year law student at the university of st thomas law school and they will be presenting oral arguments today on behalf of the petitioner all right thank you how's the time divided it's divided ten in five petitioner was in the country his wife was raped impregnated and murdered because the bullet committed to legal errors st the board used petitioners failer under withholding to preclude his cat claim in an unprecedented manner and nd the board failed to review the immigration judges only ground for denying asylum to find otherwise would lurched three texturally distinct forms of relief into one in regard to the convention against torture on page eight of the record board stated that failing to prove inability precludes a finding of acquiescence that precludes of a fact is not supported by case law acquiescence has simple elements the st is whether a public official had a duty to prevent torture and an awareness that it would occur and nd that that public official would neglect that duty no where within the acquiescence elements will a finding of inability be found and that's because it isn't relevant under this court's case law acquiescence and inability are distinct gonzales out of this court evidence of inability insufficient to prove acquiescence however that's not petitioners argument today petitioner is not arguing that the evidence of  salvador's inability to control gangs he's not putting that evidence forward to prove acquiescence there's more than inability here there's evidence of systemic corruption and gang infiltration at the local government level where petitioners from support the board's methodology in this case they cited garcia v holder and leave us a few sessions out of this court now it's notable that in each of those inability to not have a precludes of effect rather the corps actually engaged in an analysis of acquiescence and the evidence that could land proved to acquiescence counsel i think the government's going to argue that he wasn't able to meet the more lenient standards so we don't need to worry about the more stringent  show an ability to show as acquiescence that's the case here today and there is record evidence here that even though the one is not necessarily compassed by the other right your honor and i think one key distinction in each of the elements is that inability looks at the country at large and it asks whether el salvador as a whole can control gangs has a semblance of control regardless of how bad the gang problem is acquiescence however looks at a public official and look more and can look more specifically at the geographic region from which petitioner comes from here there is evidence of systematic corruption and gang infiltration on pages ninety five dollars ninety six cents of the record immigration judge found that gangs have infiltrated many organizations and branches of the salvadoran government a page six hundred and eighty five dollars of the record the un report states that police judges and politicians collaborate with gangs the politicians who investigate ga hundred and ninety three of the record the un report states that had one of the highest homicide rates in el salvador when el salvador had one of the had it being highest homicide rate in the world and on page three hundred and seventy two dollars of the record dr mcnair also testified that the bus was one of the most violent parts of the country now i'd like to turn to the lawyer bar on page eighty six dollars of the record the immigration judge denied petitioners asylum claim on the one year bar without reaching the merits then the immigration judges siloed his withholding determinations within the withholding claim itself on page five of the record however the board of immigration appeal claimed that it did not need to review the immigration judges only ground for denying asylum instead they did what the what the immigration judge was not willing to do and it transferred findings from withholding to asylum now there are ke between both claims of relief there is of course the fact that asylum has a one year bar in withholding just not in addition the level of fear that needs to be proven is different with an asylum one only needs to show well founded fear whereas within withholding one has to show a clear probability or more likely than not that there that person will be persecuted in addition a silent is an applicant's most beneficial claim it comes with the most benefits it comes with  deny in this case there weren't multiple fail elements of the claim fell on at the i g level just one in the board as an appellate tribunal under eight c f r one thousand and three point one b one had a duty to review the question before it and that question was whether petitioner met an exception to the one year bar it can't be that the question was just the claim itself because as an appellate tribunal the question necessarily becomes narrower once a case is appealed and the legal question here the board needed to review that because it was a necessary question before it under bigamist that the board stepped into the immigration judge issues and that's something the immigration judge was not willing to do the board merged two distinct forms of relief and respondents argument taken to its logical conclusion would allow of three claims of relief to be denied on the inability element alone because that element is common between the solomon withholding and according to the board that the finding of acquiescence congress intended to create three avenues of relief for people who fear persecution in their home countries and each of those claims of relief deserves a proper review no one ever quits with six minutes left so i don't know what happened but we're great were greatly appreciative actually  e police the court i'm susan green i represent the attorney general and your honors i'd like to talk about the technical issues that mr create as lawyer mentioned but i'm going to talk about those last st i would like to talk about the merits of the case because i think it could be helpful to the court and mr prieto its claim was based on being a victim of ordinary crime and as the court asylum withholding are limited  people who were persecuted on account of protect the ground and those protect agreements are race religion nationality particular membership in a particular social group or political opinion being a desire for free transportation is not one of those protect the grounds this case is about a gang's desire for free transportation which and mr prieto initially was willing he was initially willing to take them in his boat as long as they were paying when they quit paying he was no longer willing and he resisted and that was when the gang started threatening and hassling him throwing stones on his roof and so forth and because this is all about just ordinary crime mr prieto has tried to you cohen craft a particular social group that coincides with the gangs reasons for picking him and he calls that his particular social group that that cannot work that you keep in cracked a particular social group that coincides with the cause of how we got picked instead he's going to have to show why he got pitch coincides with a protected ground and that's why he can't show and this is a very common mechanism that people try to use to come with in coverage of the asylum withholding statute is to create a particular social group that coincides with how they got chosen but doesn't address why they got chosen and the board of immigration appeals has are very hopeful case about that and matter of that they decided in two thousand and seventeen and it discusses exactly that situation what happens when somebody has been able to craft a particular social group that coincides with the facts of how a criminal chose them but it doesn't really have anything to do with an animist against that group and matter bellyaches said in that case it was a family particular social group they said even if your particular social group had something to do about how this criminal honed in on you that's not the key question for motive you have to show that there was some kind of an m s against the particular social group and in a case where there is that doesn't satisfy the motive requirement and the reason i wanted to talk about that st is because at the time that i briefed this case and matter of was temporarily not precedential because the attorney general had certified that circuit and l a are very much in sync so i think it should be very helpful to the court so how does that apply in mr pre addressed case well he said that and the gang wanted free transportation and they or any of his interactions with the gang when he was and all salvador had to do with his family as a particular social group instead he brings in and the very very sad events of what happened to his wife three years after he left but as the agency said there was no showing of a connection between mr prieta and what happened to his wife the only evidence about what happened to his wife is the friend in the record shows that  people apparently picked on her because she had been crooking for that police and the military and all salvador again that was a completely different motive for the harm has nothing to do with mr pritchett oh so that group nexus as well and then he also raised a political opinion particular social a political opinion claim and there is absolutely no evidence that would substantiate that nexus to a political opinion because he never expressed a political opinion and there is no evidence that the gang thought he had a political opinion in fact just the opposite and he was willing to transport them as long as they were paying him when he quit being willing to transport them it's when that they quit paying so to the extent that he had you know that his views affected his willingness to cooperate it wasn't his political opinion it was his avers having to work without pay so there was no nexus to the political ping in claim either aside from nexus even before you get to that particular social group based on his fishing co operative it also failed because it was not a cognize ago particular social group because he did not show one of the elements that you have to show a status or particular social group and that is that the group was social a distinct and his society that requires a showing that the group is set apart from society that it's treated differently and that it's particular case is important and the evidence here was that after he quit being willing to work for the gang and they started hassling him and showing up at his house he called the police he said four or five times every time he called the police came they did what they were supposed to do and so the agency said he didn't make a showing either that they were unwilling or unable to protect him counsel because time is growing short i'd like to have you address the failure to consider of the there it can't make any difference whether that claim is time barred or not just for judicial economy it's simply focused on the merits of the case supreme court said in the bug a mosque a bad case it's a general rule that neither administrative agencies or courts have to address things that have no bearing on the outcome of the case and that's the situation here so it would have been a waste of the agency's time to address an additional air question that couldn't make any difference what about the cat and elsa standards in the there's clearly two distinct standards here so absolutely and the not the inquiry for cat but since it's easier to prove they asylum at that element for asylum the fact that he did not prove that for asylum or withholding therefore proves awkward you are a he is not going to be and i no i don't think that's correct because i think that the agency looked at the same evidence that would be relevant and that evidence that they looked at was they said that they acknowledged the evidence that the country was having a difficult time these gangs and they acknowledged evidence on both sides of that they acknowledged progress that they had made and that crackdown that they had made and that seemed to be making a difference but at the same time they said under the circuit precedent it's also very relevant what happened in this case and in this case there is absolutely no evidence that acquiescence there is no evidence of an unwillingness of any government or public official  control the gang members that were picking on mr prieta when he called the police came and then to the extent that anything having to do with his rights problem three years later is relevant to the government did exactly what they were supposed to do they went after the criminals and this court has made it clear that they have relevant inquiry is not just whether a government was able to prevent the crime but also whether  ey were they followed that did reasonable law enforcement efforts afterwards and that's what was shown here as ira read the papers it struck me that that you were that everything in the lesser standard makes proving to be treated and i don't i don't need to go for that because that's not what the board at the board is very careful they're very meticulous they said we recognize that these are different inquiries no where they said that but they went into that but they said we're looking at the facts the relevant findings of fact and the relevant that the findings of fact that the immigration judge made in this case are the same things that would be relevant that they facts are somehow different because the standards different and i and i mean he's arguing that that the facts are different because in ability it's not relevant fine i mean that that's fine to put in ability to the side but agency also had to consider whether the government was willing to protect him and they did and the fact the only facts in this case show that they showed up every time that he called them and then with regard to his  killing that they investigated and they arrested the miscreants i think that it would be really academic to say that they have to address that somehow separately when the got to be the same take you if there are any further questions are asked the court to deny the petition thank you  protection and under the convention against torture and with that they hold different standards and respondent counsel address that you need a protected ground but you only need a protected ground for asylum and withholding removal and the protective ground that petitioners sought were political opinion and particularly a group and under particular social group look for government fishing cooperative and family so i'd like to st start off with the fishing cooperative respondants council raises that on the factual finds that findings that the board meet in regards to social distinction the government fishing cooperative that the petitioner was a member of was not socially distinct however board in their decision on page six they discussed or they state that the board found out that gangs might have considered the fishing cooperative as socially distinct group but because it's the use of the cooperative as a means of transportation but it rejected that the salvadorians society specifically of the people or the village that the petitioner was a part of could not see it as a socially distinct for the same reasons however if we're looking at the record and the test ping the fishing cooperative would pay him to transport them for that therefore no substantial evidence supports that finding in addition to just a minute yeah is the existence of an economic relationship having being located on the sea coast and having this being government fishing cooperative and having the ability to transport people does make it socially distinct because the people in the community know who they can go to deploy to ask for ride because they are on the sea coast not necessarily their transportation is not only necessarily included just for foreign land use it could be on the sea coast in addition if i could move on her walking around the street and she and she would get there and in addition to that she was raped impregnated and murdered based off of the testimony if i could move on to the  she just respondents counsel addressed political opinion in terms of not meeting or not being prosecuted based on being  not support that finding that the board made in addition if we're looking at the immigration judge's decision they cite from this court moroccan trauma versus holder and in that case this court decides that new refusal of not compelling is not enough to find political opinion however for looking at the record and what the expert provided refusal it wasn't just mere refusal it  interchangeable and the immigration judge clearly did not find them interchangeable and cited to preclude petitioners assigning claim because of that however because the inability to establish former precludes him from being to able to establish the latter therefore it's clear that the board failed to distinguish the forms of relief that the immigration judge did not just did to thank you for your time here are today