because he was persecuted based on his membership in a particular social group of complaining witnesses against major salvadoran gangs now typically to prove the ability of a particular social group at the show three things that the group shares come to mutable characteristics that the group is defined with sufficient particular social group now they're the petitioner did testify in court it was in disguise an outside presence of the defendants but importantly the court in garcia made no mention of any requirement that a petitioner testify in court and in fact when the garcia court was distinguishing a ca which dealt with a confidential informant the garcia court distinguished that case not because the confidential informant didn't testify in court but rather because quote that confidential informants quote aid to law enforcement was not public so the rd circuit since garcia was focused on the public purse nonpublic cooperation that was the distinction and then so when we get to rub your wall in july the court actually be affirmed the holding in garcia and clarified the relevant standard now the nonpublic distinction but instead of distinguishing that case the broad view while the court actually relies on it and goes to great lengths to explain why the garcia particular social group satisfied the social distinction and when it explains why garcia satisfies all the distinction  was confidential who cooperated privately and who status was never shortly disclosed to the public and therefore is indistinguishable from society with the petitioner and garcia cooperated publicly in whose status was talking to uniformed police officers on the street in front of his house in public for all the seen in fact of the suspect of the murders walked by and saw mr go with montauk and the police and the crime scene was right next to the crime scene was right next door and in fact same way the government did on this on this important idea that this man did not testify but again that's not consistent with the holdings of the circuit but another important mistake the b i made and i j made as well is they were focused on  and this court really highlighted that distinction in the unfunny case where the particular social group in question was homosexuals and the quote and the petitioner who testified that he was not a member of that group rather said that he was persecuted based on his right i think i think where we would stop there is when we focus on the confines of the particular social group in question so the imputed membership would be a distinct question from the actual cognizable social group and the social group here that mr  asserts he's a member of is a very limited group it's only about complaining witnesses against major salvadoran gangs and quite frankly that's a it's a small group which i think it's clear from you know assessing the available case law out there you wouldn't see many fact patterns that are similar to this case so i don't know that this would be a very common occurrence and one other point to raise on that is someone was seen cooperating with the police in public against a major group major gang and evidence to show that that person had cooperated with the police and then that person  persecuted and attacked on that basis and again that's a that's another limiting factor here is that the it's not just anyone that talks to police would be granted asylum in this country but rather someone that was attacked on have basis and i think the evidence in this is of cooperation or is being perceived  and here i think the evidence is abundantly clear that he was attacked on that basis as he was getting beaten up the st time he was called a traitor he was called the snitch so again that is another limiting factor that would handle that ok can you talk about that globally that's correct we think based on the position put forth by the government if you could be dispositive to the ruling that someone survive past torture and they can no longer seek relief under cat that no human being on the planet would be able to see jack and so we put forth substantial country conditions evidence showing that there's thousands of them as thirteen gang members still at large nothing in the record suggests that any of the conditions have changed in el salvador and  goes mon was clearly tortured in the past something that could be i did not consider he was you know tracked down forty five minutes away from his house by this same gang and he was ambushed and kidnapped with his cousin and had  question the government's position on the particular social group the government's position really would be asking the rd circuit to make a new law if it if it held this requirement of testifying as a requirement to a good night school group that would be inconsistent not only with rd circuit precedent we talked about but also question from other circuits there's the gushy case in the nd circuit which which the facts of that clip case clearly show that the petitioner did not testify in court but rather his status as a claim we would ask to hope that it was not supported by substantial evidence for to go back to the day for them to take into account all of the evidence including mr guzman's past torture which they didn't take into account because they held that there was you know this limited group of perceived informant to the police he was seen talking to the police after his neighbors were murdered but he didn't testify in court and that makes all the difference under radio while so we asked the court to find out the board's correct that his particular in distinguishing her case from those involving proposed social groups of confidential informants that's a footnote for distinction between a confidential informant the operator mean confidential and somebody that is seen talking to police on the scene of a crime in the police immediately thereafter was tentative confidential informant but he's not even petitioners not even a confidential informant here always seen is seeking to a police officer he could be a bystander to to the crime he could be eyewitness or in this case to hear witness to the to the case someone being seen talking to a police officer simply isn't a cognizable social group explodes the concept of a particular social group in terms of being limited being socially distinct maybe socially distinct to the police officer and people in the neighborhood but to the salvadoran society it's not socially distinct because it lacks that particular characteristic a publically testifying in court which is laid out in this court in radio wall and in the radio was footnotes or we relied on the fact that he publicly testified so we don't think this case with the board's decision is it st talks about what's the context and therefore it talks about what we said in the past where the court said about in the past about witnesses and it talks about the cases where they didn't publish testified but next paragraph after that the board talks about well he did meet the fact that i j was not clearly erroneous in finding that he was an informant he wasn't paid informant that sort of thing but it goes on to rejecting his arguments about social distinction and says this group isn't socially distinct so that's the st board of the agency didn't didn't take into account other other motives and that this is a motive mixed motive case i think the board basically says there is no other motive here other than being threatened and placing gang intimidation again recruitment and the you know the work could have gone out find this guy and we were got back and the small group went to confront him but we have no idea who traced him down or who reported where but what i think we'd also have to have the record would have to compel back including your honor in the record what your perspective on the cat claim in light of these facts i'm the can't claim it's clear there's no finding by the agency on past torture there's no finding by the agency on relocation but i think they look to the regulation and ask whether it's more likely than not that he's going to be torture and because t so whether they would have very soon after the nd confrontation right i believe i believe that's correct our next day like yeah so so who are we to say that they would have gone after him three times or four is that is that the way it works that if you after the nd confrontation if you let the petitioner go there's no likelihood of further confrontations further torture that's what the some of the i think that is that the most speculative proposition i've heard a lot on what that's what the board decided the record has to compel a contrary conclusion well i think i think just looking at the facts and looking at what has happened in el salvador and looking what happens in many countries when someone is being chased by a gang in his will meeting up twice and after the nd beating up fleece the country to say that he's not going to be beaten up again i think is a very speculative proposition and satisfy your perspective it well it's not the same sorry my my perspective it's the board's perspective in this particular case in these particular circumstances this doesn't rise to the level of clear like purtier probability of torture given the take over the dead and cologne he  claim on the other if there are other areas of the court things that are available on the on the particular social group playing with spec the witnesses you would send it back to the board to look at that whether there's a nexus between the complaining witness but again we think there isn't a mandible particular social group and fled the next day we don't know what better evidence there is to show that these men were tracking him down and he kept trying to avoid torture and his supports that it would likely happen again also my colleagues point about that these were private actors in this are touchy duran taste which was also a cat claim this discord remanded back down to the b i a based on torture at the hands of fork which is the revolutionary armed forces of colombia who were not in control of colombia at the time they were nothing more than a criminal organization in colombia at the time and we put forth every thirteen is very similar to fork in that it's a game that's not actually in control of el salvador but it's run in parts of the country as to my colleagues arguing about the floodgates just this would be a two step analysis the st would be the cognize ability of the particular social group which again has this very limiting factor of acquiring public cooperation and then separate from that there's this separate question of whether the petitioner was imputed member of that group which requires specific evidence that the persecut perceived the petitioner to be a member of that group and that's going to be another important limiting factor not every case is going to have that fact we do have that fact here and that they were calling him a traitor and a snitch as they were attacking him and one final point on the  social distinction question this court held in the parliament on a case that the question of social distinction requires evidence it's a subjective question did the did the people of the country in question here all salvador recognize the group as socially distinct  guzman the only one that has put forth any evidence on that point is country conditions evidence from the united nations showing that people who complain against major gangs in these countries are stand out in their communities there's evidence from the canadian refugee immigration border something specific in el salvador that if you complaint against m s thirteen you're viewed as a traitor in your community and there's also this evidence of the witness protection program showing that it protects witnesses and those who cooperate an investigation of a crime which the th circuit described does not mean that it couldn't imagine better evidence of social distinction and be put forth that same protection or witnesses who have testified you know you're one of the the actual law is witnesses who testify or cooperate in investigation of a crime and mr guzman cooperate