good morning your honor thank you very much edward m biological along with carol horowitz for petitioners the thomas family with the court's permission we would like i would like to speak for no more than ten minutes and hopefully address myself to the first issue having to do with the question of family as a particular social group mr horowitz will then speak for ten minutes on the second issue we realized you can't always segregate them that easily and we would like to the b i a step forth the parameters for a determination of what a particular social group best congress in an acting the asylum statutes did not clearly delineate what it meant by particular social group i formulated a what has proven to be i fairly workable concept which is the immutable characteristics concept of a particular social group this court the ninth circuit was one of the leaders in attempting its own formulation there was a centrist review of course formulated it along the lines of a voluntary association but consistently throughout the years panels in this circuit and other stark it's began to apply the across the characteristics to determining whether a family may qualify as a particular social screw i like what about a str over emphasizing the fact that there may not have been a specific case recognizing a family as a particular social group i'm sorry your honor i've read it wrong judges scannell i'm sorry leave that the case is distinguishable because in that case there was a kind of a nebulous hard to find family social group there was some credibility problems the petitioner had and the court simply didn't find that the petitioner in that case had been persecuted and that's why when you look at all the cases that have discussed family as a social group invariably they focus initially on the immediate family the nuclear family what makes it interesting is the government's argument that somehow in our case the family is too small of a unit to have social group standing that's inherently and odds with the cases that have focused on the immediate nuclear family as a particular social group and in this particular case for cites no case that extends the concept of persecution of a social group through the persecution of a family and we hold it does not if congress had intended to grant refugee status on account of family member ship you would have said so subsequent to that case there have been a number of cases that have done so now the act asking what we are saying that congress had intended to extend that protection would have done so i think congress  guess because the legislative history in this case is simply not clear as to what they meant but had congress intended to restrict the particular social group standing or exclude families it could have done so to i mean it's been almost in particular has been quite clear and i think some others have that a family can be a social group for purposes of the asylum statute but it has to be a nationwide persecution of the family there's textual support in the definition in the statute u s eleven zero one forty two unable or unwilling to return to that country because of persecution on account of membership in a particular social group there can be such a family having to be friends with the grand niece or granddaughter of haile selassie when they have the marxist revolution it was dangerous to be part of haile selassie family in ethiopia but that's not usually the case with nuclear families it can be a revolution doesn't want to anasta around to cause trouble why shouldn't the proper reading of the statute and the proper way to align ourselves with our sister circus be to say that a nuclear family can be a social group but only if the persecution is nationwide well i think judge kleinfeld there's almost an inherent contradiction between positing that a nuclear has drawn a bright line that certainly not in this circuit and in the majority of the other circuits have never indicated to my knowledge that there is some kind of nationwide or requirement of nationwide scorn imputed her husband's political opinion to her now this was not a nationwide group that was opposing the family was it was a small group this case the case involving the shining path is another one that comes to mind papar the shining path guerillas were certainly not a nationwide group in peru far from it so i guess my point recall some of those shining path cases where people could not just relocate to lemur something it avoids them right well and the issue of relocation of course is another one that the government argued we should of somehow made a showing there but it's really two ways of testing the same thing asking about right but the relocation question is really kind of bound up with what the panel in this case did was they agreed to send the case back down to the term and whether or not the government of south africa was unable or unwilling to protect the thomas family but going back to your original question i simply can't imagine that that you can consistently construe a nuclear family and yet at the same time require there be judge we're like we have not ever maintained that there's a per se rule we've always viewed it as a case by case analysis you can't simply set down a bright line test as to the size of the family or the circumstances under which the you know how many people have to be after them it's simply the court has to look at number one do they satisfy the elements because after all when you look at all the cases that have with background material demonstrating a lack of peace control the lack of authority in south africa there is chaos according to that background material in fact the governments of south africa have stopped issuing crime statistics for political reasons so is it your contention that every victim of crime in south africa's entitle to asylum here not absolutely not but there must be a nexus between the those acts taking place that was her frame of reference with respect to those quote isolated incidents connected the dots with respect to those issues  specifically dealt with the situation we he was reluctant to call the police and the fact on certain occasions that call the police and nothing transpired she made specific reports to the police and in a family don't you really need to combine the element you know we have a problem trying to put everything in the likes neat little box which is not unusual but this some political aspect i cannot agree with you moving on and if you cancel you may want to say something about the exhaustion issue i gather the government made you argue that this issue was not properly raised in front of the because it was pretty laid out in her notice of appeal oh yeah but i'm looking at the argument that was made to you and you agree with me that there is no reliance at all on if the tickler social groups are quite sure why isn't submission attached to the notice of appeal and counsel on the basis for the factual record including that declaration said that she was persecuted on account of race race was the only ground presented to the event even if you're wrong on that we think with the correct remedy should be a remained to the fore the instructions are to address it rather than for this court to try to grapple with a complicated question of whether of the precise definition of social group o'reilly and there's nothing racial about it and there's nothing about political opinion they just say you know we are going to round these folks up and beat them and imprison them for no particular reason just because we want to anyone with my hypothetical i'm going to change it to say they're all blood relatives and they all have this name and everybody in the government knows that they're blood relatives in addition to having the same name but they don't necessarily political opinion or one of the other listed characteristics that are protected to which this could be a person claim and then the issue for the board would be your honor whether that's very close to the matter of each case which was recognition of a h that was that where you had a large kinship group that had a particular dialect at its focus and that was linked with the former dictator in the country and therefore after the for example relatives of a drug dealer who were targeted and threatened and shot by a rival street gang in retribution for the killing of one of its members under the approach of the panel majority opinion this case and believe those folks would entitle only fits the government's and i think the better way to deal with family if you look at the cases out there in which family's been accepted as a social group and relief has been it's always been a situation where members of the family were targeted because one of their members had a political or religious opinion and was a human being and essentially you know doesn't dismiss for lack of exhaustion but it did say that in a cost in addition to mutability what it said is that the term social group must be construed sort of the characteristics that unite the social group and make membership in that group comparable comparable to the other four statutory grounds that are force race which governments tend to persecute people you don't have a situation where rive members of one rival nuclear family can only attack members of other rival nuclear families or where you have or friends people are not members of nuclear family hostile people are members you  somewhere it's hard to articulate that somewhere there has to be some kind of you know in the family they have to be some kind of motivation based on political or one of these protected grounds that not just the family members but here that the family member is said to be racist right now if it were flipped in the family member  whatsoever i do not believe it is the case that every person who is a racist has a political opinion but behind that i'm missing a connection in your argument i can see the part where you say you have to distinguish ordinary street crime that the government can't control the kind of persecution for which asylum is afforded that makes perfect sense to me and i can see where you say that if you just take a nuclear family that's the object of more one criminal incident after another that you have to analogize that to ordinary crime rather than persecution but i can't see the next step where you say persecution of a social group can count on less it's connected with one of the other things listed in the statute such as political opinion it seems to me that the statute has several categories and it says on account of race or religion nationality membership in a particular social group or political opinion the what the board has done is not what you've done it said read membership in a particular social group pursuant to the principle of a use them generous but what you've done is say membership in a social group unlike these other things can't count without one of these other things to what has to be a combination of membership political opinion and i don't understand the textural basis for what you're saying ok let me  found for example that homosexuals in certain countries i can see why family would never be it seems to me it's more of a hardly ever for example graver site but that a call about the o'reilly's is kind of similar structurally i think to mine about this not hypothetical actually about the family of haile selassie nationwide persecution of all members of a political family now my friend when the cia vacu was a little girl she probably didn't have any political opinions yet she had it was just that she was a salafi and it doesn't it doesn't have to if the government targets the family in retribution you know you want to stamp out  and that's not the case and the panel enough of them to assess to his family well if they believed he had a political opinion then in particular on particular cases you could sometimes into political consensus families but this is there was no evidence below careful what because i'm not i'm using your words i understand that i'm trying my best to answer case in which the board itself hasn't been given an opportunity to articulate what test it wants to do and it really has its role and not my role to do that i think what i would ask is that this court would say this isn't at what more might be in another case that's not before us the board has to grapple with that and of course there's judicial review of its determination similar to i think the way this court might decide whether to publish an opinion to look to see whether it's a novel question of law you know whether title by system precedent how difficult it's a bunch of factors they look at to look at a belief in the only issue is on account of race which was an issue that really the original majority panel pinions that was in a paragraph that was kept let's say that we go with you part way we say under the kind of deference we're required to exercise under a good a again a i guess it's a sense that we have to defer to the way the board interprets family as a social group at the i j a missed the boat the box was checked and the i j a just overlooked it and even though the petitioners failed to appeal nevertheless the ins failed to preserve the issues that they didn't feel as so we're going to give the be a chance with the read to the conclusion that what we do is say before we decide whether family is a social group or not we should just remand for the b they can decide in the first instance and we can perform the deferential kind of review we're required to wonder  know in the record to constitute the term social group are our primary request is that you remain and i think the board's got the upturn in the first instance but if not i believe in the this case i factual story in the declaration supports a little argued he couldn't take those facts and say that's on account of what i'm saying is that wasn't illegal our youth was in fact made and the board is not under a duty to go and to look at the fact under no obligation to decide was there a better legal argument that you should have made based on the fact that once you gave you thank you again your honour's very briefly i don't think this court has to reach out and decide esoteric issues that aren't present in their record before the court it seems to me is reasonably clear that's really someone attacks someone else because of for racial reasons for religious reasons for reasons of sex or sexual orientation we have a name for that we call it a hate crime and that means that we recognize that certain conduct offensive as that is also political and that really is what the record reflects here and whether that is something that's infuriated to the thomas family it seems to me doesn't matter because action because they're ticked at their boss it might happen daily around the world  right because they are being punished because i mean this is the government's position there has to be something extra and they are being punished for racial reasons to follow up on my any doubt that the family would perhaps be looked upon favorably for asylum purposes i don't think so but the test is not whether the government is involved it's well the government is unable or unwilling to pr opinions but if you don't need one of those other things such as race or political opinion and you just look at it in terms of social group family why isn't that like a drive by shooting you may answer that question and then your time right well because