the remnants of tattoos across his forehead is instantly identifiable as having been at one time a gang member which gang m a program that optimised high school in beverly hills plastic surgeon treated him for it but all they were able to do was to lighten the time so that the letters aren't really identifiable anymore but the government the government's desire to control great game violence is a lawful sanction that's  where the ninth circuit held it that it doesn't make sense to evaluate what a persecutor is doing according to what that person says his goals are you can't evaluate nazis by saying that they had a rational purpose in mistreating the many groups of people they mistreated as the month or so you know gays held communist for many years had a policy of going after capitalism because from their point of view capitalist run desirable you can't look at these things from point of view of the persecutor even if you were to look at it from the point of view of the persecutor and the believe that what the salvadoran police had in mind was to curb gang violence against the populace what on earth suggest we find the standard by the legislature all we're told is we're given a standard to deal with well i think it has to be done case by case as was little group ok as was done in  hold member stephanie in a group such as the one that you talk about in this case is necessarily a social group and entitled to be dealt with it's as presenting a protected ground as that basically what you ask is to yes if you've got  a kid and marries your pain there although he is now in his twenty's in two thousand and five when he was nineteen he has four foot six inches tall and weighs eighty pounds a good part of the police brutality inflicted upon him one m surmise had to do with bullying but in any case he's got marks they apparently cannot be removed at least a professional attempted on two occasions and the best he could do was in light was to lighten those that is so that he faces the persecuted that covers the whole universe of protected people or social groups you have to have the marker you're not a member of a social group not a member of this  well any social group well there are a lot of just going with that the statute just says social group it doesn't say your social group or a specific social group and we're trying to get to the bottom of what it is a social group research this is a very narrow social group where your group those gang members with tattoos on their forehead you don't necessarily want yang member without a tattoo then it wouldn't be your social group is that what i hear you say but it could also members had tattoos not too many on their forehead but it is good the gang membership is irrelevant he carries a mark that shows us how to run police that he was once a member of this group and based upon that they persecuted him and what are your best withholding and protection of the torture conventions now the board did decide the social group issue in this case over suspicion of the government that the court need not and should not decide that issue today the court need not this at the issue because the board based its denial petitions applications separate independent grounds the court should not consider should not rule on this question in the first instance because the board has not and under ventura and thomas what ha as you know it's been evident today social group is a continually evolving issue and name something in the law that isn't continually evolving i mean judge rivers right we've got a decision by the board here it is and you're trying to backtrack and i get the impression you don't want the ninth circuit that decide this issue or anything just keep it out of the clutches of the ninth circuit i don't think that's an accurate characterization of what's going on i mean what's the point here you've got a decision in this case it's disadvantage somebody and they're up here on a petition for review even better or different today even though we have an explanation and a final order are just as a matter of administrative law i just don't track well as as i said before every man would not be necessary in this case as the board decided on separate independent bases the petition was not eligible for the relief he sought but it might be eligible on or on a proper standard if that's what the board decides it's going to do one where the other according to you well and that's why the case should go back to the should go back to the board if there's a social group issue however based on the fact the petitioner was unable to show persecution from gangs he was unable to show persecution of the police and he's failed to show eligibility to the convention against torture a social group issue does not need to be addressed to  if you let me proceed as as i was arguing before the social group issue does not need to be ruled on in this case as the board's opinion denied relief the petitioner several independent bases the first  which deposition a fail to show persecution from police because he's felt from get he's failed to show persecution from gang members because he's failed to establish that the government of el salvador's unwilling or unable to control gang violence  failed to show persecution from police officers the actions taken by the police are persecution on any of the except the five grounds rather than simply legitimate law enforcement and finally under the cat issue and when to demand law enforcement purpose ones from that activity on the part of police record it's shown that generally the el salvadoran government is cracking down on street violence it's passed laws and w unclear exactly what happened in these police encounters the petition talks about getting taking down or groups of gang members getting broken up a legitimate law enforcement purpose was breaking up congregations of gangs things of that nature and i think it's important to consider that in this case the deferential standard review that's applied to the board whether or not there's things that might suggest a contrary conclusion this court cannot overrule the board unless the evidence compels the conclusion that the integrate the board was incorrect if the board's concluded that these incidents where the police were breaking up gang violence and perhaps there was aggressive law enforcement but if the board concluded that this was a legitimate law enforcement i don't see anything here on the record that compels a contrary conclusion and i how scraping tattoos police great big tattoos off somebody with a knife is a legitimate law enforcement i would agree that it seems difficult i would just argue have to look at the encounters i mean if waterboarding is bad how about this yeah we have to defer but there has to be some evidence to support the finding as as as i said the petitioner does talk about groups of gang members getting broken up by the police he does talk about it violence against gang members by the police and the sergeant you know their goal could be to deter future criminal action by creating fear in these gang members outside what happened here you can see a larger pattern in the record of the police arresting you know person you know hundreds and you know even thousands of people in these gangs and i think you have to look at as a comprehensive law enforcement effort i mean they are trying to make these these you know gang members fearful of committing criminal acts and i say that taking that in totality that's what we're talking about here if someone said we're going to shoot every and you know kill every third gang member and that might really intimidate them were asked where do you draw the line well it's difficult to tell exactly where to draw the line this court and saying if i can read a quote says where there is evidence of to make sign a false confession and things like that and essentially the courts and while this is you know while this might seem harsh to us we give deference to what a foreign government that was in response to an actual crime suspected crime you're talking about crime prevention which i think is something quite different well if you're trying to scare the populace cincinatti committing crimes that is different than saying that you can prosecute crimes that have occurred described by petitioner was activity that was illegal under el salvador's new gang laws it's impossible to tell it seems likely that you know given that given the factors in the new gang laws that there were some violations and it's entirely possible the board concluded that this was legitimate law enforcement activity i see i'm running out of time mr would you permit me to just wrap things up i'd like to conclude the board need not and should not decide the social group issue have second five eighteen from nineteen ninety where this court held whether an act is or is not persecution cannot depend on whether it is rational or strategic from the point of view of the persecut also i'd like to emphasize that this is a case of carefully reviewed during three days of testimony with massive submissions from the government after which the immigration judge found that mr brady had been the victim of