen so that's just my on top of what i see based here on the record regarding the petitioner just further sort of begs the question and i do understand your concern but i would add that in the record it is very clear of additional testified the same with regard to what the government went ahead and did with regard to and mr teen in this particular case not only do they individual call them in detained there was a lie or at least of an identification that individual met individuals detained for subsequent number of a subsequent amount of time following that that that initial idea and witnessing and so that i think in and of itself presents that there is clear evidence that the government has been will to protect or at least making strides again against them is thirteen i think it's also important to note is that  with regard to judge judge watford's a question with regard to the young cole is that the uncle also participated in this particular line of although wasn't the individual that actually pointed out these m s thirteen gang member and he can continue to reside in el salvador effectively without incident there's been no indication that the uncle has received any death threats there's been no indication that the that's the whole point he didn't get the death threat because he's not the one who i d  the gang member seems to me if you define the social group or the particular social group involved here a little bit more narrowly he's just not in it so it's not amount think he's the right person to compare to our petitioner and  agree we're on and i think what we're saying is is there evidence in the record with regard to the government's ability to protect not just be known because he's not similarly situated so he didn't i didn't finger the gang member and we know from the petitioner's credible testimony here about the threat that he received it was a sickly because he was the one who had identified the gang member not just because he had shown up at the police station and i ended and i understand i concur with your assessment of the evidence  honor but i think what is also important in this i think what the agency actually did a good job here with regard to this case is with regard to particular social groups and whether there's an offer benefits of our decision and henriques re this right you know i mean we have a bunch immigration judge in this particular case did make the make the finding that even if this individual was part of a particular social group of witnesses who cooperated investigations against gang violence in el salvador that even if that was the case that the the harm would not be on account of a protected that's just wrong right i mean we know from the nature of the threat that was i don't know how you could have better evidence of next year than the threat that was was provided and i understand your concern or i think what the situation is is really there was no rebuttable presumption here and there was no finding of past persecution they went to the well founded fear of future persecution now based upon the evidence of the record with regard to and again i think you disagree with regard to the uncle being there and not being subject to any harm in this far as the actions that were taken by the authorities at that particular time that that in of itself was not sufficient evidence to demonstrate the nexus being on the nexus with regard to this particular social group and it being on account of his being a witness cooperation with authorities it's such just don't want to because you think that the article that one sixty two it's just not i don't know what it's not credible it's not  we shouldn't put place any weight on what's because it does seem to say that witnesses who come forward and try to testify do get murdered by this gang oh i think that that evidence i mean it was not rebutted by it was not rebutted by the government below and i would add and i think that and it's just true right i mean this getting is notorious for taking out people who try to cooperate against i mean he even here let alone in el salvador so i guess i'm not sure what article and say well there's at least something here that suggests that this fear that he's got is potentially reasonable well again based upon the in based upon the evidence that was presented by the alien in this particular case and whether or not there is a way that fear is well founded based upon the what he actually presented with regard to that in this particular situation the individual that was responsible for this alleged persecution or potential further persecute future persecution was actually detained by criminal authority by authorities in el salvador as well as his own could this isn't i mean if this isn't one of those cases where the threat that he's receiving is a very personal you know it's like as long as the person he identified has been neutralized there's no there's no danger this is i mean he's kind of snitched on the gang that has many members as we know and so the fact that one person is is detained or is not the thing anymore that doesn't seem to me to be all that compelling and i understand your concern and i will go and i think i would invite the attention of this court to with regard to really what are we looking at here is whether or not substantial evidence supports the agency's determination does the record come now yeah so that i was very sick and i'm trying to figure out your position because i look at they are one sixty two and there's a graff there in this i don't know what this article is like it's on the internet or something so i'm just wondering if you're going to tell us that we shouldn't put any weight on it but it does seem to say that folks that are in the petitioners position have been murdered which suggests number one that the threat that he received isn't an idle threat and number two that the government obviously wasn't able to prevent it and yes your honor if i am correct that article or that article also discusses sort of the what it was my understanding and i may be referring may be conflating articles here as far as the ability for police source of release trying to make strides into preventing this criminal strife and criminal activity throughout el salvador and in my opinion this is one example of the actual strides that al salvador el salvador salvadoran authorities are actually doing in that is we detain this individual we fall we took this individual and we detain this individual for a significant of or at least an amount of time with regard to these threats that you were that so it didn't rely on the articles to i mean so you're not challenging our i'm not here to get what they were objecting to below so i'm not here it is an officer this court to say anything otherwise that we're somehow saying those articles are created or are misstating what the conditions were at that particular time of that article but what i am saying what what ike what i can't honestly say is whether or not this particular record in the facts  the burden being on the petition or compels a contrary conclusion to what the agency found and that there is no well founded fear of persecution that even as a member of this particular social group that any future persecution would not i not on account of membership in this particular social group ok thank you thank you your hon cited by virginia college journal of law of justice and winter two thousand and ten so this is not something that was just a very credible source and again it was admitted without objection by the government how does the fact you cite it somewhere make it a credible source well it's extremely probative of how similarly situated individuals are treated also i want to point out the i also was not prosecuted as the board of immigration stated in its decision in fact i mentioned that there were six separate factual errors in its decision that's just one of them there was no evidence of prosecution in fact the fact that he was arrested and then released only makes it more dangerous for my client then how do you never been arrested so it's the arrest itself which creates and a heightened danger to my client