move we'll try to remind you we can recall but just watch your time thank you today i'd like to talk about two issues one is the nexus issue and the other is the board's independent basis for denying the claim that is whether or not the government of el salvador would be able or willing to protect the petitioner let me before you get too far into your argument the way i see the record it's been fifteen years since th incident occurred and i believe the civil war is just over completely and i guess my question to you is you really think that there's still a danger here and if so why sure like many asylum claims the harm happened many years ago two thousand and three is a long time ago fifteen years ago  obviously is the petitioners position that he's still in danger given the country conditions i'm not a history expert on this matter of course the peace accords were prior to the harm in two thousand and three  he's alleging harm after those accords i know that the current situation in el salvador is outside the record i don't know that the national liberation front is in any leadership position in the country to do any harm to the petitioner but that would be his position that even though these things happen people have long memories and it's very typical in an asylum or withholding of removal claim that petitioners and applicants for withholding  feel that there's still a danger in these in their home country that people will remember that questions i have or to the first is that i thought that the testimony in the case would indicate that the people who attacked him didn't know about his pr military background in the civil war because they said if you're in the military will kill you but then they let him go so it sounds more like a random crime and the second thing is what evidence is there in the record that would suggest that the government in el salvador was on one willing or only able to give him protection thank you you are correct the the testimony does indicate that he denied being in the military to his attackers the board's decision does reference a statement by the attackers saying no you know you've been near you've done that it's the petitioners position that  attackers nevertheless knew or believe that he was in the military but you are correct that there is no statement for instance by the attackers we we know we have evidence to believe that you were in the military this is why we're attacking you my mind was i thought the attackers under used testimony specifically said if we find out you're in the military we're going to kill you but then they did let him go which was just implication that they didn't know he was in the military well yes and thank goodness for that that they didn't know or didn't believe or didn't at that moment the side to take retribution against him for being in the military it's our position that they did believe that and that the by a lot of the attack escalated from there if you followed the petitioners testimony it seems that they were taken to a field he was tied up then there were these questions and then there was the unfortunate attack against his partner so it would be our position that it could have been a warning it could have been some sort of threat that was from there that if we find out this is what we're going to do to you but you are correct that they thankfully did not do it at that time you would ask the second question about what evidence is is there in the record regarding the likelihood that they would harm him in the correct there are only two things one is the credible testimony of the petitioner often these cases turn on that he has a subjective fear of this harm continuing he believes that he's still in this danger and the either the board or the immigration judge referred to this as speculative so we do recognize that we can't just rely on that testimony that we have to turn to country reports which talk about lawlessness and impunity and those kinds of things that one where an attack like this won't be stopped by the police or government it certainly wasn't stopped in two thousand and three and so it's our position that he's still facing this kind of type of harm one of the major issues in this case as we see it is about the nexus to a protected ground so we do recognize that there is the independent basis if if you don't believe that there's a reasonable harm or reasonable a clear probability of harm we still feel like the court should evaluate the nexus and that the board of immigration appeals did not have the benefit of the eros romero holding which held that in this type of case and withholding  case that the proper standard to evaluate the nexus would be the a reason rather than one central reason and for for the reasons argued in the brief we would argue that certainly this was a reason for the harm for this for the reasons we were i've already discussed certainly the board did not seem to close the door on the possibility that political opinion that is his opinion against the national liberation front they didn't seem to close the door on the possibility that this was related or at least a partial reason or as i would as as the court in marrow stated that it was a reason  and so we feel like remained is appropriate in light of that new case and at that point we think that the merits or the the facts of the case would support a finding that it was certainly a reason for the harm review in this case for either one of two reasons first despite the board's recitation of the one central reason standard we believe the case remains unaffected by the ninth circuit's barajas decision because the held that there was no nexus between the harm he suffered and a protected ground and we believe that this decision that finding withstands substantial evidence review and in support of that position i would direct the court to the board's twenty sixteen decision where it's pacifically said we incorporate here in our previous decision as well as that of the immigration citation to the record the board incorporates specifically the i j a decision the i j a decision is an unequivocal finding and i'm quoting from the record at one one five the evidence does not establish that these men the attackers knew respondent or knew that he had been in the military and because they did not know him or of his prior military service they did not target him because he was a former member member of the military nor did they impute to him anti m political opinion it goes on to say there's there's no evidence the men who attacked respondent knew who he was or anything about him the court finds respondent has failed to establish that the harm he suffered had any nexus to any protected ground whatsoever well hidden yalit himself say they asked if i'd been a member of the military i said no and they said no we know you've been there you've done that we're going to kill you and maybe they changed their mind about killing him but doesn't that language imply that the did in fact seek him out and think he was a member of the military i don't believe it does your honor and in part we get to what i believe is that conclusion properly by for example looking at the chronology of the attack he's waiting on a dark road in el salvador for his partner to come get off work she gets off the bus he says that he notices suspicious individuals in the in the near distance any wants to avoid them and they say to him don't try to avoid us unless you want to see bloodshed this is why would i want to avoid you they have guns they have bandanas or something that says f m l n on them but they don't make any statement in regard to either there's is tied up with his shoelaces and his partner's tied up they strike him about the head so all of this happens before the back and forth questioning happens and to your honor's point we would say that they they ask him if he's a military he says no i'm not he says that twice they say no we know you've been there we know you've done that he says no i haven't i haven't been there obviously referring to military service the immigration judge as of fact in the first instance specifically reviewed this testimony and the in his written statement and simply found that one statement made in a sugarcane field in the midst of an attack with no other evidence to support a finding that he was targeted for that military spirits we did not provide a nexus to a protected category that their motivation was not  on a protected ground and so at this stage i would say that under some state under the rubric of substantial evidence review those conclusions or those factual findings are conclusive unless that single statement made fourteen years after he finished military service some ten years after the civil war ended against a record which shows yes a lot of crime in el salvador but a work of that does not show that there's a crime against former military men or this d based on nexus and again that's our position why there remain it's not remained worthy in light of ross whereas bra's we this court found that maybe if indeed the individual in bras was targeted at first for a non statutory ground after day two and day three of his harm it merged into a statutory ground we have nothing here we have we do have the ones the one statement but again i would say that we all deference to the trier of fact in the first instance and also when he won cross examination the h s attorney asked him well maybe that it couldn't be the case that they didn't know that you were military based on this back and forth and he he said something i'm paraphrasing maybe that maybe that he had made it that maybe they didn't know so again when we weigh the factual findings when he has admitted that maybe they didn't know i would say that in of itself is enough to support the findings below there's an independent basis that i'll just address briefly the unable or unwilling to protect finding the government role and we believe as we point out in our brief that petition essentially waives this claim by failing to present much of an argument at all in support of that that notwithstanding the petitioner in this case the  did not report this incident to to the to the authorities in el salvador and we acknowledge that that is not now by this court's jurisprudence dispositive of the unable or unwilling to protect but it is still a factor and he points to nothing else that would suggest that he has met that independent element of withholding over move a claim so for either or both of those reasons we believe that the petition for review should be thank you so to follow up on what we just heard and some of the questions before again just like the petitioner in varanasi we feel like the chronology of the tack actually supports a finding that pull of the political opinion would be a reason again when the when the board of immigration appeals is makes a finding like we it was reasonable for the immigration judge to infer that one statement was not enough to show a finding of one central reason again the standard now is a reason and so it seems appropriate that the board would have a chance to evaluate it under that standard and we recognize that even if the board  finds that there is a nexus the pardon even if the court finds that there is an excess that the court has doubts about the reasonability future harm again we are relying on the respondents own statements that he believes he still at risk that this happened years and years after the peace accords yes we have another fifteen years on top of that now however we feel like the country reports support a finding that it is a reasonable there is a reasonable a clear probability of harm