the first issue which is not actually necessarily dispositive in this case is whether or not there is a particular social group that the petitioners belong to and the social group is landowners who own land that is within close proximity to the us mexican border is that the only social group you're alleging know it within the motion to reopen we also alleged family as a social group and there are seven members of the family that have been either murdered or who have been under death threat or attempted murder why did you only raise that fifteen months after whatever it was fifteen months after the board of immigration appeals decision were two out of time well your honor under changed circumstances  the basis for filing a motion to reopen and that can be filed at any time when you show change circumstances so i'm not sure why the previous attorney didn't raise the family as a social group she tried to raise that in the appeal to the board  that time well actually at the time of the immigration judge's decision right she already had that information and the immigration judge told her to read to file a motion to reopen right right she did but a requirement for a motion to reopen is that as you need to show that something could not have been presented at the initial hearing and she presented the information at the initial hearing so i think i'm not sure exactly that was a strategic call that she did not follow that motion to mexico where weddings funerals burrs happen on land and mists of argus inherited the land from her grandmother and that's on the record issue here what whether it was actually defined specifically i was wondering what evidence did you actually present that this had to do with the fact that they were later no winners along this two thousand mile border as opposed to just them right well it i understand there is this two thousand mile border but the actual number of houses that buttress the border is actually a lot smaller than two thousand miles there's only a particular number of border towns along  the border from california to texas and there's only a particular number of houses within that that buttress the border so i'm sorry what i don't quite understand your question i wasn't very good maybe it is what evidence did you present that this is a general problem for landowners along with or did you present evidence about any other instances yes the petitioners testify that one of their neighbor's house was also burned down and that neighbors business was also burned down and that what matters under henriques rebus is with the perspective of the persecutor and so the persecutor is clearly going after them for their strategic location of their house because they want to build a tunnel in the in the home to smuggle drugs and human beings from mexico to the united states so but as your honor pointed out cordoba versus holder or the this court has found that mexican landowners is a social group and that's also supported by the seventh circuit in another land sure that cordoba actually got to that point because cordoba winds up saying we're going to remain and because to be didn't have the benefit of hernandez revisit that time and acknowledge that it could be so instead we've had development the b i is rearticulated what the standards are for social group and i think those are the standards you're going to have to do with now what is it that makes the the social group you're now proposing either one of them qualify under the standards now set by mention it's particularly because of the fact that there is only a particular number of houses or pieces of land that buttress the border and it's socially distinct in the fact that there is only one that's looked on to move along to credibility why is credibility before us because i mean the i j cast aspersions but i don't think the b i a rely upon that so i don't think there's an issue in front of us is there well if if the court finds that there is a social group then they would need to make an it make a ruling on credibility who makes that ruling i don't think it would be   well about internal are you going to talk about internal relocation yes either yes it's not reasonable for them so for withholding elsewhere well their daughter tried to relocate three times and she ended up having to come to united states also to seek asylum but is that because what's happened to the property is somebody living there now no it's abandoned so why did why does the gang care about this family of the properties abandoned and they can have access to it because of a vendetta they have against the family there's no evidence of that well there is your honor there's as i mentioned they've murdered the gang has murdered the son in law murdered the god's son was still there in mexico right well not just mexico and that part of mexico it seems that i understand your case with regard to that location but there's been nothing that i've seen  demonstrates that that the problem is with this particular family the problems with that location and if the families away from that location what's the problem well like i said the daughter tried really relocate three times additionally and has to be reasonable that they relocate there both of retirement age they've relocated here how hard could it be for them to relocate elsewhere in mexico because they're at the hands of a very large and powerful drug cartel that  a very i mean like i said there are seven lose interest in them is tied to a location they no longer are interested in living at no your honor i'm sorry to disagree with the your you're requiring me to accept as a promise that there is evidence or more  specifically that the i j a n b i a the evidence compelled those organizations to conclude that there was something aimed at these individuals separate and apart from their status as land owners next to the border if they're not landowners next to the border then they don't fall within that old social grouping longer and i don't see what i'm writing them is but the problem your honor is is that's why it's a social group because it's first of all the land ownership it's in a characteristic it doesn't disappear when you no longer one time abandoned it if they're living someplace else in mexico and they're not claiming possession over this property what's the problem but that was the case in cordoba and that was the case and l a both in both cases at and there's been nothing to suggest that your clients fit that category they're not wealthy landowners they have the misfortune of owning land that happens to be at a place the cartel wants because it's next to the border but cardo but it was mexican land owners because there was too petitioners in that case and in the mexican landowner landowner the second petitioner he had already abandoned the land and he was in hiding and as i mentioned  n the motion to reopen suggests a second alternative social group a family which it is clear as i mentioned they murdered the god son who did not was not a resident to make sure we're talking about the same case cordoba and it says cordoba was born into a family that had significant land holdings including several family properties and farms in a new york cali colombia as well as some family businesses he was a rich man that's the first petitioner there is a second petitioner who is from mexico in the same cordoba case yes ok did you provide any evidence that they could not relocate internally i mean apart from i guess maybe when there is we need a definition and that they could not go to some other part of mexico so your honor apart from the fact that they're elderly and that they are that their family is are under death threats no there is no other evidence that they cannot relocate like i said it's not their burden to show that under asylum in under the convention protection under the convention against torture they also it's not necessarily it's not their burden either it's something for the court to consider it one family in two related to your petitioners claim of being a family subject to violence from th getting there was a newspaper article regarding the son in law's death he was actually i read it yes not technically the son in law they were actually married but in mr valencia and his asylum application stated that good morning greg pennington on the half the attorney general as judge clifton pointed out after cordoba the board issued its president decision in matter of w g or is the government really want to encourage landowners at the border to turn their property over to the cartels absolutely not i think that would be a lose lose for i don't really understand the government's position in this case why is it resisting so hard somebody who tried to keep from giving the property over to the car because that's what our asylum laws requires we obviously for practical reasons don't want the border ceded to the cartel that we know what's a practical effect of the position the government's taken in this case sounds to me like conceding the border over to the cartels well i don't think there's any evidence and that's what this case falls on is a lack of evidence that that's happening in tire that along the entire border i don't know we were right do we care only about the entire border it's ok with us that they take over particular properties right at the border so they can dig the tunnel there as long as they don't dig a tunnel through every parcel along the border that can't be the government's position no we don't want tunnels anywhere along the border oh so let's go back to this property if we accept petitioners as credible and that seems to be the posture of the case the story they tell us suggests that their problems come from trying to resist the cartels use of their property to dig a tunnel across the border there's something i'm missing there no that would clearly well i want to say clearly but that suggests that that's the mode of the cartels here but we didn't even get to motive or nexus or anything that under asylum law you have to establish membership in a protected class before you can even look at all the let's stick with our protected class why is it that people that own property at the border shouldn't qualify as a protected class if the reason they're in trouble with the cartel is that they've got that property if they resist the cartel doesn't like it that seems to be a purley down a file class i'm not saying it can never be a particular social group but it's an applicant for asylum is a burden to demonstrate that that group as particular enough and is socially distinct within society now there may be evidence of particular socially distinct about the group i just  that mexican society views this as a particular group and that's what we're looking at is a well i mean the cartels appear to view the border as being an area of interest and that the u s government identifies borders an area of interest heaven knows  about building a wall and building other partitions to separate us off so the border is somehow special as far as the u s government's concerned not hard for me to figure out the cartels have an interest so why doesn't why isn't that specific enough well it might be some any as i searched the p d f of the record in this case there was no mention other than in briefing in the decision of landowners in the country evidence there's just nothing is there any evidence that there's a border between these two countries i think that's evident you know is there evidence in the record about that or is that something everybody can figure out which seems to me the the proposition that the border is a place of interest is something that everybody can figure out i don't know what evidence would be required to establish that well you would want interested in terrorizing the whole population but their particular interest is getting a tunnel across and if you can get a house next to the border that's a better place to start a tunnel across all of that seems to be pretty self evident so i'm puzzled as to what it is this  absence of evidence well as the court held in the us the persecutors motive is a factor the court held that it was a major factor but the board disagreed in matter of g r they said that it's viewed through society through evidence of expert witnesses or historical animosities and yet certain groups or laws targeting certain groups this is the kind of evidence that we're looking for to find out if a group is viewed as a distinct segment of society and that goes to the social distinction and there's just no evidence that says anything about landowners and before this court it's petitioners burden to say that the record compels a conclusion that this group is socially distinct or that it's defined with particularity and as i said my brief it's not just you know homeowners along the mexican border it could be any kind of landowner it could be you know rural or agricultural or commercial we just don't know what it is we're trying to narrow down and as we want predictability in the law we want to know some finite bounds of what this particular social group definition is and that's what the board has attempted to do over the past thirty years has tried to refine a definition for this group which we don't have any legislative history on and we don't have anything from the u n h c r on it's just as this court recognized when it deferred to us it's just an amorphous group that we just don't know anything about and the board is left to decide what are the bounds on a case by case basis and when there's just a lack of evidence entirely on particular absolutely unique then we might have a group that's particular enough it's not the whole country we don't know how many landowners there are in mexico or anything there's just no evidence and with no evidence you can't compel a reasonable fact finder to find that this group has particularities into social distinction so we leave that and we go to the convention against torture would you agree that there's certainly i mean they certainly show that they were the subject of taking their statements as true so why shouldn't we and didn't the b s a put the burden improperly on them to show that they could not relocate ok judge bucko starting with your last point about the burden and i don't think it's exactly clear the i j a said that there was no testimony on whether they could relocate and the evidence suggested otherwise so i don't think the word burden was ever used and i think you're getting at multan otto where the court held that you can't place the burden is just one factor to be considered but i think that's what the immigration judge did here you know when the footnote on the last page of the decision he found that there was no past torture he looked at the evidence submitted by the government that the mexican military is trying to do what it can to take out these cartels from the top down and to clear these well known trafficking ro to make it safer for the population this is been a strategy from opinion yetto since two thousand and six and then he also looked at relocation so it looks like they considered all the factors but i don't think it's clear that it was improperly  or their testimony that they were tell us a good thing you left don't come back they're going to kill you and repeated attempts culminating in shooting at their house and burning their house down well that goes out unless there's a change would indicate are presumably in severe danger of being killed which amounts to torture i think if they return right well what you're referring to i think would be more along the lines of whether the government is unable or unwilling to protect them which is it that's exactly and that's the standard for asylum and withholding of removal for convention against torture we're looking at whether the government or a local official acting under color of law is going to acquiesce and i think is this court has to find its knowledge of torture prior to that torture occurring and then saying we're just going to look the other way and do nothing about it and i think that's a distinction that has to be made here because the agency never got to unable or unwilling to protect in the asylum and withholding claims because they found that they didn't belong in a particular social group period so there was no was there a nexus to the particular social group or was the government unable or unwilling to control i think it's completely separate when you're looking at the convention against torture and it's a kind of a higher standard when you're looking at whether these government officials have knowledge of torture that's going to be more likely than not to occur and then turn their backs on it and there's just no evidence that in this general country condition evidence that the mexican government does that and there have been reports of torture but specific to this these petitioners whether the government's going to turn a blind eye on the police they did investigate  while they took reports petitioners claim they didn't investigate but it's not clear whether they investigate or not so the police weren't just acting willy nilly to their claims they showed up and they took reports and there's just no evidence specific to these petitioners  that the government's going to turn a blind eye to torture and i have a couple minutes left so i'll move on to the motion to reopen so an untimely motion to reopen one of the exceptions the only one claimed here is whether change country conditions now make them eligible for asylum where they previously were not as this court kind of laid out in two feet he there's a lot going on here there is you have to show new evidence that's material has individualized relevancy to the claim and that the new evidence when coupled with the evidence submitted at the prior hearing now make the applicants on the motion to reopen eligible for asylum or withholding of removal and with the motion to reopen just submitted more of the same really well i don't know if you can fairly say it's more of the same if the evidence is that conditions have worsened i'm puzzled as to the characterization of that as cumulative since the whole point is they've gotten worse so it can't be the same evidence before well they have to demonstrate that it's qualitatively different and if it's if it's a whole lot worse how is that not different i don't know that it makes it a whole lot worse just by these articles there they are dated twenty fifteen but if you look they're talking this morning knowledge that the evidence included indications that conditions had worsened right after it described that the evidence is cumulative and to me that seems inconsistent because on the face of it it's not the same evidence as before of what the new evidence is the conditions of worsened by definition that's a different bit of evidence and now maybe it hadn't worsened to a condition to qualify but the description of it is cumulative makes me wonder what they thought they were looking at the way i read the motion to reopen decision is that it was kind of a fallback argument that well even if this is qualitatively different the evidence that the murder rate has gone up which isn't really clear that it has i think one of the article says it's gone down by the state department says things have gotten worse so i think we have to accept the proposition that there's evidence that things have gotten worse and the question here is i understand a motion to reopen is whether made out a prime aphasia case right and that's what they kind of went on to is that will even if we consider this rise in murders it's not relevant to the claims they're making in the motion to reopen they're saying well i'm going to be  harmed on account of my landownership or on account of my family member ship but they submitted no more evidence to change the agency's prior decision there was nothing submitted regarding landowners again there was nothing submitted at the murder of it in a law that specifically relates to this family it does relate to the family but there wasn't any evidence submitted regarding particular already and social distinction the board recently come out with another opinion regarding family members as it did in g r so they're sticking to their particular any requirements and social distinction required some evidence that family membership in this country is viewed as socially distinct and there just wasn't any evidence submitted with a motion to reopen it was just the general country condition evidence and this court has held that evidence with a motion to reopen has to have individual eyes relevancy to the case for asylum and how it was that the evidence for the regard to the sonne in law doesn't have individual relevancy it might have individual relevancy to the to a family member ship claim but there wasn't any evidence that this family member was killed on account of a family member ship and i think that's what the board kind of said as well on top of the indication was he was trying to protect his wife wife who's who's the daughter right so when the declaration on the new application for asylum they submitted with a motion to reopen he said that the mafia came looking for the daughter and the son says whatever you have with my wife take it to me and that's why he was murdered so this is going on is that not related to family i mean that seems all about family well they have a heavy burden in a motion to reopen to show that a new removal proceeding is worthwhile i mean that's that's why such abuse of discretion standard applies we need to know that what the real proceeding there's a reasonable possibility they're going to succeed on the claim here a claim that they've already submitted and a new claim that they i wanted to focus on the convention against torture in my rebuttal time there are one hundred at least one hundred references to corruption in the record mexico's a very corrupt country and there is replete the record is replete with those evidence without evidence the corruption is at all levels of government and it is specifically with bribes at the local with local police and it goes on up there was police that were present at all of the attempted murders of the petitioners the public minister came to take a report after the shooting and put in their car police came to the house the night that the house was shot up and then the police were on the scene when the house burnt down and all of this they said the petitioners testify did not lead to an investigation as judge test or excuse me stated they the petitioners ran into a police officer in arizona afterwards and the police specifically told them that they were glad that they had left the country because they get they would have been killed the ninth circuit has held that the acquiescence by government officials does not require actual knowledge or willful acceptance rather awareness and willful blindness by government officials is sufficient and i submit to the court that that is what is happening in this in this situation regarding i want to switch gears to go to the social group analysis regarding family matter of l e a was published after this case came out which is a case from the board of immigration appeals which requires a showing of social group for family so if the court finds that family is a social group and