department of homeland security in order to comply with the united states government's obligations under certain international conventions including both the torture convention and the one nine hundred sixty eight protocol relating to the status of refugees the screening process requires that the applicant meet a relatively low threshold of a stablish ng a reasonable possibility that at a full hearing they could win relief on one of their protection claims because mr all of us has a stablished at least a reasonable possibility of meeting his burden of proof he should the court should grant the petition and remain with instructions that withholding all the proceedings be initiated i'd like to start by discussing the standards that should be applied to reasonable fear claims by the agency and then discuss the withholding claims and the cat claims so this case provides an opportunity for the court to provide much needed guidance to the agency on these types of cases which are increasingly flooding the court's dock of guidance right now from the court although there have been several cases recently in turning including martina's v sessions which i filed the twenty ha later on on friday and essentially i think one of the problems is that the lack  of any sort of appellate review within the agency means that we only get one level of administrative review before the immigration court before the cases are kicked up to the ninth circuit so consistent with the u s government's obligations under international law the reasonable fear process should be interpreted generously to provide relief to individuals who fear return if your harm upon return to their country is a tricky one for me because i don't see any facts even as alleged and then construed quite strongly in your favor that even gets him very close so what do i do and you're going to try to persuade me that actually has facts doesn't tie limb to some sort of protection because previously addressed gang member claims are quite distinguishable from the case at bar in that they involved individuals who had not attempted to relocate to multiple places and you know what we have here is an individual who first lived very briefly in all tar there was an attempted kidnapping there across the border was returned and then decided you know he wanted to make a go of living in the xico this time and not you know tr violate our laws again move to a doll go live with family there and you know was almost immediately threatened with kidnapping you know i wish i were in this job allowed to act on my sympathies i'm sympathetic but where is there any case law a protected ground well i mean i think again the fact that he is readily identifiable because of his tattoos as a former gang member you know and i think that this is not a situation where like an hour to go where the individual was still a gang member this is somebody who has distanced himself from his gang affiliations and and really tried his very best in mexico to steer clear of any problems and yet he's faced with this double bind you know he cannot go to his former gang associates for protection because he's left the gang and yet his tattoos identify him as a gang member so you know i think with respect to this case is distinguishable from the other cases that the court has considered particularly because of his status as a former gang member and you know the court's decision are in our to go to the extent that it could be read as as i think the i j a read it as a carte again cases have to be analyzed on a case by case basis it's not the agency has never taken the position that you cannot make a social group claim out as a former gang member that's not the agency's position so to the extent that the court took that position you know the court would be invited under brand x to reconsider it given that the agency subsequently clarified that in fact you know again cases do need to be analyzed in their facts and here we have you know two different very well qualified experts pined that in indeed he would face harm of returned and again we're at this preliminary screening process and you know i would much rather be up here with a full record after going to the board and having a full hearing where the department would have the opportunity to cross examine my client and you know maybe he would get relief maybe he wouldn't but the issues would likely be very different but at this for women or stage the court should be encouraging the agency to accept adjudicate claims and then you know in the event that they don't win on the merits then that's a different issue but you know at this plenary screening stage we need to be leaning heavily in favor and as i think about the question there was the immediate imprecise question in front of us and that is should there be a  more elaborate hearing process as i hear it really the question the question of what you're claiming at least some possibility of relief is not so much factual i doubt the facts are going to be very much disputed is going to be can i get a modification of the case law so it's not a hearing you ordinarily want to hear interesting i wish the facts here you want to hearing because you're  types of issues because you know again the i g is definitely overworked they see a lot of cases and i understand that they have you know huge case loads and completion goals and whatnot but that said you know in this case i don't believe that the immigration court responded to our arguments you know in any meaningful way i mean we provided pretty clear briefing on arguments about why these cases were distinguishable and the court reaction was cite the cases you lose and that shouldn't be enough when you're dealing with someone's life you know that's our position and just on the on the standard i just want to briefly mention that and this was an seeking conditional residence to have the conditions on residence removed or you know have a marriage based case and they're married less than two years after a those conditions and their waiver to remove conditions is denied and they go before an i j that's called review in the language of the regs and the be a matter of how to edit or dan that's twenty five i n n decision five eighty nine and the pen cites five ninety two construed review to mean not only do nov review of the agency's decision but additionally the ability to accept new evidence so and certainly here when we have law you know a legal argument you know i think that at a minimum mr all of our should have the opportunity to have a decision on his claims and i just want to briefly if i may discuss the cat claim because i think that that's another aspect that doesn't require you know an access to a protected client ground and here again we have you know two experts statements both pining that he's at risk of harm you know he's had death threats he's had both to threats of kidnappings and again that should be enough to give him a hearing on his claim so i'm forgetting of the time is  good morning your honor may it please the court leslie mckay for the attorney general your honors were here today and mr all of our is is at this stage of his proceedings because he's been removed and illegally reentered three times so he is now in this screening process these reasonable fear proceedings that have been established by congress to ensure that we're complying with the country's obligations under the convention against torture and are non rafal meant obligations so the standard that that the agency uses in this is clear in the interim rule for the convention against torture which we cite in our briefs the standard is a reasonable possibility that he would be persecuted or tortured and that makes sense it is a screening process it is sort of a lower threshold than would be applied in a full blown merits withholding or cat hearing however it's a screening process to determine sort of facial eligibility for withholding and both of those carry a higher burden of proof than asylum so he does have to meet a fairly significant threshold burden more significant than aliens let's say in a credible fear proceedings where they would also be eligible for asylum being reasonable for proceedings the only relief possible is withholding and kat and those forms of relief carry with them a higher burden here the immigration judge reasonably how that he didn't meet his burden and his particular social group americanised male recent gang apostates is not cognize of all that's fully consistent with this court's case law and there's nothing in the record in the factual record that really takes this case out of that umbrella of case law that this that this court established there really aren't boundaries on this group what does it mean to be americanised recent what does apostasy mean he says various times he's distanced himself from the gang he says he's not a gang member so his expert one of his experts at one point says he wants to quit the gang so it's not clear who's in that group why they would be recognized by mexican society as a group so i think in that sense decision is perfectly reasonable i don't see anything here that compels would compel the court to reverse that what type of gang member word the word you're with the agency recognizes a particular social group is there any type of current or former gang member that could be a member of a social group i don't think that there is any case law or i haven't seen any now bear in mind the only cases that i see in the only cases the court sees are ones w adjudicator has said no so i presume that there are cases out there there are game cases out there that have been successful and we simply don't know about them because they don't went their way up through the process to  us so i don't think that the existing case law really was helpful what about the urals interpretation of the regulations do they do they allow for any gang former gang members to be members of a social group right now the case i would certainly suggest no i think that there is some circuit law and this would be really in the context we're talking about former gang members often you're talking about immutability that that once you're a former member you can't undo that you're always in that group now the court did say and just because you leave one group doesn't mean you automatically place yourself into another group so the case law isn't entirely consistent on that point they don't think that's helpful though here that immutability discussion isn't as helpful here even if we assume that he that by being a former gang member if we see me has quit the gang and th characteristic i still think he has problems with particularity and social distinction and really it's not just it's because his social group isn't just about the gangs it's also about being americanised it's also about being t also about being a recent apostate he amalgamates these characteristics in an attempt i think to narrow his group down but it doesn't take him out from law that really says these characteristics how are we supposed to articulate the standard by which we can allow this sort of i'll call it kind of screening reasonable fear interview as distinct from a full fledged hearing then with the possibility of going up to the board and getting a decision on the merits which we can then review here when all try to make this clean for the moment let's assume totally undisputed facts and the question is one of law  and it looks like a loser on the law but it's not frivolous or use is the government saying that we can deprive this person of going before the board to get a decision so reasonable your proceedings are aggravated felons and illegal reinsurance and so you so he's already had a full removal hearing that happened in two thousand and ten and now you know we're sort of three steps past that many years past following multiple illegal reentries and so it does make more sense to have a truncated procedure he did have two separate adjudicators consider everything he wanted to put in and if you look at the transcript the immigration judge here i think really did a great job he offered to continue the case to allow for the witnesses the expert witnesses to tell me to  testify telephonically and instead of taking that option which is fine mr all of our cited to put in the declarations when he came back for his hearing the immigration judge says on the record i've considered your expert witnesses i've considered your declaration considered your briefs are there any more arguments considered all your evidence are there any more arguments that you want to present and counsel said no so he could have made an argument at that point i think he could have called mr all of ours to testify if you wish to do so so i think there there was that opportunity to create a full their record that that wasn't wasn't taken and i don't and i'm not sure that really the that was necessary i think this is a case where there are plenty of facts with the declarations that are already in the record but he did have that opportunity to have more of the type of hearing that we're used to seeing in these immigration cases  maybe more of a type of hearing that makes us all feel a little bit better because the record is more fulsome and we have more more to work with i completely agree with counsel these records are not not the best for for us either there's there's not as much in there as i want to be in there but i think that this is a case where there's enough in there that the court can be satisfied that he has all the process that he w due and that nothing in his evidence really come powell's a reversal of the immigration judge's decision on withholding or on cat the cat the cap piece of the puzzle does take  out the problems with the social group but you still have a sensually a speculative claim and the i g did point to the fact that mr all of ours has been and spent time in mexico and has been harmed or threatened with harm but hasn't faced torture so i think there's enough here with with all of that for the for the court to sustain this immigration judge's decision and and deny the petition for review if there are further questions i'm happy to answer them thank you very much respond i'm sorry would you like time for response i think that was a rhetorical question yes i would thank you so i guess i want to start just briefly mentioning something that i actually located when i was preparing for arguments yesterday which is a training course that was actually publicised i think and it's a memo from john lafferty the chief of the asylum division and i'd be happy to do a twenty a j with it when i get back to the office but  sentially i want to just correct the record on one thing because i you know counsel said that there is a fifty one percent requirement for proving your case if you get to an i j on a cat claim or in a withholding claim absolutely true but at the screening stage it's a ten percent likelihood of success so it's not a higher standard it's a low standard at this stage and then you know once you get to the actual object hearing yes then you have to prove it's more likely than not that you would be tortured but at this stage again the training materials clear that reasonable possibility is a lower standard intended to allow these claims to get to an i j they basically want to screen out in my view how i would like them like these to work is to screen out clearly frivolous claims and you know their claim is if someone's claiming the prime minister of canada is going to you know come into the room and attack them that's a clearly clifford list claim that should be screened out and what do we do with that meaning your client has an opportunity to say well the following things have happened to and i fear that the following things will happen to me and if we take all of those statements and say well there's nothing there that rises to the level of torture under a cat how is there any possibility of even going to ten percent well i mean i was saying that the ten percent includes evidence that might be forthcoming beyond what's alleged well with respect i think that the record does establish a ten percent chance and i think that you know we shouldn't require people to be today napped and have you know tortured and killed before they're able to get a claim for relief and you know in this case he was successful innovating kidnapping on multiple occasions and that's great but  we shouldn't force him to go back and actually be kidnapped before he's eligible to have his claim heard and just one last thing about may i know my times let me just say ok on page seventeen of my opening brief i do cite two cases from the fourth and sixth circuit both involving former gang members and both you know they claim in granting the petitions so you know these claims do get granted by at least and other circuits  with respect i would ask the court to grant the petition ok thank you so very sessions submitted for a decision thank you for your arguments