our first case today is look as cruz versus attorney general number eighteen dash one six one fo granted your honors were here this morning for four primary reasons concerning the board of immigration appeals reversal of an immigration judge just decision granting this tomorrow as lopez  united states we believe that the cia misapplied the clear error standard of review we believe that the board impermissibly engaged in fact finding and assuming that we should the fact that the respondent was the victim of her assailant scrim a comic does not necessarily establish a nexus between the harm and a protected ground in the absence of evidence that the respondent would not have been treated in the same manner had she not held the status of a household we discern clear air etc clear error in the finding of nexus that statement appears to be just a pure statement of law a statement that logically even if you accept everything that the immigration judge said it doesn't link up and prove a nexus now how is how is the b i am if i'm mistaken about that explain how saying i don't see the logical link b i a says i don't see a logical link how is that fact finding your honor we believe that fact finding because there's a there's an interim ration ship in the board's decision and then the board's error between it's i suppose the best way to look at it is our position is that the board has essentially skipped a step in its reasoning in iraq i've got the  the conclusion of clear error with no analysis or explanation of how it came to that conclusion there's a one sentence it's giving you it's in that sentence is the is the premise of the premises as well as the conclusion why isn't it what is missing what's the step this missing if it's if it says in effect ok we take everything immigration judge says is true but even if all that's true it doesn't prove there's a nexus between the particular social group of young female head of household and the alleged fear of persecution because  this the the activities and actions of the purported persecutors would be the same whether she was the head of household or not it has to do with her being a young female and has nothing to do with her being a head of household that's that all seems to me in that sentence were where's the where's the logical flaw in that the logical flaw your honor is that there is record evidence showing that there is a connection between the persecutors motives  and his lopez cruises status as head of household she testified to the fact that she was directly afraid of her persecutors because she was without male protection she testified to that fact in writing in her declaration there is  record evidence from the state department all that doesn't that just doesn't it conflate circumstance and cause it's it is it is true that the lack of a male protector figure in that home facilitated the bad action of the male needs but that doesn't make the lack of a male in the home because of the bad action that's that's what has to be right has to be the nexus has to show their song some cause causal relation yes and the cause of relationship your honor is that if these were truly criminal actions as a as a matter of logic why would the criminals continually unsuccessfully target the same victim if they didn't have a reason beyond a criminal motive police believe the criminal piece out of it just take this is  ht up whether it's criminal wonder behavior under honduran law or our lawn or not just their behavior is what it is that the posit this if she'd had an older sister who was the head of the household is there any demonstration that she would have been free of the sexual harassment and intimidation no you're out of there is not but then isn't that the point that the is making it doesn't have anything to do with her being head of household it has to do with her being a young female no your honor we believe that the record in this case demonstrates that the that the cause the root cause of the threatened sexual violence and physical violence has to do with the fact that there is no protector in the house and that the assailants knew this and targeted mr cruz because of that i'm going to say assume assume they found it yet there's nobody there saber let's go get her that doesn't have to do with head of household that has to do with no male in the house if there were another female who were the head of household there's no indication she would just as have been the target that's the that's what i take to be i e to be sane and i'm not maybe we're not community but what is what is it about being ahead of how i don't think anybody next door there's no indication the record that any been extorted said she's the head of household that makes her extra attractive i'm going to harass her more but you know there's the you keep point to the fact that there's no male but there could have been another female at a household and she's still would just as much have been a target of these  guys unwanted and agreed to sleep bad advances but i think that the border on a has defacto recognized head of household is relevant in this case because without that factor included in the particular social group it would likely fail under matter and e g because the weight that does the fact that you can't get there your client get there by just saying young female doesn't mean that by narrowing the group with head of household there's a nexus it's true it makes to protect them for sake of argument it makes it a particular social group but having made it a particular social group does not in and of itself then create the nexus you gotta make the nexus least in part to one central motive the court performed chevron analysis on the changes to the real id act and articulated that there is not a hierarchy of motives so nexus is established if there sorry it is a play but we're standard i don't believe it did no i think that that case was alternately decided on the basis of the fact that there were changing narratives in the in the petitioners claim saying before the asylum office that he was not homosexual later changing his claim to say that he was i don't believe that our case contains such similar  changes in there when you come back if you could just lay out specifically because you could you could see there's a concern about the about the particular social group you just mentioned the report in her testimony if you want to think about it  if we could lay out specifically what the record supports the your contention about the particular social group is your female heads of house ok thank you thank you is the government doesn't make any of them raise of this is a case that needs to be dismissed based on the board subsequent issuance of its order to correct the country or for mobile we filed a motion to supplement which the court has ruled on yet but i just want to advise the court that there's we don't take any position that because he has a subsequent petition for you that this case needs to be dismissed the second issue and i think that goes goes to what the courts were discussing is whether the first thing is i'd like i think this case to be resolved without of the motive analysis because under the basic motive standard which petitioner has the burden to make the show they must prove that they were persecuted by the individuals on account of a protected ground just under that basic standard and in this case we there's no evidence that those individuals are persecuted her did so because she was a young female head of household so that's the initial sort of piece that we have heard testimony we do have or testimony but we don't have anything in the recognize this is what the board was getting at there's nothing in the record that demonstrates that those who harmed her did so because of of her protected grounds there's nothing in her testimony this was physically discusses what those individuals said to her there's nothing that that shows their motive and the board kind of intimated a to be more of a criminal nature and an unwanted sexual attack or and while you know this is something a sympathetic not every sympathetic criminal activity becomes an asylum claim or grant of asylum and that's where the board has to draw lines now is your statement that the board intimated that to him to the difficulty in this case were gave what is in essence a two sentence longer more thorough but they deal with a you know a very high caseload and this is sometimes the decisions we deal with and as this court others have said the board's not required to write next to jesus they're just required to sort of lay out their decision  overturn the immigration judge this court sometimes will take more scrutiny towards looking at the decisions issued by the board but i think on its face the and as judge jordan mentioned on its face the particular social group of young female head head of household without male protection or you know or a male protector in the family kind of fails on its face because if there are multiple women or what multiple females in the household it doesn't how do you differentiate who will be targeted and so the board of looking at the case and looking at the findings of fact by the immigration judge found a clear error simply in that finding that  investment in the absence of evidence that the respondent would not have been treated in the same manner had she not have the status of head of household doesn't that statement indicate they were planning a but for causation standard that the legal standard was but four forget about findings of fact so big and the governor has no objection to the court's allocation of a buck or standard and the board of immigration appeals in its most recent a matter  to the one central reason standard the board first looked at the interpreted one central reason to state that the persecution of the motive had to be more than minor and this those who harbor did so because of the protected ground and that reason because nick's motives has to be more than minor so sometimes it can be multiple motives and if there are multiple motives then the board would have to immigration judge would have to weigh those motives now in other contexts the supreme court has indicated that if mixed motives says it is inappropriate basis for bringing a certain kind of claim say discrimination claim that of correct then like the statute does then a but for analysis does apply i know it with respect to mixed motives you're saying that it would be different but the only thing we have here is the statute which you're which says because of and applying gross you're the government's position is that then we would go to but that offer says one central reason the ones aren't right but because of the one central reason and so taking that book because of that would it doesn't matter though does it that it was withholding versus asylum along that in that case the previous court said the one central reason extends to asylum something so the law would essentially be the same for the application the government position is that doesn't apply above court so the government's business that as i stated that there has to be a buck or standard plus a morgan miner so there can sometimes be two or three but four causes of the of the persecution  she loses that's  a court as advised i would like to call the court's attention to places in the record where there is evidence of the persecutors motives in this case and i'd also like to call the court's attention to it consideration of a similar situation in espinosa cortez involving someone who has attempted to fark in colombia attempted to recruit someone i think there's some important similarities there  little bit better but i realize it's a bit late in the game for that your honour's didn't miss cruise's direct testimony before the court on c r page one eighty she explicitly states that my colleague from the department of justice just referred to there is evidence in the record that behind during government itself recognizes the vulnerability of female heads of household in the form of some particular benefits carved out of their budget to be provided directly to them but your colleague from the department of justice is also noted that the that doesn't speak to the motive of the persecutors the motive of the persecut you so other than her statement that it did they'll be no there's no one to protect me what it what it what is there if anything in the record that says these guys or are after her big not just because she's a young female which you acknowledge that would that wouldn't help because that would be a particular social group but because she's a young female head a case where there was no direct evidence in the record that someone had been persecuted on account of their social group and they used what they called inescapable overtones derived from the record as a whole great so when we were asking for what what your point to any circumstantial evidence not just direct i mean what we said in that case was it would be absurd to expect you know the the persecutors to submit affidavits about their motives so of after her because she was the head of the household the head of the household your honor it was the factor about her that there was no adult protection in the household caused her to be targeted by that they could have targeted it made her more vulnerable perhaps but but this doesn't come to grips with the question which is a assume that there was somebody else in the an older the mother was there or the older sister was there what is there a record that indicates bear their approaches would have been any different your honor i think that goes back to the the skipping a step issue that we have with the board's legal determination here where they have found clear error without articulating why based on the record and the evidence relied upon by the immigration judge to find  with respect your honor to the issue another important factor i think to to consider with wrestling with this idea of of but for causation in this court's recent case  bearing in other similar contexts involving tort law involving employment discrimination there's a huge and important difference between what we're dealing with here which is a fear of future persecution the immigration judge prognosticating about something that will happen in the future which is not what's going on in employment discrimination or in tort law so i think that the board should not be able to apply or impute a but for standard for future persecution because if there's just a massive difference between something already happened