may please the court alex hammer for petitioner george milan i'd like to reserve for minutes keep an eye on the clock blom was brought to the united states as an infant and has lived here his entire life by the time he turned eighteen he had an visa petition that he could have used to obtain legal status instead he was placed into removal proceedings and the immigration judge there failed to tell him that he might be eligible for a form of immigration relief that would have allowed him to preserve his path to citizenship today reasonably fears returning to mexico his country of origin where members of a drug cartel attacked four of his immediate relatives over the span of three years killing three of them at his asylum hearing milan introduced affidavits of two family members at heston to these tax one of whom was a person can witness the i j and b i a found count credible but they concluded that his subjective fear of persecution was not objective lee reasonable that is incorrect testimony which the agency deemed credible did not give rise to an objective plea reasonable fear for future persecution this court has explained that this part of the inquiry is not meant to be especially demanding if the evidence establishes that there is even  ten percent chance of persecution for whatever reason that sufficient the b a and i j rejected the notion that the evidence had established as much out of what seems to be a sense that milan was not telling the truth his drug case which we cite in the reply brief and that's exactly what it did here nd as to cat we think the eye j s analysis which to be adopted is wrong on multiple grounds the i g didn't ask  the st and most important question under cat which is whether the applicant would be tortured if he's returned to his country of origin more likely than not that's the standard heard that is to talk ins as to the question whether milan had shown that the government would ac milans more recent motion to reopen which alleged ineffective assistance of counsel on the part of his asylum attorneys we think would be a really only adjudicated one question whether milan showed that any effective assistance he received was so however the b i a imposed a burden on the lawn that he is not required to meet this court has repeatedly held that if an attorney error results in the forfeiture of an entire proceeding prejudice is presumed that's exactly what happened here milan's attorneys errors cost him a hearing on whether he was removable as charged help me out with the persecution and protective ground which protected ground the protected in his credible fear interview and before the i j a with his family members of them on family and what evidence do we have that they're being targeted as family members instead of being targeted because of individual actions  the protected ground and the relationship between those are different questions we know that because the b i i said the i j reached all of those questions we're not going to reach the latter two we're only going to reach the question of whether this evidence taken is true gives ri object to be reasonable fear of future persecution but i'm happy to answer that reasonable fear of bad things happening to me it's actually exactly for whatever reason to one side the question of whether constitutes persecution because of protector that's exactly right so if the if the panel concluded that you know the evidence before the b i a was sufficient to give rise to an objective objective fear of for future persecution which this court has defined as you know a ten percent chance that the petitioner will be tort bill will be persecuted on return on his was the feared persecution would be on as a result of that ground i'm sorry the i j a made a specific for ending your client testified that his grandfather grandmother five or six sanson articles and numerous cousins  it two points i mean i think st i'd emphasize what this court has said in the car which is that the the question isn't whether milan has shown that it's more likely than not that he'll be persecuted on return to mexico it's whether he's shown that there's a one in ten chance that he'll be returned persecuted on his return to mexico he introduced evidence here that four members of his family have been attacked and tortured by members of a drug cartel over the course of three years later we know about those four members what i'm driving at is will may very well be cartels not killing grandmothers and little kid right but tell me about the four who were killed and are they males are they you know one of the ages until that's exactly right so the record is a little thin here we do know that all four family members are men this is his his grand grandfather his uncle and two cousins so the st incident in the st incident in two thousand and eleven the testimony is that two male relatives were abducted tortured and killed the cartel in a hotel in guerrero and then in twenty thousand one hundred and thirty two years later the same cartel returns to milan's grandfather's ranch i think it is and they torture his cousin and shoot him eighteen times so we know  of them at birth the family member who was shot in the more recent incident was roughly milan's age and like milan had spent most of his life in america the testimony is that edgar had spent at least a decade living in southern california and was visible was sort of uniquely visible to members of the cartel when he returned to to guerrero that's exactly what milan testified before the i j a was his fear he said you know am a member of this family for whom you know against whom this cartel has been active and i would be uniquely visible upon my return to mexico because i do not speak spanish i have lived my entire life in the united states and i would be you know noticeable as a returning from from the united states so you know i think that to go back to your st question to the particular social group here is the milan family we do have evidence that you know within that family the people who are targeted  are men perhaps for the reason that you're suggest you know they don't go after the grand the grandparents they don't go after them if you make a particular social group the particular social group that he alleged is his family judge bennett i'm trying to i think what i'm trying to get it is the is the question of why within that particular social group some members of you know some members were persecuted and some members have not been there's no requirement of course that every member of the particular social group a member of the milan a family and one was that he would be and one was that he was a you know a recent recent to deport the who had been americanised i think that sort of you know is an artificial separation of what during his credible fear interview what he said to the interviewing officers was my from my the social group that i'm a part of is my family but i would be a uniquely bizzle member of that family  because i recently returned from the united states do not speak mexico do not speak spanish excuse me all of which were also true of his cousin edgar who was shot and tortured by members of the cartel in two thousand and thirteen so that's the that's the sort of basis for the claim and again the only question before the court is whether someone who has faced those experiences is you know has an objectively reasonable fear of future persecution for whatever reason and the b a s reasoning on this point is somewhat sparse it focuses on the fact that you know he didn't introduce sufficient evidence he didn't remember the don't know the answer to certain questions but those aren't really grounds on which to conclude that a you know credible testimony does not give rise to an object of fear attractively reasonable fear of future persecution there were two grounds for  of his testimony and the affidavits of two family members that he put before before the i j a on the other hand there is no contrary evidence in the record and is this report held explicitly in a jug nowhere and i j makes a credit enters a positive credibility finding the i j b i and this quarter required to treat the underlying facts as true  nonexistent why isn't the end of the matter for the reason that all everything you just read goes to nexus and the b i did not adjudicate the nexus question it said the i j a reached the issue of his credibility the issue of whether the evidence that he put forward gave rise to an objective a reasonable fear and the issue of nexus we are only going to address the objectively reason the objective reasonableness of the fear that if i could reserve the remaining three minutes ok thanks evidence when it comes to act of a reasonable fear of course the courts reviewing standard in this case is substantial evidence you have to show that the record compels a contrary result talking about the st petition now with respect to asylum withholding and com decided so the question of why there was no past persecution it's case we all agree on that it hasn't been persecuting the past so we're looking at whether is a well founded fear of future persecution the board's decision determined that there was not an objective fully reasonable fear with with respect to harm with respect to harm greg the didn't reach the question as to whether or not if there had been sufficient harm there was a there was a protected ground correct because it didn't feel it needed to reach that issue  to do that because the did in fact rely on objective the recent objective evidence or specific evidence to determine that there was not an object of lee reasonable fear and that evidence was that goes to the issue of the family members who reside in soko who have not suffered harm so that is this important for my own analysis that i would in fact impose upon the b a i'm going to put to one side grandmothers and little kids well this is inventing facts that are not in evidence list of family members in the bay is relying on for that proposition to support its conclusion we have people who would not ordinarily be targets of the cartel but where are you getting that if i may or under where you getting this idea that women grand children and kids would not be particular targets of the cartel i don't see anything in the record to suggest that so i think i think the maybe i'm wrong to do this but you're fighting particular point and i don't think there's anything in the record on which the court can draw the draw that conclusion i understand their commonsense approach but but i don't think that it would be fair in this case to rely on evidence that's not in the record for that reason or opposition  went back to mexico or during his infancy there was no past persecution but they did also look at the whether or not he had objective fully and objectively reasonable fear and that's what the board you know is relying on in and saying that there's an example of an incident record to support that and this court has said when family members remain in the state in the country who have not been persecuted that that is a sign  that refutes or it goes against this idea that there's an objectively reasonable fear so and i don't know of any opinions by this court and i didn't research this issue because i know it's going to come up today because of what's in the proceedings below but i don't know of any issue ways from traditional civil cases for example where we can affirm the holding bowl of based on evidence that's in the record but if we had concerns in the immigration result on jack on objective leave reasonable fear then yes the remand would would also consider whether or not there was sufficient nexus to a protected ground our position on behalf of the government is that the court doesn't need to go there because there is not was not objective leave reasonable fear and i point out by the way that in the original petition which of course i acknowledge was pro se the alien did not raise this in his initial briefs he only concentrated on the cat claim and kind of waived his claim written some pretty comprehensive briefs on immigration law he understands english well and that was something he determined not to go forward with you only went for it with the cat claim you know this may be an unfair question but put yourself in the position of mr milan  for the cartel and was and was going to live a life in mexico i would not have an objective only reasonable fear if you're asking me to that position of a person in his shoes so i think it is reasonable for the court to say look you know based on the evidence before us the thin record as my opponent has established has can see that there's not enough here to show that just because a few of your family members have been killed in mexico that that's enough to say that you have an objective  reasonable fear when at the same time there are numerous other relatives that you have that have not suffered any harm you disagree with mr hammers characterization of our case laws saying a ten percent chance is enough of people in this family who may have suffered harm doesn't necessarily you know if he had fifty relatives who didn't suffer harm and three ok so you're saying fifteen percent of the that's what i'm asking i see i still i s politely and respectfully reject an analogy because number one i don't think he showed a ten percent chance but number two you know i was asked this question in a boot in my office interesting enough how many people does it take for you to say that there's an objective lee reasonable fear how many people just take form of course the interest not there but there the issue is does the record compel an opposite result here here you know the immigration judge and the board recently listen to this evidence and determine we don't feel that you simple fear but what is there in the record that compels the opposite result and i think that's where the court has to look at the standard specifically because as the court knows you know you can't replace your self with the board and  substance ok well so with respect to the substance i would also say that he has not shown that he merits relief under the protection under the convention against torture he has the burden of proving it would you build a show that's more likely than not that he would suffer torture and he has not tried i can do math if he's more than one thousand and fifty is more than ten and if yours if you're if your personal opinion is fifteen percent he clearly doesn't meet the hypothetical relied on the evidence and record there was substantial evidence in the record to show that family members remained safe in mexico there was no argument till the briefs about this idea of similarly situated that this cousin egger was in the united states before he came back and look what happened to him that was not made in specifically in the record below so all when you put his or her curio open i think right this subject that's the subject of his attempt to reopen right you seen there change circumstances there's new evidence etc well but he's also saying that that that because of what happened to edgar that he has an objective lee reasonable fear any any kind of merged the social groups that he's talking about to say look he's similarly situated he was also from the united states and came back to mexico this court has said on several occasions that you can't refrain the social group on appeal you have to look at what was presented that he was returned to mexico that he didn't suffer any harm on his surgery in mexico it is relevant and that of course was part of the board's analysis with respect to past persecution but that also goes to the object of lee reasonable fear as well to future persecution because the board has they don't see as acknowledged that look this guy's been deported four times before to mexico and he's never suffered harm how long as he's i should know this but i don't each time that he was sent to mexico and there were several times roy where he only stayed a few days before illegally crossing again there was one time where the longest the longest there is the record is not  substantial evidence the living relatives in mexico the fact that he hadn't been persecuted in the past and that he really didn't so it shows specific evidence of that that he he was was likely to be the subject of harm and on that  your honors let me start with the last question i'm not finding it in the record but he's never has never been more than about ten days in mexico on any of his returns and he's never returned to guerrero which is the state his family members live in he's only crossed the border briefly to tijuana and then come back so i think the fact that he didn't you know face any harm there is the killings took place guerrero yes he goes before the house to return to the so that goes to whether he be able to internally relocate judgment which is also not an issue addressed by the agency you know but did he testified that he would be going back yes he did on the on the point about his cousin milan's attorney there's a long line of questioning about the similarities between edgar and mr milan designed to establish exactly this point which is the similarity which is that milan like edgar would be uniquely visible upon his uncles and cousins are still living in guerrero how many people of the kind of you know your age who might be targets of the gang and he says five or six so what we have what was before the i j and the b i a is a record in which member for male members of milan's immediate family were attacked tortured and three killed by the members of the drug cartel and five or six who remain still in mexico so you know i don't want to care i don't want to stand here and say well you know four have been attacked and five remain that's a forty percent chance or something like that but i do think that is that is relevant if the question the court is asking is does the record compel the conclusion that to your question judge fletcher it is reasonable for a person who has had four members of his immediate family attacked tortured and killed to fear that he'll meet the same fate i think the record on equivocally does to this point about a thin record if the court is concerned about the thinness of the record i would point out that the month nd motion to reopen alleges ineffective assistance of counsel on the part of his asylum attorneys who i will reiterate appeared at none of his st three hearings including his credible fear hearing  e appreciate it always helps a great deal well thank you but you're getting paid so