time this case involves essentially two distinct appeals one challenges the reinstatement order itself on civil grounds the other the finding by the immigration judge that mr me he had failed to demonstrate a reasonable fear of persecution or torture that would warrant a full hearing on his withholding and cat claims given the court's denial of a motion to supplement i will only be addressing the th amendment issue regarding rule of ability and will then move on to the reasonable fear issue regarding the violation of the th amendment and the regulation the instant case is almost on all fours with this court's two thousand and eighteen decision in sanchez versus sessions in senses this court c sixty license constitute racial profiling i mean believe went he were in a base where he has to identify himself right doing it and we believe that the eight thousand and sixty like oh it's not like someone pulled him over you know he initiated the contact he wanted to go work there he knew he had to show identification and maybe sixty is not it's not exactly the same as some other types of identification well you're on to thousands of us citizens that say well hey i'd like to know a little more i don't think that's reasonable suspicion of being in the country unlawfully and that's what's required under both the constitution and the regulations he was if i were if a white person had gone in there if i had and show navy sixty license i can tell you that i would not have been put in the room and had immigration can you know that how do you know what wasn't there a step an interim step that he came back false or wasn't there is some indication was there any indication that the that the license was not valid no there was none none whatsoever none whatsoever so all that he knew was he presented his license and he was latino and that is not reasonable suspicion based on specific kickable facts that is a race base stopped in detention and what he was will we have to people often a lot of our immigration proceedings are not just latinos i mean we have people we have people from russia we have people we have we have patients we have we have all over so if if a person has an a b sixty and a b sixty s are given to people that have no legal status and i can't why can't they check to see whether a person you know i mean if a person does not have legal status did they have to let them on the base they well st of all the the jets it into could you answer her question i actually don't know the air force base rules on that but they don't have any power to enforce u s immigration laws do not authorized to do that they cannot make a stop based on immigration issues so the the  the air force is not entitled and martinez from medina says that being in the united states illegally is not a crime they do not have power under the regulations of the statute to enforce u s immigration laws they're not allowed to do that appeals the certified record of proceedings which is what was submitted as the record shows that the eye to eye to thirteen is what was stated as to vectored and that shows that the a b sixty license was submitted the record the sacramento bee article which was submitted as a as an exhibit with the discretion with the as reasonable fear determination is not part of the certified record of the scenes as just as this court said to us we cannot supplement the record the government cannot use that which is not part of the certified record of proceeding on the reinstatement part that's sort of identified as part of the certified administrate record to us if we got the materials it was identified as part you leave that what is your closest case authority to support the proposition that this is an egregious violation of the th amendment sanchez your honor it was race based we believe that like i said  demonstrated in order to obtain a full hearing with witnesses counsel etc the applicant only needs to show a reasonable possibility of persecution not the clear probability of persecution needed to ultimately be granted withholding your cat in your view what's the record the administrative record regarding the reasonable fear issue it is the in tire certified administrative so the sacramento bee article is part of that record correct you  so there are three areas at least at the immigration judge made him regarding that st she improperly rejected in some cases completely failed to analyze petitioners social groups nd in both or withholding and cat analysis she failed to consider at all important evidence that supported petitions claim and rd she applied an incorrect standard in analyzing the acquiescence issue relevant to the cat claim now as to the particular social groups the i j a completely failed social groups the wealthy landowners and police go every turning mexicans known to media and family members in the united states as to the landowners issue which is court initially gave notice it was batching the i j a completely failed to discuss the social group at all except to say that membership in such a group cannot form a basis for withholding claims but that is completely contrary to this  what is the view of the persecutor is that a recognized entity group in in here and dr speck testified that it was and so did dr bormann that mexicans returning from the us disappear at an alarming frequency dr spect testimony at the current twenty four to twenty seven said that they are targeted due to their status as wealthy landowners and what what any v g said is you look to see what happens in that area you look to important factor when you look at that of what happens and and that is key to the issue of particular source i thought in france we said the most important factor is whether or not the society that is whether or look at the facts and so the expert testified that wealthy landowners are persecuted as a group that's and then that it's an expert opinion crowd that's what the evidence but the important point here your honor is that the judge didn't consider that the judge didn't look at the evidence w court has said and b a a has said you've got to look at the evidence and all the court did was say it can't be a particular social group so we believe what's appropriate here is we manned to the court for a full hearing on this where evidence could be presented and where the issue can be fully vetted she did not assess the evidence and she had to say i don't have weighed i said there is evidence that can be presented to support your position why should we remained there there is evidence and that what the court did not look at is the government's is the experts testimony regarding that the court the immigration judge did not consider that at all and this court has directed the immigration judge to consider the evidence and that informs fit to social group you wanted to stay the ass from i'm having i'm not making a total connect with how that would affect your case because it's really this is not in hey b s here and terrorists  be reminded that's our position i think you coun it please the court my name is don conrad and i'm here today on behalf of the u s attorney general do you just as reinstatement of petitioner's two thousand and one expedited removal order was proper and the record does not compel the conclusion that petitioner stablish a reasonable possibility of persecution or torture in mexico i'd like to address some of the things that were raised during petitioners opening argument and petitioner st addressed th amendment claim which we would argue has never been presented to the agency or below we have no evidence of this in this record where did it have to be if it's a constitutional claim well we would argue there's pretty pretentious reasons it's not mandatory exhaustion but there are potential reasons to present that claim because it would have given the officer the da just officer an opportunity to decide whether they should consider that and putting him either to forty proceedings or in putting them  petition for you well i would just say a similar case is that like th amendment due process claims are usually process is different ok perceivable due process is different because the board the agency could rectify that only mean it but the record is what it is in terms of what happened in the th the min that issues act do you have a case that says in that context we lacked jurisdiction to decide the issue no your honor right so has i think the petitioners issue is basically says it all he only it's a great just because it only happened to him because he's latino so and i asked questions about that i say wasn't pulled over he wanted to do work on the base care since you have to if you want to go on the base i can't go on the base without complying with that ever they want so what what what's in the record well the record does not support his allegation that there was any th amendment violation much less egregious violation do you agree with opposing counsel that the record is chunky that we can only look at a portion of no you honor we believe you can look at the entire administrative record from both proceedings we have both the reasonable fear proceedings and the record of proceedings in the reinstatement and he actually submitted those newspaper articles were submitted by petition before the immigration court but there is perfect perfectly reasonable reasons for national security and other purposes that everyone who enters a military base has to show identification and there's reasonable reasons why you would have would want to investigate further when someone produces an a b sixty license because under california law that means you do not necessarily are not able to establish lawful status in the united states well if you're not lawful are you allowed to go on the base i don't know the answer to that your honor because none of that's in the record we don't have like what the proceedings are before the like the air force base usual proceedings and such a situation that's not in the record what's your response to the polls in council's position that these military thistles were not authorized to enforce immigration law and therefore they valet that the th amendment  negotiating his detention so i would say we don't have evidence that he was detained until we got evidence back from v h s showing that he had a prior order of removal at that point they did hold him  s could investigate further but we would say that they're permitted to do that under much like the he relies on sanchez much like the coast guard was permitted under two hundred and eighty seven a c and eighty seven point eight b once you have a reasonable suspicion that an immigrant is an alien is a legally present the united states immigration officer may briefly detain the person for questioning so all they did was briefly detain him until the ice officers could come and question him further did may he ever have a chance to challenge his underlying expedited order on due process grounds yes he would have been able to file a hate b s petition at some point before his proceeding was chance to inform the agency of his personal merit we don't know that your honor because the that stuff's not in the record you mean his due process claims well i mean he basically he'd been here a long time right i mean there were a lot of he could say a lot of positive things about himself and so he really didn't he has counsel did not since we weren't didn't allow the record to be supplemented we didn't allow additional things so in terms of the rate and statement procedure what is your position as to what's required our position is he received everything that's required and i was required you have the opportunity i believe to be questioned and he also had the opportunity to consult with counsel which he waived and then you have the opportunity to make a statement contesting the reinstatement before the d h s s officer and the t h s officer has the ability to consider that statement in deciding whether to reinstate his removal order did you really waive the counsel to do any kind of raised maybe i should get a lawyer  said lawyer can't help you out there's nothing there but that's based on his extra record statement that's not what we have in the record so and this court no has denied that statement into the record so what we have in the record shows that did he did he what he did agree to be questioned without counsel present he asking for gas from the standpoint right now in terms of is he asking for something more in that procedure then is set out in the statutory s basically as far as i can tell he just wants to be able to be placed into forty proceedings but that doesn't change the fact that that's a discretionary determination that this court doesn't have jurisdiction to review and that court this court has held that in many cases that is a purely discretionary determination so if you can't if if we're not augmentin the record then and then we go to the rest but you're saying that the decisions discretionary so it's not reviewable that's correct yes so basically and this case the immigration judge in the reasonable fear proceedings rejected without using the specific term landowner she rejected his st t  st and rd proposed social group as not being i believe considered particular but she also i think which i think we got away from in petitioners opening argument rejected all of his claims for not showing that it was on account of a particular social group so i would like to address that st because there's no evidence of nexus in this case whatsoever even if there is a particular social group of wealthy landowners he has not shown that he is a member of that group or that he will be targeted or there's any particular allies threat against him in mexico because of that there has never been a threat against him there has not been a threat against his parents who are the allegedly land owners i'm assuming although we don't even have that from this record we don't know what their status is with their house if that they own the house how much of the house they own i would say as to landowners i don't believe even though she doesn't specifically address that i don't believe that requires re manned because of the nexus issue and also the lack of particulars threat but i would also say landowners is very fact specific following any b g and this record does not establish that that group is a particular social group based on the evidence that we have in this record this kind of i'm a trial judge and i feel happier and happier to not be involved only in immigration  trial judges also look at equities and try to do justice in individual cases do you think mr may he really deserved to be summarily reinstated with an old removal order without looking at his family situation his work situation his life here in the united states i understand your concern your honor it does seem a bit perhaps unfair in these reinstatement cases but that is sort of what congress intended because it's easy to lose sight side of the fact that with these reinstatement cases where you say your name what they intended or what they intended i'm sorry what sort of what congress intended or what they what they intended i mean if congress if congress and is intended to be heartless and we have to follow the law then you're saying he's sympathetic and that's what congress intended but if it's sort of what congress intended right then what sort of else is there no you're what what congress intended with these reinstatement cases is a is the streamline procedure ok where there is just basically actually congress a statute says there's no review and there's no relief from removal and these reinstatement proceedings but obviously with beef with withholding the removal and convention against torture protection those are mandatory forms of relief so we have reasonable regulations that have been probably gated to protect those interests but with someone who has really entered the country after removal there is a strong interest in having streamline proceedings that  that moved quickly and that did not give the petitioner a full like merits hearing like he would have into forty proceedings now that being said he is not without remedy because he could have spoken to the d h s s officer about his concerns and they could have maybe made that discretionary determination to be placed into forty and he can also submit a request for prosecutorial discretion long enough they can win a nobel peace prize too but so that's but it is that decision we agree but the issue is that he was his counsel if he hadn't been denied the right to counsel could have made the pitch and that's