country that is owned and controlled by gangs same woman was made aware of murders to her uncle and two neighbors by the same gang the gang had also murdered a man who confirmed to her the deadly nature of the men's threats in her neighborhood mr ellery toe she came to the united states sought asylum and was found credible at every stage of the proceedings now the i j a in this case looked at the evidence after the first merits hearing and concluded that mr bonner marrow had satisfied her burden on the issue of persecution the first element of a past persecution claim that decision went up to the b i a who affirmed it and narrowed the issues in the case remanded on other issues and remanded the case for the purpose of additional fact finding and a determination on the second and third elements of a past persecution claim then after the second merits hearing despite the  order an instruction the i j a reversed herself in that position and found that mr bean or merrill had not carried her burden on it but the i j a specifically erred here because the had narrowed the issues and the i j a zone instructions to mr bean or marrow were that there would not be additional fact finding or a determination on that issue this court can grant the petition for a view based on the evidence that currently stands in the record regardless of that procedural  and the i g is reversal because the evidence is sufficient for her to carry her burden on whether she received enough harm or whether she suffered enough persecution this court has longstanding precedent that death threats alone can constitute persecution even where the applicant suffers no physical harm this court held that a novice vs ins cup versus ashcroft versus lynch mendoza public versus holder there is a long line of cases where the applicant isn't physically harmed but the death threats against the applicant are credible and the critical are here can i ask you a question on it procedur did the when the case came to the b i a from the i j in the first place you know that in the second place i guess did the government argue that she had not carry proof past persecution no your honor the government only argued the second and third elements of the claimed nexus to a protected ground and whether the government was unable or unwilling to protect her and reading that transcript of the second merits hearing that the government's closing argument mentions nothing about her failing to prove persecution and of course the government did this because the i g had specifically instructed the parties that only the other issues would be at play so mr bonner marrow was not on notice of this the government was not on notice that this issue would be brought up and the government not only didn't argue that in illicit any questions on that issue nor did the  and that that's why the procedural error why there was a failure of due process the specific instruction of mr bean or marrow as well as the b i's order shows both the agency and the i j a instructing her that that issue would not be revisited and under this court's due process case law a lack of notice or a fundamental unfairness in the ability for the applicant to present evidence how was the applicant able to present evidence there was no impediment to the presentation of evidence was the there was your honor because the order specifically noted that if she approved the other two elements of the claim she would satisfy the past persecution claim and the i g is instruction at the master calendar hearing which comes on page ninety four the record is critical here because at the hearing limited the hearing to those two issues and not the issue price yes your honor is narrowed it narrowed the hearing to those two issues because i had already so what's your theory of what happened at that did the b i a just not read the  file your honor the i gin to be i might have forgotten about that at least the i j a likely forgot about her first conclusion nevertheless it's impossible for this court to determine exactly why the i g reversed herself because there's no acknowledg second order why she was flipping the conclusion on this issue there was no acknowledgment that the first time around she concluded that she proved persecution there was no reference to the fact that evidence would change her testimony  changed there was a credibility ruling that she was credible which suggests that none of her testimony was conflicting with testimony from the first time around and so this court cannot meaningfully review the b i's decision because it doesn't state to be threats to her life and that that was confirmed by the man mr ellery toe the b i's decision places a lot of emphasis on the fact that these were in direct threats but her declaration clarifies they were direct threats that she understood them to be  direct threats she also testified she became so afraid and stressed out that she couldn't sleep at night because she was having physical elements of the stress can afford to go to a doctor she would have supplemented her testimony with all these facts to show the credibility of these death threats however the evidence in the record as it stands is sufficient under this court's case law specifically and the key case here is rwanda versus ashcroft it is true that in a case the b i relied on limb versus ins this court held that an unfulfilled threat without something more quote something more would be insufficient to carry a claim of persecution but in rwanda versus ashcroft this court identified a number of factors that would allow an applicant to prove that something more one of them is close confrontation that's that's the case here she was confronted at her own face to face in front of her mother and daughter and that's not only  her testimony but her brother's declaration were her this is the case with her brothers who are her relatives who were persecuted her uncle was murdered by the gang and then she had two neighbors one neighbor was  murdered by the gang for failing to give up property and her entire family was murdered another neighbor was raped reported the rape to the police and then the gang hunger outside of her house with rope she used to gather wood and then the man her the man who had ties to the gang that came to mr bean or marilyn said they're going to kill you he was killed after she left for this confirmation and informing her of that and all of that evidence from the immigration judge first it's simply not the case that the immigration judge instructed that petitioner could not present testimony on the credible threat or on the fact of persecution on remand i point you to pages three seventy seventy three seventy eight of the administrative record it's clear there's no instruction to that effect secondly petitioner in fact did present evidence on the persecution issue she didn't two ways first she presented documentary evidence through both her declaration and a declaration of her mother to the immigration judge on remand secondly she also provided at least eight pages worth of direct testimony about evidence of the persecution and what the rows that level i pointed those are in pages  excuse me four zero two four ten of the ministry of record the declarations can be found at five thirty nine five forty six and third the evidence that she did gave as your question suggested robinson the fact that the evidence that she would have provided in the declaration that evidence would not have changed things materially most of the evidence simply elaborates or flushes out some details about the past persecution issue but none of the factors in there alternately would change the outcome of this case so  i don't understand what you are you are arguing that she could have presented further evidence and she didn't but the the b i a and the remained said that that she had had that seemed to affirm the original finding that she had demonstrated this persecution instructed that if she can establish membership in a social group based on her family relationship in that the government can't protect her then she's in entitle to relieve the shoes in time the presumption so why would she think that she had to put on additional evidence of past persecution even if she could she wasn't nobody said you can't do this but how why would she think that that was what she was supposed to do your honor the immigration judge did say that she would consider all the evidence in the original proceeding and she did allow the petitioner to established testimony on the nature of the persecution and i think regardless of what she may have thought the fact of the matter is she did present testimony on this evidence detailed testimony and we think the evidence that she would have presented that she claims she would presented that in her declaration summit on the motion to remand or reconsider that evidence wouldn't have changed the actual outcome of the case so regardless of what you may have thought we don't think there wouldn't have been there would have been an actual change had she presented this evidence hausa procedure let me just ask you in terms of the ruling that was made by the following remained was the ruling based on a lack of additional evidence or the evidence that was actually presented at the reaming and hearing it in the respective the past persecution issue your honor the immigration judge what she concluded on re manned was that this didn't rise to the level of persecution based on the evidence presented and i think it's critical that what happened here is that the evidence presented to the immigration judge in the first hearing and the evidence presented to her in the second hearing differed with respect to the thread issue so i would just point you on the first hearing to page eight sixteen of the administrative record where the immigration judge found that she had suffered past persecution because the gangster's on at least two different occasions threatened to quote take her out but on the remain and when she presented evidence on this issue it became clear that this differed from that finding in two respects first petitioner had been threatened on only one occasion and two that threat was indirect i point you to pages four zero seven and four thirty three of the declaration where was clear that on the second encounter petitioner had with the gangsters they told her they would hurt her boyfriend where it would hurt him the most and then she later discussed that with a neighbor l r rito who clarified that when they said that they meant they were going to hurt her so those are two very different accounts of the threats that she faced and i think that explains why the immigration judge concluded that she did not suffer immigration just say that no your honor no no but we don't alternately think that that matters because at the end of the day we don't see how petitioner suffered any prejudice here given that the evidence that she would have presented had she known that she could present more on the past persecution issue we don't think i would have materially changed anything why did she have to present any evidence to a finding that had already been made and affirmed by the be i don't get that i mean you the government didn't say hey let's redo the prior hearing it said let's go on to the next two factors didn't the government everybody proceed it and argued about the following two factors but mr b to remember did present evidence on the past persecution issue and the government cross examined her on that issue to the extent your honor is concerned about the law of the case question here i'd say that that doctrine doesn't apply here at least for two main reasons first we don't think can be imposed on immigration proceedings just as a general matter and second even if it did if you could it wouldn't help mr bean or romero here for concerned about the law of the case as much as i am about just fundamental fairness and due process because i just don't see how she could have known that she was supposed to reprove what the i j a had already said she proved in the end of the you're all right knowledge of those concerns but at the end of the day even the evidence that she would have put on we don't think that that would have risen to the level of a direct threat at all at that point and so so is it your position that she put on the evidence not in response to anything at the i j a standard that the government said that she  liked to put on the additional evidence of persecution yes your honor she came forward in such a she drove the train of this narrative and she set up her case establishing great detail eight pages worth of direct testimony and also submitted to declarations that went into great detail about the threats she faced and in doing so she reopened this issue and subject i don't know if she had she was supposed to prove that the government couldn't do anything that the government couldn't do anything about it within that one of the issues in some of this is relevant to the issues that she had to prove on on and i would think your honor it could have been but the fact of the matter is she did go into great detail and in doing so she had the opportunity to put this issue back and get her testimony out we just don't see how she was in any respect prejudiced by not having a chance to enter the evidence that was in the declaration i mean at the end of the day whether one considers the evidence in her declaration on the motion to reconsider or just the evidence that's in the record we don't think that would rise to past persecution in any event so to the extent your honor is concerned about any sort of fairness concerns or whatnot we just don't think that you don't think that an i j already found that the evidence that she put on in the first hearing did amount to that your honor if i did say that you know whatever she proved it was that we  not to judge credibility or anything and counsel your agency is called the united states department of justice not the united states department of winning and i think that any fair look at this would say the just result is to send it back and let her have if we're going to put that on the table let her have a full and fair opportunity to meet media but to say i mean as a as a judge or as a lawyer if i didn't know the rules going in i wouldn't feel like i got a fair shake and i don't see how miss her being a remarriage can feel if she got a fair shake your odds to address that concern i would point you against the fact that the evidence in the two separate hearings was dramatically different so we don't think that there's actually that much of a shock that the immigration judge in the first hearing concluded that oh we found threats here of rising to the level of past persecution because the evidence was based on testimony there and  finding that she was threatened on two separate occasions and that the threats were that the gang members would quote take her out on the second hearing she presented evidence and that testimony was subject to cross examination and during that pro ammunition it came out that she was threatened only one time and that threat was in direct she was told my gang members are going to hurt her boyfriend where it would hurt them the most i know i understand that's your version of it and your explanation for why and we just don't think in this context for all the various reasons whether for the evidence that would have been presented or what that the ultimate question is did these threats rise the level of past persecution and we don't think that they did and we think especially under the substantial evidence standard they don't so any ledge procedural error here would it most be harmless as a procedural matter i also wanted to ask you whether or not the issue of the inability to presume additional evidence was exhausted but she did not discuss this particular issue of being unable to present evidence in her papers and then when she did address this issue in the motion to reconsider again the evidence that she pointed to we don't think would have changed the result i think you know a few points on rebuttal your honour's first the government surmises that the i j a had concluded differently because the evidence in the record had changed over that's just a supposition there's no record of that nothing and i g s order specifically explains why there was a change on this issue nor is there one in the b i order and this court doesn't have a record that it can mean fully review and come to that conclusion can't do we have a record that we can review to determine whether or not substantial evidence standard and in all of them it shows that if you prove if you have if the applicant faces death threats and there are some indications of credibility to those death threats including many of the cases talk about murders of family members or neighbors  such as cup versus ashcroft mendoza public versus holder and so this court does have there is enough evidence in the record for this court to reverse on the substantial evidence standard that the problem is on the substantial evidence standard if the evidence can go in the mentions three factors that you can prove to show something more in combination with a death threats to carry or claim any one of them is sufficient she's proven all three close confrontation continued interest by her persecutors and murders of other people around her do you consider this to be a direct threat or an indirect that your honor this is a direct threat in the government areas and characterizing it as an indirect threat she she answered one question about that that the government points to the all she was clarifying there was that the persecutors didn't say the magic words to her we will kill you but she understood the term were going to hurt mr bonior work hurt you the most to be a threat of harm to her and then it was confirmed to her by mr ellery toe and so there is no direct threat there  specifically ignoring her own instructions she uses the words due process in a footnote and so reading this in conclusion i think that the exhaustion standard is just that it has to be i who decide to refer to the law of the case argument i think the if i understand of the v i i constitutional questions are not for me to decide so yes your honor and even the relationship of the two records was clearly before her motion to reopen can be granted if she was precluded from presenting evidence the motion to reopen isn't isn't raising the issue to the yes the motion to reopen this is her telling the b i that she was unable to present this evidence to be i should have granted that and even though the government raises materiality it's import to know that the b i never addressed the materiality of the new evidence in her declaration so this court should not even review that determination if at the very least this court can remain and on the motion to reopen as an abuse of discretion by the b i a because she did argue that she was unable to present evidence however in the brief to the b i argued that this was a fundamental unfairness because of the b i's order in those order a lack of due process an inability to present evidence as well as a violation of law of the case and any one of those procedural errors can be the basis for this court granting the petition for view and remaining to be ice with a b i can get this right with the