establishes that he received specific and immediate death threats from the extraordinarily violent maher eighteen gang in el salvador first known maher eighteen member confirmed him on the street and told him that the gang had been hired to kill him because he had been getting involved in politics through the coordinator committee of churches in the f m l n party second mr america's own cousin who was also a gang member warned his mother that he was going to be killed by the gang order out all ready to kill and you'd better lea the government hasn't contested and i ask you a question which seems to be fairly significant here is you said to novo review or is it something else well there's number of issues in that case your honor some of he received these threats and so the question of whether those threats under the settled standard constitute past persecution but those are factual findings are they it's the application of a subtle legal standard to the facts that are settled by the agency would make on remand under all the facts but we think that the agency needs to make that call because the hold on hold on they've they've decided he's not eligible for asylum at this point right yes you're right and so when i get your point about the mid may the intermediate questions but the final decision united states supreme court says which is substantial evidence rule right it's true as to factual finding but at the questions of supposed to affirm the agency right yes your honor and so on some of the issues here the factual issues we would take a position that that record actually compels the conclusion in our favor but i would want to say that you don't need to get to that question because the government doesn't dispute the two key issues as to the future persecution claim and that's number one the government doesn't dispute that the agency board did not have jurisdiction to decide whether mr romero had an objectively reasonable fear of future persecution arms are with the salvadoran government has no control of them are eighteen but setting that aside this court can't affirm on that alternative ground under generally under the so this course other more recent decisions can affirm an agency ruling on the ground the agency itself did not adopt right so the agency didn't decide the control of them are eighteen too you can't affirm on that ground and when you take the objective reason most issue you take that together with  issues on remand for us but that said the court can and should go further because as i said the record is quite clear that the agency and for the salvadoran government is unable to control unable to protect mr romero from them are eighteen games and this is shown and state department reports in the credible what what connects the dots here the problem i have with the case is what credible testimony he says the gang member told me that a politician paid them or eighteen to kill me because i was getting involved in politics in the camp comes from the gang members own mouth and that's found credible there's no reason not to believe it the government doesn't challenge it and i'm wrong though didn't your client testify that he wasn't involved in politics and had no idea how he could comply with the threat while he testified that he didn't view himself as being involved in politics but what matters in this kind of claim is not his personal views but rather what the what his persecutors impute to him so the persecutor view him as the records as a read or as being associated with the f m l and through his work with  old two thousand and seven thread really relevant to go in this case the two thousand and seven threats are sort of part of the backdrop they're obviously not the catalyst for him leaving the country he left because of the back to back dressing twenty town but they do show  that there was a political element to his persecution to the threats they wish they were anonymous and a bit vague so if you'd left just because of the two thousand and seven threats then maybe he wouldn't have a good claim but they  backdrop the show that they told him to stop being involved in politics he kept doing it a couple years later he gets the more specific threats and he is told he's going to be killed if you doesn't leave the country over the two thousand and ten threats were clearly specific they were delivered by two known members of one of the most notorious and violent gangs in the entire country and they said specifically to his face and to his mother's face we're going to kill you because of your politics if you don't leave the country the specific threat and it's an immediate threat as well because he was told not that we might kill you some time later he was told his mother were told that  and when you tell that to me you always said because of his politics or because of this now now tell me tell me what where you get the because of well so those two things from the b i his opinion they don't reach that issue they don't reach the next issue the a does reach it the board does not decide the next issue and the government agrees with me about that too you look in their brief they don't contest the nexus point which is that because of point so that issue has got to be remanded to the board but just on the merits of it you get the answer the board doesn't say anything about it because they don't address it but if you get to the merits you look at page sixteen and be done them lines fifteen and sixteen because his testimony is that he told me that some politician paid them are eighteen to kill me right yes you are not extreme enough there were they rule that it's not extreme enough to cause to pass persecution right wrong under corrado because there's no extreme element in the test the test is specific and whether a reasonable person would feel threatened by achievement would feel that he had a reasonable possibility of being persecuted if you return to the country and at ten percent chance  sufficient under the supreme court's case law and we would submit that any reasonable person receiving to death threats from the arkham are eighteen would say well i have a reasonable chance of being killed i better get out of here no further questions morning mr loops the morning runners release a court now going to lose the response known as there are a lot of issues going on in the briefing in this case but in fact it's fairly straightforward needs to resolve only three issues in order to deny both petitions for review with respect to the first petition the only two issues are one whether this record would compel any reasonable fact finder to conclude that regardless of what may happen to mr romero in the future the mistreatment he's already suffered rose to the extreme level of persecution even though nobody touched him and second whether the record would compel any reasonable fact finder to conclude that the government would be completely helpless to protect him from the people he fears were in fact the basis of his claim is that he was working closely with the local government to try to curb gang violence with respect to the second petition for review the last issue is whether the board abused its discretion when it denied a motion to reopen that showed merely that mr maritz father had tragically been killed by a gang member would contain no additional evidence or context to connect that to the basis for mr america's own claims so if you please the court i'll just take those issues up in that order but  welcome the panel's questions on any topic and any time first regarding the issue of past persecution this record would not compel on any reasonable fact finder to conclude that the threats mr romero received rose to that extreme level that defines persecution as co how the persecution is a fluid concept but the mistreatment must be quote unquote extreme and i'm citing to this court's opinion a shallow they're not merely intimidation or harassment in fact in cases where petitioners have faced death threats this court is held corrado that it may be that not all alleged threats of death necessarily amount to persecution the situation may be different for example where fact finder concludes the threats are exaggerated nonspecific or lacking immediacy or in law another case where petition received death threats this court stated that threats alone constitute persecution only in a small category of cases in the jist of these cases your honor is that it is certainly possible for a death threat to constitute persecution but there have to be some additional factors around it this is a fact driven determination so the agency asked look at all the facts involved and see what what really be feeling was confronted with you know a case that the petitioner circuit actually provides a pretty good counter example that was a case where threats were found to be imminent and to constitute persecution on their own in that case the petitioner and his family were at a political meeting when soldiers broke you see here they kill the petitioners brother they beat the petitioner himself and his father they detained him processed him in the detention facility and told him that he was going to be executed the next day he was able to escape and in that case of course they wouldn't stay around to see what would happen  alone was enough in this case we don't have facts coming anywhere close to that mr americium a couple telephonic threats in two thousand and seven he says he doesn't know who was isn't sure if it was a gang member he said he himself didn't give it enough credence that he changed his behavior he just sort of brushed aside and then in two thousand and ten he was confronted by somebody who's a member of a gang and said that a politician had paid the gang mara eighteen to kill you but you haven't been harmed yet because you're related to a member of the gang and then months later his mother received a phone call from a family member who is in the gang saying gang members are looking for you and been were to kill you but he was never tamed he was never confronted by anybody who actually was in a position to kill him he was never put in immediate danger in this case under the context of all the facts the record would not compel any reasonable fact finder to conclude that these incidents alone without regard to what might happen in the future that these incidents alone rise to the extreme level that applying a legal standard to under speeded facts is a legal question this review de novo and that may generally be true but those cases are changeable because in those cases the immigration judge either didn't find the petition or had not passed persecution or did reach that finding but not on consideration of the full issues that the board looked at and then the board looked at past persecution either in the first instance or in a broader scope in the immigration judge who looked at it and when the petitioners in this case said well that's an permissible fact finding on appeal the board can't do that the court said the board in those cases had accepted the immigration judges findings  fact about specific issues in the case but then when it went beyond with the immigration judge it alternately determined in that situation the board was applying a legal standard to the immigration judges fact findings but i would have been here through the immigration judge found a matter of fact look at all the things that mr merrett testified to and said that's not stream enough that's not persecution in the border from that fine so consistent with this court's precedent that's a factual issue that gets reviewed and substantial evidence how does the b s a treat that question when they review the the the judge's decision their standard is clear error your honor so they were view factual finds a clear error in issues of law and discretion to know but here what they did is they had knowledge immigration judges as in the cases that mr maryland's own rather the immigration judge found as a matter of fact the past persecution not been demonstrated on this record and on the border firm that finding so before this court the standard isn't just are there facts in the record that could  constituted past persecution the standard is whether any reasonable factor in it would have to include that so the second issue that the court is called upon to decide and mr maritz first petition for review is the inability and unwillingness finding your own in this event and just wanted to clarify one thing true so the contents of his testimony the truthfulness of his testimony that's that's a given but whether or not those bare facts meet you know for example whether they show persecution or not inability or unwillingness finding your owners the question here is whether or not the government would be would condone mr merrill being harmed or would be completely helpless to protect him from the harm that he fears mr merrill really makes two arguments here i think first he focuses on the salvadoran government's difficulty controlling gains really large and then he says that the agency didn't properly consider that aspect of his claim instead focused on the arena party the record just doesn't bear that out the immigration judge said the m eighteen gang is the weapon delivering the threats but the contract for the petitioners death was made by members of a political party and the board said any possible harm that he would face would be at the hands of the maher eighteen again which delivered the threats and i also want to look at the political party angle of it mr maritz claim isn't that gangs specifically are targeting him of their own volition his claim is that someone paid the gangs to go after him because inability or unwillingness of a government to control private actors is a factual question that the court or that the agency is required to this court's precedent to consider in light of the entire record the agency here had to look at both of these two components the agency had to look at both sides of this claim the gang involvement and the political party that it hired began so it's not really fair for mr remember to fault the agency for doing in that respect wh required to do and secondly arar's we would know that the salvadoran government's overall difficulty controlling gangs is not alone sufficient to establish this element of mr maritz case you know if that were true every ramirez claim is that he was working with local government authorities to to attempt to curb gang violence they put together the coordinating committee of churches they sponsored events where he was working with judges  and i think the commissioner of the civil police the record here might support possibility of his being harmed in the future but it definitely does not compel any reasonable fact finder to conclude that the government authorities he was working with to curb gang violence would be helpless to protect so last issue in case your honour's is the motion to reopen the motion reopen is reviewed under a deferential abuse of discretion standard so the question is whether the board unavailable material evidence which means evidence that's likely to change the outcome of the case if it's sent back to an immigration judge failure to establish prima facia eligibility for the type of relief the feeling would be seeking below and the last would be merrill and what he was required to prove with this new evidence is that that had some bearing on his case such that if it were reminded to the immigration judge he might obtain a different outcome but there's no evidence in his motion that connects his father's death to his claim what about the provision in the affidavit from his wife in which she says that when the killing occurred she was to jail or husband the same thing was going to happen to her and the child why isn't that relevant well i think it is relevant your honor but i don't think that it's enough to show that the board abused its discretion here we don't have any evidence in the record that this was the same gang that was after mr america we don't have any evidence as to who these people individually were other than that they were members of some gang even if it was the same gang that's making an assumption we don't know why this gang targeted mr ramirez fuck maybe mr emeri mary's father had his own disputes with the game and the reason we're speculating here is because there's just a gap in proof in the record we don't know why this particular gang member targeted mr maritz father and so it certainly relevant what the gay member said in that moment but mr merrill bore a heavy burden of proof you know motions to reopen your honor disfavored in the immigration context and so he has a heavy burden to show that this motion should be granted so we can make inferences around the edges but mr marrow did not meet his burden where there's no evidence as to who these people were why they targeted his father what they were after how this connects to him well isn't there some evidence because of the comment to tell her husband that that would happen to her to know that isn't there some possibility that's related to the earlier death threats well your honor again i of course there's some possibility but our ability to come up with that speculation right now doesn't mean that the agency abused its discretion by not reaching record for example we could motion to reopen your honour's but there's also the fact again before adding new evidence and to be unable or unwilling ground the fact that he didn't show that he would be unable to relocate the board identified three different independent bases to deny this thank you are just a few points in response first on the issue of don't overview of the past persecution issue the government has waived their argument on that point if you look at page fifteen of the brief they have no argument on that issue at all their failure to make any argument board's decision and believe it is considered ability to control them are eighteen i just i can't read any of these opinions any of the three of them to say anything about control the games they talk about control it's pretty clear though that the board ability to control well i don't think that's obvious at all you are to be honest there's nothing in the record about any of the evidence that we submitted to the state department reports the usa idea reports mr maritz testimony about being terrified of the gangs and unable to report his threat the threats to the police and they don't mention any of that testimony they only refer to the arena politician and if the standard that this quarter stated is helpless to protect the potential victims of violence and like the and a few others the victims of the violence here are mr romero on the people who are going to inflict the violence the people who are going to be the persecutors are not the arena party just the arena party it's at least the arena party and the gang the real party working together with the gang if the government is unable to protect mr romero from them are eighteen well he's probably going to be murdered by them or eighteen when he returns to the country if he's forced to go back and so that's really the issue whether the government can protect him from the people who are threatening him and the answer number one is no on the record and number two even if you don't believe that it least has to be remanded because the agency just didn't make any finding on that issue and there's no w can read any of the three opinions in this case to make that finding on the ability control issue i would also like to direct your honour's to the decisions of the second circuit before circuit the ninth circuit all of which have relied on evidence  kin to what we have here to reverse the board and on that basis to find that salvadoran government is unable to control the game so it reversed the board and said as a matter of law as a matter of fact on records virtually identical to what we have here  salvador but those the records in those cases were virtually identical from what i can tell to us here and just as a matter of law i don't see how any other result could have taken her for those reasons we asked you vacate the board grant the petitions and remain for for the proceedings on the asylum when you thank you consul we appreciate your briefing an argument the case of be submitted and decided as soon as possible