his family give up the brought it even went to a close family friend who was like a brother to petitioner and demand that he disclose where the brother was hiding and where patients are once when that close friend didn't he was brutally murdered cool literally cut into withholding of removal when him or her how even the board could do that at this point i'd also like you to explain to us your take on your disagreement with the government both sides seem to wan a very different kind of remain and i'd like to understand exactly what you think is appropriate and how it would differ from from what the government is suggesting of course you are and i think the key difference is the  guidance offered by this court as we understand it the government is seeking open and it remained without any guidance from the court as to the issues here and we oppose that for at least three reasons it would be pointless to be prejudicial and there's social distinction is required a remain and isn't going to resolve that in fact this court faces similar situation in marine rodriguez where it denied a request for me man just like that here because there was interpretation of the statutory phrase particular social group yes from which a test for two mutable characteristics doesn't really  doesn't really address that same issue of asylum claim based on membership in a particular social group is the statutory phrases is ambiguous and  we would all chevron deference to the board's decision to leave clarify the meaning of that phrase in light of our decision and  case and that's what it did in the case and we really haven't had the question briefed in and chevron terms w that's an interpretation of the statutory phrase that we would give deference to and whether it is in fact a reasonable interpretation it's sort of like the parties are ships passing in the night they're not in gauging on that precise issue you arguing that it can't stand because it's inconsistent with cc's immutable characteristics language but that that doesn't really engage with the central question here which is whether the board's interpretation deference but i do believe that c c remains authoritative and that's why this court continues to cite it and rely on it even for the years after and if you see any really didn't address this question understood you are but i think substantive y the tests are the same so any b g was quite clear and explicit in saying that the board was not offering a new interpretation interpretation and used those exact words it said it was that here in the prior to petition from the s c july in a case and that prior interpretation was expressly rejected by this court in the team and in c c as not reasonable and that's why c c said the only test that we have courts have on deference to is the middle characteristics test i g didn't adopt a new interpretation then there's no need for a new chevron analysis it's just the same interpretation that this board has already rejected i'm sorry this court has already been checked and in fact i think when we look at the substance of the two tests applied as it's laid out messy g and as it's laid out in any of e g they are the same both emphasize this core requirement of some sort of societal recognition or societal perception that a group is a distinct segment of society and in fact that's the way that the g team decision expressly rejected i also think relevant here is the fact that this court does and has repeatedly noted that it rejects the companion criterion for many b g particularities that  and those statements are very clear in cases like was honest and eager as was i think the recent gutierrez case and that i think this court's views on any teaching but i know what the b isn't there a difference between the social disability standard that was applied earlier and the social distinctions standard that played out the differences that they don't require social visibility anymore i mean isn't that a substantive change in the board's interpretation reinterpretation whatever you want to call it of the phrase bad touch type is frankly one think there's two points i'd like to make to that your honor the first is that substantive interpretation undershaft ron and the parties haven't briefed that issue here so i'm not sure why we would reach out and decide that without appropriate briefing by that interpretation is so if the case is resolved differently on the facts then we might have a very different second appeal or no second appeal at all i think you're very much right that there are other independent bases to find in petitioners favor but stepping back just a moment to the first concern your honor articulated i do think that a teeny decision and the language used in that opinion went to the heart of the substantive social visibility slash distinction criteria on page sixteen of the get teenie opinion the court criticized tax any requirement that the defining characteristics of the social group be quote of concern to anyone in the society is it criticizes who rejects any requirement that the society proceed people with that characteristic as quote any distinct any segment of the population in any meaningful respect that language is far beyond a simple ocular visibility requirement that language goes directly to the heart of the recognition the assuming it doesn't lead to a different outcome which seems unlikely he's simply going to put our petitioner at further risk for a much longer time though frankly you know the fact of the matter is that this case looks like against torture respondent know how and why was he removed i'm not aware of the specifics of how or why he was removed but i did reach out to the department of homeland security who has sole discretion over  what should we do about well the depart of homeland security still has a discretion of whether to return someone so in some cases they have paroled individuals back into the united states why should we not order that here well respectfully i do not believe that this court has the authority to order that someone be returned because that authority is a within the sole discretion of the department of homeland security under the immigration and nationality and so our position that it would be even when it is violated  your first instance yes so if petitioner would like to challenge that this is not the appropriate forum for doing so because this is a petition for a view of the removal order itself so if you would like to challenge actions that are in of homeland respectfully request that this court re manned petition as asylum a statutory withholding claims under read this court's decision and ren this court has authorized the government to seek remand without confessing error which is what we're doing in this case them i was on the panel and raised mendoza against lynch in which the government oust for remained so it could reconsider we granted it over opposition and as you will recall the government is that there are missing factual findings so that's why we're arguing that there should be an open remand because the immigration judge who was the only entity authorized to make factual findings concluded that the position failed to show that there was a central reason for why he was timed in the past but in making that conclusion the immigration judge solely relied on the fact that other members of the particular social group his nuclear family were not harmed but they were well they were not physically harmed but they were threatened we do agree that on the record but the facts of whether other family members were harmed or friends is telling and what the prosecutors motive is but it's not dispositive so that's why in this case immigration judges analysis is sort of missing the from making the factual finding in the first instance so we would urge those courts to remit for the immigration judge to make that factual finding in the first instance and others just as concerned that there would be a lack of guidance this court of course the petitioner was female but otherwise looks a lot like this threatened to seek information about a brother who had left the gang the fifth circuit wrote that evidence that gang members sought information from petitioner about her brother without more does not support her claim that the gang intended to persecute her on account of her family i'm troubled by that reasoning  because it's seems to me that it overlooks a couple of different things and i'd like to get your reaction to it  overlooks the interim effect on other gang members that is don't stray from from our criminal path or your family members are going to be terrorized and harm d because they are your family members and it also seems to overlook both the u s state department's own warnings to the effect that  there are widespread reports about this practice of threatening and harming family members of carrying members of u n h c r as guidance on this issue which makes exactly the same  point i'm not playing with the exact details of that case but i would say that nexus requirements sort of has two requirements and this actually relates to the anybody issue as well so essentially in the immigration and nationality act congress intended to protect people for the specific five protected granted and with that and the refugee definition and so essentially with that requiring a nexus congress acknowledge that some people would be persecuted or persecution in the future but if it's not on account of one of those five protected grounds then that person does not that that person is not i refuse when we have recognition here however there's i understand the board's decision  people because of their relationships threatening people even killing people because of their relationships with gang members right so each case is case by case because it requires an excess requires factual finding addition to what the prosecutor being motivated by the protective ground which would be a nuclear family particular social group additionally the agency must determine whether that motivation was essential reason for persecuting the individual or whether it was a minor incidental reason so that's sort of the case law that describe a case where we were there would be a minor reason well in matter of earlier which is the intervening case that we are relying on for every man is actually a perfect example because in that case it was a nuclear family particular social group but the persecutors were more so essentially both in that case the africans father owned a store and then there were drug dealers who wanted the family store because it was a good location for drug dealing and for them to make lots of money so in that case the persecutors targeted the applicants because of his family membership but their ultimate central motive was to make money by dealing drugs that that family store  actually have animist against the family or target the family because they dislike that family so in that case the board held that that position is that some kind of illness is necessary as opposed to the case for is very specific to the facts so essentially congress intended to practice that people in those five protected grounds so sometimes that means that victims of ordinary crime if a central reason was also a protected ground it's ok that another reason was ordinary crime or opportunistic crime but there are some cases where as in the board's matter about the a decision that the option opportunistic crime and financial motive was central reason and the family membership was minor so i can't say in all appropriate for this court to note that the fact the petitioner w a g a was removed apparently unlawfully needs to be taken into account by the immigration judge in terms of access to evidence  and i do want to quickly touch on what the petition was arguing about with chevron deference to the social distinction requirements as clarified and matter of any g r as judged by extended we didn't brief this issue because we don't believe this case is appropriate for deciding whether social distinction is a reasonable requirement because the agency's decision of the board's decision lacks any analysis of how they came to the conclusion that social distinction that the applicant failed to show social distinctions but we do argue that the board social distinction requirement has been consistent since the first particular social group decision in a matter of a casa which is where the board first in the ability test is how you determine whether something constitutes a cognizable particular social  group with the time the board determined using its expertise that additional requirements were necessary to still fulfill the board's approach to determining how to define a particular social group which might mispronounce it but it's i used them generous which is where the board interpret a particular social group so that it would follow in line with the other four protected grounds race religion nationality and we know the doctrine ok sorry so anyway and none of this was  one other issue then i would i would take the time to address is the l e a decision and i think your honors are exactly right that didn't change the test to be applied to the one central reason task which frankly contra statute has been applied by many decision of the board and here and the board itself in this decision applied that test and voted four times that test is a fact based test and this court has previously reversed board findings about one central reason for the prosecution because the record as a conclusion opposite of what the board found we believe that situation for the record as a whole compels the conclusion that the motivation for the persecution petitioner was his relationship was brought and we think what's most telling here  persecutors own statements when they found petitioner on his remote farm just days after his brother defected from the gang they said tell us where your brother is or we're going to kill you there's no other motivation in the record there's no other motivation nearly as powerful as perseveres own statements so remain and we don't believe is necessary because the board already applied the correct test and this court is able to reverse that finding because the  now so the evidence as i understand it recall it was that the games are national bodies that can find people anywhere throughout the country and a few examples were actually given where gangs found people who did try and we'll now the immigration concluded that petitioner did not satisfy his burden of showing that he could not internally relocate however that burden was placed on petitioner b only because the immigration judge found that the threat by the gangs was not sufficient would be shifted to the government and i suppose on a remailer they could seek to reopen that issue and present evidence showing that fisher could not relocate in that instance of course we would hope to present evidence in particular showing that he's found it necessary to be in hiding an awful lot of doors from