turns upon one primary question whether the government of mexico a country that fails to prosecute more than ninety percent of gender based murders is unable or unwilling to protect her the agency below held that she could not satisfy this requirement because she could not show that mexico would condone her murder or be completely helpless to prevent it and because she did not seek state protection the board claim to ground its reasoning in this courts of law however the agency erred in both respects st the condone complete helplessness standard is an improperly heightened one that is inconsistent with the statute in the majority and earliest of this court's cases in nd any absolute rule requiring a refugee to unsuccessfully seeks the protection cannot be squared with refugee statute or binding a circuit law so the st point the heightened standard is wrong for several reasons and st it conflicts with the statute in at least three different respects the unable or unwilling language appears directly in the statute as a refugee should be unable or must be unable or unwilling to avail herself of state protection the word of veil implies available and if a state is neither able nor willing to provide protection then such protection is not available additionally the unable or unwilling standard appears within the term persecution itself using the ordinary tools of statutory construction and this is because before congress selected the term refugee in the refugee act it had a well established well settled construction and that construction was that the harm must be well again as in good in a number of other cases in this circuit it's important to note that no pre refugee act case uses the condone complete helplessness articulation and then thirdly it conflicts with the statute because because the non state actor requirement must be read consistently with the well founded fear test which is met if there's a one in ten probability or possibility of future harm the supreme court made this clear in  asking if we were able to conclude that substantial evidence supported a finding that the mexican government was not an able or unwilling to to protect women in this situation would we need to reach this  heightened hiten standard question well your honor i believe the agency here very clearly said that she had to meet the heightened standard she had to show that her government either condoned her violence or was completely helpless to protect it and so i think affirming the agency decision under principles of the chain are a doctrine for reason that the agency didn't provide wouldn't be appropriate but i also think the evidence here compels the conclusion that the mexican government is unable or unwilling to provide protection as i've said mexico fails to prosecute nine out of ten famous signs sixty percent of women in mexico are victims of domestic violence by intimate partners and the majority of those killed had previously sought help this record at page one hundred and fifteen excuse me fifty nine at the appendix the expert declaration submitted in this case found that the government of mexico or sorry abusers act with impunity and the government of mexico is virtually complicit and so the expert explicitly found that the government of mexico was unable or unwilling to provide effective protection and it's important to note that the state department reports also support a finding that unable or unwilling was met in the in the  abysmally low prosecution rates that do occur the state department notes that the sentences that are provided are lenient sentences this is at the appendix a page one hundred and thirteen and so i think the record in this case compels the conclusion that the seek state protection however the record also shows that most victims of domestic violence in mexico don't seek state protection because it's so recognized that the government officials efforts to provide protection is is abysmal in providing that protection and there is was there any evidence as to why she in particular did not in her community yeah absolutely so in her community she had known of other individuals who had sought state protection and did not receive it when she was in the united states and was a victim of domestic violence the beatings worsened when she stayed protection and in fact the expert that state protection here correct that's her ads that's correct but it shows that her reason for not wanting to seek state protection is because she fears reprisals from her spouse and that that's another reason for why she didn't want to seek state protection how can you look at something that happened afterwards and say it was a reason for something you did before well your honor it was the immigration judge in this case that said because she quote would not seek state protection she cannot satisfy the non state actor elements it was the immigration judge that based this non state actor decision on her essentially announcement that she will not seek state protection it doesn't really matter i was asking more the factual question where you assert that she was she complained in the united states in the beatings got worse or go well she was already here or so how could that possibly have more of a to her decision making when she chose not to report the incidents in mexico it was in response to the question of the immigration judge as to why she would not seek state protection and i think it's important to note on this question of not seeking state protection any bright line rule that an applicant must seek state protection unsuccessfully is inconsistent with the statute as i've already said the statute provides that a refugee can be either on able or unwilling to avail herself of state protection but if you don't have any effort on her part for whatever reason not to seek protection does the kate does the case law allow you just to rely generally on a can country conditions reports seems like there's might be something in between the general idea that there's a lot of problems in this country with women coming to law enforcement to seek protection from abuse and saying that it no woman would able to be able to go there and some wondering if there needs to be something in between those two extremes well your honor i do think this court's case law very clearly supports the idea that of woman need not complete helplessness standard that was cited by the court but in both of those cases even though those petitioners had not sought state protection the court looking at the contradictions themselves found that such reporting would be futile it wouldn't be required and that holding is consistent as well with the agency decision in matter of essay but i think again turning to the facts of this case you know the record here reflects that when women report domestic violence in mexico  that this can heighten their risk of harm in fact the expert stated in this is at the appendix of page sixty five that one of the moments of greatest risk is when a woman seeks to leave or seeks state protection so any requirement that a refugee put herself in harm's way to to ask for a government to protect her when the record reflects that it would be futile to do so would be antithetical to the purpose of asylum but that to follow up on that just to push a little a little bit more and i appreciate what you're saying about the difficulty that many women have in seeking protection from this kind of domestic violence but would would would accepting what you say mean that the only thing that  person in her situation would have to show is the country report and it would automatically be the finding that the country was unable or unwilling to protect protect that person you're i think it's going to depend on each case in terms of the facts and the record  whole with what other you're saying that that's all that's all we need is just an understanding of of the countries law enforcement from from the country conditions report that's that's correct if the country conditions reports reflect that if an applicant seeks state protection but the government would be unable or unwilling to provide that protection then she satisfied the burden under the statute and the case law because the statute very clearly says a refugee can be unable or unwilling there's no suggestion that a penalty should attach to that refugee simply because she's unwilling rather than on able to seek state protection the bright line rule that the immigration judge applied in this case as i said is inconsistent with case law and the statute itself and therefore i is just the wrong rule to resolve a case like what about the evidence in the record that says that recognizes that there's been a substantial problem in mexico in the past but in the recent progress in the recent past in the present that the government of mexico has made support for domestic violence shelters and it's you know it's there's like seven or eight places in the appendix where that that's referenced does does that matter to us your honor i'm glad you asked the question because you're right the rec does reflect that there domestic violence laws that have been passed that there's a gender alert system that's been issued and that there domestic violence shelters that have been created but again domestic violence laws do no good if the vast majority of them more than ninety percent in terms of when an applicant is murdered are on in force the gender alerts and this is at the appendix of page one hundred and eighteen dollars the record reflects that those alerts have made no noticeable difference in the handful of instances in which general ertz were issued it was only one or two times again the reports found that they were ineffective and then i would also point you to page one hundred and twenty dollars in the appendix the domestic violence shelter one domestic violence shelter was looked at in mexico city in the report found quote none of the women any proper protection and so the fact that these minimal efforts on the part of the government are not providing protection shows that the unable or unwilling standard is not met and it also reaffirms that the government is seeking to apply a complete helplessness standard here if even ineffective efforts on the part of the government defeat a claim such as this it shows that a heightened standard is being applied on that question you mentioned channer but isn't it pretty clear here that the be is conclusion that the respondent did not establish the mexican government would was or would be unable or unwilling to control her alleged persecutors yes but it had come pretty clearly the standard you were well but in coming to that conclusion both the immigration judge and the board of immigration appeals define that standard to mean that she must show that the government condones her murder or is completely helpless to prevent it and so on i see that my i that case but additionally gonzales release devoted all of one paragraph to the discussion of the non state actor requirement didn't address any of our arguments with respect to the standard being rooted in the statute and so forth thank you thank you pandy good morning it please the court brian pangea on behalf of the department of justice petition for review should be denied for two reasons st substantial evidence supports the immigration judges determination that misguided failed to show fail to carry her burden to the mexican government was unable or unwilling to protect or the board properly affirmed after adopting the immigration judges factual findings  entitled to withholding of removal the evidence of the board considered included country reports that showed improving conditions in mexico but also facts specific to her particular circumstances those facts which i think need to be considered in the include that as we talked about before she never sought assistance from law enforcement she has a brother who is a local police officer and the fact that her strange spouse lives almost five hours away from where she was she will be returned to mexico petitioner's case is a disagreement over of the weight of the evidence but that's not an appellate issue these are factual findings by an immigration judge that were adopted in affirmed by the board of immigration of feel appeals that this court review is under a substantial evidence and the be talked about changed circumstances and those are different standards those are the those don't collapse into one what do we make of that right well i acknowledge i think there were some there consider her credibility considered her ability to seek to seek asylum and that was that my and my question is i don't think extraordinary circumstances in chains change circumstances are the same are interchangeable i think they are different would you agree i would not disagree with that yes i would agree and and i'm trying to struggle with what to do with the with the fact that the b i a did not rely on extraordinary circumstances relied on changed circumstances and whether that affects how we can consider this but i don't think it does because ultimately at the same the same set of facts would have been used to prove whether she suffered from changed or extraordinary circumstances was her p t s d that she suffered and the i j a found that she's she was not so disabled that she cannot have four of its decision the respondent has not met her burden to prove that the government either condoned the behavior of her abusers or the government was unable to prevent the abuse the board then continues we therefore affirm the immigration judges conclusion that the respondent did not establish that the mexican government was or would be unable or unwilling to control her alleged persecutors so the case was decided under the standard for persecution that  standard and nd point if you look at footnote four of the board's decision the board rejected any suggestion that it viewed the complete helplessness standard or the formulation that was articulated in the matter of ab as being any different from the on able or unwilling to control standard do you think that the words condoning someone's actions are being completely helpless to protect someone and serve as a gut feeling that seems different than simply unable or unwilling i  don't think it is and here's why i mean what we're getting at here is whether whether a government has is unable or unwilling to control persecution of some it's a member of a protected social group or are they struggling to control private conduct that the attorney general did not raise the standard for the government's on willingness or inability to protect the complete the complete helplessness standard and the th circuit said the inability or unwillingness standard is interchangeable with the unable to help someone but not condone that actions of a private actor well i think that's a difficult question but what we're mean what we're looking at here is this is i mean this is partly why we're in a substantial evidence review standard we're looking at the totality of what happened to the individual asylum claim so we can i mean i think it's sometimes it's difficult to say that in one instance on able or unwilling might apply based on the facts of a specific case and other instance complete helplessness might be the more natural formulation to describe what is what's happening in the wreck of the case but what we're looking at here and i mean this case i think is a good example of where when you look at the totality of the record the judge the immigration judge heard a massive volume of evidence and ultimate concluded that based on the improving conditions in mexico but numerous facts specific to misguide that she was that that the mexican government was not unable or unwilling to control her persecution  so that is why i think that is why wouldn't you look at the totality of the evidence and whether we call it complete helplessness whether we call it an able or unwilling it's all there different formulations different articulations of the same concept case we're not arguing that's a categorical bardot asylum but that is withholding of removal but failing to engage law enforcement i think was a major it makes it more difficult to sustain the burden of showing that local law enforcement is unable or unwilling to control the violence it wasn't just because she failed to call law enforcement but we don't know how the mexican police would have reacted we don't we do know her brother is a police officer we do know that miss what is the fact that her brother's a police officer how is that relevant he the he's her brother but he's a police officer and the evidence is that law enforcement is not particularly interested in protecting women who are suffering from domestic  certainly that may be may be true in the general in the abstract but i have to think that that that if if my sister was in harm if i was a police officer i would certainly be but it was there evidence of that and and that's admirable that unfortunately not everyone has a brother like that but what we do know her brother was has been a police officer for sixteen years and since he left there there's no there's no there's no it's her burden to show that that that there was and that the next in a place w i've been unable and unwilling to protect or we do know her brother is a police officer in her hometown or she's going to be returned we have to assume that as the immigration judge said that he assumed that based on the record based on the testimony that he heard based on the evidence that was before him that  that that that would have been one reason why she would have been protected or did not meet her burden of showing that the local government was unable or unwilling to protect or when there's testimony about the brother there was testimony that he's been a police officer for sixteen years  there was no there was no testimony that he would not have that he would not have protected her i mean there were there was testimony he's been at that he's a law enforcement officer in mexico but again that is just eleven dollars piece of evidence that says that within the totality of the evidence that was that was before unwilling to protect or don't have happy to go through cappy to go through that evidence but you know otherwise the case should be affirmed because it is supported by substantial evidence there was no bright line categor determination the failing to call the police was a long dispositive was one piece of evidence there is no differences in the standards and the claim is time bartz i'm happy to answer any further questions or as i will will yield my time  would be unable or unwilling to control the private actor she fears there was a bright line rule because she didn't call the police he said that disqualified her the other point about the record and she did testify very clearly that her brother was corrupt he accepted bribes and she did not believe that he could protect her or would protect her and the immigration judge found that her testimony was credible in this sense and i'd also like to go back to add an additional point just about the divergence of these two standards  judge kelley we absolutely believe that the plane in ordinary meaning of those terms are divergent and that it is going to be much more difficult to show that a government is completely hopeless in providing protection than a simple  inability to protect and we think that the fact that the decision came out the way it did shows that this it was a complete helplessness case complete helplessness was applied here and i think your honor i want to make one last point because the case law does diverged on this there are very two clear lines of cases in the th circuit on this point the minority view is the complete helplessness view and am a case brief that was filed in this case signed by more than one hundred legal scholars agrees that there is an unrecognized unresolved tension in this court's case law and we would respectfully request that this court apply the decision in u s versus matter the decision that says the earlier in time should prevail and that the unable or unwilling standard is the only correct standard so we are just respectfully request that the court find for petitioner by holding that the correct standard is the unable or unwilling one that a heightened standard was applied and that this case be remanded for a correct interpretation of the standard and that the court would correct the other errors we brought up in briefing concluding with respect to the one you're filing deadline i want counsel thank you for your parents and arguments today the case is submitted and will be decided in due course