i respectfully request three minutes for about all granted if your honor so it is under spewed in this case that mr gray is from where our faces a quote clear probability of future harm if he is once again returned to honduras uncle and two cousins were all murdered by the eighteen gang and honduras the gang members armed rapists as the gang members threatened to cut out his younger brothers tongue and to kill his younger brother they shot up his home they kill his dog they stocked him through three different cities in honduras captured him beat him so severely with the belt that he is permanently scarred and they threaten to kill him on multiple occasions both directly and relayed through his mother the record reflects that the glazers cookware family reported his sister's rape the four murders of the family members and the threatened abduction of his children to the honduran police but that beyond occasionally filling out an intake form labelled police investigation bequest the honduran police did nothing even whether they knew the name of the alleged as honduran government is unable or unwilling to protect mr glass from the clear probability of future harm that he faces if we count honduras the board of immigration appeals erred because it applied the wrong legal standard in his case he is not required under this court's precedents to prove that the honduran government condones the violence against him and his family not at the honduran government is hopefully helpless to protect him existed at the time period that you said it was well understood that it only meant unable or unwilling so he cited i believe a th circuit case and that th circuit case wasn't a lonely case i believe there is other cases that use the same that another circuit used as favorable to guide the exercise of agency expertise in this space right i would say that this callback to but the attorney general could not in the act of interpret the congressional language change its satellite meaning and congress is under the clear presidential only if it has one clear meaning if it's capable of multiple meanings in the attorney general and if it's in his exercise of chevron deference can pick between those meanings that would be permissible step two of chevron focus on permissible which also doubles as reasonable but if there isn't a raid to pick from the is long as the attorney general is picking one that is permissible or one that is reasonable that's it his or her completely help was different from unable if my if the transit transmission in my car breaks and i can't drive back to pittsburgh and can't fix the transmission i'm i'm completely helpless to get that car back to pittsburgh how is that different from unable that i may be able to do something because i don't currently have the resources to do it i would be completely helpless to do it if it's impossible for me to obtain those resources so i would say that would be a higher standard with respect to condone that condone if there is an express action that manifest that condoning i think that would be an appropriate understanding of the term sean if one of my kids steals toys from you know his friends when they're playing and i don't do anything about it have i come down that action agency referred to the condone or completely helpless standard supplanting there was nothing explicit saying that those words referring to the ages this isn't a need be supplanted the familiar unwilling or unable sinner correct that is correct and in fact the agency's articulated reasons for it decision for its decision made repeat reference to the unable or unwilling why should we say well i guess i'm asking why should we disregard the agency's statements about are unwilling or unable why shouldn't we just look at the facts of this case and ask this question did the board of immigration prevail in its petition either way there was not substantial evidence to support the holding that he the government was not an able or unwilling to provide protection so yes and i'm sorry to interrupt but let me just tease out that point make sure i got your position exactly right there are two parts of the b i e decision as i read it you may know it better than me so maybe i'll find others but where it where they basically referenced this where you're calling the heightened standard the complete helplessness in the conduct st to sense that's all i can find in the rest of it talk about an evil and unwillingly just just for purposes of taking an issue off the table if for some reason the b i a didn't include those two sentences talking about can answer to your question must be yes had to be not articulated a heightened standard of condone or who could help listeners the legal tender question could not be before you rather it would be a question with respect to substantial evidence i so it really comes down to the meaning so so so the question is the meaning of those two sentences if those two sentences do effectually to heighten standard then we have to then we then we have to examine that if those are read to be in conformity with the enable unwilling standard and operate no difference to that and we're still back  opposite language the enemy of their decision the decision it seems impossible to me frankly that someone could look at the fact that we have in this case and the fact the i j a n b a found that there was a clear probability of future harm on these top the extreme facts and yet nonetheless conclude that the hunger in government is able to protect mr glascock well that's plainly not the case it looks look at some of the facts on this question of whether there is substantial evidence supporting the agency isn't it the case that we ok we're talking about i'm able or unwilling to so so whatever bad things happen to his family members are only germane if they're reporting to the authorities the authorities aren't supposed to be clairvoyant about what to investigate correct that would be important that's important right so let's focus on what let's go piece by piece by what the honduran authorities were told after twenty level about i would not agree with you that you have to ignore the prior information previously provided to the police i mean the police were already aware of it his sister had been raped by the chain gang and that the eight thousand gang had murdered his father uncle and two cousins that evidence doesn't go away those facts don't go away when did all that happen his sister was raped in the early two thousand and six father and his father was murdered  and eleven and the two cousins were murdered in the subsequent months thereafter when his father was shot st in the leg he tried to move to a different city this court and these proceedings the court has taken action on petitioner stay request based on his own requests and focus things and when the court denied his stay immigration customs enforcement asked him to appear which he was required to do under his order of supervision which is found at th us our a p forty four dollars where part of the condition of his order of release was that he was chip peer in person at a time and place specified upon each and every request by the u s immigration customs enforcement again discretion should not be exercised in his favor in this case so here you don't know where he is now i do not know your honor and d h has or ice will have to extend valuable resources to locate him because he refuses to appear to the h s as required as he agreed to i guess what you're arguing is that it's not just the executive order from my saying we need to see you it's an order of this court denying the state that he's disregarding that is correct your honor  and again with regard to discretion he doesn't merit a favorable exercise of discretion for his case because he has a history of showing to this court that he is not that he will not be bound by the us laws nor an unfavorable ruling by this court petitioner subject to reinstatement which means he previously illegally entered the united states he had an asylum withholding hearing was denied he was ordered removed and actually removed and when he was removed he was prohibited from rick from returning to the united states for five years and yet knowing all of that he legally we entered this show as an absolute disregard for u s immigration laws and  to disobeying court orders right you don't have to be really disobeying a court order is opposed to a court not giving you the relief that you would otherwise want and then maybe going in taking it yourself by the court didn't say you couldn't take it yourself maybe that was the operation of the law but it strikes me that don't you have to be in affirmative disobedience not just not getting the relief from the court and getting it through some other means i mean aliens home government has more than difficulty controlling private behavior the attorney general did not come up with this formulation instead he was just picking up on language that there courts of appeals have used since two thousand and all the courts that have so what we would have to do is we would have to look at the record of each police and student that was reported when the sister was raped they did name the alleged perpetrators but it was the court is aware rape cases are difficult to get to obtain arrests and convictions for and nothing in the record suggests anything that the absence of the prosecution was attributable attributable to anything aside from the lack of information going on to moving on to the father and uncles murder according to the record found at four hundred and sixty five dollars an investigation of requests was made on october th two thousand and eight the police investigation report which was stated november rd two thousand and eight found at four hundred and seventy six listed the procedures to be carried out and which was to identify the accused with the name then finally the report from the court of peace stated november th two thousand and eight indicates cause of death as cars the the agency declined the board declined to address the collateral stoppel issue so i do not believe that i could rely on that to defend the agency's decision  in government was doing something instead of just taking a report with regard to his cousin's murder the police investigation request made on january st two thousand and ten found on the record for seventy seven  the procedures to be carried out we don't know what happened after that because there is an absence of proof petitioner didn't provide the records to show what happened after these investigative reports were made and finally with regard to the kidnapping threat  testified that the kidnapping threat happened in two thousand and thirteen his mom made the report to the police in two thousand and seventeen indicating that the call happened in two thousand and fifteen that is not baffling that the with the country reports which indicate that the one hundred government as a whole is battling the gang problem they're trying to reduce homicide rate and kidnapping as well as corruption what how long a series you're saying no matter how long the series is that could never suffice for unable or unwilling what if it was one of the acts of violence were multiplied in this instance by three are by far you're telling us that even that wouldn't be enough to sustain unable or unwilling that would be a more compelling case but you said never know when that's the case that i'm saying that the standard the petitioner is asking for is that if  if you have crimes that are not saw that that could then you could never show that the government was able or willing so what look for to see if the government is unable or when unwilling is to see that what is the government's duty to protect its citizens and if a crime is reported that would mean that they would probably they would need to invest take a report investigate and prosecute if possible but it's not always possible because there are failures there are many ways where a prosecution is not i guess another way of getting at my question is how many failures to prosecute very tragic and dramatic facts there's there's more than one so how many do you need i do not you're saying this isn't enough i'm saying it would have to be on a case by case basis and in this case it's not enough because we only have four police reports and what the police did in those cases where there is a quantitative task like how many incidents or is it qualitative you look at what the government actually did to try to solve to try to address these problems i government did not lose sufficient control over its law enforcement so that he you could arguably say that the country was unwilling and unable to protect them to her i want to go back to the a b legal standard for a minute church is the government's position that unwilling formulations they're all used interchangeably and he only used who don't complete helplessness once but again they mean the same thing and they do the same thing when he use that he used it in very very emphatic terms he said must show as if this is really a reduction of the test to one i mean we supposed to read that must is may well that must is read in the sense that everything else must be shown for unable or unwilling that you have to show that you must show that the government was unable or unwilling to protect you my sure that the governor was unwilling or unable to prevent misconduct that you might sure that the government is unable or unwilling to control and so forth so you have to read it that way that the terms are used to be used interchangeably if the court has and if they're interchangeable are they operating at the highest most strict burden of that which is condone or complete helplessness well based on the way the courts of appeals have discussed this language in the past i would say that it would be all used on par on the same plane and then we have to decide that plane in apparently if it's decided on the same plane so we have to pick which plane right i believe they have been decided on the same plane if the language has been used interchangeably by the courts ok for the purposes of withholding of time of the b i e hearing at this moment order would order we look back to whether they were unwilling or unable to control the gang in two thousand and eight we would look at the time of the hearing ok so if this court were to to look at the the grievous facts of what happened to petitioners father uncle and sister over a decade ago and concluded that at that time the hunger one hundred government was unwilling or unable to control it would still be under your view it would still be unavailing to petition or if at the time of these hearing in this case the government able and willing to control is it your position that is correct or ok and it has that issue been i'm not familiar with case law sort of explaining for us whether past failures to control non state actors can influence a hearing it happens many years later you wear many cases that address that issue and question i wish  was but i am not ok so what's the basis for your argument that the measuring time the moment of measure is the time of the hearing rather than these historical facts th so it's a two way street it doesn't just benefit the government because if if things get worse that it benefits the position or things get better benefits the government for purposes of a wooded area unable to control the script as it's always a  because it's there it's our protection that we're trying to protect the refugees of the world would you mind starting where we just finished  it is a measly right that the question of when the hunger and government is unwilling or unable to control non state violent actors like the eighteen gang is the time of the hearing not pacifically states the eighteen again continue to commit murders extortions and kidnapping and the corruption and impunity remained serious problems within the police who were going to with the gangs and what could be i a did not consider nor did the i j a where the numerous other similar not reluctant to use violence including murder for hire and those who are also bocconi sixteen how do those acts of violence carry your burden you need to gang commits acts of violence in this country is that your argument the united states government is unwilling or unable to control the of course not you're on a map my argument is that if you're going to look at broad statements in a country report to say the government took some actions to control it you need to look more narrowly at the exact targeted and individualized threats in an effort by one hundred dollars government control the eighteen gang brings in general i think isn't that you saying with without something else an individual determination it's impossible for there to be substantial evidence in favor of the be a conclusion i think that because the country report itself specifically states that the eighteen again continues to commit murders and is linked with the police and they continue with corruption impunity just won't even that that's why i think in this case there is a wealth of evidence that they are unable or unwilling to control or prevent protect mr glascock well and his individual i situation into so the question becomes wealth of evidence for i don't think that there is to be i hate concluded that there was a clear probability of future harm to him and the evidence in this case demonstrates that there's been no action no investigation nothing by the honduran police to protect him and his family i think certainly are not saying that if a crime is never solved therefore you absolutely need the un willing or able to control a test that is not our position this court has twice specifically held that failure to act on police reports  in your brief when you're criticizing the governments can down or completely helpless language this is a page when you can bring he said this court and others have repeatedly emphasized that what matters is a government's ability to of a standard to say that it's that a government has to effectively protect applicants how would between the three of us or all the courts around the country how could we not how could we agree has to leather for government is he actively protecting its citizens that sounds like a higher standard for their foreign government to satisfy their unwilling or unable standards i believe will be intended to relate with the government must be able to effect protection and is not therefore unable or unwilling to protect the only evidence in this case your honor is that on a few occasions the police took down a report entitled a police investigation request no evidence that they ever did any actual investigation there were no aggressed and nothing subsequently  ensued and as the record clearly demonstrates and after my client testify the police took no action and that is the evidence in this case that was found credible by the i j a that they did nothing to protect his family and deed retaliatory murders occurred it's it's more than nothing i guess he's we have we have to at least start with that right i think we have to start with the facts as they are before us which is that subsequent to that rape you know his father i'm going to present were murdered and and that's where we are and there's no evidence the government can do anything to protection they are unable or unwilling to do so thank you maybe even stranger the mother the mother was seeing a gang member after her husband's murder did i read that right you did read that right and i have to say i mean though my client even seemed confused by that choice that his mother made if you were reading his evidence in the testimony but he seemed to suggest perhaps he was if she your argument thank you briefing was extremely helpful in court will take the matter under advisement