argument on our withholding claims but we do submit that legal air in the cat analysis makes remained on cat also necessary on withholding there are three alternative paths to remain and briefly stated this court could remain first if the court agrees with us that under chevron step two difference cannot be given to the b i is particularly in social distinction tests because they are arbitrary and unreasonable or because they're still too poorly explained second assuming the validity of the tests remain agrees that mr i never had a fair opportunity to present his claim under the revised social group tests presented for the first time in his case we can let me back up to your first point regarding whether or not chevron deference should be given to the definition of a particular social group which is something to be on a gave us a three part test in the published opinions are you challenging each part of the test are you challenging the test as a whole to tell me exactly what your problem is with the with the definition certainly your honor so we don't challenge that chevron deference is due to the immutable characteristic requirement and indeed and read history of the court has given explicitly chevron deference to that portion of the tests we contend that particular and social distinction are not to chevron deference because the test results and arbitrary in those why should we say now that it's arbitrary before the b a a has had a chance to flesh it out in terms of subsequent decisions well your honor i think the this court has previously expressed concerns with the board's articulation  particular to you and social distinction for example in the in reconsider his decision and reminded to give the board another chance to address what it actually means with these tests and so i think that this court could find that the board has had an opportunity to foundation that this court has requested but hasn't been able to do so or i think it would be appropriate also for this court to remain and then just know that further explanation of the tests is required before well that that it but that's sort of defeats chaperone i mean if it's a clarification and these are the people that are the experts and they're fleshing it out so that hopefully you know they added particularities and social requirements to me it's it's not like they just made something up i mean there they seem pretty close to pretty much clarifying as to what would be we would be looking at and they're saying all of these cases and all of these things and the whole purpose of chevron deference is to let them have the first crack and the fact that when you have come up with something different isn't doesn't make doesn't overcome chevron deference that you would like some other test everyone would like some other tests because they want to when and but you know it's it's they're dealing with social groups all the time and how to look at them and to be helpful on them you know and obviously everyone can think of some social group that they're an but that doesn't make it a social court a social group under the law i understand your honor and i think that while sharon does allow for agency flexibility to update its interpretations as needs change i think that the problem that we see with the particular in social distinction tests here isn't necessarily that we would have articulated a different test but that the board in its application of these tests has essentially applied the test an arbitrary ways that conflict with each other and that leaves applicants with no way of knowing what the tests actually require and what evidence they would need to submit in order to satisfy her and your case here i am i do struggle with and that sort of goes to your due process argument your client threw everything against the wall there isn't any there everything out there that could possibly help i don't see what differently your client would have done so you know it's one thing if you just make up something that is completely different as opposed to a clarification and you had no way that you had to put in you know what your schooling was sir your literacy or something like that well then of course it would have to go back to address that but here are the nuances that were put on in everything front and center in this case was his involvement in the gangs what he did when he was in the gangs when he said that he wanted to get out of the gangs when he you know the incidents that happened back there so there's there aren't any more facts to develop your own i think that at the time that mr gurr i was before the immigration judge i think that while there were the board had started to indicate that these tests existed there was significant confusion that remained about what exactly the testing compassed and so prior to that what else would you put on you through everything out there everything about his gang everything about getting out there's nothing there's nothing else there i think that for example some matter of i mean if you do the companion case that was issued alongside those cases everyone want to read you after you lose ok but that doesn't mean you couldn't put all of those and then that's that's correct your honor but i think that mr gurr i had no notice of whether whose perspective was determinative for a showing of social distinction and so in his briefing before the board he highlighted that the gangs awareness of his group was sufficient to show social distinction and that echoes what this court in and reconstruct of us came to as the most logical interpretation of the statute as well before the board in clarified that society's perspective so i think that mr i would have had an opportunity to get either an expert witness to speak specifically to the question of social distinction as proven by salvadoran society writ large as well as to present and frame his arguments in a way that spoke to that specific showing that the board clarified it was requiring for the first time on his brumfield and that the i g is erroneous conclusion that murder did not constitute torture effectively short circuited the rest of his assessment of mr gryce claim and in the board's assessment of  claim the board marines into the immigration judges finding a holding that mr i was not likely to suffer torture which the immigration judge did not hold and so in that sense the board's your view of mr gryce cat claim contains impermissible fact finding under the regulations and would be and remained would be necessary on that point to allow the board to assess mr gryce claim under its proper standard of review so the torture claims get the  challenge is primarily that the board violated its own standard of review in assessing mr derives claim but i would note that with respect to the withholding claim the immigration judge denied mr derives particular social group solely on the grounds that he believe but what i'm saying is the court said no social group but then even if there was a social group there was that nexus isn't that in our tejada now in this case in this case so that's what i mean if we don't agree with the south if we think that the court got it right on the withholding only and so yes so with respect to the cat claim that is separate from the nexus analysis and again our contention there is that the board violated its standard of review by entering this impermissible factual finding that mr we look at it but then you're secondarily saying well even if it isn't titled the chevron deference there was a due process violation because we would have put on we would put on a different case and then even if it's not a social group and if you then you analyze it under the alternate holding of nexus and they were wrong on nexus and even if i lose i'm withholding i still have kept right and i would i would clarify just one thing i think that as you've outlined our first argument is chevron deference is not to our second argument is that even assuming the validity of the tests that the board's application of the test to mr derives claim has independent a more straightforward legal errors in that analysis and so if this court deciding that question that kind of second route would not require a due process assessment or third argument then is that would be proper to allow for a due process type of consideration and then we would go to cat and as your owners pointed out the nexus question becomes relevant as i'm sure only if if this court decides to take one of those first remained on the withholding claim and with respect to i think to talk about the second path three men that i've highlighted that the the board in its assessment of mystic arise claim under these tests committed legal err in its application of the standards to mr garage i and i think that the street the treatment of mystic arise particular social group by the board illustrates legal air both  failing to apply the board's own presidential standards and then an error in that the board failed to consider compelling evidence in the record that do show social distinction and particularities and so for example i think looking at the particularities analysis there is a particularly clear evidence of how the board misapplied its standards and that the board found that mr gryce particular social group did not qualify because it was internally diverse in the nick it  could include persons of different ages sexes and backgrounds and that requirement or that imposition of that requirement is in contrast to the board's own decisions and matter of ca where it said explicitly that internal diversity of the board's assessment of mr gryce particularity is is incorrect and consistent with both the board's precedent and with this court's precedent and similarly i would note that the immigration judge gryce particular social group solely on the grounds that he thought it was precluded by our tail and i think that this case presents a strong opportunity for this court to clarify the scope of the holding again with respect to judge rawlin as it's not an immutable characteristic the board or excuse me the court in our childhood did in gauge in a brief discussion of a former gang member a claim denied the former claim on the grounds of  particularities i think it's important for this court to to know the differences in the particularly of the group that mr r tiago presented and the group that mr garage i brings forward and so our tejada came to the united states from salvador at the age of four despite his salvadoran nationality he joined a mexican american street gang in los angeles and testified himself that he was still in the gang but inactive only by virtue of his criminal incarceration and so the court and considering his lawyers attempts it please the court ordered morning i'm manning adams representing the government in this matter in seeking withholding of removal petition or propose the following particular social former members of the mara eighteen gang in el salvador who have renounced their membership applying principles to which this court has already largely deferred the board rejected that social group board also found that there was no nexus and rejected the cat claims well and the government believes the panel should deny a petition for review in this case because the board has articulated  the conclusion that killing does not constitute torture your honor in footnote nine of the board's decision the board disagreed with that assessment of what they said you couldn't amended that way but then they presented other evidence ray said it again in another proceeding the same i j right well it is that there is not that i mean i know that you have checked into that by that but it's troubling that i mean i selected kelly as the ultimate torture i'd rather let to say i was tortured then to be dad i understand the court's concern but it's really not an issue presented in this case the board didn't believe that that's what the i g said in this case i think it's unclear what the i g actually not believe argued all of the key all of the facts relevant to his cat claim before the board and he asked the board to make that determination regarding whether or not he is entitle to catch the deal has killing torture or not can it be torture yes it can your honor this court has said so and the court the board in the decision that was attached to the reply brief the board remanded for the for the i j a in that case to consider that issue further acknowledging that this court has recognized that killing can be torture  so why shouldn't this case go back at least on the cat part of it because there was no indication by the board that the board believed that killing was not torture and the board otherwise fully assessed the cat claim and we believe that the evidence shows that this gentleman is not subject to a likelihood of torture if he's returned el salvador he left the gang fourteen years ago there have been no threats against him since then he's tests use have been removed there's no indication that the people who were in the gang  when he was in the gang are still there there's just no evidence that would compel a contrary conclusion to the boards that this person is subject to a likelihood of torture with respect to the criteria that the board  a had not submitted evidence showing that he faced a clear probability that he would be tortured where and then i chase decision can we find support for the view that the i'd say wait or raise evidence and concluded that it did not satisfy the clear probability standard for cat really made no reference well first he says but it's rather extended passage perhaps the sentence that concerns the court is respond has made no reference to any of this meaning until a on a page five thirty of the record you are a k it what paragraphs at the bottom so about six lines up responder has made no reference to any of this during the course of his testimony  i believe she's referring to the possibility of being killed but the point of the sentence is that it's not clear that the i ching disregarded the other sentence of torture now there is a further sentence going on to the next page  background materials presented by the respondent contain little if any information concerning the treatment of former gang members such as responded upon their return to el salvador beyond being killed it is it is i think ambiguous what it means and the board has independently at petitioners request through his brief to the board he asked the board to make a determination on the cat claim so that the government's view is that there is if there was error in the i decision the board has cured through its own analysis now there is also a complaint here that the board cannot exercise a plenary review under the clear standard and we would agree with that as a general proposition but this is a brief to the board that asked for remains and only on the question about whether or not the government had rebutted the presumption of future prospects for future persecution brief here by the alien submitted to the board was filed in two thousand and ten before it was entirely clear that a clear error standard applied to the facts relevant to cat but petitioner never informed the board of the chang the law even though the b i a practice manual calls for the for the parties to submit supplemental authority as as necessary so the board really had no guidance from petitioner here other than his brief calling for  plenty review of the facts on the cat claim so while the immigration judges statements are ambiguous and possibly troubling they're not erroneous here they don't justify the reversal or are the findings of fa i can only say that the i g concluded that he was not subject to torture it's not a detailed review but the board has gone through that detailed review but how can how can the board go through a detail reveal if there were no findings the fact that the i j a then where did the find where the lead does the factual predicate come from the aliens brief to the board fully argues the record and does not acknowledge that the board should only be reviewing for clear error but but the or but that board can't make factual findings i understand that your honor and this is the government invited errored humans that he that the petitioner should not now be able to complain about the board's  encrypt argument to the board and the board follows that line of reasoning why should that union then be able to come here and say the board erred well but i guess people argue the wrong walk to us all the time and then if we follow it  do i understand your argument on that but what if we were to determine the f b i s conclusion that carries group of quote former mara eighteen members is not cognize of all do we need to discuss the  nexus analysis i asked that to counsel for the appellant i quite like to know your answer or if the if the court says that there is no particular social group in there cannot be persecution on account of a social group here so there would be no need to reach the nex us decision at the same time the government forthrightly says that the next analysis appears in a published decision of the board it's going to be cited in future cases if i may turn to that issue though i think that the board and i think  quitting the gang versus persecution on account of membership in a social group is an important sting distinction and it is consistent with an discussion in  say that that this court has recognized that alternative holdings are still holdings and the board i think pretty clearly did intend to decide this case on both the lack of social group as well as nexus crowns so it's a holding of the board and i think that if this court was inclined to reach both issues it would not just be advisory well what why shouldn't we agree with the poor circuit is an aleve a b lynch where which rejects that the i's distinction between a former gang member status and threats to harm or kill him for his acts and breaking the rules that prohibit members from leaving again your hon r the government would contend that believe it is not sufficiently distinguish between the idea of becoming a former member yourself and becoming a member of a group of former members it's a very complicated distinction but i believe it's valid the idea is that asylum and withholding should be granted based on your persecution on account of a protected ground the protective gear is membership in a particular social group the mere that you become a met a former member doesn't matter in less there actually is a social group of former members and the persecutor had that group in mind when it was persecuting the individual the fourth circuit didn't distinguish between those two factors and we believe that all we have here are harmed threatened and inflicted based on the fact that this person violated a gang rule he he he left the gang if if he was the only person ever to have left again it would be there wouldn't be a group and yet it's not apparent that anything would be any different for him in this case there is no evidence that compels a contrary conclusion that there was a nexus here on account of membership in a particular social group of former gang members that's why we believe that the court should reach the next argument or could reach it and said the seventh circuit saw this is a literal visibility requirement we don't think it is and the board has since confirmed that in these decision so literal visibility is not a reason to think that th social distinction is somehow unreasonable in enrico's reavis the bank or also said the third circuit doesn't see a difference between particularities and social visibility of the time now social distinction we don't go that far in fact there are separate criteria so this court has already at least indicated that it's not an unreasonable criterion and particularly is based on the language of the statute particular social group and this court recently has decided to cases that show how important that factor is just a week or two ago the remember is money as decision found that well the imputed wealthy americans is not a particular social group because it's not a distinct discrete group with recognizable benchmarks you can't be sure who's in that group and who isn't this court has also said that insulin dependent individuals who with mental health problems is not a particular social group that's the mendoza alvarez case and what's interesting about mendoza is that it comes after in rica's reviews and in footnote one it talks about a pl a plethora of lifestyles diversity be something to consider in assessing particularities count so if we agree that  found that it's unnecessary to do that in this case the aliens petition to the board was filed in two thousand and ten enrquez reavis was decided in two thousand and thirteen and in two thousand and fourteen a whole year later and he v g w g r come out nothing's filed with the board the early never goes back to the board and says in light of this would you please remain to the immigration judge we have more evidence they never say what more evidence they'd ask for what further announced they'd want so we don't believe that it's necessary to remain out in this case on that ground so there is that are you addressing that due process argument there or what  again i'm wondering it seems like all the evidence about the individual and things that happened to them they threw everything in there but i think what appellants counsel said well we kind of called an expert applying the new standard or whatever could they they could have called an expert in this case that right we that's exactly right your honor they they actually argued to the board that it was society's perception that mattered  that's it it ministry of record ph fifty two so they knew society's view was what mattered not the persecutors and in fact the board pretty much already indicated as much in the a m a decision in two thousand and seven so petition couldn't have been very surprised that this issue even came up this idea about whether or not it's persecutor perception or or society's perception but in any event after the issue did come up  johnson if i mean your honor all right air it was not it was not allowing that to make findings that well i think that that might be a point of distinction but i think the general principle that people should not be able to complain about owed any deference and so this court can properly make it to nova determination i would note also that the immigration judge erred in ignoring mr gryce testimony regarding the likelihood that he would be tortured by being burned alive with a tire and that point is addressed in our opening brief pages seventy to seventy one providing further evidence of the likelihood of torture and when co counsel was referencing to reading from the immigration and i would note that the invited error doctrine only applies to rights that are able to be waived and that this court has explicitly held that the standard of review as a non waive all right so we think that that argument is without merit both because the invited error doctrine does not apply and because  the board was on notice and knew that its standard of review had changed you want to fall on your sword and say don't blame our mistakes on our client terms but i think that i would know so in our arguments to the board mr i brought to primarily legal areas with respect to his cat claim arguing that the immigration judge made legal erring concluding that more murder did not constitute torture as well as its standard of review had changed and regardless the invited error doctrine does not apply to the standard of review that's not something that a petitioner can waive i would also note that with respect to the brief before the board  argued not only that he was uncertain of what the standards required but that on that same administrators record cite page fifty two that mr wright argued primarily around the persecutors perception as the necessary  of submitted with our petition is very clear on our arguments on that point finally i would just note that if this court has has expressed that it may be important to allow the board to flesh out the standards the particular and social distinction standards and to allow the board to address the what the tests mean with encompass in their own in their own right and i would just note that the board has issued presidential decisions after mr gryce case matter of a or c g and in that case rather than flushing out what social distinction requires the board relies on undisclosed unique in discrete issues  satisfy social distinction in that case that's not that doesn't give further guidance to applicants as to what is required by social distinction what social distinction encompases and the government argues on page fifty three of their brief that matter of a or c g doesn't apply and should be considered by this course precisely this court precisely because of the unique and unexplained differences in that particular social group and when the board is relying on such unexplained factors i think that that is a test that has not been fully explained and cannot be given deference by this court thank you very much i can also thank you to both coun student you should be very proud of the preparation and i think both sides are very prepared to answer questions in this difficult case thank you