good afternoon your owners may please the court my name is hannah miller and i represent petitioner less than scarlett the principal issue before this court is whether the board of immigration appeals improperly determined that mr scarlet had not shown th jamaican government was unwilling or unable to control the gangs who persecuted him this court and others have consistently vacated decisions of the board when it relied on insignificant or ineffective actions by a government to support a finding of ability or willingness to two government actions that the board cited are exactly that by seizing on just those two facts the board without considering all of the material evidence in the record the board misapplied the unable or unwilling standard and totally overlooked critical evidence in the record the fact underlying mr scarlett's withholding claim are undisputed mr scarlett was a police officer in jamaica who experienced continued persistent death threats by politically aligned gangs on one occasion they drove by his house and shot at him and when mr scarlett went to the police they expressly told to the police superintendent expressly told him that they had no resources to help him he was then transferred to another station just four miles away and after that transfer mr scarlett received a phone call in which an officer told him that the gang members were on their way to his daughter's primary school to kidnap her in that same call the officer also advised mr scarlet not to return home because the gangs were planning to shoot up his house and set it on fire yet in the face of those imminent threats the police did nothing they did not dispatch any officers to the school notify the school they did not take a police report in fact mr scarlett had to enter the incident into the station diary himself because no entry had been made and from that point on mr scarlett was forced to keep his children out of school and stayed with friends and family because he could not return to his home until he was able to relieve the country several months later and mr scarlett's experience is not surprising given the country condition evidence in the record and other evidence in mr scarlett's testimony evidencing the country conditions at the time the country condition evidence shows that the gangs in the kingston area and throughout jamaica had surpassed the control of the government and often worked in conjunction with the police and politicians but the group the social group shocked gang members in my right that's the narrow definition no your honor there are two bases for nexus here one is imputed political opinion so these are political gangs who were targeting mr scarlett because they believed him to be a member of the p n p and these gangs were a member or affiliated with the jail p b other dominant political party which was in power at the time another one of mr scarlett's bases for nexus is that he was a police officer but the board didn't reach that issue and so and denied mr scarlett withholding claim on the sole basis that the jamaican government was unwilling or unable to control the gangs so that would be an issue for the board to address on re manned but is not before the next issue is not before the court so despite all of the persistent threats and the absence of any police response the board's determined that mr scarlett had not met his burden to show that the government was unwilling or unable to protect him you agree that if we were to remain and the standard that the board should be applying is that articulated by the attorney general a matter of be which was of course decided after all the litigation in this case had happened before the agency position now right that's why i'm asking to the extent the attorney general wrote in an effort to clarify all of this if not to change it  this court appropriately say that it's to be reconsidered in light of the standards articulated by the attorney general in a matter of a no your honor in light of the fact that the government here concedes that matter of a b did not change the standard b should be read consistently with this court's precedent and so for instance in a leader of this court has held that that small insignificant are ineffective actions by a government are insufficient to rely on and so to the extent i guess to the extent that remained instruction doesn't include any consideration of matter of a b it must be read consistently with this court's precedent i thought it was the other way around that where the attorney well here it's our position that there was no ambiguity in the statute and so this court should the courts of constantly recognize that there's ambiguity in the social group aspect of  it would have to st of all find that your client to the extent he's claiming social group fits within the the attorney general's definition of that it would then have to prove that he's persecuted on account of that and then because the persecution is rd parties have to show that the government is unwilling and unable to do to deal with this or ask your honor but again and if all three of those are addressed by the attorney general i'm a little perplexed as to why you don't think that's exactly what we would be telling him to the agency to do is you've now got guidance from the attorney general following well the the attorney general for the primary holding of the attorney general did have to do with social group but the and the discussion of unwilling or unable is and here mr scarlet as i said as i mentioned earlier is not only claiming a nexus on the basis of social group but also on the imputed political opinion because of his perceived affiliation with the p n p i'm sorry i don't understand where you see the attorney general in parts he says the board urged when it overruled the immigration judges finding that the respond in fail to demonstrate that the government of el salvador was unable or unwilling to protect her from her ex husband and then it proceeds to explain the error why do you think that's because the main holding of matter of a b was to overturn a r c g and so it went on to discuss the unwilling or unable standard but that but the but it was not the primary holding of the  that the government recognize that it's changing the standard the government in fact argues that it was not a change of the standard in addition there was no reasoned explanation for the change whatever it is that's the  general citation to the seven finding statement that you have to show that the government condoned the private action now quoting the th circuit or at least demonstrated complete helplessness to protect the victims now why isn't that a clarification by the attorney general of what it means to be on able to control the rd party persecutor even to the extent it is a clarification that standard is met here the police here did nothing but that's that is that gets beyond the question we've been asking you which is do we tell the agency you have the guidance of a following now you may argue that that one statement hardly approves trivial or nonexistent benefits i understand that but when we bring man you know i deal if we provide some guidance and i'm wondering if the guidance here is to say to them you haven't a decision by the attorney general since you last ruled on this question follow i  think that well st of all whether the that language on its face i don't think is the same as unwilling or unable and it's not consistent with acted on a particular report this is not necessarily mean that the government isn't willing or unable to control any more than it would in the united states there may be some reasons why a particular crime is not successfully investigated and prosecuted in other words look into the circumstances more why wouldn't that be the appropriate standard perhaps it would and even under the even under that standard again this the but not under the but without giving deference to matter of a b we don't believe that he should be afforded deference for the reasons i mentioned earlier i see my time reasonable explanation does not entitle it to chevron deference and again this court the government here concedes that it was not a change of the standard government unable to attempt to provide some guidance on that and so so i mean if if you don't think it's a b what are the limits on the able to protect prong of the state of the standard well i think here this case doesn't require the court to establish the limits because the facts are so far below any reasonable threshold any pully any they don't even approach the what would be the minimum level of a police response that would be required there was no police report no investigation this isn't a case where there was an investigation that wasn't successful this is a case where there was never any investigation at all all the police did was notify mr scarlett of this impending kidnapping threat and that the gangs were on their way to relocate he would not face with the top passage of time and relocation does he really face this threat he's now separated from his family so that was separated from them here in the united states so that doesn't seem to be to be an issue any more well the question here was specifically related to past persecution which only gives rise to a rebuttable presumption of future persecution so on remained the government could conceivably argue that there are a change good afternoon your owners lindsay murphy on behalf of the attorney general your honour's the court reviews the agency's decision to deny protection from illegal on a substantial evidence standard here in the evidence indicates that the jamaican government did take measures to protect the petitioner from harm and also took measures they take after they shot up his home after the gangs shot up his home well each each time that gang members visited the petitioners at home he called  police police did respond it's unclear from the record whether any other actions were taken but i believe the petitioner did indicate that they did not investigate on that record i always that how is that sufficient well it's it this is a case by case determination and and here and as the attorney general said in a matter of a b not every case is going to be investigated not in not every case is there going to be a prosecution but that mean that they kept driving cars back and forth running home and nothing ever happened but this was a shooting up of the home and the police themselves reported a threat to  kidnap a young child so those would seem to be the kinds of actions that require more then just a warning or coming to the scene and you know whether the police  unwilling to provide protection may be a function of how much protection would reasonably be expected and i don't disagree with you your honor but i think here that you know the record doesn't necessarily provide a full picture of what the police did for example with respect to the warning about the kidnapping of the petitioner's child at school he indicated that he was informed by the intelligence branch of the police force and so that so we don't know but it could very well be that there was a large operation at play that the police did not want to undermine in responding directly to the school for example it's just that the record does not bear out the full picture of what happened on the police we have to evaluate this on the record that we have we don't speculate as to possible of their operations we don't speculate your honor but it is the petitioners burden to establish that the that the police that the jamaican government were unwilling unable to control the alleged persecutors in this case and the agency evaluated the evidence and considered the evidence of the lack of apparent response by the police but also in conjunction with other evidence of country reports showing that there was a large operation targeting this specific gang in jamaica during the those six months that the petitioner was in hiding during the time that he received these gang threats so it's not at all e resolution of the particular social group issue necessary or dispositive of this case then yes it should be remanded and it additionally on the unwilling and unable standard the board has not set forth a bright line rule for what that standard is all we have to to glean from our board decisions and circuit court decisions to kind of determine what that standard is you know have the attorney general's decision say yes we have that so just to reiterate the police did adequately respond to the petitioners request for help transferring him to different police stations during the final transfer the transfer during which he had received a threat about kidnapping his daughter the petitioner remained in the country for the following six months without any direct threats to himself or his family he remained working as a police officer and going to police every day at the police station that he had been transferred to just four miles away from where he was receiving the threats at his home and nothing happened to him he and his family were living in writing use than your own view of it or do you have a different view the evidence i understand i understand that his that they were living maybe with friends or relatives and that his children were not attending school but that he was going to work every day as a police officer until he left the country in june or july we should draw from that is what is that is that the the response that his supervisors provided to these threats which was to transfer him away from that the area of harm or he was experiencing the threats actually helped him and so it showed that they were not unable to protect him from harm could be understood as he didn't have the resources and that station in that district but moving him to another area would be helpful and how do we factor into that  school that's that's a tough one your honor and i think to the extent that you conclude that the board did not adequately consider that aspect of the petitioners claim then we would encourage you to remain and for consideration  particularly in light of the clarification that the attorney general has issued in matter of a b is it affected at all by the fact that he's if i understand the record correctly he's no longer responsible for his children or at least they're not living with him it may be in terms of his or his prospective claim but if the court were to consider that in relation to his claim of past persecution then he would he would benefit from presumption of future harm persecution i just want to address a couple of points st i just want to mention that the actually misty to the point about the fact that the police supervisor expressly told mr scarlett that there were no resources the board actually says that mr scarlett claims that there were no resources of it's his opinion when in fact he credibly testified that the police superintendent told him that i also want to mention that that this is not a shouting things like p n p boy names associated with the rival political party and that they believed him to be a member of that rival political party in part because he had been transferred from another location where that party was more dominant  yes that was a mistaken belief ok i also want to point out that the government raises some hypothetical scenarios that are clearly not in the record and that's speculation and in fact mr this is a unique case because mr scarlett was himself a police officer and therefore a head unique st hand knowledge of exactly what the police were or were not doing and so in this case he knew that there was no investigation and that they had not taken any action in response to the threats against him in response to the government's argument that there had been this large operation to arrest a major gang leader at the time that is true but even that happened only after the united states has had issued an extradition order against that gang leader and in fact the prime minister of jamaica had hired a lobbying firm to resist that extradition request and for months refused to even initiate efforts to  request to arrest the gang leader and only after extreme pressure from the united states did efforts to arrest him begin moreover even after that arrest there is evidence in the record that the gangs were continue to remain