the question that comes first and foremost to mind after having parse through the the briefing in this in the record in this case is does the fact that a group within a society game social distinction over time constitute a material change to country conditions and of course i'm going to argue that it does the board and  there are changed country conditions and these can be seen in part they can be seen as a whole but there's a large part of the issue of change to country conditions that has to do with  intertwined with this issue of particular social group they're not divisible issues and i think it needs to be addressed to some degree first there are multiple change country conditions that we've been talking about in the brief but but the but the center of all of this is we have a group of individuals that were not recognized as socially distinct in the years two thousand two thousand and three two thousand and four by the time we come to this motion to reopen and by the time we have to make the argument there is a change country condition had a group within that society that was not recognized a socially distinct that there's nothing that we could find in authorities country conditions there was nothing that we could find a newspaper articles that said this is a socially distinct group but as of approximately two thousand and nine and in the years after two thousand and nine that group has become socially the sting and we were able to document in our brief the fact that salvadoran society does now recognize that this is a sub part of our overall society that we recognise and career back is extremely important in this regard because it's not necessarily an ocular recognition it's a societal distinction that's being made some of the articles almost seemed counter intuitive and the government was not not slow to pick up on that because they talk about efforts to reintegrate former gang members into the salvadoran society and maybe a head scratchers to wipe with those articles in but the reason those articles are in there is to say salvadoran society now recognizes this group they recognize this group as having certain traits having certain characteristics having certain disadvantages in comparison to the greater el salvador an society we've named them we know who they are we've created special programs for these people so that they can be identified and they can be treated differently than the rest of society this is your this is your group of this could apply to anybody you know men women old young part of the group part of the group i believe the facts and ray is was the guy was a member of the gang for under a year we're only talking about people that join the gang at a relationship especially in cases like mr martinez's case where he was involved with this gang from the time he was twelve years old he even sets forth in his declaration that his vehicle by virtue of his of his deep involvement with the gang as a youth was and prussian of that becomes a part of his being and becomes a part of his personality and then who later leave the gang and try to leave upstanding lives we're not saying these are necessarily people that turned around and testified against the gang or turned on the gang or join the police and started prosecuting gangs these are people that were culture rated into a gang culture who bear the marks of that in their attitudes in their mannerisms in their speech and who are recognised in salvadoran society as such when they go out and they try to integrate into larger society that's what those articles that i've attached are saying we know that these people are out there that are acculturated into the gangs and don't know how to  into our larger society we recognise them we identify them we're trying to help them the bottom line is we know they exist we know they exist as a group and this is a socially distinct group that needs something now the fact that we have a socially distinct group recognise in later years and i'm talking the two thousand and nine and pas because that's where the article start identifying this and start saying we recognise this group and we've given some some distinction to this group so from two thousand and nine forward you have a sea change in el salvador were something that was not recognized as a socially distinct group now is and the articles made very clear  is now mr martinez has a kind of dies a policy island play where he did not in the past and this court's precedents and the board's precedents are all going to be consistent with that we don't recognize leaving the gang or having been a former gang member or anything else as as being a socially distinct group we now have articles from the salvadoran press saying yes it is we recognize it thank you so much your honor i appreciate the reminder i'd like to had that old in absentia deportation order i believe it was judge einhorn was back in two thousand or two thousand and one the illegal re entry that would have been the bar to the adjustment and he would if we were to try to adjust him adjustment wouldn't work he would have to leave the country he would trigger the bars and it would be my assessment that in all likelihood it would be on wave  may please the court my name is collette winston i represent the respondent jeff sessions in this case the petitioner here has taken a giant leap over his burden of proof to reopen the case and has addressed the merits i'm going to address the motion to reopen which is the only issue here before the court the court shouldn't be reaching the merits of the case because he has not because mr martinez has failed to meet his burden of proving material change country conditions in el salvador that are sufficient to excuse the un timeliness of the second motion to reopen and its  and what his his thirteen articles that he attaches to his second motion to reopen show the country conditions are poor but if they've remained poor they remain constant from from before two thousand and three to that period two thousand and three to two thousand and fourteen and the articles show that there are gang members that are involved in criminal activities but no different than before what about the specifics  is is claiming that the the the big game changer here is the fact that in some way shape or form in el salvador they have now recognized the particularized violence i guess you might say against individuals who have left gangs and are now trying to live a gang free lifestyle your honor in the thirteen articles that he attaches there is just one article which is about seven or eight lines long dealing with a former gang member who was called smokey and he was  and that's thirteen gang member and it's not clear from that article why he was targeted was it because he was a former gang member or was it because he was quote working to keep kids out of gangs it's not at clear from that article so out of the thirteen there's not no article that really addresses the former gang members being mistreated by present gang members in fact it's quite the opposite many of the former gang members have successfully opened bakeries opened a poultry farm have tried to rehabilitate themselves and have try to mainstream themselves back into society but i'm having a real hard time seeing how leaving our gang would not have made you subject to retribution from time immemorial i mean it seems to me like this is something that has gone on forever very possibly and that's why it's not a change in country conditions there has to be a material change and that he has to meet that burden of proof before he can even start to address p block and the particular social group and whether he can meet his burden of proof in the merits hearing and this court has to decide that the board has somehow abused its discretion and has act irrationally or precisely or against the you know the contrary to law in order to reopen the case and if this case is reopened then the petitioner can address whether he has articulated a particular social group and whether he has a group that has social distinction but you don't get to step two until you've addressed up one and my argument is about step one coun argument is about step two and and the board's decision is well reasoned the it's based on the articles in the exhibits attached to his second motion to reopen and  he has not met his burden of showing a change so because something has occurred since time immemorial defacto means that there's been no change and he has the burden of showing a material change of country conditions which is sufficient to meet his burden of proof so you have both materiality and sufficiency and he meets neither one so you never get to the merits here  he also argues in his in his petition mr martinez in his petition for review and his brief that there's been an end of the gang's truce in el salvador but the articles don't bear that out if anything perhaps at the most they gain truce is now more fragile than it's been and that's a truce between the gangs and the government of el salvador but there's nothing in the articles that show that it has ended so there is no change of country conditions of the violence and the crimes in el salvador proceeded two thousand and three and that's the reason why he hasn't met its burden of proof because you have to show him a distinction a difference an increase and more of a targeting and and former gang members just don't don't come up in these articles that are have been attached to his motion to reopen  second motion to reopen so you know there's no further questions the decision here is not arbitrary capricious it's not contrary to law the court should give deference to the board because the standard by which the court needs to analyze the case is the busa of discretion and there has been no abuse of discretion here mr martinez did not meet its burden of showing a material change of country conditions in el salvador that are sufficient number of affidavits from the church from charitable organizations about what a fine person he is what a contribution he made to the country is no way in mediation a sensible result could be reached i don't believe so your honor i think that if the law were sympathy then he might win but that's not that's not that the law of the law is he has a burden he ready he he had he was ordered deported and absentia in one nine hundred ninety three he filed a cancellation of removal application that he didn't qualify for he went to the board after an immigration judge denied the cancellation of removal but the question really isn't directed to the law it's really the exercise of discretion but the agency has chosen not to exercise discretion court right i realize that he was vacated in two thousand and twelve yet i don't think the agency is going to set using prosecutorial discretion i'm happy to address that question with the agency but i  don't think at this point after he's already filed two motions to reopen the agency's going to be i mean of all to that but i can certainly ask well that's one possibility  i don't know what happened before the guessing maybe opposing counsel would know when he gets up and maybe i don't i don't recall i was the person who briefed the case but only after the motion second i know maybe  really making a contribution we can exercise her discretion and we have to be done by the government and we thought now that we have a new attorney general maybe we should give him a chance to show how warm hearted we can certainly try  i'm not holding my breath thank you really i do not recall your honor having gages mediation through the circuit mediator i remember when we revisited the issue after we vacated the reached out to the government after the conviction was vacated exploit mediation in august but no response you got back was negative that that's what my notes were indicating to me but i do not have any recollection of having you the circuits mediation program and in in pursuing that the other points that i wanted to address very very quickly were i do disagree with the government about country conditions not having changed and about the gang truce called the court you not go quite as quickly oh i'm sorry but the point is this police and on page ninety two the police inspector is saying it appears the gangs are back at war and he goes however police now say that since january and this is twenty fourteen this is two thousand and fourteen article the murder rate has increased reaching as many as nine homicides per day that's not the only article that talks about a sharp uptick in gang violence in the twenty conflating stuff and step two i'm always the one who's saying i have a conflated they made a mistake in this case i think they have to be the materiality the question of materiality of a changed country condition is is it relevant is it prohibitive and the bottom line is if the society at large is now saying we recognize this group that we didn't recognize before as being socially distinct that is a material change that is a probative change