good morning glory was for petitioner johnny lopez garcia i'd like to reserve three minutes for rebuttal if petitioner was a member of the m s thirteen and el salvador until when he was still a minor he withdrew from the gang before salvador he reported gang perpetrated crimes to the police because he withdrew from the gang he was assaulted by a gang member who cut petitioner's face and back with a machete and threatened to kill him after petitioner fled gang members murdered his father and two cousins one of those murdered cousins had gone with mr lopez garcia to the police to report m s thirteen crimes these are consolidated proceedings the board's two thousand and thirteen decision denying petitioners motion to reopen and the board's two thousand and eleven decision denying relief on the merits should be remind re man did for three primary reasons i have a question just on that you but since you've kind of gone over the petitioners thirteen history is there any published decision by the b s a that holds that acts committed by a juvenile cannot constitute a serious nonpolitical crime what's the not subject to the serious nonpolitical crime within an extensive discussion of the federal juvenile delinquency i thought that was looking at the crimes involving moral turpitude it does the case to the facts it's true but it also states that this wasn't very serious and then cites these other two circuits that came out the other way so i mean which political nature versus the common law nature of the act seems a servant unsettled issue i think it is an unsettled issue or honor and i think the case should be remanded so the agency can make a decision in the first instance whether or not this bar applies i think the the two thousand and seventeen case that i filed with my twenty j letter cites a general principle they say as an issue as an initial matter there's no evidence that the respondent was ever charged with or convicted of a crime well but but the thing is i guess in terms of why would it have to be a hard and fast rule from this standpoint you could have  thirteen person that went in at twelve and there was no indication that they had done anything and then you could have an m s thirteen individual that just committed act after act after act and that that you know murders this at any other you could have and why wouldn't that be able to be considered you know why can't it be something that a court looks at and decides well that willie was in even though it's got them as thirteen he did appear to be a gang member but he really wasn't very active he really didn't do anything bad as opposed to someone that was a gang member the did a ton of bad things why doesn't a court have authority to look at it and decide how bad as bad you're on i think reason to believe and serious and nonpolitical might be discretionary terms but the board has consistently and repeatedly held that the term crime does not include juvenile position a new sort of the ramirez rivero analysis one that analysis was never done by the board the cases aren't mentioned and the there are issues in this case with regard to facts underlying the conduct and also with regard to the age of the responded and so those two issues are dispositive in that within that analysis the dealer knew some of the ramiro under the f in your briefing though you raised this only in connection with the end effect of assistance of entitled to withholding so as it was still is sort of a several steps away from a direct ruling is that right you are arguing in the context of ineffective assistance of counsel for the motion to reopen to explain why there was such a long delay and in that the time for a motion to reopen should be told so the ineffective assistance had to do with the fact that attorney jacob did not  qualify the respondent for voluntary departure and also that he failed to provide country conditions evidence so the serious non political crime issue is on direct appeal from the two thousand and eleven board decision but in the i'm not sure you mean i mean the two thousand and eleven decision is still before this court on the merits did you brief that issue in your or in your refund appeal because i only saw arguments relating to the motion to reopen your honor motion to reconsider would have been the proper vehicle to ask the board to consider a legal issue and that issue had been raised by attorney j the court wouldn't be able to two thousand and thirteen you know decision would would have been able to cure that legal air my motion to reopen was about prejudicial ineffective assistance the failure of attorney jacob to provide country conditions evidence and the failure of attorney jacob to qualify that that went to the equitable tolling so in or because of the delay in that otherwise the motion to reconsider to reopen was barred but the time and time are right but those those the proceedings were consolidated right i filed a motion or a notice of appearance on the direct appeal of the two thousand issue the issue of the serious nonpolitical crime bar was raised by attorney jacobson that's certainly before this court assuming that we determine that the acts committed by the petitioner when he was a juvenile did not  qualify him from discretionary relief doesn't your client still birth bear the burden of showing a future fair persecution on account of membership in a cognizable gang and what's the strongest argument fear of persecution arguing family his relationship to his murdered cousins the expert states it is my professional opinion that mr lopez garcia would be at high risk of egregious physical harm and death if we turn to also the doors a direct result of his familial relationship to his cousins his strongest argument i think is is that he belongs to a group of witnesses who report gang perpetrated crimes and that's a group that and i'm participating in investigations result in predictable and brutal reprisals and the extensive country conditions evidence that we filed also supports is fear i think what what's very important is that this court cannot affirm the board on a point that was not analyzed the has the conduct that the particularly serious crime bar would be based on is unclear in the record the i g states that the bar applied because of street fights that at the record it for ninety four he he held that the petitioners testimony was credible that he was not actively an active participant in the murder of the farm worker or the rape of a girl that's it for ninety three but the board the two thousand and eleven board made a leap finding that the bar should apply because mr lopez garcia was an accomplice to murder and rape so that the what we don't even know what the board we don't know what the conduct was that this bar time for rebuttal i do your honor thank you ok good morning or honors morning says and i don't attorney for the respondent the united states may please the court i would like to first talk about the procedural history of this case because i think that's really relevant here although there are numerous issues that are raised in  his motion to reopen for a year and a half after the initial case was heard and this was far beyond the ninety day time frame for motions to reopen therefore unless the court found that the board abused its discretion in finding that the petitioner did not meet an exception for that one day timeframe because he did not establish equitable tolling should apply and he did not sabotage that change country conditions occurred in el salvador since his hearing in two thousand and nine the most of these issues are just not before the prosecute in august twenty eighth twelve but then when he got new counsel he moved to reinstate his petition for review and we granted it is that of the original petitioner is motion to reconsider  reopen i think that's the the the original petition while they're there to consolidate appeals i mean there is the first the first board decision i'm just two thousand and eleven and those issues are before the court and what i'm what i'm saying is there are a number of other issues that are in the granted because it was beyond the once a time frame and it didn't mean exception that none of those arguments should be before the court and if that particularly if the if the petitioner does not dress them in the briefs and they're also waived and we would argue that they were waived the court sh commission of serious nonpolitical crimes so what is the government's position on whether acts committed in a foreign country by a juvenile may constitute a serious political crime disqualifying a person from discretionary immigration relief and what's the best public best published opinion reflecting your position the the government's position is that the plain language of an eight to forty one does not make any exception for juveniles who commit serious nonpolitical crimes and indeed none of the bars in that section make that type of exception although the congress has explicitly made exceptions in other areas for example and the case that that talks about the crimes involving moral turpitude which are is a provision of in inadmissibility and their congress specifically carved out driven also certainly if they wanted to do that they would have done that there's no indication here that i in a two forty one anyways  is to accept juveniles from that provision and supreme court in one gary garrett which is one of the strongest piece of precedent that exists with regard to serious nonpolitical crimes discusses the broad discretion that the board has with consider in with consideration of non serious serious nonpolitical crimes because of the political nature of these crimes congress has in the opinion the supreme court given a look broad discretion to the to the board to make that determination on a case by case basis n the refugee handbook set forth mitigating factors that need to be considered but supreme court said that those factors although they may be considered by the board or not the board was not bound by them in any way and so one of the some of the things that they talked about in the u factors concerning coersion door dress and also the age of the the actor and the circumstances so here are similar leads to the sixth circuit finding  asia what the with the with the board did essentially here is they took a look at whether or not under c f r twelve forty point eight d official had overcome the showing of the government that there were serious nonpolitical crimes here and found that there were no substantial arguments raised by the petitioner that either because of his juvenile satis or because he was chorussed in some way that he shouldn't be held responsible for the seriousness of his crimes and so w the interpretation of statutory language in the i and sure and the ira if you look at these cases and even the cases that were submitted by petitioners counsel in the twenty a j what they show the board in those cases is really looking at a number of medicating factors and they will consider mitigating factors to the extent they are raised and argued substantially and in this case they certainly they simply are not there and that's what the board found here if you look at the case the first court case that was submitted by the petitioner in this the single a single board member decision there and the the board there noted some important mitigating factors that were relevant and distinguish as your honor mentioned distinguished the case before it from circuit court cases of f a and also our being a major and specifically appointed to the fact that in this circumstance this gang member who was a child had been brought into the gang when he was homeless of homeless child he was forced into the gang he had he had specifically testified that he didn't participate in any of the serious activities of the gang and that he was a menial member of the gang essentially that he had not participated in street gang fights or any of that type of activity in this case they're very distinct facts from that case here we have a petitioner who testified that he participated in fifteen street fights during which he either possessed a firearm or grenade and that he had shot his or discharged his weapon numerous times and that many people died in his testify as testimony he provided also that he was present for the deaths of fifteen people including two civilians and one of the civilians he actually participated in the in the killing of the civilian to the extent that he yelled at the person at the beginning of their harassment of him so the circumstances here i would submit are very very different from the board's decisions that were submitted by  on a case by case basis which is exactly what the supreme court in a garret care found that it was in the discretion of the board to do a sort of as as they as the cases come to it so it's the government's position that the board probably found titian or was barred from withholding a removal based on his commission of serious nonpolitical crimes and also that he failed to establish his eligibility for withholding of removal based on his membership in a particular social group as your hon noted based on either his former gang membership or based on his membership in a in a family so is that an alternate ground that if we didn't want to weigh into the juvenile acts is there an alternate ground yeah the board did find in case number two leavened seven three five seven nine that there are alternative grounds either of either he was barred based on his commission of serious nonpolitical crimes or he did not establish membership in a particular social group because of his four former gang membership or based on his family membership and indeed in based on his own testimony there's no indication that he was going to be targeted based on his family membership he testified that as parents had had some problems but those problems were related to his gang membership not based on his family membership i'm really there's nothing independent of his membership in the gang that he would be targeted based on the word also found that petitioner failed to establish that he was more likely not to be subjected to torture indeed he he provided those parents had been harassed but they had never ted they had never reported to the police in any way so there's no indication that the that the government of el salvador was going to acquiesce in his torture but it was presented as first petition for you with regard to his with regard to his motion to reopen it's very important to note that the  the board found that first the petitioners not comply with the requirements of a motion to reopen with regard to establishing equitable tolling for ineffective assistance of counsel because he did not comply substantially with that there can be some flexibility with supplication however in this case there are very important facts that the court needs to be paying attention to the petitioner on his motion to reopen submit a new statement in this statement  concerning his motion to reopen and concerning ineffective assistance of counsel he brings up facts upon which now petitioners arguing he should base his new particular social groups that he never mentioned in his first testimony never mentioned in his first statement so these facts are coming up brand new a year and a half later specifically with the fact that he had been attacked but by a gang member with with a machete and that he had reported to the police and that he was getting you know retribution as a result of reporting to the police all those are new facts that were not ever percent of the first time around so importantly the petitioners former counsel has never responded to any of these allegations he responded only to the claim that he had not supported the cat the convention against torture claims sufficiently by submitting expert testimony and so if you look at the statement of attorney jacobs he it's a very small response that he provides and he only response to the claim that he didn't support the cat claim sufficiently he doesn't discuss any of these claims with regard to particular social group he doesn't discuss any of these i mean it is limited the only refers to not having brought in an expert report yeah and expert reports that were in their documentation of gang violence gang violence in el salvador yeah i mean it's the reason i'm saying that this is pacific to his convention against torture claim is because if you look at the proposition his motion to reopen this was really the the brunt of the argument was that had he submitted this statement from the expert on gang violence he would have been able to establish that position or would likely face torture by gang members upon his return because former gang members were getting targeted one of the arguments opposing counsel makes prosecute the voluntary departure claim in your briefing you said well maybe it was strategic but i can't see any strategy for it or not pursuing all in terry departure well even if even if that argument you know you don't agree with that argument there's also no indication that he was even aware that he was all that voluntary departure would be something that he wanted or how would it have helped him applying for all her departure yes well i  engaged or he was married during his testimony i don't know when he became eligible to adjust his status but that's not anything that we have any of the boards and any information on that is it with regards to turning jacobs is a plane on the face that he qualifies they the opposing counsel makes the argument that it's plain that he qualifies for voluntary departure i didn't see anything on good moral character or there's no there's nothing there's no information about that whatsoever and more more importantly there's no information that attorney jacobs was aware of his eligibility for either adjustment status or voluntary departure or that he was interested involved or departed he says to the in the transcript jacobson as to the ad he's also seeking that he's suffered prejudice as a result of his failure to he also has not indicated that he would have ever actually departed if he was given the opportunity to do so voluntarily also eat thank you your honor with respect to voluntary departure as you pointed out mr jacob did indicate that he was going to pursue voluntary departure there's and he didn't he didn't know that right i think that i guess that the lane does  for example the good moral character what one of the issues is that you can't testify falsely and there is evidence of the record at your client gave a whole range of different  is based on his view that being younger what would assist him in getting immigration benefit so so it appeared that that was an issue for for voluntary departure can you address that at the made tried to make him appear older so that he could get a visa so that he could flee the violence that was a one thousand nine hundred one birth year his birth years reported correctly in the declaration to his initial application that's  and he actually gives either and declarations her testimony different ages different acts occur is your client the petitioner yes he did he has he corrected the record in the motion to reopen as well so how would he came paul and terry departure how would have even qualified and how would it have helped him well the requirement is that the that you have good moral character for five years preceding the application for voluntary departure and that you not be removable for an aggravated felony or on security grounds and i think one there's no finding by the board no finding by the immigration asking a moral character  what i've what i'd like to do with a very little remaining time is talk about the convention against torture if you don't mind well you only have twenty five seconds i just the board used the wrong standard of review in assessing petitioner's cat claim they said were not persuaded by the respondents vague and unpersuasive allegations which are not based on person or personal knowledge facts presented in a motion to reopen must be deemed true unless they are inherently unbelievable the board also presented several hundred pages of evidence showing substantiating his belief that he will be killed if he is returned to el salvador the court should remain on the case for you extra time and your time thank you ira thank you both for your argument this matter will stan