petitioner noel canal it's and i also represented him in immigration court and at the board of immigration appeals this case involves agency denial of the asylum claim of a persecuted merchant under the particular social group ground at a minimum we think the board should have applied its own asylum eligibility test to this merchant instead of excluding him from coverage because of his merchant stats but in one thousand nine hundred and five the board crafted a test must decide whether a social group characteristic formulated by the person seeking protection is fundamental enough to the victim's identity or conscience to warrant protection instead of applying the case by case approach which the board actually included in a cost or recommended in a cost stuff with no authority in our view the board created what has become a formulaic rule namely an across the board exclusion of merchants from social group asylum protections mr canalis was a merchant and honduras who small restaurant had a fixed location completely visible registered with the authorities he was persecuted on account of his membership in the social group that we thoroughly explain se way from from asylum protections we're not asking the court to demolish the cost of we're asking the court to simply make a make the board in the agency apply its own test to merchants without this it's but i don't think that argument ever appeared in your notice of the all foreign groups before the board of immigration appeals judge we did make the argument that  the merchant from the mayor he's heard the beginning correct i think our question here is how the get from that argument you have that you preserve this argument about hobby lobby and master masterpiece kaisha raising them really was to as the court road and remember sessions sharpen bolster and support our argument but the basic argument itself hasn't changed from the very beginning from the very beginning we've argued that acosta was did not have the if our the board did not have the authority and acosta to do what it did on merchants we went through the list of what we think are the most important sources on the board is a forty on this kind of thing for example approach to these kinds of social group cases is a case by case approach is one of the difficult things about it is that there is no for years there was a struggle in trying to identify a way to deal with these cases because there are so many differences in the way the court or the way the board came down in its decision was to incorporate this concept of the just some generous things that are alike  and that's sort of the heart of the acosta decision sorry you saying that that principle is and correct no i'm not as a matter of fact on the whole we think that the acosta case was certainly survive our argument the part that we we are asking this court essentially to to take out of that test or take out of the a cost analysis is what we see as a person a formulaic exclusion of merchants in most cases  just caught on it's true that in thirty five years or been quite a few opinions not only from the board but in the courts and of course the four circuits among them we've also found many other opinions and the other circuits for example  most recent there were aware of were just filed on sunday night by the government and supplemental authorities a nd circuit case a six circuit case to be i a order in our own case cited several cases madmen versus holder which was a seven circuit brutus th circuit but all these cases lead to the same place and that is a cost all these cases side a casa as authority for the proposition that being a roasting chickens in a store that's help me understand how selling roast chickens is a beautiful characters well your honor we think that it's really not about the chickens it's about self determination it's about that everyone's interest to judge stocker but not everyone is persecuted and the message from a cost is if you're persecuted you can change jobs and that's essentially the same message so how would he be different from any other merchant and well i think the way we would find out is to do fact finding to do some oral argument and to take some testimony about specifically that issue that only to me but what just helpless what what about what he's doing is different length described or provided the answer to this question we made a distinction in our formulation of the particular social group between the formal economy and the informal economy this is a recognized distinction and development  and world bank recognize it we provided their definitions we explained why it's different it's a difference between somebody who perhaps might be you know selling something from a basket on the street and somebody who has a m and we feel that that's precisely the kind of visibility or particulary that the board asked for and in and cases after a cost on precisely this issue but the problem here is we don't even get to that analysis because of this at the threshold removal of purchases of merchants from protections and that's really the result of a process all the cases we've talked about if you look at them and how they use a cost this certainly unsupported by the convention and our argument to this court is that narrow exclusion should no longer occur now we do think the court has the the really don't have any fact finding the board itself didn't conduct in fact finding and the immigration court below the immigration court referred to a particular social group that the court supplied not ours in fact if you look at issue of whether that the government would acquiesce or be contributing to any in any persecution judge part of on an art judgment in our point of view the entire world decision is seen through the prism of the judge's own particular social group formulation which i would call the the you know the the more common gang approach to to a case like this but he listened he listed the testimony of your he listed the testimony of the psychologist and he basically concluded that that didn't meet the burden of proof that was imposed and we have certain obligations to further that type of an concern here judge was that the course analysis which is in the transcript as i as i said earlier were seen through the prism of a different social group formulation and i believe it might have come out differently if the judge had seen the evidence through the formulation that we provided and that didn't happen unfortunately back to the point of the court's jurisdiction to see to to hear this us understand the case better and we also think that if the court doesn't hear this case or concedes the government's position that there are a number of things that the court would have to in a sense overlook  religious cases modify acosta and no matter how to share parses it he asked for modification a cos is wrong well why because supreme court has somehow said it is and supreme court decisions that have no application here he didn't present that agency that argument to the agency perhaps a casa violates tax law perhaps the casa violates a criminal statu essentially just a procedural due process claim that the immigration judge inaccurate and accurately described particular social group fund and it's accurate to say the immigration judge looked at the wrong particular social group the immigration judge immutable trait but they they looked at the correct social yes or not it they looked at merchants in the formal honduran economy now someone they looked at and end petitions opening brief essentially occasion to accost as long history but we don't want to dismantle it what we want is for the board to stop singling out merchant claims for almost refusal at the front door we don't think the board has n now as far as the particular social group yes in fact the the form by fighting nine which we filed for mister acosta under great time when we went to our master calendar hearings and we actually filed the i thirty five that a nine same judge we made very clear we intended to edit and supplement and we did at it and supplement and the same judge held the marriage so there was no question about this claim it's the same claim we made and immigration court and the same claim when making today and our view is that with or without the supreme court authority this court also order that the board no longer apply this unauthorized per se exclusion of merchants from the cost of tests and we believe there are models out there that the court could use for this sort of analysis  and one of the models that we've seen was the conscientious objector statute that was very clearly authorized by congress with a very detailed instruction about its application we think that while the court necessarily want to forder the court of the board to do something like this it's certainly worth recommending to the board that they look for a more concrete way of adjudicating this claims because what we have now is a particular social group term with no definition at all there's no definition of the convention there's no definition in the immigration nationality act we also have a term that the board point which is fundamentality to identity or conscience of an applicant also there's no definition for the stop and over thirty five years about the only way you can sort of extract a definition is by seeing the kinds of cases that the board approved but what we do we believe that it's correct to tell the court overall nowhere in the sources nowhere in the authorities is their authority for the board to exclude merchants from protections but we can certainly look at developments since a particular principle was enunciated to see how developments affect the principle and this is essentially what we're asking the court to do and we certainly think it would not be  advisable to not take into account supreme court authority that's binding on the grandcolas one which was in force when the board wrote its agenda thank you for the opportunity to address you nothing for