gates here tiffany gates there supervising counsel your honor who is here with thank you very much that's right along with carrie watt and we're here today with our supervising counsel yawners i'll be reserving about two minutes of my time for a bottle and i'll do my best to keep my eye on the clock and are you splitting argument with distinct within el salvador and is comprised of members who share common immutable characteristics i don't really understand the social distinctness it's sounded from the evidence as though everybody you know salvador is at risk from these criminal gangs and i think one of the pieces of evidence that there's no effective government there the country is ruled by the gangs your honor is correct that the overseas council report and the state department reports do explain that everybody in el salvador is at risk for gang violence however those reports also explain that youth are at a particularly heightened risk for gang violence because of their age i don't and i don't think the particularly in this part of the great great period i think your argument means that every salvadoran is entitled to asylum in the united states no your honor we're arguing that a very discrete and narrow class of individuals all young males no your honor all young males who live in one gangs territory and go to school  another is the particular social group that is that we are arguing today is cognizable as a matter of law and both the b i a and i j properly construed mr malice gomez's group as being defined as  young salvadorian males who live in one gangs territory and go to school in another and so one is either a young salvadorian male or is not one either lives in one gangs territory and goes to a school in another or does not i think i am troubled because of the virtual that's the slash whenever i see an and or with the between what it means is i don't know if it's a or if it's or and it looks like something that's used to broaden things it's not used to broaden things here your honor this circuit has never held that a particular social group must be strictly construed and as i mentioned j properly construed the definition of this particular social group as being where one lives and goes to school why would he have the slayer's or then it looks like you're not saying young salvadoran males who live in one place and go to school in another you're saying are perceived to be a member of a gang because of where they live or go to school under those targeted so the going to school is not part of your definition it is part of or not a condition because of the and or your honor the no or the war means either one is enough in a strict reading your honor you are correct however the b i properly construed and evaluated this group based on the and not the your and the government on page twenty four and its brief also stated that this group was defined as young salvadorian males who are perceived to be a member of a gang because of where they live and go to school so the b i l s entire legal analysis rested on the construction of this group as being defined as where one lives and goes to school however after this proper construction how do you explain his brother who lives in the same place but doesn't go to school across the gang line your honor his brother had not yet been branded by as being perceived as a member of the gang as are gang as m this record is what i meant was why can't this is go to school on the same side of the line as little brother your honor the record is silent as to why mr mehlis gomez went to this particular school and there is no evidence in the a member of a gang because of where he lived and went to school he that was a shared past experience and if the record is silent since gomez has the burden of proof why doesn't that mean as far as we know we could have gone to school or little brother does territory controlled by the same gang your honor it doesn't matter where mr mehlis combest could have gone to school because the fact that he did go to school and that he was branded is  shared past experience that by definition he cannot change so mr mehlis gomez is in a very different posture than his brother because mr mehlis gomes had been branded for persecution because of where he lived and went to school so for purposes of the particularities and social distinction test it and the immutable and the immutable characteristics that define this group it is irrelevant that mr mehlis coma's could have gone to a school because he was branded as a member of a gang because of where he lived and went to school and as this court explained in henriques rivas vs holder with respect to the particularities prong if a persecutor does not actually rely on the specific boundaries of the social group to persecute an individual it may be harder for the applicant to show that his group is in fact particularly defined and here mr morale is gomez has shown as on page one fifty eight of the record when the eighteenth street gang first approached mr mehlis gomes at his school they told him that we know you're a member of m s thirteen because of what because we saw you leave and this thirteen territory and come to school in eighteenth street territory they went on to tell him if he ever came back they would kill him in addition on page one fifty seven of the record mr mehlis gomez explained that the eighteenth street gang kept a list of all young salvadorian males who lived on the m s thirteen side of the san antonio river and went to school in the eighteenth street gang side of the river and lastly on page one fifty nine of the record m s thirteen approached mr  to his head and said we know you're a member of the eighteenth street gang because we saw you going to school in eighteenth street gang territory all goes to show that mr mehlis calmness is group is defined with particular it was legal error for the b i a e a to rely on the precedent it set and matter of g r something that puzzles me about this record is that it appears somewhat counterintuitively that the gang the gangs assume that any young male who lives in an area where the gang is active is a member of the gang is it true that all males are members of the gang of the neighborhood in which they individual is actually perceived to be a member of a gang that they are then branded and will suffer persecution which also goes to show that salvadorian society understands that once a young salvadorian know how then is that distinct from any other person who is in fact a member of a gang and will suffer because of that at the hands of some other gang well your honor the group that you just articulated could be called probably wouldn't be  this particular record but here on this record mr mehlis goma's is saying that there is a very narrow class of individuals that society understands and the declarations that are in the record on page one seventy five on page one fifty seven and on page one sixty seven all explain that salvadoran society specifically understands that once a young male is branded as a member of a rival gang because of where they live and go to school that that young male will be persecuted that is what separates this group from the group that you're on or just articulating we've been eating into your rebuttal time so why don't we hear from the government and then you'll have a chance to respond t may please the court victoria braga appearing on behalf of the attorney general the court should deny the petition for view because substantial evidence supports the agency's finding that the petitioner failed to assert a cognizable particular social group specifically the particular social group posed by the petitioner is not socially distinct or sufficiently particular to qualify as a particular social group says me counselor did either the day or the b i conceded is that correct but i believe in footnote six we were saying that if the agency if this court finds that the evidence that is cited to this court is relevant to the particular social group determination and that the agency should analyze this evidence in the first instance then it would be appropriate for the court to remain on the case however for multiple reasons we don't believe that remained is necessary first is that the agency did adequately analyze the record as a whole petitioner failed except before this court to specifically identify any evidence bearing on social distinction and particularity notably in petitioners brief to the board which is found the argument section in the record on pages nine and ten only includes one paragraph regarding his argument that his group is socially distinct and particular and this paragraph is very conclusive it doesn't cite to any record evidence and it doesn't cite to any law of this court or the agency therefore the board was correct in its determination or was acted appropriately in making its determination that the record considered as a whole as presented to the board by the petitioner did not support the the finding that petitioners group was socially distinct or particular additionally the evidence that petitioner now cites to this court particularly concerning social distinction does not prove that his group is socially distinct in that way it's not necessary for the court to remain to the agency because the evidence would not change the agency's conclusion on the question specifically petitioner points to one article in the record found  forty five and petitioner quotes a section of that article as saying that residents who cross a bridge cross between gang territories such as this petitioner did assume the glee on his way to school and it says that those people are at higher risk for gang violence however this does not show that simply crossing the bridge identifies people to salvadoran society as distinct or different from other members of salvadoran society the record the article makes the statement in the larger context of explaining that no one is immune from gang violence and also all the door that's a quote from the article and also a quote from the article saying that fear of gangs permeates daily life in el salvador either the i j a or the b i a make anything actual finding the immigration judge summarize the testimony and the evidence in the record and then made the fine and also both the immigration judge and the board of immigration appeals cited the group specifically as the petitioner had proposed it and then found that under its precedent this group lacked social distinction and particularity well we argue that the standard of review applied to the group cognize ability question under this court's precedent in re us would be the substantial average evidence standard however in this case even if the court were deployed were applying  standard and considering for the first time as it is presented for the first time to this court the article now cited by the petitioner that this evidence would not support a finding that the petitioner is a member of a socially distinct or sufficiently particularized particular social group further discussing the evidence of the petitioner has submitted he also now mentions a list of gang members that were a list of boys who lived on the other side of the river that was maintained by the eighteenth street gang there is no evidence in the record other than a statement in petitioners declaration that he heard rumors that such a list existed while petitioner was found credible it's appropriate for the agency to require corroboration of even credible testimony or statements made in a declaration so this the existence of this list is not adequately corroborated additionally even if the list existed the list refers mostly to the perception of the persecutors or in their oral argument today spoke at length about the perception of the gang members about who is a member of a rival gang this court has provided that it's not the perception of the persecutor that is most relevant and rather the perception of out of salvadoran society with regard to social distinction ultimately here the fact that petitioner travels between gangbanged reason el salvador given the prevalence of gang violence in el salvador and the fact that gangs operate throughout the country does not differentiate him appreciably from the rest of salvadoran society and therefore his group is not socially distinct cases the draft failed states let me tell you what i'm thinking about how one way you can have a federal system is by having multiple sovereign states that are unified to a greater or lesser extent like the united states and another way you could have i suppose would be a kind of federal system where the sovereigns within the system are gangs rather than states and what it sounds like here from the country reporting the other materials is that that's w population at large or specifically gang recruitment efforts plaguing the youth of a population at large would not qualify an individual for asylum specifically the ramos lopez beholder case in two thousand and nine provided that who resist gang recruitment is not a socially distinct group because violence and crime in el salvador is widespread and affects all segments of the population additionally and sensuously most kacey a few thousand eight case the court provided that youth who resist gang recruitment are not socially visible the former version of socially distinct because this group did not suffer from a higher incidence of violence than the rest of society so basically what the court is looking at as a society were gang violence is such that people going about their daily life whether that involves crossing gang borders or not are subject to gang violence and the youth are subject to gang recruitment efforts so defining the social group in this way someone who is basically subject to gang violence and gang recruitment effort because he moves around all salvador does not make the group socially distinct the group also lacks particularity in that it is vaguely defined it doesn't refer to all of the boys that live in one place or even all of the boys that go to school in one place given the fact that the gangs move around all salvador it is also more of a sister who is doing this crossing of gang boundaries and additionally as this court noted it's that sense that wouldn't be well defined given how gangs move around so that the boundary is not well defined i thought in this case they do reference the bridge however there's also i believe testimony or declaration in the record that indicates that at one point b m s there chain gang controlled an area and now the eighteenth street gang controls an area so that some evidence that the boundary is at least amorphous meaning that a group who crosses the boundary would be amorphous and additionally is this court noted petitioners younger brother who is at most two years younger than petitioner does not fall within the group showing that it is vague and nondescript or non distinct as to who falls in and out of the group and then they l said well the brother was targeted how do you determine when someone is targeted what is the evidence that he was targeted and i see my time has expired answer i i think you can tell when someone is targeted based on whether they have an interaction with gang members so at least that's how targeting is defined in this case so prisoners brother never had a specific interaction with gang members however that's not to say that that doesn't there's no reason that he should not have been targeted given the way that the group is defined he should understandably fall within that group of young salvadoran males who go to school in one area and live in another your honors as this court explain in henrico three of us the persecutors perspective has an important role in the social distinction analysis and the way an applicant goes about showing social distinction is by the by developing a record that includes declaration and country reports and news articles and that is exactly what mr mehlis goma's has done and on page one sixty seven of the record is an important declaration from mr mehlis gomez's mother where she's describing her reaction to the experience of another mother in her community where her first word that mother son was similarly branded as mr mehlis gomez was and i quote seeing that a mother after her fourteen year old son is assassinated because he was mistaken for a contrary gang member i only think god that my son was well and safe this declaration in addition to the other declarations that are in the record go to show that salvadorian society understands that the common immutable characteristic that defines this group defines a distinct class of persons and el salvador know i know this case and a lot of these gang cases i find just agonizing because the gangs have such control over the societies that it is simply to live in the society it is particularly dangerous to be a young male but dangerous to everybody in the society but i also find it difficult on the other side because our social group definition of the immigration law has been morphing to some degree but they tend to be fairly disagreed groups if we were to find that this is a social group within the meaning of our immigration law it sounds an awful lot like a large i much larger group which is to say someone who lives in want to area and has something to do in another area work school some other thing that takes him out of the area and because of his moving into the different area becomes branded by mistake and i'm just trying to think realistically about what the supreme court and what to be going to do with this social idea i think pretty soon we're into the area pretty much anybody who gets threatened with gang violence because of where they live and where they've gone to this is then going to be an almost an unmanageable idea how do you respond to that that's not quite right your honor in this case one must be a school age salvadorian male who lives and goes to school and each individual applicant must establish a record as this court reiterated i bock to prove that their claim for asylum is cognizable in addition any applicant who i claim that i know i get that then in your definition is actually fairly narrow but if it is a social group within the meaning of the immigration laws so defined here the next case is going to be someone who lives in the group in the area of m s thirteen and has a job in the area or somebody else and that's again going to be a very small group but how do you and how do you limit the principle that we would be establishing here we limited your honor to this particular to the exact definition of this group the group that your honor just articulated that applicant would have to develop a record that that group is in salvador somewhere and your evidence if accepted proves that gang controls wherever that person happens to live so everyone lives in an area controlled by a gang and that means everyone is subject to persecution if they leave their area for any reason whether to go to school go to work see a sick relative or anything your honor the  does not state does not go to show the concerns that your honor just said this record here clear shows that this narrow industry class of persons are persecuted because of their membership in this group it is not as if every this record shows that everybody will be persecuted for nonviolent for some non bullish will conduct in moving between gang territories mr mehlis gomez was compelled to go to school as noted on page two of four of the record and because of that the society knows that when young school age salvadorian males live in one gangs territory and go to school in another that they will be persecuted and any future applicant that tries to fall under this particular social group if this court were to recognize it would then have to show nexus and persecution on account of and that's significantly cabins the risk that any member in el salvador could claim this group are given the work of your answer to judge lectures question don't mean to take you away from your own i was just just going to go on to say that and henry has revise this court stated that the persecutors perspective is important and for social distinction and this record shows that the persecutors here relied on the boundaries of mr mallock almost as group to persecute him and that members of the salvadoran community understand and that is the test that this court