morning counsel marty you are were happy to your argument in our st case and if you would identify yourselves just so that we're short zachary who you are when you speak we're ready to begin but as you was not properly before the b i a and respectfully it is not before the court today rather this case should be remanded to the immigration judge because neither the b i a nor the i j have ever addressed the merits of mr arab first b i erred in finding the mr error bellow attempted to assert a new particular social group on appeal to the contrary the record is quite clear that mr arab element tied his fear persecution to his status as a irving put the i j on appropriate notice of his claim related to his cousin if you look at the application form itself you know we have these very small boxes and there's not a lot of room to write in there but what mr talking about his fear of being murdered by the gang as punishment for leaving used repeatedly and consistently also tying his here to his relationship to his cousin and in terms of whether  family is a bio will particular social group you know that i think there are a number of cases that have recognized that a family is a potentially viable social group obviously has to satisfy all of the basic example you know if this case is remanded to the immigration judge which he will need to do is to genuinely explore what mr herbals particular social group is in this case he was  j to develop the record that's the fundamental question here because if you look at the record just sit it up a self i'm not sure he ever articulate what this group is and he's limited in english so that's kind of from your perspective but the question that we face is you know what is this duty and what does it look like now in terms of when it goes back if he's represented it then the question becomes is is that a different type of situation someone who's pro se as opposed to matter of jail among other places i think that in practical terms what it means is that when a pro se out witness comes and testifies about the nature and source of his or her fear of future persecution they need to  a needs to come in and ask questions who exactly are you afraid of why are you afraid of them why are they going to hurt you is anybody else going to hurt you that last is  deposition went to one you know you need to ask all the questions to make sure you've got a complete record counsel it think that goes to what's underlying my colleague's questions because the i j a have a responsibility to help simply has to get the facts out on the record and ask him things like why are you afraid who exactly are you afraid of in other words does he have to help the applicant make the best possible case for getting these things out is that the standard immigration laws out experts in the room the i j a and the da just attorney if there is something factually that the applicant puts forward that sufficient to suggest a particular social group i don't mean you know turned upside down you know and you know squint at it but if it's really is there on the record the i j a should be asking the questions what they're afraid what they're afraid of why they're afraid of it ask questions that  the social distinction the i g should go through all of those steps not to help the applicant but simply to make sure to get information there on the record from which to be i and ultimately this court on appeal well we see a decent number too and i would say that the representation is often not of the quality that you are giving this person is so julie make it more  no i think that's right and again the b i and has has noted that the immigration judge i think general duty to make sure the record is clear and that all of the issues are touched upon both in the record and and in their opinion and line i think that the duty is there to give good on the record and to the extent that a pro se applicant simply requires a little bit more work to discharge that basic duty to ensure that the record is fulsome enough so that we can analyze these issues on appeal to the extent that across the applicant necessarily requires a little bit more than they do but that's just the nature of the situation what creates this duty it's statutory or constitutional i believe seem to want to say it's a legal arrow that you know it may be the difference is is is not that great but at least the question is well there's a constitutional one of those always it simply legal there in terms of failure in the idea as you know statutory duty i think your honor is also correct in that there are certainly due process issues here we have me to due process claim crusade i think we have to this more in terms of  words there are simply asked the question all the i g has to do is ask the basic questions that should a list of the relative information you're never going to get a pro se out with and who says well madam immigration judge my particular social group is by point by point blank but that's not going to happen and of course not what anyone would expect but as long as the immigration judge solicits the relative information by just asking the questions that touch on the relevant points then we should look at exactly exactly so your honor in both the article three courts and before agencies in these kinds of proceedings you know the prophecy applicant should be you know given the benefit of the doubt you will hear their testimony should be construed but i'm certain his winning my problem with that is the one that i just told you about is that i think actually in a fair number of these cases you've been the  is a question that piece doesn't really answer i think your honor certainly could touch on whether it is a stricter standard somebody with well represented by counsel or whether it's whether it's sort of perhaps if you approach say you're better off maybe that's not so foreign to us when we think about ender's cases with which they then use brief which piece compared to no one has really brought up in a thing in a the court has a duty to been combed through the wreckage it you know to some extent as really can a better the being represented because you that you're not limited to those things brought up by the council but in this instance it really comes down to it goes back to the constitutional versus legal era aspect of it and a duty that i j so you know ponder that a little bit when you will think about the answers on return because i think this is a very critical question here in terms of the pro s them and told him yes thirteen you want to leave the game and it at the record does show he had indicated that he wanted to leave he in fact did leave and that as a result of that as testimony that they considered him to be a desert you know and whatever it is all kinds of information on that so so are you saying that a person passed to state unequivocally that they informed the particular group they want to so so with all of their good is does a wreck it reflects and i don't seem to find it anywhere that the image exploration judged explain to him what a particular social group is  because he was no longer there and still somehow from that we get warmer that's not the standards in the because you can have two conclusions that does not mean that the agency's mission is not quite a substantial evidence but question so so maybe that goes into the question then is what do you mean by help them develop the record i mean you do state in your brief that they're not to be advocates but how is this different do you view it to be somewhat of a different duty when you have a pro se applicant as has been the case in federal court we are asked to liberally construed pro se complaints in so security type what a particular social group is not this is more of a term of the legal time i mean this is so difficult concept and yet you i think you indicated to me that she didn't have a duty to tell him what that is what a  him or me or that it's not my question though i would have asked that question it sounds like a good question mark my question is did she have a duty under these a situation to explain honor just a few points if i may st on this question that my colleague addressed about whether it my client made it clear in the in the room in the hearing whether he was seeking protection because he left the gang without permission i think it was i think was crystal clear i think the application shows that the testimony shows that but but the way we know it was clear is because that's the issue that the government attorney addressed government furnished as i quote there's not a clear probability that if you returned el salvador he would suffer persecution on account of being a former gang member since the government's position is he's clearly a current gang member now the government's arguing bit that he is not actually a former gang member but the government is also acknowledging that the whole point that my client is making the reason he's seeking protection is because he is a former gang member who left without permission so i don't think they're giving that government acknowledgment i honestly don't think there could be any sort of serious doubt that he at least put forward enough information to put everyone on notice of the nature of his claim and that sense is mismanaging  on certainly there are rival gangs but particularly formant former gang members who no longer have the protection of the gang frankly there is extensive evidence of extrajudicial killings of gang members of former gang members by the police there is evidence of vigilante death squads in el salvador none of that is address in any way in the i g s decision and frankly given that the decision was issued today after the hearing not at all clear that that was actually genuinely considered now it is correct that my client didn't identify you know say i am afraid of being tortured by rival gangs the police and vigilante squads but there is not a subjective component to cat protection he doesn't need to say that he's just really afraid of particular gangs if the evidence shows that there is in fact inappropriate claims based on those other the i j a and the d h us attorney are well aware of the various legal complexities and but terms of our including particular social group with the test start with acquirements are and the applicant as in this case just has no idea there is no way the i'm sorry when which you have a situation where the i j a had sufficiently developed the record but there was still a fundamentally unfair in there no absolutely no name and no evidence that's so are we judging the quality of the representation that the person is getting so if you have a good lawyer we hold you to one standard if you have a bad memory or or if the lawyer is so poor and competent what what what how do you that he or she does not do enough to make the hearing fundamentally fair you know has that duty regardless of what the attorney is is or is not doing i think we will see a special i think very reasonably assume that in pro se cases for good and a good amount of the time the i g is going to have to do more work certainly earth correctly question correctly i think one of the i j a ensures that the record is adequately developed that is there is enough information from which will be a and this court could could judge whether there is in this case meticulous social group based on what the what the client is actually claiming not this other imposed social group but if there's enough there to assess that you know in all of its various elements and all of it's frankly nuance because  complicated issues and then that would be enough but we just didn't get anywhere close to that in this case whether there would be other duties for example the i g has a duty to actually address each and every issue there's no discussion really a particular social group there's a footnote that kind of alludes to it but doesn't really address the issues doesn't analyze it in any way and there's sort of nothing to work with heal that