to claim and have and argued below i believe that the minor should not be stuck with the findings of the the majors are they are they the adults and so why don't you give me you know i realize that there is some precedent out there but i think the p i a s said in the case of the minor it that because it was have to read that of application that and also because the minor was accompanied as opposed to unaccompanied what is your best argument that he should have a separate determination before you with as to whether what are muslim and their families well i know i we certainly are considering that as your pet for some reason i thought that that this is i was i was i'm surprised to hear we're all surprised and i want to look at our docket to see if something was missed in our docket on this just so we're clear and government counts we're going to ask you to confirm this that you're saying the case of luis jr is not before this panel yes because the  before right we'll have to check because usually the parties notify us of this that and then because obviously i think we're all prepared to address both the adults and the minor today and are you surprised to want you to think we weren't prepared we're overprepared all right we're we're prepared to do all of that today but got but now that since we've clarified that will go back ok so start let's go back thank you the issue before you we both two who review ok so my understanding though is that their contention was that they basically had a lack of financial services and willing to intervene on behalf of the minor but i'm i'm assuming here that the government hasn't been willing to intervene on the pact on behalf of your clients is that right the court pointed out the that i would like you to apply and then make a law prior to this circuit we would you agree that even if we were to find that your clients are members of a particular social group that the decision still could be a showing that the guatemalan government was unable or unwilling to control the alleged persecutors they did make a finding is that right that that's that's right but here is the situation the immigration judge granted for the attorney general first i do want to apologize if the court was not aware that the minor as well as both of his parents were severed as a result of mediation and are no longer before the court there said that his clients do not want to pursue mediation and main stand preferred the petition for review and so here we are on the social group yes do we need to for q to prevail do we need to address that issue or can we jump over that issue to other than the following things that we have to resolve you are the court is not required to reach the social group issue instead it can and should a form affirm the board's decision on the ground that petitioners have failed to show that the guatemalan government was unable or unwilling to protect them or to control that or the unindicted assa in fact the guatemalan government did everything that it could in order to protect petitioners after the petitioners came forward in agreed to testify they were placed under twenty four seven police protection in guatemala and there were no security incidents  threats at that point once they were under police protection one of the petitioners and from the police that he still subjectively felt unsafe and so in order to keep them cooperative witnesses the guatemalan government took the extra step of bringing them to the united states arranging their travel to the united states but nothing had happened to me once they were under police protection to make them think that that was necessary it was just that one of the petitioners still felt unsafe in the guatemalan government was trying to keep them cooperative and ensure their testimony similarly when petitioners returned to guatemala to testify the two petitioners who remain before this court where the witnesses in the murder trial and when they returned to guatemala to testify they were placed under twenty four seven police protection and provided with hotel rooms and again nothing happened to them there were no threats or anything of any kind while they were there nothing in the record indicates that the guatemalan government would be unable or unwilling to provide similar police protection upon return testified before the i g and before the immigration judge that they had not approached the guatemalan government to ask them anything about what would happen upon return whether the government would be able or willing to provide them with additional police protection whether they believe that they would be safe at this point which at the time of the immigration judge hearing was just a eight years after the trials for some time had passed and petitioners made no effort to contact the guatemalan government to see how they would be treated by the government at least upon their return the from your perspective what were the facts on extraordinary circumstances that were presented as argued that their lack of financial resources to hire an attorney their lack of english language skills and their lack of familiarity with this nation's complex immigration laws constitute extraordinary circumstances however those factors are present in most asylum cases and so they're simply not extraordinary moreover one of the petitioners testified and he contacted an attorney and was informed of the one year deadline he couldn't remember if he had done so before the deadline had passed or after but he had definitely been made aware of the deadline and when the attorney requested money to represent them the petitioners were unable to go forward but the asylum application itself is free there is no filing fee and many physicians do proceed pro se particularly before the asylum office when they file affirmatively as these petitioners eventually did so the lack of financial resources or english language skills or familiarity with our laws is not extraordinary but is instead rather common and therefore cannot excuse the untimely because we're talking how much time their most recent entry to the united states was in february  their manner of entry in that the guatemalan government assisted in their entering should constitute extraordinary circumstances but he never presented that facet of the argument to either the board or in his opening brief so the court should not consider it social group consisting of men in guatemala and family members threatened with harm due to their participation in the prosecution of a kidnapping slash criminal offense that would be the book for the board to answer in the first instance but no it does not seem determined to have in this case that case held that the evidence in that record demonstrated that there might be social distinction in the society of el salvador of witnesses who testify against gangs this is a different country this is about a mile and there's different evidence in this record so it's not appropriate to apply that holding here it was a faction a fact based holding this court's been very clear that social distinction is fact based and society specific rather than a legal conclusion also that if we if we did find the notice repos potentially impacts the question when the right approach  impermissibly circular because it is based in large part on the past experience of persecution and so even if i make as rape as affects the social distinction determination the circularity ruling would remain  valid so i guess i'm just trying to understand if we're not read mandated if that and we assume that they could show a social group is  there as this is procedurally and factually presented a way to affirm yes if the court were to assume that the petitioners were part of a particular social group then it could and should affirm the board's dispositive determination that petitioners did not demonstrate that they were in fact able and willing to protect them and to do anything it took including removing them from the country where they were in danger and that petitioners have been shown that they wouldn't be able to do that the government wouldn't react similarly upon  noted that they were coming to the united states for a brief period so the guatemalan government's intention was never to procure permanent residence of any kind in the united states so they seem to think that the petitioners could eventually return safely i have i have a question apparently but from what you said and i don't know that it's us that petitioners are and i don't know how wisely because we have a say haven't conferenced on this case are taking this all or nothing approach that we're going to win here and then we're not going to you know go mediate with the government on another alternative if they lose here can they still go mediate with the government or is that is are you taking the all if they want to try to cut a deal they should do it now as opposed to later yes ok thank you  agree that we can't give you that relief you'd have to go back and convince the b i you have to go back to the the lower court that would be fine and well know not whether it be fine legally there's this case called of interest that it sounds well it seems to me that if there is a belief to resolve this case with the government without going back to be i am i'm surprised you guys are taking that chance of it doesn't work and if you're so confident that we're going to rule your way seems like take a chance understand your concerns and that's if aid to the my client will have well they can either go down in flames singing doing it my way or you know we don't know if they can maybe get relief we don't