next case on the calendar today is number sixteen fourteen seventy four flotus and u s s france's sessions conclusion based on multiple instances of flawed reasoning and misunderstanding of the record i think we have to start with the basic standard for a well founded fear which according to this court's case law is a whichever of those formulations you use on the facts of this case where someone has credibly testified that you have a known murderous gang from whom an expert who's also credible believes they're in danger who's attacked and sought to break into their house and sent them repeated death threats i think the idea that a reasonable person would not be afraid under those circumstances the issue that the agency went on is not that there wasn't a gang but th the presence of a gang and even fear of a gang isn't a ground for defeating removal unless there's some indication the police are indifferent who are encouraged i can certainly jump to that your honor i had thought they also believed that his fear wasn't well founded but i can certainly jump to the unable or unwilling to prevent issue well let me ask one question about the well founded fear how should we deal with the passage of time and the events here occurred in twenty eleven it's now twenty  nlike some of the immutable characteristics in which we've dealt with prior asylum cases this seems maybe passing is there still or do we need to find that there's still a well founded fear of persecution i think we need to find that there's at least was still at the time of the immigration judge's decision i think the issue of a record of time passing since a record was created is one that's unfortunately unavoidable in a prolonged system of appellate review and doesn't get held against my client but i think what we need to find again goes back to that low bar we only need to find that as of the immigration judge's decision a reasonable person would still be afraid and when the only reason that the gang stops threatening you is that they find out that they learned that i took off as he testified a one for and since as we've explained in the briefs this is at least predominantly only an armed gang in peru i think there's one instance in the record that we didn't catch one briefing of a robbery in bolivia which the court can take notice is right next to peru no evidence that the calls after that right that they were trying to figure out when he's coming back is he coming home for christmas he going to return to peru with there were calls to a point and then they learn thousand and twelve and then they learn that he took off and they did they learned took off so it's just your client that's my client's phrasing one of the issues here is how does he know that they learned that well since his testimony was found credible i think if the government had wanted to cross examine further on the question of whether he had how he knew the time to do that would have been in the proceedings before the agency i think it would be perhaps as your honor says it would have been open to the judge the immigration judge to say that there was some issue with his credibility as to that assertion but i didn't say that he didn't offer any basis as to what what was the source o what was the basis for his conclusion right it's certainly i would say implicit in the record he did testify as we pointed out in a slightly different context that these gang members are in his immediate area are well known criminals in his area some of them are just blocks away i don't think it takes a great leap of sermonize to see how people just blocks away would have learned that he had fled and that may be why the government chose not to explore the issue further on cross examination below once he has credibly testified to this i think that it's it becomes part of the the factual record it's not something that we can now say that we disagree with is the third circuit in a case we cited caution that the court has to be careful to or the agency rather has to be careful to correctly represent what the credible response testified to and i think this court has also held similarly the issue with respect to our neighbor lauren willing to prevent i think there are a few errors that were made here by the agency one is this reasoning or that we highlighted in our brief that later comes up in results just where the court of appeals for the first circuit also says you can't conflate unable and unwilling there are certainly reasons to think they may be unwilling they were given this information to do anything there's certainly speculation about the motive whether political or being paid off for corruption but even if one thinks that the corruption was slightly reduced that doesn't go to the idea that they're somehow more able there's very backward language yes i mean they responded to his call to the police or his mother's call to the police correct they came and took it came to his house correct report yes and they took photographs ye said they were going to investigate yes and that's the last communication he ever had with anybody there right and then what he has again credibly testified is that they had the he gave information as to the whereabouts of the band they knew where to find them and they never did not me and so if i if i called in and one p d and said i know who threw a rock through my window you should arrest them and they don't and then the museum like it is unwilling or unable to investigate i think it's one factor in the pattern i think when you have that against the background of background materials that specifically say that there are that there are often unable to respond to calls for service incapable of proactively deterring and investigating crimes cording to many crime victims police merely go through the motions when taking crime incapable or unwilling in most instances to conduct meaningful investigations and rarely arrest perpetrators that's four hundred for a one in any case involving peru doesn't get a case by case analysis we just presume that they are inco i'm saying both of these things are relevant factors pointing in the same direction i'm saying the case by case analysis goes to the fact that he gave them the whereabouts and they didn't do anything with them how do you know that again he's testified credibly to this it doesn't what i'm sorry i didn't mean that didn't you say well i asked you how do you know they didn't do anything and i'm wondering is the answer because they didn't catch them not just that because they didn't catch them knowing where they were having been told where they were and again he's credibly testified to this and he had an obvious way of knowing it which the government could have explored further on cross examination when she was asked have you or your stepfather followed up in regard to the complaints his answer was no yes he hasn't gone back to the police who he thinks gave away this information to the gang who didn't come and follow up with him to whom he gave the information about where the gang members were and these are gang members that are close by in his neighborhood so again it doesn't take a great leap of imagination to see how he would have known that they were still at liberty in his neighborhood especially because he was also still getting phone calls from them how many times did the police come to the home i believe it was only the one time that they came and took the photographs and until they come before th in response to a call they had well it depends which investigation we're talking about they had come freeview asli i believe when he was reporting although i'd have to double check the record to be sure i don't want to misrepresent but when he was reporting the initial crime there was certainly interaction with the police the crime to which he was a witness they came and took a report then as to the attack on the house but the attack on the house i think is the major incident also by the way as to past persecution which i can address further if your honour's would like where the novo review do these facts establish past persecution two photos of the damage yes they took photos of the the i j a mentioned that the b i a didn't rely on that perhaps because that doesn't seem very different than merely taking a report which is what had happened in this case the report did come with some photographs but where he's credibly testified that he gave them information about where to find these perpetrators and they never did and where the background material didn't even see the perpetrators testimony was he didn't see it he was in a different room when he saw that there were rocks thrown through windows but when i say perpetrators he had seen remember the burglaries his friend's house where this all started you saw one person in the us so if but if one member of a known gang threatened if a gang threatens you for witnessing a crime against one of their members and you know that there were multiple people breaking into your house it again i think then later after i talk to the police somebody throws bricks through my window and says they're going to mess me up and i say in hell's angels hang out at this bar on seventh avenue you go arrest and that's you think that would be enough for the police to go do that had committed the burglary and if the threats didn't just say i'm going to mess you up that says we know you went to the police we know you're a snitch let me give you probable cause you think to arrest somebody at the seventh avenue baugh i think i have to admit i'm not as acquainted with the details of the hell's angels but if the hells angels are a known gang that you know murders people and commits these various primes as the credible expert testimony that with enough to arrest in peru that would be enough to arrest you think i think if you're a member of a known criminal organization where you people have you threaten someone with death and not just threatened by the way attacked the house in a way that i think this goes to imminence of threat on the past persecution question and i think we've had it when we were jumping from a sorry so i'm sorry your honor i think that on on the background of this case where the threats and the attack specifically referenced the crime that you had witnessed being committed by a member of this gang in your area at the very least it would be a reason to go  that particular gang member who had committed the crime and who apparently instigated the threats against you since they referenced your snitching on him whether it would be a reason to arrest other members of the same gang at least for further investigation i would think so but i don't think you even need to get that far we at least know as to this initial perpetrator you could infer that the individual who did the robbery is also the individual who threw the rocks or is at least devolved in causing the rocks to be thrown given that the rocks that are thrown and the associated note threaten my client with death as a snitch for reporting against the crime committed by the initial gang member if you call the police to say they're still calling me they're calling every day or every other day to be called the police incident which came with the threats i don't know that it goes into detail about exactly which of the prior threats he reported but we know that he reported this major november fifteenth incident and one of the calls and that was that there were calls after that and did he report close t i think there were not separate reports and the police also as he said did not come to follow up on him and what he had left by then happened for some of the calls i think what his honor may have been referring to was there was an interval between when he was attacked in his house or his house was attacked rather there was an interval between when his house was attacked and when he departed during which he essentially remained in hiding because that point it had become apparent that they had detailed information about his whereabouts that they hadn't not revealed before nexus and there was of the social group of involuntary informant and i wondered what you have to say about the attorney general's recent decision and matter of which seems to cast doubt on the validity of asylum claims they're predicated on gang related persecution and such is a municipal characteristic in a group as you would be relying on here if if we were to agree with you otherwise wouldn't we still need to ask the b i had to take a look at the application of matter of a p first i think not only the b i a but i think it would have to go back to the i j a if there were riemann because there would need to be further fact finding if the agency want to do apply the new rubric to the extent it is a new rubric matter  g which may be overturned pertained to domestic violence and not gang cases so there is an open question as i mentioned in the twenty eight day letter in the other context of unable or unwilling to prevent there's an open question of the extent to which a b is altering the law rather than sort of a fairly broad pronouncements about the nature of particular social groups that would support such a claim as your claim of it's made certainly does and i agree that it may be open to the agency on remand to re address that issue i do think that because the immigration judge found in our favor use the word assumed it's arguably an assumption he then goes into some detail in the footnote about why it seems likely that we may have met that requirement but i agree he does use the word assume so that may be a basis to  immigration judge and have the immigration judge reexamine his assumption in light of the new case although there's also an issue as we mentioned on twenty eight j letter of whether that new caseload applied proactively but all of those are issues that might be open to the agency re manned they're not i think open as a basis for sustaining the agency's decision under channel really because they're not something that the agency relied on below and in fact when the government cited a b and its twenty eight j letter it only cited it on the unable or unwilling to prevent points so evidently even the government doesn't think that this court can kind of go back down to something that the immigration judge at least assumed in our favor in that footnote and say instead you know that we would lose on that point i agree it might be an issue open for further analysis here from the government may have please the court matthew george for the attorney general this case is about the inferences and extrapolations that may or may not be drawn from the evidence in this case if you look at the actual record evidence it's not written anywhere near as extent as petitioners baking it out to be for example with respect to the phone call stopping in july two thousand and twelve petitioner did first testify that they stopped because they learned that i took off and this is it page one forty he then said i don't know if their interest is gone for me things change another relevant point is that no one has ever followed up with the police after at least three encounters with them first when they came to his house after the initial robbery when he was identified as a witness second when he went to the police station and followed a report after the first threatening note he received and then third after the window breaking incident when the police came to his house and took pictures and did a report an investigation and so on the at the i j a seemed to take a mess that mr forcing yourself hadn't followed up after he got into the united states and i find that a little surprising that you'd expect having felt as he credibly said that he did that he felt persecuted and threatened by this ongoing behavior in which the police had not put a stop to while he was in country why would he necessarily make a call or go back to see if they had arrested those who you know had perpetrated the that harassment honor it's certainly not his burden or obligation to follow we just simply don't have that evidence in this case and that's what the agency is pointing to here we just don't know what the police did i mean petitioner left approximately a month after the rock throwing incident so we don't know what you believe that he testified credibly that he was hiding in his house during that time he lost his job or quit his job and felt based on we saw some documentary evidence and other photographic evidence that he had in fact been the subject of some fairly aggressive harassment and threats and surely we don't have to wait for the threats to be fulfilled for him to have defined that he had a well founded appear persecution and he was in contact you know periodically with the police while he was there yet the threats continued so what more should he have been doing well all of this kind of goes to that question all we have are unfulfilled threats which this court and many others say you did more than unfulfilled threats that it was not just the words i mean it was an aggression on his house that was fairly destructive and we're not saying that wasn't intimidating or harassing or uncomfortable or unpleasant or or anything like that however it doesn't amount to persecution and it doesn't give rise to a level of persecution in terms of a well founded fear because it's not aggressive enough direct there's no physical harm i mean this was just an act to intimidate and nothing happened in the month approximately month that petitioner remained in the country after that one of the rocks that was struck this house had hit him and given him a concussion with that had been enough that  have been i mean that would be a different fact that the agency would have to consider that would perhaps show more than just an act of intimidation the point is we need to see more than intimidation or harassment we need to see that these threats are credible that they're not just idle threats on a flip phone calls that are placed with no actual real world consequences attached to them is there anything on the record to indicate that position or agreed to testify with respect to the robbery no i don't think there's anything of it at that level your honor it seems that he just gave information to the police he told his mother he wanted to stay at home and his mother called the police right i believe he had first had a conversation with his stepfather who advised him not to get involved he then i remembered he told the friend's parents or if his family told the friend's parents and the parents these are the parents of the person who was robbed they went to the police and then the police came to his house and took a statement is it correct one of the threats was  who's here the threats were unfulfilled and i'm just wondering if you want to defend proposition that an unfulfilled death threat doesn't count as past persecution no your honor that's really it must be fulfilled before you can complain it doesn't need to be fulfilled it needs to be sufficiently imminent or concrete if i didn't say it's not sufficiently they said the threats were unfulfilled they didn't say these are not concrete threats were on the belief that he was on the field and i'm just wondering if you really want to defend that position as an abstract matter yes unfulfilled threats are not persons you have threat yes you are you have to die before you could complain no well then then how does it get fulfilled the base has to be sufficiently eminent or concrete if someone which you're free to disown if you wish to but i'm going to be surprised i'll tell you if you're going to stand there and say oh yes even an unfulfilled death threat doesn't count an unfulfilled threat that's not sufficiently imminent  has just pointed out about unfulfilled threats because it also makes no sense to me but i heard you say that it doesn't constitute past persecution might mean it still constitute evidence of a well founded fear of future persecution yes ok yes it does come into play in terms of the well founded fear consideration that is a factor to be considered so the fact that it was unfulfilled has maybe some bearing on how seriously  take it but still if you're getting death threats daily one might have a well founded fear of future persecution isn't that right and in a general sense yes in this case no you know even though they would think the additional aggression and assault on his house and the perpetrators were in or near by and the applicant and the petitioner here testified credibly that he drew the inference from the course of events that the police themselves had informed the perpetrator or the alleged perpetrator of his cooperation and witness of the testimony he gave so that the police weren't suspect and  a found that that was scrabbles not right the i did find her credible he also testified that he was not sure if the perpetrator of the robbery actually solve him so it's possible that he was seen observing the crime and that's how this nexus here or not in terms of nexus the agencies assumed it or made that decision and took it out of play so in terms of this appeal it's not really before the court now if the court we should treat it as established for evidence in the record that he agreed to testify is that correct that's correct and is there anything in the record in any case what the statue of limitations is on a robbery in peru no your honor not that i've seen there's nothing about police investigations  police conduct their business in peru again all the information we have is the rock throwing incident happened on november fifteenth he was out of the country on december eleventh we have no idea that you agree that gang violence if tolerated or condoned by the police counts but in this case it wasn't shown that it was tolerated or can i take no position on the nexus finding other than the agency found there was a nexus here but but does the nexus go to gang violence or police toleration of i believe the gratian judge talked about being an informant i'm not really sure exactly what nexis the immigration judge believed existed however that issue was decided and not for the litigated because i made myself clear that you agree that we don't need to remain for reconsideration of whether there's a nexus or satisfaction here correct ok and i want to know what it is that your agreement you are you only agreeing that gang violence if tolerated or condone counts are you agreeing that even if it is if it is tolerate or condone it's that's that's so in this case i can't make any statement you're on or about i thought and i thought to be i as a position and the government's position was there's not enough evidence that the police either tolerated or condone gang violence in this case or are we speaking about nexus are we speaking about unable or unwilling or i want to make sure i'm answering your honour's question what i don't want to put a label on it i'm trying to see what you agree in your colloquy do you agree still that the b i e takes the position and took it in this case that there wasn't sufficient evidence of police policy ration or encouragement of the violence is that your position he didn't follow up he didn't investigate he didn't testify well that the the board also cited the specific things the police did in this case as evidence enters a hand but i thought that i'd let me thank you understandably think i'm giving you a hard time which is a common feeling among litigants but i'm trying to understand is it the government's position that this decision is correct because there's insufficient evidence of either police think if i'm understanding your question correctly and just to kind of expand on that to sort of show where i'm coming from on that question the yes there is evidence in the record about police corruption and gang influence and all that but the the agency has cited th specific things that the police did in this case is countering that and so i don't know that we're looking just at the level of corruption or level of influence we're also looking at the particular facts and things that the police did in this case as countering the more general evidence so that their bottom line is there is not enough evidence of police condemnation or encourage this episode as a general statement that sounds correct but i'm not i'm not binding the agency to that  all right i don't know why you would first circuit pointed to in rizal is just oh it's unable or unwilling they can be unable even if one assumes although i think counter factually that they're willing and there's abundant background evidence in the o s a c report that i had quoted in the expert report in the country conditions background all of their on able in this regard most of whether they're also on one of their inability sorry on or just rely on that in any case involving peru we just know the cops are unable to do stuff and we do so we don't even need to consider any case by case basis no i think we start with perhaps a presumption against them i think if they had done something clearly effective one could perhaps say ok but this case isn't like that what i read keep wondering what you think you could do i can point to what the n y p d would do when witness who is not prepared to testify and who has only seen one person do a robbery didn't see anybody throw a rock through his window and i'm not sure you think that we go out and arrest people based on that i think first of all i don't think the record says he wasn't really prepared to testify about his attacks on his house as it is an indicator prepared to testify about anything he went on reported he didn't get to the point i think of there being a judicial proceeding where he could decide to or not although the friend said he cooperated in all proceedings that did happen that's in the record there wasn't a trial where you could say got up on the standard not but he did cooperate in the proceedings that the police did hold on the robbery but yes i think that if the n y p d was told you know i reported that i thought gang member x committed a robbery of my friend's house and then i got death threats and an attack on my house and rocks thrown through my window when people tried to break into my house that they would then go and take some action in terms of arresting the person who had been part of the robbery and presumably part of the threats as well since it's the same gang and their referencing the snitching i also think just to address that quote that the government had about i don't know if their interest is gone he doesn't have to know again the question is is there  reasonable possibility would a reasonable person be afraid forthrightly admitting you're not certain exactly how much danger you're in doesn't mean that it wouldn't be reasonable to have a fear doesn't mean that this less than ten percent  also think your honor's point about what a death threat would have to have to be fulfilled is a very good one i think even the government conceded that concrete an imminent threats can be passed persecution and i think for the reasons we set out in the brief this one is it's very concrete and imminent it's an attempt to break into his house and when it when people who are threatening to kill you attempt to break into your house it may not be exactly clear whether their intent was to kill you or beat you up i think it's fair to infer if they're threatening you with death and trying to break into your house they were probably planning on doing something fairly bad if they had gotten in if they could just want to deliver threats shouldn't they have just left a note under the door not tried to break into the house or no maybe i'm a victim of my own experience but it seems to me gambino those and other criminal organizations don't generally leave no they don't generally me cause it's this seems like it's designed to intimidate to prevent someone from cooperating not designed to kill if you only want to intimidate someone i'm not sure why you and why you attempt to break into their house which again credibly testified is what they did this isn't a question like an a m of a painted threat on the door i think the fact that there was an actual physical attack with property damage with an attempt to break into his house is significant i don't think we need to prevail on whether it's past persecution but i think it is and i think also the government's repeated reference to the substantial evidence standard whether or not it applies to the other components of the case where i do think that you have to remain on them to resolve and on young chen for  of reasoning and errors of perceiving the record even before reaching a final substantial evidence analysis but on past persecution this is not a substantial evidence case according to whether these given facts established past persecution is a mixed question of fact  a the agency doesn't have to be agree just lee wrong on that point they merely have to be wrong and we think they are because the government has conceded that concrete an imminent threats and the ports have held the concrete and imminent threat be persecution i think based on the fourth circuit and etc death threats at the very least have a sort of lower threshold because they know that if a death threat is at all imminent and concrete as opposed to somebody painted something on your house one does have the logical problem in seeking to make it more concrete that as your honor pointed out if one waited until it was fulfilled the person would be dead so i think imminent in concrete for a death threat has to be defined in a slightly more relaxed way to avoid that anomaly and i think that threshold met here when you have threats of death accompanied by an actual attack on someone's house an attempt to break into their house and rocks thrown as part of that attack that threatened him with death for being a snitch so that we know that that was the basis of the attack and i don't think he had indicated as i say in any conclusive fashion that he was unwilling to testify i think the record shows that he had cooperated to the point that the investigation got and that there wasn't a trial where you could see and that's different from whether he was initially interested by the way your honor i think the point of confusion here may be that yes he didn't want to go to the police in the first place to report this robbery but having done so he you know once it was put to him you know we have been told that you were the witness he did cooperate with them there is as i say because there's discussion in the record about this if your honor would like i could send a twenty eight year letter with the exact citation that i remember this discussion record of what's on the hearing yes and that's i'm saying there's a discussion in the hearing about did you you know when you when you when you told the police about this what does this mean this paper you know the friend says you cooperated with all judicially relevant available procedures or plenty of your time thank you so much thank you both we will reserve decision