record to show that the respondent will likely be torture in their country of removal and therefore be eligible for tat and number four there is sufficient evidence in this agree that chevron should apply to the case whatever it stands for i understand you disagree perhaps with what it actually means but whatever it stands for it's entirely up to chevron deference is that you agree with question because you know you putting aside your argument about particularities your condo with a clean slate yeah i want to follow up on the questions about chevron deference if if we must give chevron deference to the d i a decision can be a decisions on the issue of the  try again counsel you just referenced with regard to particulary the whether there's evidence in the record and my question is whether particularities is an evidentiary question or not i think there's a lot of authority that would set suggest social distinctions is evidentiary question not my question to the proof that is put forth d by either part ok and we'll wait while he connects least in the th circuit we have we've never said it's a mix question a lot that we've always d said it's a question of law so what support do you cite for the idea that it is a mix question of law in fact at least in the th circuit it is the st circuit never said if we as we can cannot do that in this panel we can't overrule our prior precedent that that creates a problem for you given the deference we owed to the  you'd argue that but is that do you agree with that yes i agree with that i agree with that ok does it make a difference that here this was a one person the as i read the i j s decision you know it it has a good bit of discussion about the future g r and then it's reasoning seems to follow that you know why why would we not look at there's there was no proper analysis done at all in this case and a matter of fact the analysis of the b s a it is little limited to think it defused less particulary when it some time i would just like to ask him to address one issue when he comes back and it's this do you have any argument that we do not we are not required to apply chevron deference here at that that's an important decision report a question for me at least and if you have an argument that we either it's been waved in can be waived i'd like to hear from you so it was articulated as former in most thirteen gang members is thinking if it was articulated as former in mass thirteen gang members regardless in the th circuit correct me if i'm wrong in sierra club case we said that that's a standard review question that we are required even if the parties agree that it's an applicable than just a minute but if you agreed it was an applicable we still affluent determine it ourselves and so own that question do you agree that we have to make the decision in other words the government cannot waive chevron at least in the th circuit and then nd given that you cannot can you if you're familiar with if you're not just say that you're not familiar that's fine just that to raise the question about a livia versus lynch where the court judge when rejected  if you're familiar with a libya versus lynch can you can you tell me why that doesn't change the applicability of chevron to w g are in this case  circuit case in which we found that former gang members as a group passed the immutability test it why would we not also then find that  your ear but i'm old we can't hear your i can't hear you very well can't hear all right you different ways you could be former gang members those seem to me more appropriate for the issue of next us whether that yet whether the persecution was on calle of that group or whether the group is socially distinct then they do about particularities i mean particularities seems to be whether we can we know the vale injuries of the group or not and you know deference aside what's hard about knowing whether someone is or is not in the gang member whether they whether you can prove it or not is a me follow up with that i think you're focused in on i guess the word former and you know i understand your argument they are let me ask you this if the h i'm just not sure how that relates to particularities but yeah under i think your other prior question probably answered it for me what direction you can use that question what about if i'm of former catholic the run announced catholic and i know catholic religious groups are separately defined by statute but consider if we were applying particular social group to catholics it seems like all of the arguments the i j a made here would apply right because not all catholics take their faith the same way you know some are twice a year catholics some are twice a week catholics you know some keep the rosary beside the bed and some do some don't right the same could be said about the gang members how long were they a member like when did they leave was it a formal renunciation or did they just stop going to church and i mean all of those same questions that we talk about i j talks about here seem like they would apply to any former group maybe the exception being you give the example of police officers you know maybe former k g b officials the same way maybe there are some very official groups that former applies to but would we have the same problem when we define a group for particularly purposes by the negative that is you are no longer something you used to be as well so i mean with respect to someone who right you're considered a member of that conspiracy until you abandon and we require a formal renunciation of some sort there's a whole set of doctrines about that and so there might be a proof problem of determining whether i'm really a former catholic or i'm really a former gang member or whether i'm just an inactive catholic or an inactive gang member and maybe there are challenges around the margin but i'm not i think what judge quite obama is getting at is the fact that the proof problems doesn't mean that it's so morpheus that we don't know what it means and help me help me understand why that doesn't cause you a problem particularities you know it may well have i mean it implied there may not have been proof that he was a former gang member it certainly said he was not credible those are things that he probably in the the limited its decision to particularities and it seems like what you're arguing is getting into the issues about which we do not have jurisdiction and back to what i said what authority do you have that we're supposed to look for evidentiary support as a ploy as opposed to just legal analysis on the issue of particularities well i mean in our criti decision is fine but also what should follow is a proper analysis of the facts the shooting evidence your evidence and here that was lacking so just saying if the rule is for  judgments are sent as a question i think sorry i just had it on the day can i ask you to address the forgeries decision in a loss versus holder where we found that the the group of honduras and males who refused to join m s thirteen have notified authorities of m s thirteen's harassment and have been a dinner possible tormentor that group lacks particularities and it that and you know that's the two thousand and twelve th circuit decision that seems to be more particular than the the broad group that you've suggested here just a former gang independent gang members and the that depends upon whether you raised below the particular social groups as former nationality specific gang  when i read the record it says suggest to me that all you raised was a former gang member that that's the only social group you identified where in the record can you point me to death to find where you properly raised before the i j a the more specific yes i did and yes i do questions about the zelaya case is that something you have that because there it it looks to me like in that case that the social  group has some objectivity to it and judge richardson makes a good point on that if you look at the reasoning of that case it seems that the yes we our court acquainted that alleged social group more to the general concept of resisting games i'm not sure in fairness that's what he alleged but that's what we same to say can you address that all right thank you to either of the other two judges have any further questions all right if not we we thank you both for your arguments at this point if we were in richmond we would come down from the b s degree you are none the less consider yourselves warmly although virtually created we appreciate your arguments and you will adjourn and prepare for the next case thank you