good morning and welcome to the ninth circuit we have no submitted cases today off i will be argued the first case is how it callous or caius versus bar when you're ready i gather we've got students it's pretty much downhill from here and you your time is not running yet so don't worry with experienced lawyers what they tend to do is they'll have ten minutes or have fifteen minutes the first lawyer will get up and say i'd like to save seven minutes from my colleague and then we keep questioning in the seven minutes gets smaller and smaller and smaller and the lawyer who's supposed to argue second the sitting there nervous and nervous and nervous you've done a smart thing you've set your clock of seven so we know you're done ok when you're but if if we take you over both to give the other person three right maybe oh ok i know i i'm teasing yes we will honour's this is a humanitarian asylum claim and this presents a very narrow threshold question whether the harm suffered by petitioner during the salvadoran civil war rise to the level of past persecution where he and his family were forcibly displaced from their land three of his cousins were murdered by the army and then he was kidnapped from his family home beaten and threatened with death like his cousins and neither the what about ok so if if we find that he has established the requisite level of persecution let's say we if we and i can't tell you that we would agree on that but because we don't talk about it before but if we did what should we also conclude that he's met the other requirements for establishing past persecution as your prey proposes or should it really at that point be a remain and to the b i a to consider the nexus and government involvement requires in the first instance yes your honor if you find that the harms rise to past persecution this is the only holding that the board really made and so this court would not be able to go beyond that it and if we credit it seems to me is right there do we have to remember and we can but we have to on the issue of past persecution if the harms rise to the level of past persecution the board's opinion does seem to assume claim that it is connected that is connected to the imputed surely the process is that we don't you know make those kind of determination sin the first instance i mean we can make the legal determinations if if he's credible and everything is determined to be true and we look at our case law and say ok that's past persecution it seems to me that there's a good argument i think you argue that he should just get  level of harm i mean would have to be reminded for consideration of the other parts of the persecution houses so you're relying on ventura i believe so i meant take yes ok all right and i do want to spend my time in argument focusing on why even if the court does not agree that the record compels reversal why the order of removal still cannot stand namely that the board engages in critical legal errors by failing to identify credible death threats as contributing to or constituting persecution and then abjectly failing to perform a cumulative analysis on the harms it does identify so what can you break down the harm i think your brief is very articulate about your concern that the harms were taken one by one and you said they needed to be swept to gathering consider cumulatively under our case law so there's the displacement from the land can you run through them for me yes so the board identifies three harms first is the displacement from the land and then the murders of the cousins and then his one thousand nine hundred four assault right so do we know when the cousins were murdered and that can you help me out with the time frame here putting the brackets around that that's when the cousins were around ok and has consistently testified that these three cousins were all murdered in the same way exactly when is unclear but b ased on the record consistently has testified that he had multiple family members murdered by the by the salvadoran army in the same way ok and then as to the economic displacement that is addressed by the board and then his hundred four beating however and this is actually this actually comes to the legal argument of not identifying the credible death threats that occur or during his one thousand nine hundred four beating that is legal error this court has identified that credible death threats can contribute to and even in some cases can constitute past persecution on their own and this has been reiterated recently  identifying the small category of cases where a person where death threats alone can rise to persecution but if accompanied with other circumstances such as harm to family members harm to the petitioner himself that that can constitute past persecution and the failure of the board to do so to identify first that this is the case in this circuit and also to even account for it in their past persecution analysis constitutes legal  the application of this court's precedent can be done you know as i read the transcript of the here is quite short i couldn't find in the transcript any mention of what shows up in the police report police report submitted a police report in the in the transcript and then throughout even while the board is citing two transcript pages about his one thousand nine hundred four beating on these pages he testifies that he was threatened he does not going to specifics about them mentioning his cousin's name but he says he's specifically says i was i was threatened they were going to kill me they told me that if i did not leave that i would be eliminated and so at the very least that puts the board on notice this is an issue in this case that there that he's received these death threats will and push reports on the record yes it made it into the record twice that exhibits three and six and so that and that brings due process challenge that the failure of the board to it to account for this police report really it violates petitioners due process rights because this is a piece of crucial probative evidence that in the the board states there's no indication that the thank you thank you good morning good morning may please the court my name is justin right i'm here on behalf of respondent united states attorney general the record here does not compel the conclusion that mr cruz stablished past harm rising to the level of persecution and versus sessions in which the petitioner seems to have suffered a similar or lesser degree of physical harm at this course found that the evidence compelled a finding of past persecution so we not only have to look at what the standard of review is but we also have to look at our case law where and it seems that that case is a bit problematic for the government the only physical harm that mr cruise experienced in this case was  ninety four beating when according to his own version unnamed masked and identified mast individuals came to his mother's house that he was kidnapped right to get kidnapped or no no i think that's the next case identified individual just really think he's he speculates that the army that they're the army but the record doesn't establish any connection between the army or the individuals and the death of his cousins during the civil war for a this case it was the first that it was thirty minutes but then i said well ok maybe it wasn't thirty minutes it was actually ten minutes and all it was was the beating that resulted in i believe some stitches and a cut to his neck at the court has held in other past persecution case in twenty eighteen ok in that oh that was the case where mr gore was told not to practice his his religion any longer as part of his part of his conditions after he was released from detention and he was beaten but in that case it was it was it wasn't just the it was it was the the  harm was not just the beating it was also because of the restriction on his ability to practice religion but here you have i mean he he numerate to other things in three relatives that were this seems to me to be not your strongest argument i really want to know what your best shot is but if that is viewed cumulatively is it the government's position that that does not rise to the level of that's her security under the knife her case law that's correct what's your strongest shot at that place because the one nine hundred ninety four under your position really that it's improper to cumulatively because we can't show on account of is that your position right your honor because well because he didn't connect the murder of the board said he didn't connect the murder of his cousins to the one nine hundred ninety four incidents ok so we talk has to be persecution on account of ok a protect against to make any findings us to whether chris is persecution occurred on account of a protected ground his claim was committed by the government or forces the government was unwilling or unable to control no your honor but his claim is that it was based on political opinion so the board and analyzing the case looked at these allegations of harm and said which ones are connected to the claim of harm on account of  political event let's say let's just say and i'm saying this hypothetically let's say we find error and the agencies finding that did not suffer a level of harm constituting persecution if we make that what's the proper remedy what happened what is that our remained for the other two elements or is that correct your honor the board here didn't make either the board or the immigration judge made a ruling as to whether or not this was an account of a protected and it simply said the harm  does not rise to the level of persecution i think i heard you say that his meeting was not remotely connected who the killing of his cousins did you do this is a war that's correct on the record so what am i supposed to do with the police report these guys come to the house his mother opens the door when she did three individuals and are to mediately tying up the clarence hands dragging around the ring around the neighborhood now right there there's a connection to cousins it's unclear which cousins because according to the record the knight and the cousins who were murdered in during the civil war in the early one nine hundred eighty s were three cousins he names him specifically roberto andras and cruz where as the police report specifically says that these identified individuals he doesn't know who they are they were masked they never said anything about why they were there were they wanted to talk to him or why they were they were even picking on him you said the first one one of the threw is roberto that's correct so it's not it's not clear whether he has more than one cousin whose name is repair to who was more recently killed and he also submitted scritching but he also submitted to support his claim the pastor's statement saying that in one nine hundred ninety five mr cruz had to leave had to leave the country because these gangs came and threatened to kill him just as it did to have two of his cousins again there's a similarity to cousins who were murdered unless he got out of the country but in but again there's no indication that that was remotely connected to the earlier murder of the three cousins during the civil war  have it's not clear the record doesn't compel the conclusion that he wants the court to accept which is the that there is this connection and that the murder of his cousins is what led to the one nine hundred ninety four beating the record simply doesn't compel that conclusion and it was his burden to establish that connection let me ask you a question i didn't ask it of the other side because i don't think they are aware of what we do sometimes it's all right this person  he he doesn't appear to be one of the worst people that we have got several times and then learned that on the basis that he had been removed in absentia but apparently the court corrected that because they believe that it was a result of that i see so he's not like some of the people that we have that are completely under the radar and then we finally find them when they commit a crime or they've got convictions in any number of things is is this a case that the government would consider mediating the government i would always happy to take back to d h us any requests for mediation i don't promise that anything would be resolved but we're certainly i'm i'm happy to take  requests for mediation ok and that's the court has any further questions thank you thank you thank you thank you the government never contested that and the board never made an adverse credibility finding and under kohl v holder when there is no adverse credibility finding the facts are deemed true and then the only next step is to find whether there's a reasonable inference that these harms rise to the level of past persecution to judge cal and i'd just like to clarify that for the proceedings this matter if the court does find that substantial evidence compels the conclusion of ok in that factual recitation the board does state that the petitioner claims that these harms were on account of a mistaken belief that he and his family were accused of being  talk about it's the first full paragraph at the bottom before they get into the economic displacement analysis for the past persecution it's the second full paragraph excuse me you'll see right after it states the what it what it accounts for three harms the physical mistreatment the murder of his three cousins and then the displacement from their  land the next sentence i believe states do you have the board's opinion in front of you what's the paid to the board opinion maybe should do it that way because of course those are not the same page numbers and i so it would be page three of the board's opinion you're ok time he claims to have been targeted to the mistaken belief that he and his members of his family were members of the real forces i'm not sure how we get nexus out of this they they state his claims and then they on the next paragraphs just say we agree with the i j a that responded has not established past persecution  salvador that rises to the level of that's their finding yes your honor but they never contest the imputed political opinion and by stating the factual recitation they are assuming that this is based on an appeal i read that differently i just seems to me they skip right over and they haven't reached it yet but i'm trying to i'll give it another look and you've pointed out where you want me to look so ok thank you ron so the harms suffered by petitioner are very similar in the family members killed and you had a credible death threat which is exactly what the petitioner has here the police report which wasn't properly considered connects the the murders of his cousins to his own one thousand nine hundred four salt when they specifically referenced his cousins and as in a vase held you know there's no no there's no other reasonable inference other than to connect these harms even with the passage of time that's not dispositive so long as there's a connection between the harms and the there's not a telegraphing of our result thank you very much but we appreciate both that i think it's a good experience to do it and your preparation was i think both the government and the students and it's there's a need for people to do representation in these cases and we also at the silicates our ability to resolve these so we thank everyone that comes every day but i think that it's this kind of a special experience you know