persecution in the facts of our case is that she was gang rape when she went after trying to rescue her daughter who had been kidnapped and in mexico there is  fall into the rubric of persecution problem i think that you have and it would be helpful for you to address for me is whether that is quote on account of race religion nationality or most particularly here membership in a particular social group ok you are yeah that's the heart of the issue as i see it ok so in this case and you've got to establish that she was a member of a discernible social group that we recognized as a matter of law as opposed to she was sadly the broad as to include every man or woman in mexico only a few of them have ever lived here and even fewer have u s citizen children and where you said and have family how that was your test people that lived in america had family here how broad or how broad do you interpret family i mean does it include cousins does include ex husbands does that include no no i said or even that any you know recently asked to us to it would be overly broad and indeed it would not have enough particularly but your problem is when you say ok we're not including all family we're only including those that have husbands there who and people who live there more than a couple of years is there any any evidence that in mexico people say well you know if you had a cousin there i wouldn't be discriminating or committing crimes on you but if you have a husband i will or if you only live there two years i would be committing a crime on you but you special social group and when you live there for years i am going to commit a crime i knew i understand but and i believe that even if we remove the the way i tried to express the now the woman who had that type of family in the united states saves even the changes that the thirty year old has made in the most recent case of matter of a b because  it is the fact that it is crime itself doesn't disqualify them for asylum that what they have to prove is that if it's not the government is somebody or some entity that they were many so on able or willing to group and say that's a socially distinct group everyone recognizes that group you know the jacksonville jaguars right i mean like you have to be able to say yeah everyone recognizes that group well and i believe that w only a few of them in the larger sense of calm here and even fewer have relatives here the main problem that i think the case had below is that the with we've got a case out there still you are rare and in that case are yes apply for asylum claiming that he was a refugee with a well founded fear persecution based on his membership in a particular social group and the social group was composed of quote non criminal informants who sought to undermine the cali cartel in colombia very discernible group yeah and far smaller than the group that you're positing here the b r c a concluded that non criminal informants who worked against the cali cartel were not visible or distinct and he appealed that ruling from the b i a to this court and we observed among other things that one congress didn't define the term of what constitutes quote a particular social group and two said that we must follow the b r s determination that non criminal inform working against the cali cartel and not a distinctive social group under the i n a unless their interpretation was an reasonable that is to say arbitrary c and what our court said was we join our sister circuits who have deferred to the b i a c a cost the formulation of a particular social group and not leave in stopping there are court went on and said we also apply chevron deference to the the determination specifically about non criminal informants worked against the cow how do we distinguish it and are we not there was also an application here to obtain humanitarian asylum under section twelve or wait point one three of the c of our to do that you've got to prove that you are a refugee under the act is that not right ye to the first question yields the answer to the second yes yes yes your honor she she would have if she's a member of a distinct group she wins on both if she's not she loses on both more than likely you know that's that would be your view yes thanks very much it please the court my name is evan schultes i'm here on behalf of the government you made most of the points that i was going to raise in the back and forth of my colleague just now there's just a few things i like quickly highlight  first of all i think judge mark was absolutely correct when he pointed out the standard of review here which is substantial evidence put bluntly the question is whether or not the petitioner has put forward arguments to compel reversal of the board whether that group is socially distinct or not i think also in addition to the main thing why wouldn't it be socially distinct in the sense of being members who lived in the united states at the time and who was targeted on account of the fact why wouldn't that be a discernible visible social group because it wouldn't be hard for a court to answer the question of who will walk or the where what it it's not your honor and i think that's exactly right what we need to look at is the burden of proof here which lies squarely on the petitioner that's true from statute that's true from regulation that's true from case law to give you a few quick citations if you look at the board's case i defining a group in the manner that i've just defined it mexican resident raped or assaulted threatened repeatedly who lived in the united states returned to mexico and continued to have relatives who lived in the united states a couple and a court discern define with some clarity that group again i think that this we need to focus on the burden here i know that you're trying to so that's a separate issue on some level these are inextricably i'm just asking whether or not they would have met their burden by positing that group in this case no not with a record of evidence they pointed to if you look at their brief on page twenty two they point to three pages in the record to buttress their case none of those three pages come anywhere close to satisfying the social distinction always in just one moment your honor so while you're looking your i take your answer to be you're not denying that the judge marcus might be right that hypothetically theoretically this might be a socially but that there's record there is not record evidence this record to support that is possibly one way to put it i need to put some more thought into that doesn't i think that the more all i can say is it's possible it's we need to see the evidence we need to hear from the witnesses we need see the exhibits we need to get all the sort of went to linger and judging of the evidence that goes on by the agency it didn't take place in those three pages by the way and these are talked about a petition that at twenty two there's really just three what would be enough to meet that but i'm just trying to get a sense in terms of you can very little data let's just suppose hypoth and i accept that you don't have that anything like this but let's just suppose a petition to go out on the stand and say they targeted me on account of my membership in this social group after all it's congress that use the term social group yes but it has to be a particular social group and here's what happened i live here i moved to the united states my family lived there and then they came home and they targeted me for particular violence here on account of that where i lived and where my family lived and where i had traveled to and i returned home and moreover here are five other people in the same town who were targeted in the same way on account of the same reason would that be enough proof again i'm treading on thin ice here because we're already off into the land of hypotheticals as you've well you're there because i've asked and i add and i appreciate that in some cases i've seen is maybe the best way to answer that question sometimes testimony is enough often the inskeep oh if you accept the proposition that it's possible that i could define a particular social group to include those people who were persecuted in a particular region of mexico physically assaulted raped whatever on account of having lived in the united states and then returned home and had relatives who lived in the united states i think that goes a bit further than that i conceded your honor what i'm saying is in some cases in some country it might be possible i don't know i didn't say that ok so why is it no so you're saying two things and could going back to the question the judge newsome was asking you you're saying one is a matter of law this isn't a distinct group and two they haven't called come close to proving it even if it otherwise were us i think that's what just new some phrase that in terms of those two elements what i'm trying to you're not saying is that what are you saying that's different from that what i'm saying is that i just want to understand the government's position and i'm trying  your honor that what i'm trying to say is that those that inquiry is bound together the question of whether or not the particular social groups exists is not an abstract question that takes place on a platonic level it takes place in the context of an adversarial hearing where the review sites to three pages of the record as basically the entire record evidence pages two or three pages to a six and pages to twenty one if you look at page two or three it actually talks about it refers to quote serious problems for persons at all socio economic levels and then three if you look at page two twenty one there is discussion about rape and domestic violence and problems facing women but record that all these are because they didn't have any witness no x right or anybody that's right this estate was off from the state department report yes your annual report this date that's correct there's one other bit of evidence that they said i wish i had the page handy i don't want to it's and their brief and it where they say that she had knowledge that at some point she was told that she was she was told that she was considered to be wealthy because her husband worked in the united states and that may well be true that has nothing to do with whether or not there is a group of such people who are view it as socially distinct in mexico those four pieces of evidence the three pages i just cited plus that one additional quote from the end of her testimony that's all that's all they have that's not enough as of the tonic ideal object of question whether such a group exists that's counting angels on a pinhead your honor what we're looking at here is whether or not they've met their burden and more specifically whether or question of quantum of proof well yes and i suppose the way to look at it is that because they didn't meet the burden of proof therefore they can't show their social distinction because no social distinction the dominoes keep on falling into you differently your position is they've got to show this work every group they're referring to was distinctive social group and they failed to do it they failed to do it because all they did was reference the victims of organized crime much more generally and victims of rape and victims of violent crime at all levels of social ladder and whatever else that is when you add it up it's not the thing i think that there was a simple is that more or less i think that with the u k what's the last help me well it well you know just trying to find out what i'm missing you mentioned rape that wasn't part of their of compare you've reserved five minutes but you might want to begin where your colleague left off what did you put in here to establish her the cops are the courts or let's just accept all of that as true does that mean that everyone who lives within the geography of that area  would be a member of a socially distinctive group and entitled to asylum on those grounds no no absolutely not but the fact of the matter is and that's why we will case by case not all of them are going to have th cannot stop talking about it we all know who they are we see them in the news to say that these group of people are not a group it's a fallacy and once we have knowledge that these for that particular reason other than her testimony and the references to pages two of three two zero six and two twenty one organized crime serious problems for personnel at all social levels  etc and her testimony is a ready other proof in this record that i would find to establish membership not only in a distinctive social group but you couldn't tell the conclusion your position was your client and her daughter were persecuted on account of membership and the social group and that particular social group quote was the find as mexican citizens targeted by criminal groups because they have been in the united states and they have families in the united that can't get protection from the government there's no reference to rape in particular this is the definition of mexican citizens targeted by criminal groups because they were in the united states and i i understand i have that right i just want to know yes yes absolutely right what if i may or what i'm saying is they are not i understand i understand fully thank you this court will be adjourned according to the usual order