new my name is ray for santa represent the petitioner mr coleman in this case there are two intervening cases that both presidents from the agency and from another circuit directly on the outcome of this case the first cases matter of a b to citation to that is twenty seven i mean and decision three sixteen that was decided this past june and the other case that is almost directly on point is result was just tough against sessions it's a first circuit case that was decided in july eighth ninety five f third one fifty four the importance of these two cases as it relates to this circus precedent and  two things one the issue of when a government the government is responsible for the actions of a private actor and best of h what took what this court said was that you have to look at the context of the persecution along coupled with the beating but i believe the best of it is a pride applied more broadly and looking at the context here the context would be the country conditions in a curse extend that are extensively detailed in the background materials that demonstrate anything specific with respect mistreatment mistreatment by a client that's attributable to the government want to go there is think thank you judge it's the able of the unwilling standard what the board of immigration appeals did in this case is it conflated these two distinct terms because as this court knows from reading the briefs in the record there were there with three beatings not two to the board got that wrong there was a beating at the cafe when he was with his friend there was a beating when he walked his friend home that resulted in mr  being hospitalized for two weeks and then it was to be eating at his mother's someone factory we had to witness his mother being beaten on account of being back and he himself was beaten there was an investigation done by the police but there's one point that both the immigration judge and the board of immigration appeals has over overlooked and i'd like to you know this is like perry mason smoking gun and that is nobody addresses the fact and this is at page ninety one of the record that mr gave the police a description of the vehicle was a black b m w and he also gave quote i gave them the call plates close quote the reason why the immigration judge and the board of immigration appeals said that the government is not involved in this that they were actually willing to help mr coleman of was that they couldn't identify the assailants they came to a dead end there were no more leads and because they couldn't identify the that's why they couldn't prosecute the individuals who had beaten mr and his mother but nobody addresses the fact that the cop plates were given now that's a significant lead that would have at least known who registered the car who owned a car who the individuals perhaps were identified that would have been in that car so i want to say i want the panel to take close look at that point that we know that the police  well we don't and that that's the point because what happened was when he was in the hospital that's when the report was taken by the police they apparently somehow refer to a special investigations unit but nothing else came of it this is why the case of results from this first circuit is so important to the outcome of this case in rizal as the application or the petitioner there was a small business owner he was confronted by a mexican gangs who had extorted him in his family instead of given into the gangs they shut down and shuttered the business in five days later they reopened the business five days later mazatlan the finest son murdered the police investigated it they located the body they did an autopsy they questioned witnesses and this is why the on willing or unable standards very important in resolve this government was able to show that the mexican authorities were willing to help but they were able to protect the the individual that's exactly the facts in this case whether the  sick police department was willing to help is one thing but it's a distinct separate element as to whether the police are able to protect mr coleman of and clear the record shows that they were not and that's why i want this court to take a look at the attorney general's decision manner of a b it's relevant here for two reasons one the definition of persecution which the attorney general in june said you need  criticised the attorney general's decision and maybe because he conflated unwilling or unable and i've spoken to counsel for the government on this issue and and i think that the intervening cases justify twenty ha letter and i want to brief good morning the court my name is sharon clay and good morning my name is sharon clay on behalf of the government determination that petition failed to meet its burden of proof or stylist is supported by substantial evidence the harm that petition to suffer did not rise to the level of persecution when considered in the context in which the harm took place the board also found that the and yes the harm was severe but when you take the harm in context it doesn't necessarily rise to the same level of harm that other individuals have suffered while it may not have risen to the horn that other individuals experience this one severe harm in most cases right that is correct the difference between the cases that warrant cited in the case present before you today is that the case that the board reference or support of its decision actually only found animists alone that was the basis for the actual harm that the petitioner it suffered in this particular case the harm was was  not only on animus but also for some other factor for example the both of the incidents when he was battered at the sewing shop and at the cafe the petitioner actually was targeted after he tried to defend somebody else it wasn't that he was the initial target there was absolute animals in both incidents that it's correct but doesn't the case come down the government was willing and able to protect them because when petitioner filed his complaints with the police department they actually took action in one of the situations they compiled all of the materials and they forwarded to a crime scene unit and any other instance they  identity of the attackers and i recognize that petitioner alleges that you know providing a license plate should have changed their ability to be able to find out but that would be speculative because as petitioner also testif registered may have been stolen i mean we don't know any we don't know enough factors about this license plate in the car to be able to say that the license plate would be enough information for the the government to determine who actually did the attacking  basis for not finding that the government was willing or able to protect their individual with regard to the panama hat pattern or practice of persecution  claim the documents in a record deal very little to support matter of fact most of the claims that he has alleged the reason that was highlighted by the agency is that the harm is actually there's twenty nine documents out of the twenty nine documents only five of them even had anything to do with news backs in the region and if you identify review those particular documents those documents actually reveal that the harm that a lot of it respects did experience was in the southern region of the time were actually being targeted in reaction to the conflict that what's taking place in two thousand and ten and there isn't really anything in a record to to establish what the circumstances are conditions are in kurdistan as of to date what we do well the court designated kurdistan as a country removal for the husband and the wife was designated to be returned to russia you know i'm not sure i said one of the other issues that was raised by the petitioner was that the board was required to remand a case based on nexus and i made the argument or at the ara position is that nexus was a alternative finding that the immigration judge made that the board didn't necessarily have to adapt or accept and did not it wasn't part of the calculus that the petition failed to meet its burden of proof or persecution overall and that's made very clear when you actually read judge's decision where the immigration judge says that you make the independent finding of rising to the level of persecution and then goes on to say even assuming you could meet that as persecution that that claim would fail either because of the inability of the government to protect him or because there was no nexus and as we've seen in the board's decision the board rejected nexus to terminations and conceded ethnicity was the basis or one of the motives for the for the harm and no they're not they're at liberty two things first the government seems to suggest i think i'm not know it was done purposely enough but she seems the governor seems to suggest that the motivation would have been for his beatings were because he intervened when his friend was accosted at the cafe and that he intervened when his mother was being extorted but the board clearly says and i think the immigration judge or the boy did as well that both of these judge by saying that the attack on the mother was nothing actually motivated by thugs it was racially and ethnically motivated the government also brings up the point of context it was seemed to be the theme of her of her argument this records context shows a government or a country that tolerate religious discrimination ethnic discrimination racial discrimination they may only be five articles or so that address ethnic tensions and ethnic persecution but they take up something like one hundred pages worth of the background materials so if you want to look at the context of these attacks this is a country that has a schism between you think your honor because that goes right to my point about what i think is the most important issue here and why i think we can get guidance from the circuit on this point what is the on willing or unable standard there is no precedent from the second circuit on what is unwilling or unable in fact i've looked at all the circuit decisions in clarks could do the research as well but they will find that the only circuit that's addressed whether these are distinct terms post matter of  and i've also advised my adversary about my request for twenty ha before argument or thank your own right so that when the time steam expect your