time i'd like to start by making clear what really for asking for on appeal we're asking the court to remain am a case to the board so that mr t s has a chance to present his case with competent counsel two things happen below that denied mr a at the time of the at that time of the hearing yes so if you x even if we accept that you listen now i guess she said she was surprised the hearing was going to actually go forward on the day that it dead how was mr or z prejudiced by his counsel's failure to prepare him he was allowed to explain a situation in his own words and now it's competent counsel is not charged with making sure that people don't tell any inconsistency send any why you know hopefully if you refresh their memory but by the same token if your story doesn't hang together competent counsel can't help you on that so there's two things  that miss while herrera did that directly led to the adverse credibility finding and both of those are attributable to her and not to mr t s so the one thing that happened is the i g identified an inconsistency between mr refuses asylum dr ration and his testimony adding the bus station incident the reason that wasn't in the declaration is because most while where i didn't work with them to prepare the declaration and then didn't review the declaration and tell the i j a ordered her into the hallway to discuss it years before he swore that it was true and correct now the government says he swore that it was complete that's not the case where it was true and correct and then the judge asked him do you have anything to add or take away he said no but he didn't understand that that needed to be his complete story because most while herrera who's his lawyer and supposed to be helping him put relevant information into the declaration and frame up his claims in terms of the legal requirements but he was all over the place about the date i mean he just couldn't he couldn't get that right i disagree with your honor when you look at the transcript he actually only misspoke about one date about whether the funeral home incident happened in two thousand and one or two thousand and eight the st time that  mentioned it he does say two thousand and eight but then he corrects himself on the record three times and says i'm it's two thousand and one it's the date i said in the declaration i was unsure because so much time had passed and it's actually missed while herrera who introduces the confusion about whether the funeral home where the bus station incident happened st not mr ickes and then she continues to refer to the funeral home incident as occurring in two thousand and eight even after mr ickes tried to correct the record do you have to show prejudice we need to show that her representation prejudiced his case i guess another issue it would be helpful for you to address for me is what's your best authority for the proposition that residency in a see anything and the record that showed that there was any that you're a stablished any nexus so i'm having a difficult time finding that even if it was if if the if assuming she was deficient you still have to be able to show that you that there's something worse that there are there you're right your honor we need to show that he has a plausible claim for relief and the evidence in his declaration that his neighborhood of origin people what's the next is with his particular claim he says in his diaper ration that he is targeted because he is from a colonial monta sano and your honor use the word plan which is exactly analogous case law that would relate to his particular social group so cases like bahama versus gonzales and versions ashcroft say that someone who's a member of a particular clan a that can be a social group and this neighborhood of origin theory is analogous to that line of cases it fits within the three requirements of the board's decision and matter of you and mr ritchie should be given the chance to present that theory with competent counsel on a fully developed record before the i j a and the board and the immigration courts to be the st person to address whether that is a plausible theory if you have a case that says that coming from a particular neighborhood can constitute a particular social group we don't have a case that's directly about neighborhoods and the most analogous cases i think are the klan cases so if we disagree with you about whether or not those cases support the notion that coming from a neighborhood is a particular social group do you lose i don't  think that's an issue the court should reach right now for if we do reach it and if we disagree with you do you lose we would lose on the asylum and withholding claims but he would still have the cat claim which doesn't require a particular social group so so what's the what's the plausible claim for relief on the clan can't claim that the government is unable to control the gangs and prevent gangs from the works of the torture what's the torture element what's the likelihood the plausible claim of likelihood of torture so in his declaration he explains how he was targeted by gangs including being extorted for money that he was kidnapped by gang members and taken into the woods and he was held at gunpoint at the funeral home and those are the past instances and then he says he fears future and senses like that or worse and he talks about how people from his neighborhood continue to be targeted by gangs for example h would amount to torture close this case authority that had similar facts that rose to the level of torture so in madrigal which is the case about a former military officer from mexico he was kidnapped  threatened and the court found that amount to torture and then explained that the court based on corruption and the police that that showed there was the government's inability to the persecution and i'll just remind the court that the government hasn't disputed that he has a plausible case on the merits and all we're asking for is a chance for mr to use to present fact case with competent counsel so i want to explain that both miss miss while her air is representation impacted both the credibility finding so both the incomplete asylum declaration and his testimony because she asked confusing and contradictory questions that bordered his ability to tell his own story in a consistent manner and she also prejudiced the merits of his claims by failing to develop these legal arguments and submit evidence that would put his case into the framework may please the court my name is evan schultes i represent the government morning good morning i will just pick up on a couple points that came up in the opening part of the argument just now i think that judge callahan is correct that basically when there was a of how to how and was correct that when you're talking about truthfulness and credibility that this is not something that comes from the mouth of the lawyer this comes from the mouth of petitioner this was his own story he knew what was correct wasn't correct and this court has recognized that in the soto vs holder case where i said that when it comes to truthfulness this is not something that lawyers can fix if you look at the world if you look at the real hard garcia case this course basically court said that for some problems well that they are so bad that all the king's horses and the best council in the world can't fix them that was precisely the case with the testimony given by missile opposing counsel points out that there was only confusion about one da i do not agree with that if you look at mr or chooses written statement he says that the entirety of the situation took place in two thousand and one if you look at his oral testimony he mentioned at least three dates when you comes to what happened with the gangs he talks about two  eight it's also not something that i would also say i would disagree with about the contents it's not simply a question of dates it's a question of number of incidents the written report talks about one incident the testimony talks about two we also have to keep in mind that under the court's trust a precedent we have to look at the totality of the circumstances these are not really i would say though that i mean you know obviously if a lawyer comes to court and goes oh i didn't know it was the trial today that doesn't inspire a whole lot of confidence here it had been for years that they had been on the case that would you say that just the record compel a conclusion that the initial attorney was ineffective but this comes down to the prejudice prong or what sure what your position your honor the it's correct that this case does come down to prejudice the board simply didn't address the incompetency prong i think it's probably most fair to say that the court assumed but did not decide the question of incompetency the only issue on on in effect of assistance of the court dealt with was prejudice and therefore that's the only issue before the court there is the record on this particular tourney yes your honor so i think you would be fair to incompetency especially if the attorney comes to the proceeding and is not even aware that there is going to be a hearing and totally failed to prepare her client to testify so let's go from the presumption that there was in effect counsel i think that's what the board did your honor i agree simply just do the same right and that leaves us with prejudice and again if you look at the court's decision and soto versus holder if you look at the language of the court in general hossam garcia this isn't the sort of problem think there's actually four lawyers at least five actually that have been involved in this case there was a lawyer in arizona for a short amount of time and then the lawyer who's claimed to be inadequate and then there's a lawyer whose name is  page brief to the board and there's current code so here and i think that there's another lawyer that's been brought on since that as well well so i guess my point is you know i mean when we look to prejudice we look to everything and we say well if things had been done nexis about social group about all what in this record i think she said you can see did she has a possible crime and that's actually not correct your honor if you look at what the immigration judge said if you look at the board seven if you look at our brief that general crime and civil unrest simply is not enough to create a nexus to one of the protected grounds that's what the immigration court addressed the border dresser and we absolutely did talk about that in our brief here on what about the particular social group of the  neighborhood as your honor pointed out there's simply nothing about that in the record in fact if you look at his testimony i'm sorry if you look at the evidence they submitted the state department report talks about high crime in the country generally he does say also that everywhere he looked there was crime he didn't limit his crime from gangs he didn't say that was limited to his neighborhood so even if you do skip beyond everything else on the asylum withholding the general crime simply means that there's no nexus and if you honor that's one of the rest of being a repeat play with immigration law with particular social groups and with the with whole and with to mention against torture i'm sorry i stumbled over myself for the particular social group i've discussed that i'd also like for the convention against torture the credibility issue would still of course be a problem for that but i'd also point out that looking at the testimony that he gave he spent between one and maybe seven years depending on which date you credit he spent between one and seven years in his country without any additional harms from the gang including any sort of torture he said that at one point the entirety of the situation took place in two thousand and one at another point he said he had was last again contact in two thousand and eight he came to this country in two thousand and nine that means there's a gap there and that would basically be strong evidence that he is not going to be tortured because while he was there nothing happened in that he testified about  if you look at the ren case that they also talk about it treats corroboration and credibility separately so i say that's a bit of a red herring it's simply not something before this court right now unless court has any other questions the government's happy to rest it appears not thank has properly preserved the past and future persecution particular social group and nexus arguments and their only point is that the court they say the court doesn't have jurisdiction over those arguments but where in your brief did you address the torture claim in particular social group claim especially the neighborhood portion of the or in your brief that you discuss have jurisdiction because we didn't appeal this to the board if you look at what so they a government agrees that would preserve the credibility determination and they cite uses brief to the board at cia are alive and and in that sentence mr accused preserves both the credibility argument and the merits argument so there's no way for the government to say half of that sentence preserves the credibility argument but the nd half of the sentence doesn't preserve the merits arguments so i just want to make two points about imposing counsel's argument st this truthfulness argument there's no evidence that mr hughes was untruthful or lying he was simply confused when you're under the real i i wanted to ask you a question about magical because that is the case that you see its closeness to the circumstances in your case regarding torture and in that case we concluded that if the b s a determined that the petitioner is more likely than not to be murdered that could constitute torture is your case close to the i think it is close in the sense that once the full record is developed and he is able to put in evidence about both  the corruption within the police department and the inability of coal used to control the gangs combined with his evidence that people specifically from his neighborhood are targeted by rival gangs but that could amount  to a least a fifty percent chance that he would be tortured and that is something that he should be able to fully develop with competent counsel for the st time i counsel behalf of the court we thank you for accepting this case pro bono who did a good a great job in arguing and  appreciate your efforts