i issued its own decision with its own reasoning we look this court should look to that decision however the court can look to the decision only in so far as the board of immigration appeals adopted it so if you look at the opinion itself the part of immigration appeals only adopts the immigration judge's reasoning on two issues on the nexus finding and the finding that the likelihood of future harm is attenuated by the closure i got his father's business it does not adopt the immigration judge's reasoning on the analysis of the particular social group or the convention against torture analysis and so those are the main issues on appeal here and we would contend the court should not look to the immigration judges opinion on those but that the be i says we found those targeted for extortion by gangs criminals are not per se members or card and so your social group are targeted responder has not shown otherwise why is that while the board of immigration appeals is not required to give an exit she says on every particular issue it is required to go through the test as laid out in this court held in hernandez and it is required to give princip reasons for its decision and explain why this proposed social group when examined on a case by case basis does not qualify as cognizable in particular under the standard and it doesn't do that and by citing to cases in which in which individuals who are generally fearful of gang violence or individuals who resist a gang recruit that didn't qualify or may not have qualified that isn't sufficient here because this is a different proposed social group or this proposed group involves people who engage in a particular act of resistance to the gangs and that is a refusal to pay extortion fees and this court has found who testify against again can constitute a particular social group and in hunger this court held that individuals who inform against and are willing to testify against a gang may constitute a particular social group i don't mandate on those grounds and on procedural grounds the here you have but you have a particular social group or a proposed social group that is you know closer we would continue decidedly the socially distinct element and that it was then it was decided court should not you know why isn't it a reason for remember because we don't have a finding from the agency it's a factual finding of whether society perceives this group differently or not and that is why this court has held that the agency is required to first examine each of the three prongs because while it's a legal conclusion there are factual findings that underpin that legal conclusion and so here we don't have that finding that this court can't evaluate the agency's assessment characteristic so here are the proposed social group each share a common experience and that common experience is the act of of resisting and refusing to pay the extortion fee and that you know is that kin to various social groups characteristic that opposition to warrant a finding of a particular social group in that case there was a concurring opinion that seemed to say that it really wasn't the definition of social group really wasn't in much dispute in that standard looking at the facts of that case and the decision that the v i i made there that group would constitute a particular social group under the new standard and so that i think is very powerful ways powerful lee and in favor of the petitioner here would i would disagree with that i think the record demonstrates clearly that when he moved to san salvador to stay with his sister the gangs followed him there and threatened him there and his sister had to move as a result and he fled to the united states after that and the government concedes and it's pre below that he can safely relocate with them without salvatore is just an reason on the face of the record that's not true and there's no evidence that he moved anywhere else with an el salvador where the gangs didn't follow him a couldn't contact him he's also  correct wasn't were the extortion started that is where the extortion initially started your honor but the the idea that the agency and the government seem to adopt that it's the existence of the carpentry  business that corresponds that prompted the persecution is is just one reason of on the face of the record here it's not the existence of the business it's it's the the fact that the petitioner in his family refused to pay the extortion fees business existed for three years while the family was being extorted and was and they were not friend because they were paying the extortion fees it's the fact that the family and mr vargas are going to refuse to pay the fee that the that the king can came after him and persecuted him how society going to know that he refused i mean that that's pretty much an individual situation on a case by case basis that someone refuses how is that going to be perceived by society opposition to it can make them distinct within society so just like the women in that case opposed to a very prevalent a very prevalent practice in their community here too there's record evidence that seventy nine percent of businesses are extorted in el salvador or at least where in two thousand and fifteen or two thousand and sixteen when that report was issued the act of resistance and refusal to pay doesn't make and distinct in that sense the court and the or the g and also i believe in s t g held that the persecution itself while not sufficient to create a form of basis for a particular social group persecution on the basis of a certain kind of act like resistance to paying a fee can constitute the basis or evidence for a socially social distinction i think so the fact that the gang is actually go after and and kill and threat and on the businesses of individuals who fees that alone doesn't make them distinct in the eyes of society but they get youth who have rejected gang membership has been held not to be socially distinct have how do you think that seems to be parallel to what we have here well there's a record evidence that the act of refusing to pay the extortion fee is viewed differently by the gangs that it's a particular police serious act of resistance because  would that make a difference that is if they just continued to pay the money they would not qualify under under your standard well i think there would be a difference your honor and that would be that they wouldn't be able to show persecution on the basis of their particular social groups there wouldn't be any nexus finding or any finding of persecution whatsoever i thought there was some evidence in the record that he was they were paying one hundred dollars a month and then they wanted more money shame that is the persecution here right there is no confusion here between the persecution and the identity of the particular social group here mr vargas or get a clearly claims that his membership in the proposed social group is based on the fact honor the record shows in his credible testimony or the immigration judge found him completely credible he testified in to the immigration judge and in his declaration to the court that the games did follow him to his sister's  home that seems to have been lost on the immigration judge but that is very clearly in the record that he was followed there and that the gangs found him and threatened him there about his sister moved immediately thereafter as a result of the credibility determination by the jury was not on everything that he said or was it piece by piece i think it was a general credibility determination that he was consistent that his statements to the immigration judge was consistent with the declarations and other evidence he had submitted in the record so i don't believe the immigration judge distinguish between any particular part of his testimony  the board took a shortcut by relying on president but that's a legally permissible thing for the board to do bear in mind that there have been a lot of board decisions particular including its own all cases in any v g interview g r which have dealt with the same root problem that is interesting is case which is this fear of criminal gang activity and the board is entitle to say look this is ground that we've covered your case isn't meaningfully distinguished from the other cases which we've dealt with this that's something that all courts do including this court on that and that is that is not a legally deficient way to handle a case now if the board hadn't dealt with getting cases that were similar nature in the past then maybe that procedural deficiency argument would have more weight but that's clearly not the case you're because there's a plethora of law  of the types of harm that would be covered under refugee law are victims of what i would characterize as personal harm and victims of crime and there's a lot of case law in this court in we all the different courts of appeals that have continuously and repeatedly said that simply fearing criminal gang activity tailor different social groups to try and craft a way in on the nexus requirement this case is a really perfect example of that this case it happens to be young men who have been who refused to paste work in fees but we've seen a thousand iterations of people trying to get in with the same  problem in their case but it has been a victim of personal harm he has there's no question about it but unfortunately used simply being a victim of personal harm or in this case i would more characterize it as a victim of crime we've seen that the unfortunately those cases even though the people do well you can show through societal evidence the board has said this is really a factual analysis you can often there are different ways you can do with different types of evidence that can support it country conditions reports we're looking at is whether society views the group as a faction within society is essentially what the board has said on on the female genital mutilation cases of said with respect to social distinction i don't remember if it was like they were well they might have now but this particular with respect to this particular group as you pointed out this isn't a group that is bound to be socially distinct in fact if you look at the country going to the courts the criminal gangs in these in these central american countries they go after everybody not just young men who've been exported but young women who are vulnerable business owners i mean i've seen groups taxi drivers everybody who's a victim of crime to pick whatever trait they happen to have and tries to squeeze it into this famously indeterminate term social group because that's really the only chance they have in light of the case law which is repeatedly said that being a victim of crime doesn't implicate a nexus to protect ground it's really the only legal way they can try to persuade a court to grant them relief and there i don't mean to suggest that all gang cases are there's a blanket rule against all gang cases if you can show motivation kerry will in another case for example the board give an example of that in any b g they said there's a gang might go after somebody in part because of a desire stored but also because they have an animus against the fact that they're homosexual so if you have motive like that you could potentially show that a gang has a motive to certain gangs but you know like you could think like a white our gang might target people of color you did see how that there are other motivations that could be intertwined with gangs motivations but when the gang motivation is slowly shown to be a desire to either make money or to extort or to expand its base or expand its power that has repeatedly been held by this court and really all the courts of appeals to not implicate the nexus by itself in the gangs activities i think if there is it's a close question in this case there is some evidence the petitioner provided particularly in to in terms of testimony where he talked about how the police were selected the term chummy with the gangs in his area the problem is that when he testifies to what happened to him he didn't testify that there was any police involvement with hits he said that the gangs threatened him not to report to police and that they threatened that they would know about it but you also have other evidence on the other side particularly the country reports which shows that salvador government is taking steps to try and go after this police corruption so under the standard review the record has to compel a country i do think it's a close question in this case but i don't think the record compels one conclusion over the other i think the immigration judge who was reasonable and single when you have this evidence and you have the fact that it wasn't that the police didn't he give the example to the police drove people around in squad cars but when it came to his own testimony he does say the police with him were driving around the gangs at squad cars so when you have the lack of that police involvement with respect to him and you have the kind of conditions reports which show that the country is trying to go after and prosecuting people to police corruption i'm not saying they're effective but in terms of the onerous burden of proof that you have with respect to cataclysms we have to show a clear probability i think the evidence could pretty reasonably go both ways and under the standard of review the court should defer to the findings of the immigration judge on that point there is another aspect to this this particular social group harkens back to the problem of nexus and the case law what we see in a lot of these cases is that people try to insert a nexus into the definition of their social group because they realize that the case law shows that of crime doesn't requisite implicate the requisite nexus and so they try to make nexus a foregone conclusion by tailoring the social group in a way that makes nexus almost automatic it makes it a foregone conclusion so they can bypass the bifurcated analysis we have the the group and then you look at the nexus and if you look at this case this particular social group i mean along those should be going up to her said this group is defined by the very threat by the very fact that he's targeted for heart this is the supreme court has said that in order can't be the motivation of the gangs or what happens if they're not extorting but they're going after young men for the purpose of joining the gang if they don't join the gang that's actually been covered by the supreme court the forcible recruitment issue characters that's the first question you ask in any nexus analysis at the group doesn't exist until after the persecution happens that question the answer the questions would be no it's not persecuted motivation so and again look this is the type of group that we've rejected before your honor's has questioned my colleagues but we will cation respectfully i don't think revoke issues before the course the board declined to address the issue of the location in this case they said we're making a finding a nexus here we're not going to reach that issue it still up the problem of being being defined by the fact that you're either been persecuted or targeted for persecution right it could be could be you know if they just every few years to pay and it's known by their neighbors then they're not paying these fees something's going to happen to them that could be a group separate apart from the fact that they then are persecuted after the fact that you define them before without the concept of persecution i  mean i'm not sure that i can separate i'm not sure that a good read that can be separated out when you define a group in that way if you're saying that i'm being person just trying to make this argument that the threats should be somehow separated from the enforcement of the threats and that  recruitment from the retaliation for refusing to be recruited it's always been considered the same line of persecution so i don't know that can be separated out in that way i would say that there are situations where you might separate up persecution if the persecutors differ so for example suppose you had an individual say see a woman who had been raped and then she was subject to stigma because everything then was subject to a different form of persecution in the form of honor killing in that situation then you might separate out the different acts of persecution but in the law i don't think that you separate out the th reats from the enforcement of the threats to me that's the same continuing a lot of persecution and that when you do find the group in that way it's not fair separate those out i would also point out that in other areas of we don't separate them out so for example when we looking at whether harm rises t level of persecution we don't say well there they were threatened that's not persecution and here that was the enforcement that was persecution we always look at it as a as the same thing as a continuing lot of persecution so i would reject the notion that those two things can be separated out i  three points to make on my part off first i think the concern here on the part of the government and on the part of the agency is that you know this is like one of many cases in which individuals claim they fear gang violence generally and that they have so many cases like this coming in and so many people in el salvador can claim that they fear gang violence but this isn't a case that would open the floodgates this is a very specific and much smaller segment of well your honor i think in this case it's clear from the record that he couldn't report to the police because the gang told him that if he recorded he recorded to the police they would kill him he found that to be a credible threat because he knew of others who  concept of extortion in general but there's no evidence that we have in in this record that the police are then they did certain things by in effect acting as a cab service or some of the specific items he would notice that somebody did reported and that person was killed well are there other people who have reported many others in there and they haven't been threatened or harmed in any way we don't know what the evidence is so general evidence is not going to get us there when he has not alerted the police of the that the explosion threats against him well the agency has to evaluate the record before your honor and while it's true he can't always prove it you can't prove a negative necessarily right he doesn't have all of that evidence and that may not be true but here you do have evidence on a national scale as well in the records infiltrated the police force and the military on a national scale you have evidence of impunity at all levels of evidence of members of police seeking to investigate gang members for these kinds of practices and not only do the investigations get shelled but they themselves are then are then subject to investigation there's evidence on the record that that counter vales the evidence that the agency and the government is pointing to  argues that i mean he's from what i believe the small town and he testifies that you know two houses down from him the gangs are socializing and drinking with the with the police and that the police engage in this and are fully in the pocket of the gang i don't know that he needs to show that in his exact situation that they were chauffeuring the the the gang members to his home in particular to show acquiescence acquiescence can be shown to a country reports alone  if you would pick that up please thank you very much again it's a privilege having you here thank you very much