have there seems to be a confusion between the parties here whether or not they brought there was really a member of again what i want to say is that  three parties involved here agreed he was completely truthful one the immigration judge to the prosecutor in the case how do we know that because when the time ca for cross examination the prosecutor waved any cross examination of the petitioner what does that mean that means all the material that the petitioner provided it before the i j possibly my brother was a member of a gang but if you look at the transcript in fact he's used this i don't know several times it's his manner of speech he's not saying in fact he's been completely truthful in his asylum application for sixty the court looks at it he clearly says my brother was involved in drug trafficking he even talks about the motive why he thinks they shot and killed his brother in front of him and why they shot him it's because the brother had refused to accept orders to take drugs and involve his family in the drug business he found him to be completely credible no but the brother with a gang member no your honor and that's a problem here because if you if the i j a accepted everything he said are true including his asylum then it was an error to find that his brother was not a former gang member do you think there is a distinction between being a gang member  being targeted because you won't help the gang i think there is there is because they involve men of a former gang member was certainly a lot deeper than somebody who's on the outside who's approached and said you need to work for us you need to order recruitment aspect of it here we have a former gang member who was told to involve his family members he refuses he ends up being shot over twenty times the petition is shot along with him and later on his brother is shocked and as early as two thousand and eleven your honor if this is really telling because there's there's also a lot made by the government about this internal relocation we know as early as two thousand and eleven his best childhood friend is kidnapped the drug cartels ask about petitioner from him he refuses to cooperate he's killed his son is killed his wife is killed and they are burnt their bodies are burned and they make sure that this scene for this information is conveyed and a petition finds out about this in two thousand and eleven these are it's like a chain of events there are links and they're all connected so the fact that he was able to survive not emotionally but physically be able to live in mexico for the amount of time that he did after these events i think should be also coupled with the fact that he suffered p t s d that was accepted by the court it's never been in dispute so yes he physically survived but he had fear and he carries that fear with him so sending him back to mexico is sending him back to relive predicating relationship solely on that testimony of possibly for saying that he said i don't know possibly but that his earlier documentation actually was affirmative absolute and possibly again he's an honest man he suffers from p t s d he's testifying which telling your honor is that even to judge devotes a whole paragraph about his difficulty to recall and to testify about the murder of his brother and what happened to him that happened when he was seventeen so when we when we take even the judges and he was there he had i've also known him he could hear him his manners and that he had a difficult time when you take the p t s d diagnosis along with the asylum application affirmatively stating that he was a gang member and he's saying in other parts testimony i don't know i don't know so let me just play it out with you so if we were to did herman that well i think the other grounds of social groups as you know are not quite as strong and so let's say we're only focusing on the drug cartel ation if we were to determine the substantial evidence to support that finding because of the other evidence you point to then there is the alternative finding about ability to relocate would we need to then analyze that or would it go back to the solely based if we were to determine that there is not substantial evidence on the drug think if the court decides there was not substantial evidence to support that we were in and out argument and then it goes back i think we don't need to get to the internal relocation until we deal with that substantial evidence because you' relocation information country reports either by asking to be i to take judicial notice or administrative notice we can deal with out so if it does come back before the court then we have pressure evidence on the internal relooked relocation application suggestion is there was something in the application to support his testimony that his brother was a member of again was there something in the apple yes affirmative in mexico my older brother francisco was involved in drug trafficking and i was not involved in the criminal activity i heard from a friend my brother was in charge of taking some trucks to the border my brother did not want to complete the task because the drug dealers i told him to involve his brothers and friends to move the trucks to the border he refused to do to do the task which made the drug dealers angry and they pursued my brother and me and others si please the quarterback in the house for the united states attorney general the court should deny the petition for review because petitioner cannot show that the harm he experience and fears is on account of a protected ground starting with his group immediate family members of former drug cartel members in substantial evidence supports the agency's finding that he didn't prove he was a member of the group to prove that he was a member of the group he had to show that his brother was a drug cartel member and when asked he said i don't know possibly this was his opportunity in court represented by counsel to tell the judge about his brother's association with the with the drug cartel and all he said was i don't i don't know possibly and under the real idea which applies to this case because asylum application was filed after two thousand and five credible testimony alone can be sufficient to satisfy is one burden but only if it's persuasive and has sufficient specificity to satisfy one's burden what about the application does that factor in it's part of the record correct that is part of the record your honor and he had to agree that it was all true right sufficient only if it's persuasive in refers to specific facts and so while he does say in his asylum application that his brother was involved in criminal activity he doesn't really know which group it is he doesn't think that in his view he thought it was left a million mishawaka right that is fairly specific right but when provided an opportunity to testify before the immigration judge he didn't provide any of that testimony and well you  brings us to the question of is it part of the record that needs to be looked at even if he didn't restated or elaborated well your honor the petitioner did not exhaust the claim that the agency should have considered the asylum application in conjunction with his testimony but i think that if we're going to look at the record as a whole there's also conflicting evidence like this psychological evaluation where his therapist said that  petitioner told her he wasn't really sure what his brother was involved with a r one sixty he doesn't know the full story of what his brother was involved with but there were men that were angry at omar or at his brother and one sixty three he has said that he feels that his brother was either involved with the wrong people or perhaps involved in illegal activity so there's not a lot of specificity in this is really a burden of proof issue it's not a credibility issue as petitioner painted it he was found credible and this is a sympathetic story experience but in order to satisfy his burden he must prove that he is a member of his own proposed group but if a court disagrees the court need not send this back because there's an alternative finding with regard to this group immediate family members of former drug cartel members the agency also found that even if he is a member of that group he failed to show that that was the motive for any of his past harm so starting with the nine hundred ninety six shooting the petitioner said all he said was i believe it was drug cartel members who shouted my brother's name and shot him and at the same time he was shot he doesn't say they shot me because of my family relationship he doesn't say that the individuals who shot his brother even knew who he was instead let's say he was a bystander an unfortunate bystander but then there's the later events you know he's back and forth between mexico and the u s and the information imparted to him about people looking for him and why he should stay away so doesn't that how does that factor him well you turning to the threats when asked why did these individuals threaten you he said it's because i reported them to the police he said i have information about them and that was the reason he provided he didn't say it was because i'm a family member he didn't say it's because i'm his brother and we really need to look at the motive of the individuals and petitioner's own testimony is that they wanted to silence him or punish him for first speaking to the police not because of his his family membership in fact there's nothing in the record to show that these individuals even knew who he was even knew that he was related to his brother at no point where any of his other family members approached and threatened his brother juan was shot at at one point but he himself acknowledged it was a case of mistaken identity they were really at going after him petitioner not his j yesterday or the day before i'm sorry hits late but we've reconsidered our position and we don't believe that the court should reach the humanitarian asylum issue in the first instance and because of that the internal relocation finding does sort of collapse that the court doesn't need to reach it because it's no longer independently dispositive it's only independently dispositive with the humanitarian asylum finding because  person who is able to show past persecution on account of a protected ground is entitle to a presumption that if even even if the government rebuts that presumption with evidence of internal relocation they'd still be eligible for did raise the issue before the agency in the agency failed to consider it and so originally our position was that perhaps the court could reach a harmless error but i really think that this is a discretionary determination that the agency must consider in the first if we have to send it back no matter what no your honor because nexis is and dependently dispositive of both his asylum and withholding claim so we don't need the internal relocation finding we don't need the humanitarian be eligible for humanitarian asylum you must show past persecution on account of a protected but if that if we disagree with if were we to disagree with the government there you say we would have to send it back on nexis yes y hasn't shown or would your honour's like me to address any of the other groups so there were well i want you to address cat for a moment short you're on i think the cat claim  petitioner failed to substantial evidence supports the agency's finding that petitioner failed to show that there's a clear probability of future torture in the reason is he moved to mexico city and baja california for a total of eight years and his own testimony is that in those eight years he didn't experience any harm he was in approached he wasn't threatened the only time that he was threatened during that time period is would he went to his home town in know they didn't discuss each of the factors however the i j a did cite the regulation and let the i j a in his decision laid out the four factors and in its in his decision as well the i j a said that he considered all the evidence in the record even if it wasn't expressly stated in his decision and this court in the holder said that we presumed that the agency considered the evidence before it unless they fail to mention evidence that potentially dispositive and petitioner has been pointed to any potentially dispositive evidence that the agency overlooked in its cat analysis where he was able to remain in mexico city in baja california for eight years without harm ok thank you o already in the record we have always claimed that his brother was a member of a drug cartel former member and he was a family member and then he i just failed to consider them i mean they they said that the possibly was was hook that they hung their their court on and they decided that possibly was not enough but there's far more in destructor including the asylum application that talks about clearly the brother was a member of b i a gave no regard to that and it is part of the record it is statements mean under oath signed before the judge before you even accepted those procedures for all followed they gave no regard  and substantial evidence does not support neither the i j a finding nor the be a finding and this court should grant a petition reversed on those grounds thank you thank you think both of you for your arguments this morning