month in immigration detention where he continued your persecution torture should he be returned to under us we see three main issues in this case one we see and an ambiguous holding with regard to  nexus to the persecution a christian faced to we believe that the unwilling or unable application in this case one was based not on substantial evidence in the record and to  improper standard was applied to the applicant and three we believe that the canon allen is conducted by the immigration judge below was improper that did not follow this court's precedent and requires every man start with the nexus for me and yes your honor are you asking are you asking us to find in your favor across the board on this next issue or to remain for consideration i think this court can do either and let me explain why i believe that the court below the decisions of the immigration judge were ambiguous and one account she finds that nexus was related to general crime or a general intent to commit a sexual offense which was the rape of the respondent i mean sorry the rape the petitioner in this instance but at the same time she also found in her decision that he was harmed on account of his sexual identity and he was harmed because he chose to vote for a particular party that his persecutors did not like so i believe that it could go either way i do believe that the fact that it's ambiguous it could be remanded to the immigration judge in the st instance to clarify and i believe that that was the government's invitation in their brief they do know in a footnote that that should the court question the nex yours so what's your what's your what's your response you didn't you didn't respond i do appreciate that judge b m s and our so i do i did welcome the letter from the court which sort of hinged on the unwilling or unable aspect we did present in our brief that we did not believe that the the determination of the immigration judge that one hundred government was able or willing to assist the petitioner in this case was not that have applied the unwilling or unable standard in the circuit and then on balance we have an interesting decision in matter of a p which was issued by the attorney general in a presidential decision which purports to heighten that although using the words unwilling or unable it's a find a standard using a heightened standard of using the words condone or completely helpless completely helpless is not at issue here it wasn't mentioned decision below now when i look at the dictionaries for condone the classic being in condoling as to overlook a particular fault i don't see how that reduces any burden beyond the  contains extremely problematic language with this circuit and you could as a state actor not condone a behavior but still be unwilling to assist a person to respond to that non state actor unwilling or unable result oriya if you're looking at him don it's sort of it follows the unwilling language and if you look at cases in the circuit you might you're going to find pieces that would have showed you apply it and don't standard what have turned out differently that's assuming the condone has that slang your colloquial meaning if condone means overlook a particular fall how does it mean anything different from well if we look at it in if we look at it in this case there the the i g report it's a find that the under in government was not and willing because rape is illegal in hunter s because those are the type of firearm that the standard is unwilling or any and my my concern for this court and for my fellow attorneys who will follow after me is that a v is problematic because just like the government for example relies only on a  judges are agency judges they are compelled to follow what the attorney general tells them to do the the problem with this case is that the strong language in the heightened standard does not follow the precedent in the rd circuit but if you're getting what is it if you didn't raise it before why should we take this case as the opportunity to to correct it if it hasn't if your honour's if you choose this case to correct the standard i would be grateful in any event it has to be done because what's going to happen is for example we're dealing with withholding of removal and we're dealing with cat these are mandatory protections the consequence of not correcting the standard of not ensuring immigration judges apply the right standard of not ensuring that the president of this court continues is that people will suffer persecution or porcher so the consequences so great that if we need to correct the standard in order to protect christian t we need to remember judge cross i believe that that's correct i believe that the the judge in this case and her decision uses the words unwilling or unable and then following that determination that's correct your honor and i just want to stress that it is self evident that the words condone or completely helpless are not the same words as unwilling or unable and my concerns as i said before is that should we use that heighten the anger and i'm calling united because that's that's what i believe it is you're going to have cases that were decided as recently as this year from this court that are not going to turn on the the same i mean to give an person as a person who his entire life has been harmed or humiliated or intimidated because he is perceived as some sexual he has a lifetime worth of evidence to show that that is the reason being unable to find employment that is actually supported by the department of state human rights reports which also state that e t i persons are discriminated in their employment he also testified that despite being able to participate egs talk about you know economic infrastructure you can't expect someone to go to the middle of the the amazon rain forest or something but why do we have to consider employment more specifically  just giving you an example of that is in the record of something that he expressed but we also have to look at the conditions within the country themselves it's not a big country is one of the most violent cities on earth it has one of the highest murder eighteen the fact that he was persecuted throughout his life based on his sexual orientation where he lived and the fact that he moved to san pedro sula he would still be considered or still would be an no indication that the court considered the particular factors under the regulation as to efficacy of reasonable that's correct judge krauss and specifically in this case the judge had an obligation we can can explain those instances that you're talking about in the record just on facts and if you participate in a reasonable fear interview the determination by the search if they find that you have a reasonable fear of prosecution if they don't reach t question and so they want to actually complete that part of the form but that doesn't mean that he does not have a claim under the cat additionally as far as the record itself although the michael's the for me man it's mentions that can so important in this case is that we underlying immigration judges the situation is really barren as to the findings factual findings that she relied on to reach the legal questions honduras and no government official was involved in it or even aware of it and the i j a his decision hinged on this fine or her finding that mr cain were didn't prove a more than fifty percent chance of future persecution or torture on this record as a whole and that supported by substantial evidence and this court has asked a couple of questions and we need to be sure that the idea was asking the right questions to reach  rant as as they relate to sexual orientation well i mean that the i j primarily i think discussed the gang threats in the context that mr  testimony about the gang was part narrowly focused on their hassling and not about his vote and then sort of they also said something like and also now don't like days of something but the the main gist of this testimony about the gang was that they were after him because he had voted for a candidate that they opposed so so didn't you didn't you raise the issue of about their comments reason that they searched him out was that it was about this voting issue and so you know it's generally that this was the threat from the gang was precipitated by the voting issue what about the police comments about him being gay and going to ridiculing him for being gay no no no no no he said that he was afraid that the police would say that bet he but he when he actually went to the police and complained to them that he had been raped he did not report but the police ridiculed him he said that the police did say that it was a problem that he had waited for six months and and there were didn't think that there was much that they could do that he absolutely did not report that the police were abusive to him and he and he did report one instance he said that she was with a group of people and from a distance he said police pointed  weapons in their direction but then when u s question about that he said well it was from a distance it's a group of people she didn't portray that as being some kind of a media but but as as it goes to the government's awareness and either unwillingness or inability to intervene where there is persecution based on a particular characteristic  i mean that it's something that that's the part of a gang threat for them to say that the police are with them that i mean i think i incidentally that is often said but it's yes it's not considered to be probative of what the police are actually going to do that's part of the didn't argue that immigration judge overlooked any evidence he simply argued that the immigration find just findings were country to the weight of the evidence and the weight of the evidence of course on substantial evidence cases that say evidence of violence in a country doesn't show that any person in that country has a more than fifty percent chance of being tortured with i'm covered on fall met and that you need to have generally and a less the country can distance evidence was that it scream you need to have something that shows that you are at risk like in the quinn terrorists case he had the evidence that he had a tattoo that police were going to discover and that was going to put him at specific risk and this case there are certainly there is no country conditions evidence that suggests that anybody and hundreds has a fifty percent chance of torture with government acquiescence and there's also not evidence that any  t i person in the country has the chance at all and that it's a country of nine million persons and there's certainly nothing that suggests that you know more than fifty percent of l g b t i i people are of fact and then walk and to the next room that they were applying the correct standard to review but in this case you're correct that the immigration judge did not cite those factors and so of course the court could remand for that reason but i think there's a really good reason why the court should not and why we went ahead and grieved that as we did and that is that again as the supreme court is wont to say and there's no point to remain on for a better that does this mean that doma did decide we burden as to who must prove or disprove relocation changes depending on whether the elements of pas withholding regulation and so we can cripple that to that but it could extend you're suggesting that relocation can can simply be and you answered it is the absolute answer to both regulation doesn't have all that so that you know i would not apply the regulations from withholding in the city context but and so so so going back to the myriad questions when the st question that mary asked it's what's going to happen and when the immigration judge answered that question in her analysis on c a t that he would be able to relocate san pedro he had done so he had not been harassed that really answers that st very question and the way that myriad set up is if the answer to the st question is what's going to happen in the future looks like the person is not going to be harmed  those other myriad questions are really rude and you don't you don't go further and say well if the person is not going to be harmed does that amount to torture i mean that all the other mary questions are predicated on the idea that the answer to the st question is that the person is likely to be harmed so for that reason i think that it's not actually necessary to remand on that and i would like to talk really briefly if i could about this the question about the ag because i thought i think that that's important i mean the the court ask for their you all should be looking at a b issue in this case and i would say the very st thing is you know you shouldn't be looking at the a b s or in this case because mr kenner are did not raise it either to the agency or are in his opening brief here and there is a case that's exactly on point for this and that is that this court's decision from earlier this year and in that case it was just the same thing it was about a b but the shoe was on the other foot the government had failed alluded to this it also wasn't part of the immigration judge its decision in this case because the immigration judge didn't use the word condoned which this court has used and which it's been in use by the board since nine hundred and sixty four but di this the the news the helpless language so i don't think there's any reason for the court to remand on this issue let me clarify if this court hypothetically were can remain and on as to on remain and the court for the agency to address the record when it came to issues like persecution or next so if you're asking me if you should consider whether that be modified the standard i mean i guess what you're asking whether you should address that in this decision and i don't think you should for the reasons that i'm sad if the core if you if you were to reach that even though i don't think that it was it was not exhausted it wasn't raised and it also isn't necessary to address on the i just says and then but it is and you still think that you need to read that anyway and i think that the court should not get into a circuit splits for truth asli but if you if you were going to address that question anyway i think you should definitely say with the other three circuits that have considered this question that a did not change the standard a being used a standard that it's been in use regularly by the courts of appeals sense that the year two thousand  that the standard changed bat with very little analysis they basically just said it's obvious that condone and helpless are different words they didn't look at the long history of the use of those words in the circuit we did not defend the nexus holding because we did not think it was adequately thought that there needed to be a mixed mode of analysis and we also thought that there was not even enough analysis about the to rape  the language about it's the results that matter not the effort that was in a very specific context of a case in which there was direct evidence that government officials were likely to be involved in future home and that context and which was the case and quinn terrace and some other rd circuit decisions yes it's absolutely correct that the government if there's a government official involved then the question then has is the government going to stop that from happening and yes that's correct and i think they this court had been responding and printer us in several cases to the suggestion that once if there's a government official involved that could be negated by the government being opposed to what their fist i was doing and that is a question that that the attorney general actually addressed over the summer and basically the same position the court has been  and saying that the official action only has to be satisfied once so if there is an official that's involved and it doesn't sort of it doesn't take that away the fact that it's contrary to the government's official position conduct but that's not the case here here we're talking about private actors with no evidence of official involvement or even an awareness and when you're talking specifically it's a two step test it requires awareness prayer readiness then it has an actress right as type requirement it says it requires greets of a legal duty to intervene to prevent the harm so they are in the context where there is no other state action acquiescence requires the reach of a legal duty to intervene so it is all about effort and when terrorists was it what fine in that context of official action it would be very very much a mistake to transplant that to a situation that is purely private harm and it would be both efforts and success under can tear us can be considered someone that can be considered but success cannot be required i mean i think that's clear under the regulation and your honor the about non reform c a t is a broader treaty that involves an obligation of while the signatories to make torture a criminal offense and their country and also involved it's a gives a basis for international jurisdiction so that our officers could be prosecuted internationally for torture and for that reason the government was very careful to they were concerned that if acquiescence was not limited that our people could be prosecuted and a situation that would not satisfy due process and that's why they put in that very rigorous standard that requires prior were nuts plus breach of a legal duty to intervene so the focus is on their their intervention because in a criminal context you're not identify particular factors that the i j a should consider where we didn't do you do you see in the record here any indication that the idea is a good consider those in the absence relocation finding in the withholding context and i think you're citing the withholding regulation and mr ken arose did not raise that as an error and that withholding decision and so he did not exhaust that in the agency and he did not raise that in his brief if there are to this court so that you know that is that if the immigration judge had made a relocation finding in the government is not defending access in this case i think that the facts below and even the judge's decision her see herself indicate that at least once one central reason for the arm the addition or suffered was the sexual orientation or the fact that relocation in connection with the withholding claim raised with regard to the withholding claim and you know the government is right at the relocation language is simply stating what an argument that the immigration judges that the immigration judge makes and her and however in his testimony he did provide testimony as i had mentioned when judge beavis brought it up on the original original opening was that he indicated that when he went in theater solo which by the way wants soley for a couple of months out of his entire twenty years of living he experienced discrimination he experienced humiliation  experienced although being able to participate in a political march he was aware of harms that happen to people he understood that there were two gangs in the area that restricted his ability to live safely he did not he testified that he did not feel safe there so based on his testimony he did combat the relocation argument additionally there's country condition evidence within the record that indicates certain violence against people like the petitioner is happens not only in the area where he lived but actually happens nationwide and it's really important i understand that the relocation language with regard to withholding is reasonable ness it's not that he  does not have to show that it's more likely than not he just has to show that it's reasonable as far as cap goes he has to establish that he could not live safely in another place and although judge bemis had alluded to the that in his life he had experienced that at least three sexual assaults he had experienced humiliation and he had experienced intimidation by police and authorities he had reported a rape to the police  who told him it was too late so dismissed him that would have a silence of silencing effect on any young person trying to report a violent crime all of these things must be taken into account as to whether it's reasonable for him to relocate my only last point is with regard to the a p standard i agree with you judge kraus that if it is remembered for other issues i think i think courts below would benefit from an instruction as to what the standard is i believe that immigration judges are experiencing much confusion from the decision and we would that we would recommend that courts be instructed to follow the president and understand what the standards are so we don't end up on appeal for certain court day is