good morning ladies and gentlemen we are ready to hear arguments in the case of humaneness should be our hands bar before we begin i need to remind you that we are arm call rather than in person and there are always risks of cross talk or people not being able to hear one another if that comes off as it occasionally does i'll ask everybody to be quiet for a moment until we can get back on top of things but normally this process has been fairly smooth i will try to keep time and will let you know two minutes remains or  good morning your honors made please a court this case presents an important question relating to the immigration judges abdication of the mandatory duty to form aliens of available relief for which they appear the word shout obviously the note the mandatory nature is that duty in the court has requested supplemental briefing to address what harm within this subsection of the regulation means and the context in which it should be read so i want to dress that st harm the ordinary meaning that we give to a word that is not defined by the regulation itself or by statute such as this one is ordinary meaning and harm is defined as physical or mental damage but we look at the context in which it's written as well so here there are three important indicators that i would like the court to consider  st we're talking about the fear of harm not that harm has actually occurred but the that the actual person has a fear of harm and that goes into the subject subjective aspect of having fear too it's important to consider that the regulation went beyond saying persecution persecution is a ward of legal significance and while we do not have a defined by statute or regulation we do have a large amount of case law addressing what may or may not constitute persecution and that's a multi faceted  assessment of the level of harm the pervasiveness the timing of it country conditions whether it's connected to an enumerated ground and several other factors therefore that ward carries a lot of legal significance which at this juncture of the proceeding where the aliens that know about asylum this and about withholding  my concern so in interpreting that word clarke it can't be that we're just looking at the ordinary meaning in the dictionary definitions because as you pointed out we need to consider the context and in this conference aren't we considering th juncture interviewed so is difficult to analyze so that is why the the regulation specifically says persecution or harm broadening top the type of fear that the alien can bear so that the immigration judges do the strictures doesn't mean it doesn't force the alien then to actually apply for asylum and it doesn't it doesn't mean that the immigration judge will then find that it meets the definition of persecution and grant asylum this is only the lowest stressful level to say they need to know that asylum exists and they could possibly apply for it so the example i don't think that's quite right what about the fence and then one second it seems like they've required a little bit more i actually disagree your honor there i do want to address some  be interpreted in a way in which the t v the purpose which is protect the rights of aliens against their own ignorance or against the mistakes of their attorney that's every quarter that has addressed this including  page five of the government's brief but that case actually deals with voluntary departure preclusion voluntary departure and the case actually holt's that immigration judge has a duty to advise any  aliens of the ability to apply for free conclusion voluntary departure so long as the record does not contain evidence that the person has an aggravated felony conviction if you can see from that holding the onus is really put on the immigration judge to look at the facts of the case and if there is no indication that the person is an aggravated felony aggravated assaults cannot apply for voluntary departure then there's a mandatory and absolute duty to advise and the board of immigration appeals in this presidential decision goes on to say this is precisely because this regulation is meant to protect the rights of aliens and therefore to accord due process to the liens we need to form a little of this right prior to even taking  perform and the the valentia case was seeking a blanket due process claim of the duty to inform when there was absolutely no indication whatsoever of fear of harm and in the heat during the proceedings in appeal before the board of immigration appeals and in the petition for review the the petitioner never stated that she had surely feared so we have an individual in that case it has absolutely no fear she just making the blanket argument that she should have been advised when there was absolutely no indication the waiver in that case because the standard is high upon the immigration judge someone who is intimately acquainted with immigration laws and what can be gleaned from the facts from regression judge who's supposed to be well acquainted with immigration law and so simply by having that type of the sentry i r wand which reference that he interests an immediate relative of a us citizen  my mother my brother fled but there was also a lot of other evidentiary documents submitted that talk specifically about the death threats to him and that he has life run the risk of r ten year old who was shot in murder the bullet went through his jaw destroyed his face and he died though it was a crossfire but the other two murders that are even more relevant do do stay that the gangs were targeting his family there was a drive by shooting of his cousin to two persons together and they were specifically being targeted by the gang the killed that he's uncle who owns the tire shop and who was with young per young helper at the time was killed outside shot in the face by the girl so not only do we have testimony about this is that as we have a death certificate is a fear of harm for this person and he is talking about it and the judge knew the judge the judges own statement shows that she knew this related to a fear of harm because she says how is this relevant to cancellation of removal would have that n a r two hundred and twenty seven and she then has the attorney move on with a different line of questioning so she knew at that point he was talking about fear of harm assistance of counsel it's clear here that the applications were not file and that the representation was deficient under measurable sa that the only prejudice that has to be shown for this type of play and i quote verbatim is that the decision performance prevented the alien from reasonably presenting his case in this case that's exactly what happened here the fission performance of former counsel prevented him from presenting his case the petitioner's counsel has made a big point of the fact that this this regulation went beyond just saying persecution but also said or harm i think that the  reason that it did so is is because the aliens can't be expected to use legal buzzwords when they're describing their peers maybe that is a legal term of art that  your supplemental brief did not tell us what the board understands by the word harm or the whole phrase persecution or has the board ever discussed the meaning of parades i don't believe that the the board had parsed out a separate definition for the word i didn't locate a decision where i felt did that i do believe that  it uses persecution or harm because aly is is is very unlikely to come in and testified  the board ever said anything like we used the phrase persecution or harm because and then there's something in the because quarks that the fact that your label we there's something in the because clause  case where i felt it is a squarely as your as you asked the question don't you think it's about time that they did i think that the that quite a bit there intimately acquainted with what is persecution under immigration law and i i think really need to open his ears and listen to what's going on before him in the courtroom and needs to listen if there is any possibility that i mean let me give you one example i know many people were granted t p s after the earthquakes in central america what if the alien ariana's out here we did many many people were granted what ok i'm sorry i'm trying to use as an example many people from el salvador and other parts of central america came here after after severe weather situations and an earthquake for example what if the alien told the judge i don't want to go back it's a very earthquake prone area and i can harm obviously the judge harm in the in the absolute isolated sense in the country because of specific to bret's that he was under a threat of being murdered should he  or is that the duty was not triggered by what he said i am really having difficulty matt well to address your question your honor and also to take issue with one point made by patricia most counsel i don't believe there's any evidence in this particular record of any specific targeting targeting at all i believe there is evidence that this petitioner fears random violence in honduras for example he specifically testified to a cousin had been killed about eighteen months before she had gone to the united states  i will respond your honor i have scoured this particular administrative record i do not see any compelling much less evidence at all of a family being parted here there's no evidence in this particular record at the nature or basis of petitioners mothers claim there just isn't there he did state that she was seeking asylum and and mr o'brien asked why and he said oh the same reason a lot of gals that they said she is she was the treasurer of the police watch your organisation and these people are being can't actually i respectfully do not believe the evidence supports the finding that his particular family which would be a poster group in this case doesn't involve social groups at all i don't believe that evidence supports that at all in fact i think mr o'brien gave me a an extensive opportunity to do i dollars talks about a duty to inform when an alien is apparently eligible for relief but as i read that regulation it seems that portion of the regulation as opposed to the c one portion which i think we're dealing with here in asylum of different types of release but it does broaden its language to the entire under this chapter which doesn't compass all really and i think that in and i think there but i think that i mean i understand that a i understand that a few that the broader i understand it the duty to inform the kinds of relief that one might be eligible for the broader but that particular right i'm sorry your honor it's irrelevant but i didn't hear the last part so that particular provision is irrelevant except insofar as it might provide some confidence it's not directly to be directly applicable here of any nature what if they have a particular dispute with someone in their family over nothing to do with their political pinion or another protected ground and they don't want to go back to their prey their family madam maybe the immigration judge doesn't have to the duties triggered and barring that i don't think there's any precedent or even reason to impose that upon the immigration judge heart of a roommate any reason would simply be thank you should i address another question or i can continue thinking well i don't hear any questions so  the use of the word persecution or harm harm again the alien can't be expected to use that person you know the buzz the legal buzzword that the immigration judge needs to know that if there's some harm might suggest reasonable possibility of eligibility then then the duties triggered but barring that to require that any time and aliases i don't want to go back then might be  it's not there but i don't unfortunately i wouldn't say that even if you want to call it somewhat sloppy interacting it is clearly on the cases that respondent has cited then applied throughout the from and figure out or it would be absurd to say that even again wants to kill me in my family that is not personal fear of harm rather than just a generalized type of harm and of course he didn't know every fact about the family situation because he had nothing prepared or given it a particular need to apply for asylum in fact he's affidavit and even the response from his former counsel say that he wasn't prepared for that relief but he's family members obviously know and his mother gave almost a full account of her relief and he turns out she was actually recently granted asylum so her claim is definitely a good one  and more importantly i do want to dress something i think judge easterbrook had ask whether the board had ever addressed this and not specifically see one in any detail but what they have said about the entire portion of the regulation is in order to intention of it in order to accord full due process to all aliens who may be eligible in that place he was for voluntary departure the greci judge must notify all aliens who are apparently eligible for the available voluntary departure in this case preclusion so the board has to address what the intention of this regulation is and that is precisely to advised err on the side of advice thing and i would note further that it's kind of been mishear the burdensome gates argument has been