yes are you able to hear yes ok good whenever you're ready we're ready for you to start franco there are two issues in this case the st is whether or not the judge followed the correct procedure in determining that there was a particularly serious crime invent a conviction and the nd is whether the rules regarding withholding of removal were followed is a recent case which says as far as the nd argument that it has to be one ground for for withholding and i think that that case came after this us decision came after this case and the judge found that he couldn't find a central reason for the persecution although he did go through the facts in this case the family of the respondent had been disappeared tortured raped on and on a whole litany of horrors that occurred in mexico and while the judge took some sympathy with that he found that even though family was a protected ground that it was not tethered enough that  sufficiently to find a nexus because it wasn't one central reason but according to bras it only has to be a reason so what happened in this case the respondent had been very young when he suffered a conviction for firing a firearm into the air he aimed at the sky well that's what that's what he said that he aimed at the sky but the judgment said he was guilty of assault on a police officer and the information names a particular person so i understand he said that but how can you get convicted of assault with a deadly weapon on a particular person by firing a gun in the air he said at the time he entered his plea it was a nolo contendere a plea so he may have said very little but did he say anything a bell at that time about firing the gun into the air we have his him giving that statement at a later point but the point that i think judge bennett is getting at is is that something he said at the t this just something that he's coming up with subsequently which would not i think inform our determination of whether it was a particularly serious offense and stand your to my knowledge he just entered a plea he did not g well he said that i mean i understand he said and i've looked at the plea form which says it was the last or but the judgment said it was the greater your opening brief says it was the greater the his asylum said it was the greater and the credible fear interview said it was the greater so i mean why isn't the judgement what controls here where it says that he got the minimum term of four years for the assault on a police officer when the minimum term you can get for that is four years well to my knowledge he entered a plea in order to avoid further charges i was not his attorney at the criminal case but as far as i know he pled i have been a public defender so i do know that oftentimes a plea bargain is entered into before there's a trial no i understand that but i mean every document except the plea form including your opening brief says that what he was convicted of i'm reading from your opening brief two hundred and forty five dollars do you want to start with a firearm on a peace officer i mean that's what you said in the in the blue brief that's what the judgment said and the minimum sentence for that crime is four years and he got four years well what the respondent testified to was that they were going to charge him with something more serious than that that was understand that that he was even going to be charged with something more serious than assault on a police officer ok may continue so so the thing is that this person has not committed any other crimes this happened more than twenty years ago according to him and the judge did find him credible he just fired this gun into the sky to defend himself there was some sort of alter cation on the street he was the one thousand nine hundred and twenty years old and then a series of tragic incidents followed he was deported he did not follow through on an appeal he left and went to mexico he came back to see his family he got married he's been stable in marriage for many years he's been the stepfather of three children he has never convict committed or been convicted of another crime and then recently more recently when he went to mexico when he was in mexico he he was not harmed he was very honest the judge found  totally credible but then when he came back to the united states he learned that numerous members his family had been tortured raped murdered disappeared on and on and in fact the respondent was threatened on the phone he received to funk he was saved a phone call and another relative received a phone call wanting to get some sort of ransom for a relative and the respondent is afraid that if he goes back to mexico he in fact will suffer the same fate that his family suffered and his family are all farmers they have land in mexico and in mexico the land is very precious because as you know there are drug cartels the main culprit in this case is th operate it's a big big big cartel and it operates in sac a test sack a texas mexico and it has control of the entire area they seize land and force the farmers to grow opium grow marijuana grow whatever it is contraband that they want them to grow and his family are subject to this type of threat therefore he has a well founded fear of persecution he can't just go to a different part of mexico where they don't control well actually this that is have grown their territories have grown there all over mexico now and we submitted numerous publications and documents to show how powerful and how wide spread the your so as far as i can see this respondent is not safe in any part of mexico now his family members did testify that one of them went back to the wanna but only for a night went to visit maybe to go shopping that's not the same as living there but he at least at some i can remember it's quite a while ago now he did live in mexico for two years in a different part of mexico and yes did not suffer any harm that history and when he went when he was deported he lived in  juarez where he was able to stay with a friend of a relative for two years however life was not safe there either and the documents show the documents that were submitted that life in juarez is fact quite dangerous the cartels have taken over the city in fact u s consular officers have been killed in juarez yes but any fear that he might have of living in bars let's say wouldn't be based on his familial association it would just be just anybody who lives there is potentially subject to violence by the cartels well it depends how you view the cartels they're like a another government they keep a record of everything they're very sophisticated they're not just street fighters they have records of who's who and who's going where and when and why so they could very well be aware of his presence in in juarez or anywhere else in mexico and seek retribution for the fact that his family is not agreeing to let them use their land for drug so therefore i think that on two points this case must be remanded number one the both the board and the immigration judge did not make an analysis of the particularly serious crime element as required by the law st of all in frontier school and later on in the gado and enough anstice and many cases have been remanded by this court back to the board and back to the immigration judge for a factual analysis of all the well shooting a gun into the air is or on a police officer is a particularly serious crime but that was all he said about it there was no analysis and the b i i did not analyse analyze it at all they simply repeated the judges the judge decision with no analysis whatsoever of the facts involved and the thing is particularly serious crime is a very onerous decision it's strip someone of the i don't understand and quite if at the time play for whatever reason named mainly maybe as part of an implicit plea bargain or whatever to avoid a more serious charge he says you may find me guilty i plead nolo contendere so you can enter a judgment that i assaulted a police officer why isn't he bell by that and why isn't that a particularly his lawyer in delhi explain it to him i'm not sure that up well at any rate he he was very young he was nineteen his and the immigrant you have to remember the immigration judge actually heard him on what happened there he said he was in some sort of street all to cation at some thing that was happening with kids basically on the street there was a fight and he shot a gun into the air basically to defend himself but he also said sometimes he thought that a police officer was there sometimes he didn't remember the police officer being there he did say he fired the gun in the air but i think his testimony is not as clear as you say it was your honor he never said that he thought a police officer was there  in the narrative between him and the judge he says that there was no police officer there and that he didn't shoot at a police officer well i paged two or three there's a question was the victim a police officer or firefighter and his answer was yes and mater he corrects that and i understand that he later says something different but he does at one point say yes the victim was a police officer right but that was just in response to the nature of the charge not in response to the actual facts of what i come back to that maybe i'm just missing something here you can explain it to me at the time of the play he didn't say to the judge there oh i just shot in the air because of course then the judge would not have been able to accept his plea to assaulting a police officer so he said no i am prepared to be balam to a conviction for assaulting a police officer what does the matter what he said years later well he never actually gave testimony during the criminal trial and there was no trial it was a plea i understand that's why and the that you know he had every right to contest the tell and if he in fact if a jury had found that he had just shot in the air he would not have been able to be convicted on the charge he was convicted  but he chose otherwise well in many circumstances that the defendant cannot afford to go to trial i did not sure of what happened i understand all those very unfortunate aspects of our legal system and they are not to be  taken lightly they are very serious problems but nevertheless isn't that the law and if you plead nolo contendere to a charge that says you did x then is a final determination that you did x yes or that is on the other hand the definition of particularly serious crime is so serious and so punitive that the judges are interrupted by this court to definitely analyze all of the aspects of go into a conviction and labeling it before labeling it a particularly serious crime and i believe in this case that analysis simply did not take place either by the immigration judge who cited an unpublished decision and by the board of immigration appeals who simply repeated the judge's decision with no analysis whatsoever ok we'll give you a minute for about a year w constitutes a particularly serious crime and nd substantial evidence supports determination that petitioner failed to demonstrate that he would more likely than not be tortured by the acquiescence of the next government or the conviction at issue in this case as identified by the immigration judge and the board is actually two hundred and forty five dollars a one which is assault upon a salt with a deadly weapon that is not a firearm or by means of force likely to cause great bodily injury the board and the immigration judge identif forty five a one as potentially a particularly serious crime which is according to the framework and thereafter considered the facts and circumstances of the crime namely that he had counsel at the time of the plea that he had pled to two hundred and forty five dollars a one although he was initially charged with the more serious to forty five d one which is assault with a deadly with a firearm upon a peace officer and the board also considered his explanation that he shot into the air that nobody was hurt and that he was impose a sentence of  four years imprisonment in addition to that the board also considered the record specifically the transcripts where the petitioner specifically spoke about his the circumstances of the conviction what that that was the criminal conduct underlying this conviction it appears so you are the only adverse credibility determination that was made is with respect to the call about the threat relating to the capitation ok so it but it's true then both of my colleagues have kind of emphasize the seeming see your seriousness of firing at a police officer but it seems to me that is absolutely irrelevant then to the analysis the analysis that we have to conduct in terms of and it's a it's not a categorical analysis it's not you don't just say oh you were convicted of this particular offense boy that sounds serious you're done you don't have to dig into the actual underlying facts and it sounds to me as if you're saying the immigration judge given that he didn't find the petitioner not credible was required to do the analysis on the basis of the i was involved in some kind of altercation i was trying to defend myself i fire into the air nobody was injured and nobody really was at risk of injury and it's all that's true then i guess i don't understand why this conviction is should be deemed a particularly serious offense particularly if we're able to take into account that he engaged in this kind of when he was nineteen and he has a history of not engaging in any violent conduct since then for like thirty year or twenty five years now factors were considered and that's really the end of the analysis so if the board and the immigration judge probably consider the nature of the elements the facts and circumstances and the sentence imposed then it's not an abuse of discretion and i grant you that but when i look at the is looking at page six of the decision or one hundred and nine that's really the sum and substance of the so called analysis you just referred to right and i read the i j a is basically treating this treating the particularly serious offense analysis as though it's some kind of a categorical approach and it's definitely not there's no discussion of the the specific facts as recounted by the petitioner and an explanation for why that set of facts shows that as our decision alphons that he is likely to be a danger to society given what he did when he was nineteen there's no discussion of that while the issue is not about future dangerousness that that is what our court said in alphonsus that's the whole point of engaging in this very spac specific analysis is determine whether the nature of the offense shows that this person is in fact going to be deemed a danger that's absolutely correct it's the nature of the offense it's the inherent dangers of the of the action itself which the presumption that there is a likelihood of right and i'm saying if in fact the nature of the offense here involved a person who was being assaulted by someone who was armed and to defend themselves  the situation fired a single shot in the air nobody was hurt nobody was at risk of being hurt i don't see any explanation by the i j a as to why that shows that this person is in the board also said that he had counsel at the time of the plea something he did not say and the board also noted that he fired into the air and that nobody was hurt that's also i believe what the what the i j a said was a fire all you are doing is saying because this is all that in the b i's decision they just described the facts purely descriptive enterprise and then engaged in zero analysis all they said is that the i j concluded this and we agree respectfully disagree the board does include additional facts that are not contained but to answer your honor's question the immigration judge at page one of page forty four dollars of the error does go through the proper analysis st it states to an unpublished decision which talks about and now the immigration judge next talks about the imposition of the sentence which is four years and furthermore talks about the firearm being discharged now the firearm being discharged is not an element of the facts we call that section two hundred and forty five a one is assault with a in your brief that you the government believe the petitioner most likely was convicted of the crime that's reflected on the judgment which is the salt on a police officer is the government changing its view of that you know you're out of so  what's the government's position of what crime the petitioner was actually convicted  of with respect to actual conviction at at this time i believe the focus is what the board relied on that with the with the board relied on was two hundred and forty five dollars i understand that but i'd like to know what the government's position is as to what crime the if the government has one of whether the petitioner was convicted of the police officer assault or the assault with a deadly weapon that didn't necessarily involve a police officer i don't mean to not answer the question but the government's position is we're defending the board's decision in this case now there is evidence lots of that this is not a matter that should be in dispute is a judgment there is presumably a transcript of the play but it doesn't appear i think in the record before us but there's a judgment in whatever the judgment is the answer right no one can vary from the judgment you may be right to that the there was no earth it was harmless or but but ultimately the perhaps to hand written to forty five a one in the plea that could be the case your honor but to the extent the board identified two hundred and forty five day one the board did not air and if it did it was harmless your honor so  there even though even the families who were actually harmed it was it only them who were targeted there were other people targeted during both of those incidents and their families continue to live there without harm he also lives there without harm and also there is a article reporting specifically  event where basically the respondent had a firearm that was just charged and contributed to the conviction under the proper nature of the conviction the underlying facts and circumstances in the sentence in the court must find that it's a particular serious crime however the court doesn't have to find that because in this case the facts are that the judge found that the respondent was credible when he said he just fired a gun into the air no one was hurt there was no police officer incredible given that there's no one there from the other side so to speak the prosecution was long since concluded so i understand that he did not make a determination that it was incredible but i'm not totally sure how much we should give to that given that years afterwards the guy says what really happened was this and how possibly can immigration judge meaningfully address that when there's no one from the prosecution there i understand your opinion your honor but oh i don't have any pain so i'm just asking questions yeah well in this case the police officer could've gone further if he was injured they could have been it could have been a much more serious case it could have been an attempted murder case if he had shot a police officer no one was harmed there is no record there is no record in the evidence anywhere of anyone ever being armed and just one more point if i may as far as what the government said about the family living in mexico it's only one person perhaps two that live in mexico this is a large family they all live here they all have green cards with their citizens is only maybe two formers people i think an aunt named joseph ina and perhaps another gentleman who travels back and forth to tend to the farm otherwise all the family members live in the united states legally thank you ok thank you counsel case just argues t