good morning rob all right and you are representing mr mansi about how is that correct correct that's all right well just in advance in case i forget later we do appreciate the attorneys so we appreciate everyone th cancellation of removal withholding of removal convention against torture with respect to cancellation of removal the government concedes the board's error in this case by not defending its decision on the merits instead the government relies entirely on exhaustion and waiver arguments those arguments fail when mr mann c f filed his appeal brief with the board of immigration appeals the law of the circuit was young v holder and young beholder established that an inconclusive record of conviction does not satisfy petitioners burden of demonstrating eligibility for cancellation of removal only after the board of immigration appeals ruled in this case did the supreme court change that hypothetical and the b i a erred in determining that he was ineligible for cancellation of remove all should we also make a determination whether the statute is catarrh a categorical match or whether the statutes divisible or should we just response so the government essentially concedes that it is so we should have them concede that and then we'll say you didn't exhaust because they said you didn't exhaust so well the organization though is that there is there has been a change in law after the after the board ruled in this case and this court does not require administrative office exhaustion based upon events occurring after briefings of the board of him as a farmer's house before new judge i have a question i don't think eleven five fifty is under the influence of marijuana i think here your client is not being entirely honest about that i think it's more like under the influence of heroin well so the there is a question about i never  point if that or that i don't think it is that that may well be the case your honor but that's why the record of conviction is inconclusive here and why this matter must go back to the agency the young of the holder analysis does not apply in this instance because the supreme court has said it is a pure elements based inquiry a pure legal inquiry on the elements not the facts of the case so let me make sure i understand your argument when you say status i was trying to make sure that i had read everything you said that i so you're saying there's not a core categorical match and therefore we must decide whether is divisible or not under this whether the different determine the elements of the state conviction and determine whether they sweep more broadly whether it's an overbroad statute and then at that point determine if the second step whether it is a divisible or indivisible statute but then there's no it doesn't seem to me match at all because the cat in the can agree cory's under one statute are not the same as the other so then at the next point we go to divisible and my worry about this is what is there in the shephard documents that say anything about it in the first place whether is divisible or it isn't well two points your honor first of all this is if we submit that this is a fairly academic question because again the government has not contested that is if it is a categorical statute but supposing that the court were to go to the modified categorical approach there are no shepherd documents in the record and so that's a reason why it would have to go back to the agency least no shepherd documents that are i mean even if i take the document is in there and there which the government wants me to suggest is enough to make a shepherd document it doesn't help  in reading it does it no no your honor it does not first of all it says that it's not evidence there's a caption on that document but it's also not a sheppard document so that's no if we allow you to go forward on the  need to reach the other issues yes yes your honor we would submit that the court should decide all three of the issues of why you are going to go forward on cancellation of removal why do we need to reach the rest well if you go to withholding of removal is that whether there's substantial evidence that fits a furch future prosecute persecution yes your honor but we submit that it should not be analyzed under the substantial evidence standard however because there fact we say ok we'll give you a protected ground which that's conceding something the government does not concede but if we say ok we'll give you a protected ground but as far as i'm concerned there's no evidence in the record or there's little evidence in the record that would not support the government's or the i g s decision that there's no future persecution in this record but what the record suggests your honor is that the immigration judge was influenced by the legal error that he made on the protected ground on page two zero three of the record he actually says as much on beginning on page line line eleven he says and this is in describing the opinion  he says and the harm you fear in the future from the gangs or from anybody else because you're coming from the united states and perceived as having money that's not on account of either race religion or nationality membership  particular social group or political protests opinion so because it doesn't have the next the school protected ground i would have to deny asylum well but he also says that your client is not resided in areas for playing games or located without incident or he has resided he says there's no evidence of persons he had in a fide that he had testified against or is in mexico there is no evidence that the green light to kill is ever been relayed to gang members it's unknown how prevalent the gangs are in mexico those two gangs and the incident happened thirty years ago that's substantial evidence to support his decision well you honor we think that that evidence flows from the court's legal error first first of all if i don't agree then you lose well no because that's all you're trying to say is i can read the court's decision and i can and tribute a  tribute to the basis of the decision of what i wanted to be what i'm suggesting is i've got to have substantial evidence to support the decision i'm not going to tribute anything to what he says i'm not trying to trying to second guess him or read into it what i want to read i just want to find if there's substantial evidence supported well your honor we submit that there is substantial evidence was what is that evidence well we have mr mann  credible and unrebutted testimony the government did not come to thirty years ago that's thirty years ago when we had one incident in mexico which was questionable also so i mean that you you put everything there so we don't agree with you that you know we're not going to reweigh that i think judge smith talked about everything that's against you and that's what you have for you right one incident in mexico and a thirty year ago incident the united states tech to ground really is establishing whether there's anything to say about past persecution and that is whether the past persecution then can then be used as a step up on the future per persecution my problem is after i get all the way through that if i just leave everything as it is i'm having a tough time seeing how this record doesn't support persecution well your honor that this is the legal standard is a is a future persecution the probability of future persecution on account of one of the protected categories membership in a particular social group so the  or the the well founded fear is not a finding that the court makes in a vacuum it is always with reference to one of the protected categories as this court said in the enrique but he still has to overcome that nothing has happened to him for thirty years on that incident and the united states sic explains why membership in this particular social group individuals who testify publicly in criminal proceedings against gangs have social visibility and have particularity and that is the lens then later went to mexico was that an important fact we submit that it was your honor because when he was held in custody in these proceedings that was that was something that could have put the gang members on notice of mr mansi is removal from this country how long ago did that happen that was at the beginning of these proceedings so that was in two thousand and twelve two thousand and thirteen that wasn't thirty years ago that the custody and correct your honor that was in these proceedings good morning your honor may it please the court let the chuang and i represent the attorney general so why don't you just jump in since i think you've seen where our focus is yes and we believe that the court should dismiss in part the nine part the petition for review for failure to exhaust and for waiver as you've seen in our brief that is how we view petitioners arguments and that explains why we have not addressed some of these points that he raises in his opening brief they have not been exhausted and it would be inappropriate for us to now discuss them without the benefit of any agency decision well it has changed the law has changed considerably in terms of how we analyze whether something is a categorical match as far as that goes and at the time i think it was perfectly reasonable for the i j a in the b i a to say that this was a drug crime but since then that there's been a lot of modification on that and it would seem that the argue there's a really good argument now that eleven five fifty is not a categor board decision so they did not have the benefit of this the issue was not raised before them well and you know and the thing is too that we don't want lawyers at the time to raise you know and this is really hard to discourage lawyers from making spurious argument and frivolous arguments but if if there wasn't really a legal basis to make that argument but now there is how can we nail someone for failure to exhaust that is a good point you know however because these are legal questions that petitioner has raised that may change the course of this case he could file a motion  unless the laws changed you agree the laws changed that's an exception that he doesn't need to exhaust because the laws changed and he's allowed to go back under cancellation of removal that's the question that's the worry you have yes i got another problem with that the b i addressed cancellation removal b i write their fault of them for not filing an application ignore the i j a had refused him additional time to do it b i specifically says that as to the merits he does not challenge the i j a decision which dealt with the merits so they dealt with cancellation of removal right in their decision why does that not exhausted your honor while the wording of that may seem problematic we do not view that as an exhausted issue before the  b i address is an issue it's exhausted absolutely the client whether the or the person raises it or not absolutely i directly dealt with it we do not believe that the board actually dealt with it because there is no discussion there no i mean they didn't with it they fall of them for failing to file the application as i don't need to deal with this because you didn't file the application or in other words i'm not removed cancellation removal dead on my plate but i'm not going to say any more about it just because you didn't file an application and they didn't even think about the fact that the idea and refused him the opportunity to they said they didn't file it but they also ignored the i j a right in the record refused to allow him the time to file it if you reference back to the record the i j a gave him eight continuances before having the merits hearing so that's what the b i could have addressed but they free fused to even talk about it the board did not address that because it was not  cancellation of removal to the board it would have addressed it in some way no you're not you're not understanding less and assume you lose that issue then what do we do they didn't talk about it don't we have to send it back or can your honor just because the report states generally that mexican mexico can't control its street gangs doesn't mean that there is any prevalence of the eighteenth street or to the thirty eighth street gang which petitioner allegedly fears additionally it does not indicate that if they were in mexico that they would somehow target him because he has been living in the united states in the same general area albeit on the failure to meet the protected ground with the failure to do that correctly then the i j a had no opportunity to effectively evaluate the evidence as to future persecution what is your response to that argument your honor we disagree with that as you pointed out there is essential evidence in the record without facts the question however is just assume that there's substantial evidence to support the feared future persecution determination but the i j did not give a correct decision on protected ground does that throw out the idea of substantial evidence on the future persecution as counsel argues that it's not wise counsel argues that because he made a wrong decision on a protected ground it doesn't matter the evidence as to future persecution because he didn't do it with the right lens in his glasses to make that determination that was his argument yes how do you your honor i disagree with that why what case tell me where i can go i don't have a case on hand for you but even if there is a protector going you much must establish that there was harm that rose to the level of persecution which park petition has not at this point so even if you have one part of the equation you must show the other and there is no way that he has shown that in this case moreover at the time there was no error in the immigration judge's decision your honor ask for cases from my friend here i can give you cases on the other side of that issue your honor the enrique reavis decision itself said because the b i a erroneous lee assumed that proposed social group was not co able under its precedent it failed to consider significant evidence and that's at page ten ninety two the code has decision that we cited in our reply brief same thing when there was an error on the protected group the court vacated and remanded for a new hearing well when i read those decisions of the fair with you it said they've failed to adequately the i g failed to adequately consider the evidence i looked at all the evidence here all of the evidence in the record and i'm still having of i'm still having a tough time understanding why there isn't substantial evidence to support the future persecution determination in any event because i looked at all ie evidence and it seems to me the case you cited they left out evidence they didn't look at all of it the same way in this situation i feel the i j a did i can give your honor another case that is not cited in the briefing but also addressed as the same point it's or well i'm glad to get it proves to be lynch it's within the second pass to six months six thirteen federal appendix at page six sixty three and you given that the council no no your honor we on the merits where evidence is taken of course there's going to be new evidence on cancellation of removal there may well be a different evidentiary record on remand as long as the immigration judge applies the correct legal standard we submit that there would be substantial evidence for