finding that there was no nexus between the harm he suffered and his political opinion to we believe the board erred in denying withholding of removal based on an erroneous finding that there was no nexus between the harm he suffered and his membership a particular social group and finally we believe the board erred in denying relief under the convention against torture based on its holding that it was unlikely mr somoza would face torture with the acquiescence of a government official in guatemala and i'll  threatened in guatemala based on the ground protected under the act it is important to note that here the immigration judge and by the boards adopting that part of the i g is decision are not contesting it the i j a agreed that he was harmed severe enough to equal persecution under the act and that's it the appendix page sixty the board denied relief based only on the finding of a lack of nexus between a protected ground and the harm he suffered criminal organization that has strong ties in guatemala he was beaten severely on two occasions in an extortion attempt tempt to recruit him into the gang and then after that second incident he reported the gang incident to the police the police called him back to the station and at the station he identified the lead the local leader of a mess thirteen a man named arturo to the police in front of our tour and we believe that that act right there is  social group for a second we also believe that mr summers is act was an expression of his political opinion and that's the first argument as to why there's a nexus how is opposing gang violence a political opinion there are many cases in this circuit and before the board that say it isn't but no case like this one it's useful to think about m s thirteen as a group this is not a normal gang like we would have a gang in the united states like the crips of the bloods that causes crime  transnational critic a criminal organization that threatens the legitimacy of the guatemalan government itself it is inherently political the record is replete starting from three twenty one on that this gang th transnational criminal organization has formal political structure and ties to the formal political structure in guatemala it is an ex the central threat to the state quotes from the record from the state department court and also from reports from the army war college say that basically because of the strength of these transactional organizations of which m s thirteen is the strongest it has discredited the go out guatemalan state and deprived it of legitima is there anything in the record to show that your client was somehow a member of a political group before his troubles with our total no and that's the distinction here that i just i know it  seems for into our entire way of life but if you could look at it from the perspective of someone in guatemala think about it forget the name m s thirteen and guatemala say that someone was living in afghanistan and they were brutalized by the local leader qaida there ok and then they reported that incident to the police identified the leader of the local al qaeda cell and then were subsequently brutalized further and had to flee the country is there any doubt that that is an expression of a political opinion i don't think so because what is a political opinion i mean i don't want to go dictionary on there but it's more of he was a victim of a crime and he reported the crime how is that a political i think that there's two reasons the differentiate this case from the average case one is that the inherent nature of the group he is opposing entails a political opinion by opposing them you are expressing support for the legitimate government in guatemala the democratic state against a group that is opposing it therefore you are expressing a political opinion that's why that's reporting a crime by identifying the leader of the local just part of take a stand against a group opposing the government why isn't it a political opinion i would say i think that's too narrow of a definition of a political opinion i don't think you have to be a member of the you know anti m s thirteen party and support have a rally against them to have a political hour raise the question what is enough i think that what is enough is taking over public action in support of the legitimate government against and those thirteen is is reporting a crime of public action what how do we in looking at the idea of a public public act in this kind of correct i don't think you should look at this case as standing for what you have to do in every game case or every time someone files a police report this unique circumstance and that's what america says also is that you have to look at the particular circumstance in detail here he didn't just file a police report and go back to his house he went down after being called back to identify the leader of th gang to the police in front of the leader and the police and that's what distinguishes it but again to judge a judge wright's point earlier even if he wasn't expressing a political opinion we believe that the social group as defined is sufficient withstand scrutiny under the act i'm sure you're all familiar with from the materials that just just resisting a gang or just being persecuted or excuse me harmed by a gang is not sufficient to get removal we all agree with that the cases are plentiful can stand that here in a circuit is the main one there's a matter of ca before the board but in this case the way the social group is defined i believe is sufficiently visible  particularized to differentiate it from those cases the social group is defined by counsel below is as follows young guatemalan males who have opposed m s thirteen have been beaten and extorted by a missed thirteen and reported gang members to the police form of persecution which he already suffered being beaten life threatened cut rib broken that all qualifies the problem here of course is will it occur with the acquiescence of the local government in guatemala and we argue that it will ac defined in the regs that requires awareness of the act of torture any breach of a responsibility to intervene as a minimum the main eighth circuit case on point we believe is ramirez para which concern mexico but it's the same basic principle here in guatemala you can see this from the state department report corruption isn't just normal it is the it is what happens it is abnormal not to have corrupt local officials and even all the way up to national  police routinely brutalize people rape kidnapping cetera in two thousand and ten alone there were seven hundred eighty seven investigations of police officers and it notes in the state department report that four hundred thirty nine of those were exonerated well that means that at least three hundred  fifty work the point being that all it takes under america's pirate payroll is for one local officer to know what's going on with them as thirteen has infiltrated all levels of government in guatemala and look the other way if they are aware of the acts of their members and local law enforcement then that and they turn a blind eye that is acquiescence we believe not only is that likely but that that's actually what already happened to mr samosa if you say he's reporting a crime you're not telling me that right there so there's two things that the government generally even if even an attempt by the government to control some people who do torture is not enough the torture doesn't have to be executing state policy it can be act you can be doing the exact opposite of the state policy that's but all it takes is one local law enforcement officer acting under color of law to torture that's torture and and it doesn't have to be him doing the torture it just has to be him acquiescing in the torture we believe again that here that's what happened to mr somoza he reported a crime he sought protection in the local law enforcement he identified the perpetrator to the perpetrator to local law enforcement and then what happened two days three days later they let him go and he's brutalize again for seem to flee to the united states that is exactly what remarriages pyros says is not allowed and what is worthy of protection of the convention against torture so we ask that even if you don't buy the nexus for the withholding of removal he certainly merits withholding under the convention against torture i see that i would like to reserve some time for a bottle of there's no question can i go over three no currently he's in the united states  is more likely than not that there is a clear probability that he will be tortured upon return with the acquiescence of the guatemalan authorities mr rickman is right it does not need to be national policy to torture mr samosa but he does need to the entire country of guatemala and with some problems in some other departments it doesn't mention mistress to most this region specifically but that report tells us that torture is common in guatemalan prisons and that most of the torture that  reported occurs during anti gang operations so guatemalan police off yes to a gang the according to the state department report the most typical instance would be for example a guatemalan police officer comes across somebody he thinks is in a gang and then he mistreat that gang member severely or arrest him without a warrant or that kind of a thing i'll be looking at us thirteen when we say again there are many others but m s thirteen is the strongest and most prevalent so reason he may make a reasonable case for relieve but he hasn't demonstrated that the record compels that conclusion it's possible the board could have come to either conclusion on this record but that's not sufficient for the petition for review to be granted the board's decision was reasonable and supported by the evidence and that's the end of this court's review although mr samosa believes that corruption played a role in arturo's release it's not clear that that's what happened the evidence in the record demonstrates that the guatemalan police lacked the resources to prosecute crimes sufficiently so they often are forced to let suspects go for lack of evidence or for failure to meet certain legal deadlines for charging people for bringing them before judges that kind did play a role which is unfortunately not out of the question in guatemala that single event is insufficient to demonstrate that ten years more than ten years later there's a probability that the same sequence of events will repeat itself the actions of one officer could be enough but it's not clear if the same police officers are there it's we have no evidence in the record of the local police officers current attitude towards the gangs or their current competence in fighting the gangs we just have that one single event which is insufficient to compel the conclusion that there's a probability it will happen again this is essentially a burden of proof case the board could have possibly come to either conclusion but the record doesn't he's going to talk and if that were the case then the court would need to remain to the board for proceedings consistent with any opinion here contrary to mr breckon or suggestions this court cannot grant the application in the first instance if the court were to conclude that the record compels the conclusion that the single event ten years ago were sufficient to demonstrate a probability of acquiescence in the court would need to remain and ask the board to issue it's not a failed state there are some just some suggestions and petitioners brief that quite amala is a failed state to the extent that everything they do is because of the gangs but that's not supported by the record they continue to operate independently is in which a police officer directly harms someone so like a lynching where a police officer is involved or a police officer delivers a man to a mob so it was dealing with state actors and mr samosa has never claimed to fear harm is that that's not sufficient not correct the single officer i mean ramirez pair also mentioned that a rogue police officer would not confer eligibility for cat basically that if there's just one police officer who's off on his own doing his own thing and the rest of the government does not accept that and in fact would prosecute this police officer if they found out about his actions then that's not enough for kat and the record demonstrates that the guatemalan authorities do not accept gang activity and although they're not completely successful they do have anti corruption drives there's mentions in the state department reports of prime ministers and presidents and other national leaders being arrested indicted run out of the country because of their corruption so it seems obvious that the watermelon government to the extent that it can is attempting to root out corruption so even if arturo was released as a result of one police officers rickman mentioned that he equated m s thirteen with al qaeda for purposes of political opinion and i just wonder respond that the although their power might be similar the reasons they act are different and for withholding of removal the statute makes motive critical and therefore that's a critical distinction al qaeda has an economic political and religious agenda that m s thirteen simply doesn't there are very powerful but there's still a just a criminal organization that particularly because the record shows that they'd be against anyone in their way it could be traditional government it could be i mean just anybody in their way so they're against people getting in their way but they're not against the government in particular different from the civil war say of the one thousand nine hundred ninety s where they were against that government because they had a different political view that the guerrillas were marxist and the government was conservative or something like that the gangs would be against anyone who stood in their way a change in the government would not make a difference the record also demonstrates that and that's thirteen does not seek formal political power they don't want to be in charge they prefer a weak government surely because that makes their jobs of earning a lot of money easier but they don't you just very briefly as far as the political aspirations of m s thirteen i think that it's clear from the record they do have political ties and more importantly this quote or this court has said that opposing it may have a political dimension so putting that to the side back to really front of the convention against torture the national government doesn't have to acquiesce and torture and council made the fair point that one rogue officer like in the united states that tortures they that's not what we're talking about here here it would be rogue if the officer in guatemala actually did their job correctly and was not corrupt ok this is a situation just like in ramirez pedro when it is rife with corruption the government is true but it does i think answer it with the language in that case it says in that case it appears that the police abuses that the local and state level may be characterized as a routine and the government's general knowledge of the activity may distinguish the present case from that where the government is merely unable to control third party tortures despite repeated attempts that it's not quite a model quite a model would be it's not a rogue officer it is the police force in guatemala and them turning a blind eye like they did i think it's clear from the record mr somoza was found credible there is no other evidence on the record as to the motivation of the police in letting someone who brutalized mr somoza go two days later that's why he was  mob general and i don't know all of that it is i believe if you go if you look at the record at three twenty all and subsequent the army war college report the state department port it is general and as far as that one incident we have mr moses credible testimony and what else do you look at in determining whether it's likely he'll be torture evidence of flagrant violations and past that's all you have to go on you have to decide it's one hundred percent but ask yourself really do you think you will suffer similarly as he did i think the answer is clearly yes and therefore he merits relief on the conventional pigs in the navy it starts at about three twenty one there's the state department report and then after that there's two reports i believe from the army war college and i believe they're directly appointed there are no further questions thank you thank you mr mcmahon thank you counts and we appreciate your arguments case will be submitted