Legal Case Summary

One of you everyone, I want to just take a second to thank the Honorable, the Grom, Davis, very distinguished District Court colleague for sitting with us today and we're indebted to you and thank you. Hopefully you can get you back here more often. After that, we may have a see you again. But the complexities of this case, hopefully we can get you back here again. My pleasure. First case is Mejia versus Attorney General and also by the Basial, Dalton Mayors versus Attorney General. And I assume Mr. Effie you're going to argue for us for all the Basial, Dalton Mayors. That is correct, Robert. Okay. Thank you. Did I say Ms. Duffy? I'm sorry. Did I say Ms. Duffy? I think I may have. Mr. Duffy, you're honor. Yes, I do. Two women. Okay. Thank you. Mr. Duffy, I'm sorry. Thank you, Robert. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry

. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. The facts very only slightly. The facts very only slightly. So we don't start asking you questions, and I'll let you tell us, well,ор myOu вдруг'T So we don't start asking you questions, and you tell us or Oens, and you tell us or well, myOu我有 polar DoBuMusic experts graphio පම гру brewer y ඘�� irrelevant downstream.​ Okay. request for asylum under political opinion. I rely on our briefs for the remainder of our arguments. I believe Miss Rick Abba is going to address the specific issues of asylum as the facts tie into her particular case. You speak very softly, as do I. I'm maybe going to give way support. We'll do. Thank you, Rob. You mentioned political opinion. I wasn't sure that was before us, but you're not arguing that the personally held abhorrence in a glass hack to start a word to the gangs that are trying to recruit him is political opinion under section 208 and should have been regarded as such? Yes, sir. Yes, Your Honor. And it was briefed in this case. And the reason why political opinion should be regarded or his opposition to the criminal ideology of this gang and refusal to participate in the criminal ideology. Did they have an ideology at all? Well, ideology in a broad sense, Your Honor, but the country reports that are replete within the record indicate this is a very violent gang. The record shows that this gang engages in things such as kidnapping and murder and rape, decapitation, very hard activities. Our clients specifically refused to join the gang because he did not want to do that. He did not want to engage in that kind of activity. He was morally opposed to doing that. And in fact, one IJ, IJ in the immigration judge Castro said that the refusal to participate in criminal activity and the opposition to a criminal lifestyle is the quintessential expression of political opinion. The government in its brief has argued that this case is simply foreclosed by the Supreme Court's case in Elias Zacharias, but as we indicate, it's not. For multiple reasons, two primary reasons. First, the Supreme Court did not specifically address whether Mr. Elias Zacharias had or was expressing a political opinion. It commented and dicted to say, really, all Mr. Zacharias was doing was saying he didn't want to choose sides. Quite to the contrary, in our case, the facts are not disputed

. Mr. Galdoven's testimony is that he refused to participate because he did not want to engage in that criminal activity. And that was testimony that the IJ considered to be credible. So the Supreme Court case in Zacharias did not even reach the decision as to whether Mr. Zacharias was expressing a political opinion because it said secondarily, we find that Mr. Zacharias has not proven that he will suffer or has suffered persecution on account of a protected ground. Regardless of whether it is political opinion or not, he has not shown that the activities of the gang members were directed at him in opposition to his political opinion or the expression of his political opinion, but rather simply as a matter of wanting to increase their own ranks. Again, the facts of this case are different than that. Mr. Galdoven was threatened when multiple occasions by this gang. And on the last occasion where they kidnapped him, dragged him up the mountain, tied him to a tree, and beat him brutally over the course of five hours. At that point, they said, we are no longer going to have you join our gang. We are going to kill you because of your refusal to join our gang. So when we look at the differences between Elias Zacharias and our case, they are completely and fundamentally distinguishable. And the government's sole response to our political opinion argument is that it is for close by Elias Zacharias. The cases are completely distinguishable. Now on the issue of- If you are right about that, then how do you limit it? How does that write? Because obviously one of the concerns the government has here, and frankly, I'm trying to make sense out of this social visibility, particularly element. And I'll talk to Mr. Hurt about it right. I'm beginning to think it is what, in any given case, someone says it is. I can't reconcile the cases on that. But at least there's an effort doing the part of the government that seems to be to contain that which would otherwise be not subject to being contained. Although, I'll get into Mr. Hurt, I think, a cost goes about as far to contain this, you can. But how do you contain political opinion? Because then anyone who expresses an opposition to almost anything based upon any round, you could cast as a political opinion. Well, if it is political opinion, and that's a judgment that this court has to make. But again, the opinion expressed or the opposition expressed in an only sacrifice was simply, the petitioner in that case said, look, I choose not to choose sides. He was approached and recruited by a gang element. And he said, I don't want to choose your side versus it was an anti-government gang. Versus the government side, I choose not to choose. Quite different. That's not the expression of a political opinion. That's just, as the Supreme Court in that case said, no more different than simple risk aversion. In this particular case, the stated record testimony of our client, which has been deemed to be credible by the immigration judge, was the expression of the political opinion that he chose not to participate in that criminal ideology. Whether to your point, Judge McKee, that is political opinion. I point to Judge Castro's opinion that the opposition to crime, how to treat it, how to punish it, how to deal with it, to be opposed to it or to engage in it, is the pen ultimate expression of, or the ultimate expression of political opinion, is what every society engages in. Let me, if I can, the age thing is kind of, one of the many things is a photo of me

. Your client will soon be 26. That's correct, Your Honor, he's 25 right now. If you define the group in terms of the ages, and I think we're to find at some point, a young man between the age of 14 and 25, who are part of this gang, would not it become mood if your client is going to be older than the age of the cohort that he says that he doesn't want to join? It's a very good question, Your Honor, and the answer is no, it would not, because he has already been identified by this group. He was within that particular social group at the time. He was persecuted and suffered past persecution on account of his association with that group. And if he returns, if he returns when he's 40, they're going to persecute him or kill him because 15 years ago he didn't join their gang. Certainly, if he's returned now, Your Honor, we believe that he would. That wasn't my question. If he's returned when he's 40, Your Honor, I don't have an answer to that particular question. But clearly, to the extent that gang members will hold that against him, as they are holding it against him now, I can't speak to what that gang will do in 15 years, or who will be membership of that gang, but that gang is clearly a cross-national, and certainly cross-hound door in gang, because Mr. Gallham is persecuted on multiple different occasions by multiple different members of the same gang. So there's clearly a communication network going on within this gang that would allow them to know and find out that he's back in the country and the secretribution on him. But how do you define the particular social group? It has been defined, Your Honor, by the Board of Immigration Appeals, and it's a cost of decision back in 1985. And that opinion was adopted by this court in Fattin in 1993. And it's that which has an immutable characteristic. Immutable characteristic, not capable of being changed, or so innate to the person's conscience that it should not be changed. All right, that's the legal definition, but how are you defining what particular social group does your client subscribe or belong? It is young, Judge Hardam and it's young Honduran males who have been recruited by gangs who are refused to join the gang. But there's co-counsel sitting there telling us that that's not right. It's young El Salvadoran men as well. There could be two separate, there could be different political or different particular social groups in different countries that depends upon the country of origin and the cultural experience that they come from. So Salvadorans who rebuff the Mara Salva Trouture, constitute one particular social group, Honduran's who rebuff them are a different particular social group. Guadalaman's and Mexicans who rebuff them are two additional particular social groups. Certainly, Your Honor, certainly can be that way. And undocumented Salvadorans living in LA who rebuff them in LA constitute a separate particular social group. I wouldn't know about LA, Your Honor, it would depend upon the other countries. The gang is very potent in LA, it's very potent in Washington DC, many major cities in the US. Yes, Your Honor. But in order to qualify for refugee status, you not only have to show membership in a particular social group, but also that you suffer persecution that a government is unable or unwilling to prevent. And as I said to your example in LA, I don't know if it would be the same that the US government be unwilling or unable to prevent that. We certainly have evidence in this case that the Honduran government is unable or unwilling to prevent this persecution on our client. And I believe the same facts exist in El Salvador. If I could point you're on. But are these all what I'm getting at, are these all different particular social groups, are they all the same particular? They would be different, particular social groups. And that's, you lead me to one of the most important points in this case, Your Honor, the change that the BIA has, has, has brought about with these recent decisions, adding these new requirements that were not previously there. If those requirements were imposed, many of the groups that had been previously recognized, not only by this court, but by the BIA, would lose that protected status. For example, this court in the Gomez decision back in 2008 found as a particular social group, women who have escaped involuntary servitude after being abducted and confined by Colombian rebels. There's no way you would know from a social visibility analysis that those women would be distinguishable from other members of the group

. This court has also recognized escaped children who have escaped military, conscription. I was going to ask you about that because in that case, Lukawaga, what would seem to be different and difference may dissipate based upon how you just define the group? Because they always faced a realistic fear of persecution because they had been child soldiers in that country. As I initially understood your group, you weren't arguing that would be a fear of persecution for having resisted recruitment into the gang, but the persecution was for resisting the government into the gang. It if he's at an age now where he would no longer be subject to recruitment, it seemed like, again, upon return, there wouldn't be a good faith or realistic, well-founded fear of future persecution. Are you saying I'm wrong because the way I'm looking at your definition? Yes, yes, Your Honor, I believe so. First of all, with respect to the legal standard, it's already been, I believe, established by this court that our client did suffer persecution in the past and as the court pointed out. Because in the past he was within the cohort, where it could be recruited. Exactly. And as this court pointed out in their previous decision, as the law applies, once we have proven past persecution, the burden shifts to the government to prove that there will not be future persecution, there's no such evidence in that particular case. Why didn't they meet that simply by saying that he's no longer in the group where he would be subject to the persecution? That would be enough to undermine the presumption. That would assume Your Honor that this group will no longer persecute him simply because he's fallen out of a specified age frame. But the evidence is that this group will persecute him and they've already threatened to do so because of his refusal. His past experience was the refusal to join this gang and because of that, that was the genesis for the threats against him to his life. There's no reason to believe that those threats won't continue in the future and, again, the burden shifts to the government to do that. The main point about the change in this standard, Your Honor, is that it will officiate many groups that have already been recognized by this court as entitled to protection under the laws, both domestic and international laws for refugee protection. An agency... The Board does, in fact, have the authority to look at circumstances as they develop and to refine the standard. Do they not? Absolutely, Judge Daves. And obviously, given Chevron, there's a particular standard of review for the Board's adjustments to the standard. Is that correct? That is correct. You suggest that this refinement is arbitrary and capricious and not entitled to the deference under the law. I need you to tell me specifically why it is arbitrary and capricious. It is your correct, Your Honor, and that was the United States Supreme Court case, which indicated that a Board is entitled and is entitled to deference in making decisions of interpretations of statutory provisions. But the United States Supreme Court and the State Farm decision back in 1983 indicated that if a Board is going, but if an agency is going to change its interpretation, it has to give a reason analysis for that. And there is, in fact, a presumption against the change. Why is this not a... Why is this change not permissible under the United States Supreme Court standard? Because it's inconsistent, Your Honor, with passport decisions. As I said, it would take many groups that have been previously accorded protection as refugees, both domestically and internationally, and no longer give those groups the same protection that this court previously said they were entitled to. So it's inconsistent with prior Board decisions. That might help you on social visibility, but it doesn't help you on particularity. What's interesting, Your Honor. In SEG, SEG was decided just in 2008, and the holding correctment from wrong is that Salvador and youths who have resisted gang recruitment do not constitute a particular social group. There's no change there

. Can you answer Judge Davis's question focusing not on social visibility, but on particularity? Why is that not entitled to Chevron Deference? It's one of the problems with the BI's change to the standard, fundamental change to the standard. What do they mean by particularity? The SEG case, Judge Hardiman, defined particularity as follows. The essence of the particularity requirement is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized by the society in question as a discreet class of persons. The Board itself doesn't understand what particularity means. It has defined it the same way it is defined social visibility. And if we apply social visibility to groups that had been previously recognized by this court, such as the escape child soldiers in the Lucrago case, and the women who have escaped voluntary insurvitude in the Gomez-Laga case, and numerous other cases cited in our briefs, those were individuals who this court said are entitled to protection as refugees. If we allow the BI to change its standard now, we will say that those same groups are no more or future applicants who request the protection of our asylum laws will no longer be entitled to the same protection that this court accorded the same, not similarly situated, but the same situated individuals in the past. That's what makes this decision arbitrary and capricious, Judge Davis. That's what makes this decision not entitled to deference under Chevron and under State Farm. And I would add further that in SEG and EAG, Judge Hardiman, the Board got it wrong. Part of its reliance on his decision was on international law, and they cited the guidelines put out by the United Nations High Commissioner for Refugees. The guidelines put out by the High Commissioner gave an alternative standard for the definition of a particular social group, either those with immutable characteristics or, or if they don't have immutable characteristics, then those who have a certain social perceptibility. In relying upon those guidelines, those international standards, the Board got it wrong. International guidelines don't require that. And what's more, the change to this definition goes contrary to congressional intent, which is yet another reason why this court is in total to strike down this definition. In passing the 1980 refugee law, Congress intended to bring US refugee law in conformance with international law. That principle was specifically laid out by this court in the 15th decision in 1993. Well, international law is governed by the guidelines put out by the UNHCR, which says that a particular social group can either be those with immutable characteristics or those who are perceived as a group by society, by imposing a societal visibility, and as I indicated, particularly seems to be the same in the Board's confused definition, by adding a social visibility requirement to refugee status under U.S. law, the Board in one stroke will not only take away refugee protection to those previously entitled to it, but will also take U.S. refugee law out of a consistent pattern with the United Nations law, which is specifically what Congress intended. And one last thing, Your Honours, in ruling on the Board decision in SEG, it relied in part upon a misunderstanding of international law. It also relied in part upon the Gomez decision in Second Circuit. Now, what's interesting about the Gomez decision is- What do the other one first? What was the misunderstanding on international law, other than section 2, oh, which of the guidelines- My apologies, Your Honour, what I just indicated that what the SEG case in relying upon the international guidelines was that the international guidelines impose a requirement for social visibility when they do not. They clearly do not. And in relying upon the Gomez case, the Second Circuit decision, what's interesting about that case is this. When a cost that came down- A cost that has been the defining standard for recognizing particular social groups for nearly 25 years, many circuits, including this circuit, the first circuit, the seventh circuit, have adopted the Acosta standard and followed it very clearly. There was one circuit that had a slight variation upon that. That was the Gomez decision, the Second Circuit, back in the mid-90s. And what Gomez said, it applied a bit of a social visibility requirement to the definition of a particular social group in the Second Circuit. And what Gomez says very clearly is, we're looking for a level of social visibility such that the person who is persecuted would be visible to his or her attackers or to society in general. That's a significant difference than making social visibility a requirement to society in general. There are many people, when you look at the examples of the cases that we have so far, the abducted children's soldiers that this court recognized in Lukwago. But I'm troubled by that because if it's enough that you're visible to your attackers, then you could be a particular social group of one. What if this gang wants to recruit someone because he knows nuclear fission and they persecute him. They want him to be on their team and help develop weaponry for the gang

. They know him, he's visible to them. You're saying that because, even though society wouldn't recognize this nuclear physicist as a particular group, he's just an individual, you're saying that because the gang, he's visible to the gang and they really want him, that that man would constitute a group. No, he would not. He would not. So it has to be society at large, then it can't just be someone who's visible to the gang. No, because your honor, the particular social group under Acosta has already been defined. You are just Acosta, nothing beyond Acosta. Exactly. We start to do Acosta against it. The problem is adding to Acosta, more precisely, Judge McKee, changing Acosta. What Acosta defines particular social group as a group of persons sharing common characteristics. Those common characteristics must either be in native to the individual. They can be such things as race, kinship, or they can be shared experience, landowners, former military officers, or they can be things that a person should not have to change because they're individual to their identity, but it must be shared characteristics of a group. And I believe defined by this court, if not this court, than the US Supreme Court, as anyone more than one person. But the the troubling aspect you have with that is the same troubling aspect that we're having with the Judge Hardiman, which is imposing a social visibility requirement, which is inconsistent with par law. I'm willing to concede for a minute that you're right on social visibility, but I'm still wondering where the particularity is. And I guess your answer to my previous question and following up on Judge Davis's question is that you're you're eliding social visibility and particularity in the one definition or I misunderstand you on that. If you are, it's my fault you're on my apologies. I'm not trying to meld them together. I think you're saying you need the board. The board has no idea the difference is. Don't you need both? You need particularity and you're arguing and I think with some real persuasive force that the social visibility issue is problematic. But don't you still need to persuade us that your client falls within a particular social group. And that's a particular social group that SEG, at least with respect to Salvatorens, has said unequivocally the Board of Immigration Appeals has said this is not a particular social group. Yes, yes, Your Honor. But particularity to the extent that we're talking about some definition of the group has always been part of the definition. And I would add that this court in its prior decision, which is another statement of one of the recent cases I saw that came out. In its prior decision, while this court did not specifically rule on whether Mr. Galdemez's proposed particular social group was in fact a particular social group. And this court did not do that at a deference to the law, to the United States Supreme Court's law in Thomas versus Gonzalez, I believe, which says that this court should not in the Court of Appeals in general should not in the first instance decide whether or not a group is a particular social group. This court sent the decision back, vacated the immigration judges entire decision and sent it back for a proceeding consistent with the opinion for multiple hours. One of those hours was the immigration judge and therefore the Board of Immigration Appeals, the fact that they didn't even decide Mr. Galdemez's claim of particular social group. This court correctly sent it back, but what's of interest, significant interest, is this court respected the presidential authority of the United States and sending it back and not ruling on it in the first instance. But it said in Dicta, this certainly sounds like a particular social group to us. What would be the remedy? Would the remedy be to send it back yet again and say, look at this, and determine whether or not a particular social group without adding the requirement of particularity and social visibility? I believe this court can do one of two things at this juncture. Consistent with the Gonzalez, the Thomas versus Gonzalez opinion, which prohibits this court from deciding the issue in the first instance, this court has already given the Board of Immigration Appeals its try and it's gotten it wrong

. I think this court- We don't know if the board would say, well, I think what you know, but in theory, we don't know whether or not the board, if they didn't impose a social visibility in particularity, would look at this and say, all right, this is a particular social group under it. Let's assume it's another legal fiction. We engage in it all the time. Let's assume that we don't know what the board would do if this case would go back without those two requirements. Why shouldn't we pursue into that legal fiction? And procedurally, I think that's the way we normally would normally proceed. Send it back and say, you were wrong on social visibility in particularity. Look at this allegation and determine particular social group without adding anything to a cost. I believe that is one of the things this court is certainly entitled to do. Essentially, what Judge McKee you're saying is, do what we told you to do, do what this court told you to do before. This court can rule that social visibility in particularity should not be considered for all the reasons we discussed today should not be considered part of the standard. Strike that, send the case back and have a ruling on whether Mr. Galdemann's constitute a particular social group under the standard as existed under under a cost and adopted by Fattin. But I also believe this court wishes it can make the decision itself because the Thomas versus Gonzalez decision says you can't do it in the first instance and you've given the board the opportunity and I will add that this would not be the first time. The seventh circuit in the Gatemi decision as well as the Santas, the Ramos versus our Recolder decision have specifically found that these two newly added requirements changed the existing law and shouldn't be part of it. In Gatemi the seventh circuit, this was a August of 2009 decision said that these new things, social visibility in particularity as defined by SG make no sense. It says if you were a member of a group that has been targeted for persecution you will take pains to avoid being socially visible. The seventh circuit also ruled because it was inconsistent with seventh circuit prior law just as SG is inconsistent with prior third circuit law just as it is inconsistent with Fattin and that's what the seventh circuit did. It said we ruled both of these standards to be to be contrary to the intent and we're not going to follow them. It said the particularity standard is contrary? No, no, your honor. Hardamon said the social visibility standard was... No, that wasn't me. I wasn't sitting on the seventh. Pazner. You said Hardamon. Don't insult Judge Pazner. My apologies. No Judge Pazner, he took the social visit, much of your social visibility argument, echoes what he was criticizing in Gatimi but in Gatimi he specifically wrote, we have no quarrel with the rejection in those cases of the attempted classification of specific groups as particular social groups. And then he cites the first string site of many is the ninth circuit decision in Ramos Lopez which held young Honduran men who resist being recruited into gangs. He's saying they are not a particular social group. And I can't find a single court of appeals decision in the country and I don't think anybody cited one where a court of appeals has held that either Salvanoran men or Honduran men or any other men who rebuff efforts by the MS to recruit them constitute a particular social group. And I can't point you to one either Judge Hardamon. I will say that the ninth circuit is the only circuit which I can think of that has endorsed or has ruled that such a characterization does not constitute a particular social group but those decisions didn't come out until after SEG and EAG. And I believe in that decision, the Santos Lima's decision, the court specifically noted that it had not previously considered whether this group constituted a particular social group and therefore it was operating so to speak on a blank slate. So fundamentally you're asking us to weigh in on the opposite side of an emergent circuit split regarding the validity of SEG. Yes, I am

. That's the ultimate issue here. Yes, I am your honor. And this this court, this circuit would not be standing alone by doing so. And the seventh circuit has already done so. And I would add that for the same reasons the seventh circuit did so, it did so in part, part because it said it didn't make sense, but part because it said it was contrary to its prior precedent. And as I said, this new standard is contrary to prior third circuit precedent as it would take groups that were previously recognized and de-recognized them if that's possible. And the important is when the battle lose the war. I mean, certainly possible that we would find the sure right on these two new elements that would go back and then looking at a cost of the Clown was still not able to prevail. Judge anything is certainly possible. I've learned that in my experience with this BIA, but I would indicate to this court that this court previously ruled in rules, not the word, previously stated in Dicta that this certainly sounds like. This certainly sounds like a particular social group. Judge Rendell wrote the opinion. This sounds like many of the same characteristics as the BIA has already recognized to be particular social groups. And we have to remember the essence of what? If that it is, and maybe it is, I said maybe to make sense out of the precedent. It's a duck test. If it sounds like, looks like quacks like, walks like, then it is. The opinion read the group in which Galdemnist claims membership shares the characteristics of other groups that the BIA has found to constitute a particular social group. Again, and I argued this case approximately two years ago before the court. The court was constrained to send it back under the precedence of Thomas Vs. Gonzalez. But it felt strongly enough about the issue following the briefing in the oral argument that if put that in its brief that this certainly sounds like, it meets the characteristics. It's a shared characteristics among a group that is of such fundamental importance to the conscience and identity of the individual that he should not be forced to change it. I would add that as well, Judge Hardeman. In the other decision that recently came out on the 9th Circuit, the Diskasky decision, I believe, indicative Judge Kleinfeld got it wrong to be completely blunt and fair about it because he said, this does not constitute a group of persons who were resisting gang membership. And the judge said, this does not constitute, this person does not constitute, his proposed group does not constitute a particular social group because he is free to change his circumstance and therefore he wouldn't be persecuted. Well, he said the same thing about the taxi drivers and was, I guess, was quite a model who opposed guerrilla groups. You know, it was a seed to the guerrilla, like a man, but Judge McKee, you hit the nail on the head, that's exactly it. The courts around the country have declined to recognize particular social groups precisely because someone could change their own circumstance. You no longer have to be a taxi cab driver. And in some cases, you can become a guerrilla. That's what the court said. You can become a guerrilla. You're going to seed to the groups demands. And that's where Judge Kleinfeld got it wrong in Discarski because the whole principle behind a cost that, as recognized by Fattin, is we will recognize those that have shared characteristics, not just in a quality such as race and kinship or shared experiences, but those characteristics of an individual that are so fundamental to their identity and their conscience that we shouldn't require them to change it. But they got wrong in the Ninth Circuit in Discarski and not recognized in that group as a particular social group, was they said, you can change. You can just become a guerrilla. Mr

. Galbames, you can, your destiny is in your own hands. You can join up and you can do what the gang guys down there. That's precisely what a cost was guarding against. That's precisely the protection that a cost that in Discourt and Fattin promised to these individuals. And that's precisely what the BIA is attempting to take away. Mr. Adolfi, thank you. Grimors, thank you, you're welcome. Thank you, Your Honour. Mr. Rickabal? Good morning. My name is Jessica Rickabal and I represent Petitioner Jose Mijon Tez. Much like the Galbames case, the primary issue in this case is whether young men from El Salvador lacking family ties and morally opposed to gang membership may constitute a particular social group. Based on the evidence that Mr. Mijon Fuente is presented before the immigration judge, he presented sufficient evidence to establish membership in a particular social group under the framework that this court approved of in Fattin. Unlike your colleague, Mr. Galbames, you've got an adverse credibility to the content with. How should we look at that? And why was the IJ and the BIA were a word that IJ and the BIA were wrong in terms of finding your client was incredible? Well, first the BIA did not take a position on credibility and under this court's president. You're right. So that question goes away because we have to assume the credibility. It was the IJ who deemed him not credible to the BIA and ruined that. You're right. Correct. Your Honour. Mr. Mijon Fuente was the corroborating affidavit of former MS member Alec Sanchez, provide the best conceivable evidence of why he is a member of a particular social group. And it's this evidence that is what distinguishes this case from other similar asylum cases or where applicants have failed to show membership in a particular social group. Mr. Mijon Fuente specifically testified that MS targeted him based on for recruitment based on his membership in a particular social group and ultimately persecuted him for his refusal to join their ranks. Specifically, he testified that MS approached him two days after the death of his great grandfather and told him that he should not be alone in the world and that they could offer him protection. He declined membership but they again approached him only a month later and said I do not want to be a part of criminal activity. However, MS gave him one more chance saying that if you don't change your mind, you're going to experience problems. He understood that problems meant that he would be physically harmed. MS in El Salvador was recognizable by people in the community because he, because MS had open public associations. Mr. Mijon Fuente testified that he recognized MS members because they hung out by the soccer fields where he played. But also that there's ample evidence in the record that MS had certain markings of gang and dish at tattoos that made them recognizable in El Salvador

. But do you tell me how you define your social group? Yeah, we do thank you. We do know the facts. How do you define your group? My particular Mr. Mijon Fuente's particular social group is young men from El Salvador lacking family ties and morally opposed to join gangs. What family ties? He was after the death of his great-grandfather. He lived alone. He didn't have any family near him. And MS recognized this particular aspect of his circle. No, I'm not asking about the facts of this case and asking about how you define the group. What family ties? The death of a great-grandfather, the death of an adult male, the death, what family ties are we talking about? Would the case be different if he was being raised by his great-grandfather and his great-grandmother? I think that here it's different based on what Mr. Alex Sanchez, the former MS gang member, and that is that MS specifically targeted him, a targeted people that didn't have any connection to the community with family. He was a sister, though, doesn't he? He did. He ended up living with her. He didn't end up living with her. She was actually living in another part of the country. But he had no other family to speak of in El Salvador and certainly not in the area in which he lived. And she's still there. No, his sister has since moved to the United States. Okay, that's after the record, I guess, according to the record, she was still there. At least at the time of the IJ hearing, she was still there. Yes, Your Honor. Okay. Mr. Mayor, one more. But so, Fent, will you define family ties as having no other immediate family in the vicinity? Yes. And how do the gang members or how does the Salvadoran society know that? Well, El Salvadoran society based on the record is quite small, clearly based on the record in this case, MS, new petitioner from the time that he was young, a teenager, and they were pervasive throughout society. He specifically knew one of the MS gang members by name and is clear based on his testimony that MS knew that he didn't have family ties because the very first time they approached him was only two days after the death of his great-grandfather and they told him, I know you're alone, you shouldn't be alone, join us. His mother's in the US since he was young, right? Yes, since he was young. So she moves back to El Salvador, he no longer is a person without family ties. The fact that she possibly could move back to El Salvador doesn't matter because once MS has identified Mr. Major Fuentes as someone that opposes them, he's on their list. He's made himself a target. All right, well that makes sense to me, but then that takes away your notion that it's dependent upon lack of family ties. I've asked you to just hypothesize that mother moves back, so he no longer satisfies the lack of family ties criteria on. So are you in essence arguing that his rebuffing of their forcible recruitment efforts and their beatings that they inflicted upon him, that's what makes him part of a social group? That is certainly what makes him part of a social group, but his lack of family ties in the first instance is what caught MS's attention for recruitment and that first instance of having no family ties when they tried to recruit him, made him in a particularly attractive target for recruitment. And once he was on their radar... He was vulnerable. Yes. But that's a mut- the problem that is that's immutable. The family ties aspect is mutable. The fact that he rebuffed their efforts is not mutable. That's happened and no one can change that. But the family ties issue strikes me as a mutable characteristic. You don't know if he's going to remain alone in the world or whether he's going to have cousins or uncles or mom comes back. We don't know that. Right? Well, I think what's important for the analysis is what his situation was at the time the MS first targeted him. And at that time he had no family ties. And because they were recruiting him and he rebuffed their efforts, he is forever going to be a target to MS because in a sense he was showing them no respect as Mr. Adams. The second part of the equation either immutable or one should not be quite required to change. Is that help you? Should he be required to say, hey, mom, you got to come back and live with me and quite a mom? Is that something that we should, the government should expect that his mother should all bus will be removed back along with him? Absolutely not, your honor. He shouldn't be required to try to obtain family ties. And there's no evidence in the record that his mom would, for example, move back to the El Salvador. El Salvador. Yes. And Mr. Alexander, I'm sorry, from his experience as a former MS member, he knew how MS operated. And he knew that MS specifically targeted individuals that were vulnerable, particularly those that didn't have family. And that once they were a target of MS, they couldn't escape the attention of MS. And if they refused to join MS, they would take that as a sign of lack of respect and they would persecute him for their ideological beliefs that criminal activity is wrong. What about the same thing I asked your colleague about the aging out of the cohort? How old is your clan? Are these 29? Yes, you're on the Kempst United States when he was 24. So if you were to go back to be about 30, does he get to the point chronologically where he's no longer in the court that he's being persecuted by? No, I think that's similar to the family ties aspect that it matters what age he was when I- So his age is going to change. His family situation may not change. We know his age will change if he stays alive. All of our ages are going to change. Well, MS, the group membership ranges an age from young boys to 40-year-olds. So there's no suggestion that the same- Who's the target for recruitment, you know? I'm sorry. What does the record say about who they target for recruitment? The record says that they target young men specifically for recruitment as an initial matter. And it's this initial recruitment that makes him part of a particular social group because once he's caught their attention, he can escape, no matter what he does, no matter if he gets older or not. And I think that also based on the facts of this case, it's important to note that his brutal assaults from MS occurred over a period of two years that they didn't lose focus. They didn't forget about him. And since MS? Any separate instances of assault were there and what happened exactly? There were two separate instances of assault, Your Honor

.. He was vulnerable. Yes. But that's a mut- the problem that is that's immutable. The family ties aspect is mutable. The fact that he rebuffed their efforts is not mutable. That's happened and no one can change that. But the family ties issue strikes me as a mutable characteristic. You don't know if he's going to remain alone in the world or whether he's going to have cousins or uncles or mom comes back. We don't know that. Right? Well, I think what's important for the analysis is what his situation was at the time the MS first targeted him. And at that time he had no family ties. And because they were recruiting him and he rebuffed their efforts, he is forever going to be a target to MS because in a sense he was showing them no respect as Mr. Adams. The second part of the equation either immutable or one should not be quite required to change. Is that help you? Should he be required to say, hey, mom, you got to come back and live with me and quite a mom? Is that something that we should, the government should expect that his mother should all bus will be removed back along with him? Absolutely not, your honor. He shouldn't be required to try to obtain family ties. And there's no evidence in the record that his mom would, for example, move back to the El Salvador. El Salvador. Yes. And Mr. Alexander, I'm sorry, from his experience as a former MS member, he knew how MS operated. And he knew that MS specifically targeted individuals that were vulnerable, particularly those that didn't have family. And that once they were a target of MS, they couldn't escape the attention of MS. And if they refused to join MS, they would take that as a sign of lack of respect and they would persecute him for their ideological beliefs that criminal activity is wrong. What about the same thing I asked your colleague about the aging out of the cohort? How old is your clan? Are these 29? Yes, you're on the Kempst United States when he was 24. So if you were to go back to be about 30, does he get to the point chronologically where he's no longer in the court that he's being persecuted by? No, I think that's similar to the family ties aspect that it matters what age he was when I- So his age is going to change. His family situation may not change. We know his age will change if he stays alive. All of our ages are going to change. Well, MS, the group membership ranges an age from young boys to 40-year-olds. So there's no suggestion that the same- Who's the target for recruitment, you know? I'm sorry. What does the record say about who they target for recruitment? The record says that they target young men specifically for recruitment as an initial matter. And it's this initial recruitment that makes him part of a particular social group because once he's caught their attention, he can escape, no matter what he does, no matter if he gets older or not. And I think that also based on the facts of this case, it's important to note that his brutal assaults from MS occurred over a period of two years that they didn't lose focus. They didn't forget about him. And since MS? Any separate instances of assault were there and what happened exactly? There were two separate instances of assault, Your Honor. The first was after a couple of encounters with MS where he said that he would not join the ranks and they told him that they'd give him another chance, but he'd have problems. During the first instance of assault, he was going to a local store and MS members recognized him and said, we've given you enough time and you didn't join us. We're tired of you playing games. They started pushing him, hitting him, and started beating him with a baseball bat after he decided to try and defend himself. He was beat so severely that he sustained a broken clavicle and the only thing that scared off MS members was when a nearby neighbor fired two shots into the air. He went to the hospital after that incident. He made a police report, however the police said that there wasn't enough evidence to prosecute his attack. Which is a second instance of persecution? Yes, the second instance was also a persecution. They pulled him off of a bus as he was coming home from the beach. They just started beating him so severely that he lost consciousness. He wound up in the hospital for two weeks and spent six weeks at home before he could return to work. MS also told him in a letter while he was at the hospital that you escaped this time. But if you tell anyone about it, you won't live to tell about it. Based on these facts, I think that Mr. Major Fuente's has proven that he has certain characteristics such as sex and age that made him a particular target of MS in the first instance. And secondly, his more opposition to gangs is something that the court should not require him to change. The BIA aired when it relied on NRAAME to decide this case. But before you get there, I'm trying to understand how you connect the violence with his political opinions. What's the, how do we know that he's beaten because of his beliefs? Because he specifically told MS that he didn't want to be a part of their criminal activity. And they said that he would have problems if they refused to join. If he refused to join. Based on that exchange, they knew that he was opposed to joining them on his ideological beliefs. And based on what they told him, that they would persecute him if he continued to hold those beliefs. But they're a violent gang and violent people react strongly to others who don't take their suggestion. So how do we know that it's not as simply as a result of their inherent violence as opposed to on the, as a result of his beliefs? Well, I think, and I believe you might be picking up on the government's argument that... It's just a legitimate question. We'll talk to the government in a few minutes. I think that any time that the violence rises to such a level where paralysis might result such as Mr. Major's when, when he's friend Carlos or a murder, that it stops being about recruitment. It's about persecution, certainly for that individual. And it's about persecution based on their ideological beliefs that they won't join the gang because they're morally opposed to criminal activity. If you're right, I mean, it's concerning me and I'm sure it's concerning the government. The parameters of the group. The group is defined so broadly, so morpherously, and so open and indedally that almost anyone could imagine a circumstance in good faith where they could fit the definition of that group. I mean, does that a workable approach to either a cost or the asylum statute in general? And my guess is that's why the board tried to engraft to additional criteria on it

. The first was after a couple of encounters with MS where he said that he would not join the ranks and they told him that they'd give him another chance, but he'd have problems. During the first instance of assault, he was going to a local store and MS members recognized him and said, we've given you enough time and you didn't join us. We're tired of you playing games. They started pushing him, hitting him, and started beating him with a baseball bat after he decided to try and defend himself. He was beat so severely that he sustained a broken clavicle and the only thing that scared off MS members was when a nearby neighbor fired two shots into the air. He went to the hospital after that incident. He made a police report, however the police said that there wasn't enough evidence to prosecute his attack. Which is a second instance of persecution? Yes, the second instance was also a persecution. They pulled him off of a bus as he was coming home from the beach. They just started beating him so severely that he lost consciousness. He wound up in the hospital for two weeks and spent six weeks at home before he could return to work. MS also told him in a letter while he was at the hospital that you escaped this time. But if you tell anyone about it, you won't live to tell about it. Based on these facts, I think that Mr. Major Fuente's has proven that he has certain characteristics such as sex and age that made him a particular target of MS in the first instance. And secondly, his more opposition to gangs is something that the court should not require him to change. The BIA aired when it relied on NRAAME to decide this case. But before you get there, I'm trying to understand how you connect the violence with his political opinions. What's the, how do we know that he's beaten because of his beliefs? Because he specifically told MS that he didn't want to be a part of their criminal activity. And they said that he would have problems if they refused to join. If he refused to join. Based on that exchange, they knew that he was opposed to joining them on his ideological beliefs. And based on what they told him, that they would persecute him if he continued to hold those beliefs. But they're a violent gang and violent people react strongly to others who don't take their suggestion. So how do we know that it's not as simply as a result of their inherent violence as opposed to on the, as a result of his beliefs? Well, I think, and I believe you might be picking up on the government's argument that... It's just a legitimate question. We'll talk to the government in a few minutes. I think that any time that the violence rises to such a level where paralysis might result such as Mr. Major's when, when he's friend Carlos or a murder, that it stops being about recruitment. It's about persecution, certainly for that individual. And it's about persecution based on their ideological beliefs that they won't join the gang because they're morally opposed to criminal activity. If you're right, I mean, it's concerning me and I'm sure it's concerning the government. The parameters of the group. The group is defined so broadly, so morpherously, and so open and indedally that almost anyone could imagine a circumstance in good faith where they could fit the definition of that group. I mean, does that a workable approach to either a cost or the asylum statute in general? And my guess is that's why the board tried to engraft to additional criteria on it. And we can talk about that. It and I will be Mr. Herp. But what happens when the group morphs into something which is almost without containment? Yeah, and I don't think that this particular social group is one that's not sufficiently contained. There's no suggestion that MS targets other segments of society for recruitment in the first instance. It's primarily young men, particularly those that are most vulnerable in society like Mr. Major. So the persecution center around something which is significantly important to the quality of life in a society that we should be cognizant of. For example, this is from the didn't want to sell drugs. This is something goes on in big cities in this country every day. Somebody gets up in the morning they go to school and they're targeted and beaten by the local drug dealers because they won't stand on court and sell drugs for them. If you transport that to another country and you have somebody who's saying, look, I was being asked to sell drugs. I saw if I didn't sell drugs, they're going to beat me. I did not want to sell drugs and more of the opposed to drugs. Therefore, I'm part of particularly social group and we can go on from there. Is that a workable definition, is that a workable approach to what asylum means? I think that we have to stay within the confines of the fact that this is... And some of the government has unable to control the activity. Some of the governmental nexus is there. I think that within the confines of this case... We'll win right in the opinion and we may win right in the opinion. And when it's out there, it's law. And wherever we say, clever lawyers and sometimes not so clever lawyers are going to try to take what we say and show us why it applies to their situation. We heard before an application of homosexuality in Cuba being applied to your case. Now, I guess is when Mr. Duff is making your argument, you weren't saying, hey, Martin, that doesn't apply to your guy. He's not a homosexual living in Cuba. He's not a female who opposes female general in the election. Why bring in the cases up to the court? Wherever we say is when I have precedents and significance beyond the narrow confines of this case. I'm trying to figure out how do we get a handle on that. How does the board get a handle on that? Your particular social group becomes so amorphous and open-ended. What do we go with that? Well, the BIA, it's important to observe in this case, didn't say anything about problems with the particularity of Mr. Major Fuente's social group. It only made a reference to social visibility

. And we can talk about that. It and I will be Mr. Herp. But what happens when the group morphs into something which is almost without containment? Yeah, and I don't think that this particular social group is one that's not sufficiently contained. There's no suggestion that MS targets other segments of society for recruitment in the first instance. It's primarily young men, particularly those that are most vulnerable in society like Mr. Major. So the persecution center around something which is significantly important to the quality of life in a society that we should be cognizant of. For example, this is from the didn't want to sell drugs. This is something goes on in big cities in this country every day. Somebody gets up in the morning they go to school and they're targeted and beaten by the local drug dealers because they won't stand on court and sell drugs for them. If you transport that to another country and you have somebody who's saying, look, I was being asked to sell drugs. I saw if I didn't sell drugs, they're going to beat me. I did not want to sell drugs and more of the opposed to drugs. Therefore, I'm part of particularly social group and we can go on from there. Is that a workable definition, is that a workable approach to what asylum means? I think that we have to stay within the confines of the fact that this is... And some of the government has unable to control the activity. Some of the governmental nexus is there. I think that within the confines of this case... We'll win right in the opinion and we may win right in the opinion. And when it's out there, it's law. And wherever we say, clever lawyers and sometimes not so clever lawyers are going to try to take what we say and show us why it applies to their situation. We heard before an application of homosexuality in Cuba being applied to your case. Now, I guess is when Mr. Duff is making your argument, you weren't saying, hey, Martin, that doesn't apply to your guy. He's not a homosexual living in Cuba. He's not a female who opposes female general in the election. Why bring in the cases up to the court? Wherever we say is when I have precedents and significance beyond the narrow confines of this case. I'm trying to figure out how do we get a handle on that. How does the board get a handle on that? Your particular social group becomes so amorphous and open-ended. What do we go with that? Well, the BIA, it's important to observe in this case, didn't say anything about problems with the particularity of Mr. Major Fuente's social group. It only made a reference to social visibility. And certainly, since the only case it cited was in Ray A. Me, which had... Will you understand the difference? I don't think Mr. Duffie does. I don't. We'll ask Mr. Hurt. I'm not sure I understand the difference between social visibility and particularity. And frankly, they both sound like a lot of gobbling look to me. I can't make a lot of sense out of it. Well, certainly from the BIA's opinion in this case, it's not clear at all what they meant by social visibility. But Mr. Major Fuente's defined his particular social group in a very limited way. And it's based on the record, he was recruited by MS because he had certain characteristics that he could not change his age and his sex, and ultimately persecuted because he refused MS's efforts of recruitment. And these are very discrete characteristics. It wasn't as if MS simply was... Bruising him because he was there. They were bruising him because they wanted him to join them, and he did not join them. And they specifically targeted him because of his age and because of his sex and because of his lack of family ties, because he was vulnerable. These are particular characteristics about Mr. Major Fuente's that make him different than the rest of society. But also he brought other members of El Salvador that fit within these characteristics, and so he is a member of a group. Particularly when the BIA cited in RME, it's not clear at all in this case why they were quoting social visibility from the opinion. But in RME started with an essential premise and its reasoning that a group must have distinguishing characteristics, and it found that upper-class Guatemalans were not sufficiently different from the rest of Guatemalan society because they were at much at risk for extortion by a criminal element than other people in Guatemala with more modest means. Conversely here Mr. Major Fuente's was targeted by MS because he was young, because he lacked family ties, because he was a man. And these characteristics made him different than the rest of El Salvadorian society, and they are discrete enough for it not to encompass the rest of society. Mr. Coimbat, we do understand we ought to go over a little bit. Did you reserve time for Abadal and Mastravi? I don't think you did. Your Honor, Mr. Duffy collectively reserved time for both of us. Thank you

. And certainly, since the only case it cited was in Ray A. Me, which had... Will you understand the difference? I don't think Mr. Duffie does. I don't. We'll ask Mr. Hurt. I'm not sure I understand the difference between social visibility and particularity. And frankly, they both sound like a lot of gobbling look to me. I can't make a lot of sense out of it. Well, certainly from the BIA's opinion in this case, it's not clear at all what they meant by social visibility. But Mr. Major Fuente's defined his particular social group in a very limited way. And it's based on the record, he was recruited by MS because he had certain characteristics that he could not change his age and his sex, and ultimately persecuted because he refused MS's efforts of recruitment. And these are very discrete characteristics. It wasn't as if MS simply was... Bruising him because he was there. They were bruising him because they wanted him to join them, and he did not join them. And they specifically targeted him because of his age and because of his sex and because of his lack of family ties, because he was vulnerable. These are particular characteristics about Mr. Major Fuente's that make him different than the rest of society. But also he brought other members of El Salvador that fit within these characteristics, and so he is a member of a group. Particularly when the BIA cited in RME, it's not clear at all in this case why they were quoting social visibility from the opinion. But in RME started with an essential premise and its reasoning that a group must have distinguishing characteristics, and it found that upper-class Guatemalans were not sufficiently different from the rest of Guatemalan society because they were at much at risk for extortion by a criminal element than other people in Guatemala with more modest means. Conversely here Mr. Major Fuente's was targeted by MS because he was young, because he lacked family ties, because he was a man. And these characteristics made him different than the rest of El Salvadorian society, and they are discrete enough for it not to encompass the rest of society. Mr. Coimbat, we do understand we ought to go over a little bit. Did you reserve time for Abadal and Mastravi? I don't think you did. Your Honor, Mr. Duffy collectively reserved time for both of us. Thank you. We're here for Mr. Herd. Thank you. Your Honor. Thank you. Good morning, Your Honor. My name is Ted Herd, appearing on behalf of the respondent Attorney General. Can you pull the mic to point down just a bit? Yes, thank you. You're pointing right at your forehead. Sorry. I mean, a real weird visual from up here. All right. Is this better? That's great. Thank you. Okay. Thank you, Your Honor. I'd like to allocate my time, obviously subject to the Court's questions, to the principal issues raised by Petitioner Galgamesh, which is this challenge to the agencies formulation, including the social visibility and particular requirements. I also hope to spend a little bit of time dealing with the specific access to both cases. Two issues that we may have. Maybe at least my perspective, could you help me make sense out of the difference between social visibility and particularity? That is something the difference in both two is the difference. I cannot get my head around and also can't get my head around what that adds to a cost. Other than frankly, it looks like an ex-post facto attempt to harmonize all of the law and try to take the outliers and come up with a formula that you can fit them into. Let's make them up with these two artificial constructs and grasp them onto a cost. Your Honor, I'd like to take those questions in reverse order. Okay. If that's okay, I think it might help at least my chain of the analysis. In 1985, when the board decided matter of a cost, as Judge McEw noted, it was dealing with a group that did exist. It was dealing with an El Salvadoran taxi cooperative. So the irony of that case is there was a group and no one questioned that there was a group. The question was, what are the innate characteristics that might give recognition to the members of that group had been persecuted by the guerrillas? So when we look at the boards at effort to both go at immutable characteristics or in the case of people who banded together to be a cooperative, it looked at the issue of experience and looked at the very difficult question perhaps of experiences that one might not be required to change. What we've said in our brief is that as the board developed more decisions, it actually started looking at what we call the social perception, social visibility notion. We cited matter of R.A., which although vacated for other reasons in 1999, discussed the external perception issue. I know. I read your brief and I understand your view. What I'm trying to understand is why you did what you did

. We're here for Mr. Herd. Thank you. Your Honor. Thank you. Good morning, Your Honor. My name is Ted Herd, appearing on behalf of the respondent Attorney General. Can you pull the mic to point down just a bit? Yes, thank you. You're pointing right at your forehead. Sorry. I mean, a real weird visual from up here. All right. Is this better? That's great. Thank you. Okay. Thank you, Your Honor. I'd like to allocate my time, obviously subject to the Court's questions, to the principal issues raised by Petitioner Galgamesh, which is this challenge to the agencies formulation, including the social visibility and particular requirements. I also hope to spend a little bit of time dealing with the specific access to both cases. Two issues that we may have. Maybe at least my perspective, could you help me make sense out of the difference between social visibility and particularity? That is something the difference in both two is the difference. I cannot get my head around and also can't get my head around what that adds to a cost. Other than frankly, it looks like an ex-post facto attempt to harmonize all of the law and try to take the outliers and come up with a formula that you can fit them into. Let's make them up with these two artificial constructs and grasp them onto a cost. Your Honor, I'd like to take those questions in reverse order. Okay. If that's okay, I think it might help at least my chain of the analysis. In 1985, when the board decided matter of a cost, as Judge McEw noted, it was dealing with a group that did exist. It was dealing with an El Salvadoran taxi cooperative. So the irony of that case is there was a group and no one questioned that there was a group. The question was, what are the innate characteristics that might give recognition to the members of that group had been persecuted by the guerrillas? So when we look at the boards at effort to both go at immutable characteristics or in the case of people who banded together to be a cooperative, it looked at the issue of experience and looked at the very difficult question perhaps of experiences that one might not be required to change. What we've said in our brief is that as the board developed more decisions, it actually started looking at what we call the social perception, social visibility notion. We cited matter of R.A., which although vacated for other reasons in 1999, discussed the external perception issue. I know. I read your brief and I understand your view. What I'm trying to understand is why you did what you did. So I guess the first question that I have is from your perspective, what was missing from the Acosta formulation? What is the ill that you were attempting to address? Well, I don't know that there was anything missing from the Acosta formulation, but as the board... But R.A. would fit into Acosta, wouldn't it? Well, the facts of R.A. of course went off in a different direction in terms of issues of spousal abuse. So the facts of R.A., I'm trying to separate out if I could from the analysis in R.A. Maybe the case I would go to is matter of H, which dealt with a sub-clan in Africa. And if you look at the facts of that case... Why wouldn't that work under Acosta? Well, because in that case, a lot of the board's discussion is directed at verifying that there was a standalone clan, an African tribal unit, that was being persecuted. So they were looking... They actually, when you read the decision, there wasn't a lot of discussion of the characteristics, but a lot of discussion of the societal evidence that the clans in this part of Somalia were very discreet. And the petitioner was part of a clan that was 1% of the population, and they had linguistic and other commonalities that were distinctive. So that again, but that Acosta, the risk using an account of membership of the particular social group refers to, the risk of a group of persons, all of whom share a common... Now we have a sub-clan. You can't get much more of a group than that. All of whom share a common immutable characteristic. And then the boyandid powers of members to change are one which they ought not to be expected to change. A sub-clan gives you that, doesn't it? Well, it gives you that, but I think the point I'm trying to make is that what the board is doing on a case-by-case basis is it's looking at each punitive proposed group that comes to it, and it analyzes, is there a group? And in these cases, they've been able to... How do you... You're saying you look at, is there a group? Which is kind of like saying, I'm going to build a card and I'm going to start with a card. How can you determine if there is a group without having a definition of a group to begin with? It's almost like the old saying, wake him out of something and wake him into it

. So I guess the first question that I have is from your perspective, what was missing from the Acosta formulation? What is the ill that you were attempting to address? Well, I don't know that there was anything missing from the Acosta formulation, but as the board... But R.A. would fit into Acosta, wouldn't it? Well, the facts of R.A. of course went off in a different direction in terms of issues of spousal abuse. So the facts of R.A., I'm trying to separate out if I could from the analysis in R.A. Maybe the case I would go to is matter of H, which dealt with a sub-clan in Africa. And if you look at the facts of that case... Why wouldn't that work under Acosta? Well, because in that case, a lot of the board's discussion is directed at verifying that there was a standalone clan, an African tribal unit, that was being persecuted. So they were looking... They actually, when you read the decision, there wasn't a lot of discussion of the characteristics, but a lot of discussion of the societal evidence that the clans in this part of Somalia were very discreet. And the petitioner was part of a clan that was 1% of the population, and they had linguistic and other commonalities that were distinctive. So that again, but that Acosta, the risk using an account of membership of the particular social group refers to, the risk of a group of persons, all of whom share a common... Now we have a sub-clan. You can't get much more of a group than that. All of whom share a common immutable characteristic. And then the boyandid powers of members to change are one which they ought not to be expected to change. A sub-clan gives you that, doesn't it? Well, it gives you that, but I think the point I'm trying to make is that what the board is doing on a case-by-case basis is it's looking at each punitive proposed group that comes to it, and it analyzes, is there a group? And in these cases, they've been able to... How do you... You're saying you look at, is there a group? Which is kind of like saying, I'm going to build a card and I'm going to start with a card. How can you determine if there is a group without having a definition of a group to begin with? It's almost like the old saying, wake him out of something and wake him into it. If you're looking at something to determine, is there a group? In the process, you change the calculus of the group. I'm not quite sure what that gets you in front. It looks to me like what happened, as the executive mentioned earlier in my question, that you've got this body of a law which is kind of all over the place. And this is a concept which I suggested to miss Rick Bout does have the potential for being incredibly amorphous, open-ended so that anybody can come up with enough commonality in a particular society to put themselves in it, which is a very legitimate concern on your part. So you come up with a way of defining group which lets you at least think like you're getting a handle on it, but you're not really adding anything to the initial calculus. You're not really limiting the problem. A cost that works very well for determining the subclinofica cuu in that case. And if you add female general amputation on it, cost of works very well for that. Homosexuals in Cuba, cost of works well for that. Work cost that does not work is cab drivers in all Salvador. Some of the people in Columbia have been shaken down by FARC. In those cases, cost of really does not work because you don't have an immutable characteristic there. The standing of the Perhandeir in the street, children, as Judge White said, is opinion. Those things can change. Well, I think one of the issues is really what I'll call indeterminancy, which is that as the board has confronted in its presidential decisions, these more recent proposed groups, what each of these petitioners have in common is that they're coming in and saying, I have certain characteristics. They're fundamental to me. Other people in my society have these characteristics. We are being persecuted. Therefore, we are a group. Now, I'm oversimplifying a little bit, but the board's concern, and that's why it is refining, if you will, or evolving in terms of looking at these cases, is that there has to be a group before the persecution exists. I don't think anyone has ever challenged, and the UN High Commissioner's guidelines acknowledge this. A group has to pre-exist and predate the persecution. It is not going to be formed by the persecution, otherwise you have the circularity problem. So what the board is trying to do in the gang cases, for example, is ask, is this a group that would be recognizable in society? Because they can't be recognizable after the persecution. I mean, in Gomez Zuluaga, the Colombian woman who was kidnapped and threatened by the drug cartel, she wasn't part of a social group until after she refused to return to her captors. I mean, they released her under the promise that she would return to them after she finished her dental program and cared for the, apparently the dental needs of the, the, the, the, the, the, the, the, the, the, the. Well, you're right. And so she obtained the status of being a member of a social group by virtue of the fact that she did not comply with the FARC's requirement that she returned to them. And she persuaded our panel that the FARC would not take kindly to the fact that she, after being released under condition that she returned to take her, their dental needs, that she denied them that opportunity. So how do you square the argument you just made with our decision in Gomez and L'Oaga? Well, you know, with the caveat that I don't know how that decision would be decided by the board today in 2010, I can say that what distinguishes Gomez as well as L'Oaga and L'Oaga, I think, in the same reason, is that while the court in each instance did not recognize a very diffuse or broad social group of children who might be conscripted or of women or others who might be conscripted by the FARC guerrillas, there was a narrower, very... Well, that's what I'm getting at is I'm not sure the group is the hard part here. It's the particular group. And isn't there just seems to be something anomalous about the analysis here because the particularity requirement seems to suggest that if you're part of a small group of people like the woman in Gomez and L'Oaga, tens of people, perhaps hundreds at the most, do win. But if this is happening to millions of young men in Central America who the MS is coming after, you don't win because you're not particular. You're to use Judge McKee's words, I think amorphous, indefinite

. If you're looking at something to determine, is there a group? In the process, you change the calculus of the group. I'm not quite sure what that gets you in front. It looks to me like what happened, as the executive mentioned earlier in my question, that you've got this body of a law which is kind of all over the place. And this is a concept which I suggested to miss Rick Bout does have the potential for being incredibly amorphous, open-ended so that anybody can come up with enough commonality in a particular society to put themselves in it, which is a very legitimate concern on your part. So you come up with a way of defining group which lets you at least think like you're getting a handle on it, but you're not really adding anything to the initial calculus. You're not really limiting the problem. A cost that works very well for determining the subclinofica cuu in that case. And if you add female general amputation on it, cost of works very well for that. Homosexuals in Cuba, cost of works well for that. Work cost that does not work is cab drivers in all Salvador. Some of the people in Columbia have been shaken down by FARC. In those cases, cost of really does not work because you don't have an immutable characteristic there. The standing of the Perhandeir in the street, children, as Judge White said, is opinion. Those things can change. Well, I think one of the issues is really what I'll call indeterminancy, which is that as the board has confronted in its presidential decisions, these more recent proposed groups, what each of these petitioners have in common is that they're coming in and saying, I have certain characteristics. They're fundamental to me. Other people in my society have these characteristics. We are being persecuted. Therefore, we are a group. Now, I'm oversimplifying a little bit, but the board's concern, and that's why it is refining, if you will, or evolving in terms of looking at these cases, is that there has to be a group before the persecution exists. I don't think anyone has ever challenged, and the UN High Commissioner's guidelines acknowledge this. A group has to pre-exist and predate the persecution. It is not going to be formed by the persecution, otherwise you have the circularity problem. So what the board is trying to do in the gang cases, for example, is ask, is this a group that would be recognizable in society? Because they can't be recognizable after the persecution. I mean, in Gomez Zuluaga, the Colombian woman who was kidnapped and threatened by the drug cartel, she wasn't part of a social group until after she refused to return to her captors. I mean, they released her under the promise that she would return to them after she finished her dental program and cared for the, apparently the dental needs of the, the, the, the, the, the, the, the, the, the, the. Well, you're right. And so she obtained the status of being a member of a social group by virtue of the fact that she did not comply with the FARC's requirement that she returned to them. And she persuaded our panel that the FARC would not take kindly to the fact that she, after being released under condition that she returned to take her, their dental needs, that she denied them that opportunity. So how do you square the argument you just made with our decision in Gomez and L'Oaga? Well, you know, with the caveat that I don't know how that decision would be decided by the board today in 2010, I can say that what distinguishes Gomez as well as L'Oaga and L'Oaga, I think, in the same reason, is that while the court in each instance did not recognize a very diffuse or broad social group of children who might be conscripted or of women or others who might be conscripted by the FARC guerrillas, there was a narrower, very... Well, that's what I'm getting at is I'm not sure the group is the hard part here. It's the particular group. And isn't there just seems to be something anomalous about the analysis here because the particularity requirement seems to suggest that if you're part of a small group of people like the woman in Gomez and L'Oaga, tens of people, perhaps hundreds at the most, do win. But if this is happening to millions of young men in Central America who the MS is coming after, you don't win because you're not particular. You're to use Judge McKee's words, I think amorphous, indefinite. You're just such a big mass of people that the board is going to say perhaps for practical reasons that well, we just can't give this group particular group status because then we're inviting 12 million young men from Central America to get status in the country. Is that really what's going on here? I know you're on there. I think that I think and I know that this may seem that I'm deriving too much out of a cost. But even in a cost, the principle, the statutory construction principle, the Latin, the used to generous, was trying to look at the words membership in a particular social group in the same way as the other limited grounds for protection, political opinion, nationality, religion, and trying to reconcile them and not make membership in a particular social group, a catch all or a safety net where the people are not really part of a bona fide group. So particular assist us in that because particular helps to define the boundaries of the group. And that's what said in AME. The board didn't come up. I would say the board hasn't come to this as a revelation independent of other people. The UN guidelines talk about perception of the Australian case. The general commissioner says, the high commissioner says you got it absolutely wrong. Well, if we have it absolutely wrong, then why does the European Union directive that we quoted in our brief adopt the same formulation as the board in the old senator? In the disjunctive and the conjunctive. And I've not heard any reply on that. Do you agree with Mr. Duffy that our decision is essentially what we do with SAG? SAG either is entitled to Chevron deference and your position carries the day or SAG is not entitled to deference and Mr. Duffy and Ms. Rick Abbas position carries the day. Is that is that painting it correctly? That's roughly correct. Although I would certainly say that this court had a concern with the board, we would ask for a remand for the board to reconcile these trains of legal thought and not for the court to reach this issue in the first instance. But but you're right, Judge Hardiman. This goes to Chevron deference and it seems to me that and I would like to discuss Judge Hosner and Gatimi if I have a question. I should read that and I've almost got a stiff neck from madding so much. Well, and if I can just add before you get into that, the BIA's order in the Mejia Fuentes case somehow elided social visibility into particular social group. It doesn't say that Mejia Fuentes is not part of a particular social group. That order says he lacks sufficient social visibility and therefore he fails. Well, and I didn't, you know, I could be more confused now than ever, but I thought there were distinct characteristics and that the petitioner needed to prove both, but maybe I'm wrong on that. Well, Your Honor, I guess I would say with regard to petitioner Mejia Fuentes, one of the points we raised in our brief and I'm not taking time on it today is we challenge whether they've even waived the session to the argument. But coming to your point, Judge Hardiman, I think that social visibility is the key point for Mejia Fuentes because the evidence that Miss Rickabau has cited is a statement by Mr. Sanchez that people like Mejia Fuentes are quote particularly vulnerable to gang recruitment. And that Mr. Mejia Fuentes himself said that he opposed the gangs. Well, we go back to the board applying SEG and EAG in terms of the same type of analysis. Where is the extrinsic evidence that the society of El Salvador or the society of Honduras use young men of this demographic as a distinct particular social group. But Judge, the coser picked that apart in Gatimi, didn't he? Maybe it's a good time to address Gatimi. He took off on that law. Well, I think one point to make is that Judge Posner does not disagree with the gang decisions such as Ray Mostbarios and Judge Posner also in his decisions has acknowledged that groups have to be definite and well defined. And in fact, he pointed out that using a term like middle class would be too indefinite. But that gets to the particular requirement, not the social visibility

. You're just such a big mass of people that the board is going to say perhaps for practical reasons that well, we just can't give this group particular group status because then we're inviting 12 million young men from Central America to get status in the country. Is that really what's going on here? I know you're on there. I think that I think and I know that this may seem that I'm deriving too much out of a cost. But even in a cost, the principle, the statutory construction principle, the Latin, the used to generous, was trying to look at the words membership in a particular social group in the same way as the other limited grounds for protection, political opinion, nationality, religion, and trying to reconcile them and not make membership in a particular social group, a catch all or a safety net where the people are not really part of a bona fide group. So particular assist us in that because particular helps to define the boundaries of the group. And that's what said in AME. The board didn't come up. I would say the board hasn't come to this as a revelation independent of other people. The UN guidelines talk about perception of the Australian case. The general commissioner says, the high commissioner says you got it absolutely wrong. Well, if we have it absolutely wrong, then why does the European Union directive that we quoted in our brief adopt the same formulation as the board in the old senator? In the disjunctive and the conjunctive. And I've not heard any reply on that. Do you agree with Mr. Duffy that our decision is essentially what we do with SAG? SAG either is entitled to Chevron deference and your position carries the day or SAG is not entitled to deference and Mr. Duffy and Ms. Rick Abbas position carries the day. Is that is that painting it correctly? That's roughly correct. Although I would certainly say that this court had a concern with the board, we would ask for a remand for the board to reconcile these trains of legal thought and not for the court to reach this issue in the first instance. But but you're right, Judge Hardiman. This goes to Chevron deference and it seems to me that and I would like to discuss Judge Hosner and Gatimi if I have a question. I should read that and I've almost got a stiff neck from madding so much. Well, and if I can just add before you get into that, the BIA's order in the Mejia Fuentes case somehow elided social visibility into particular social group. It doesn't say that Mejia Fuentes is not part of a particular social group. That order says he lacks sufficient social visibility and therefore he fails. Well, and I didn't, you know, I could be more confused now than ever, but I thought there were distinct characteristics and that the petitioner needed to prove both, but maybe I'm wrong on that. Well, Your Honor, I guess I would say with regard to petitioner Mejia Fuentes, one of the points we raised in our brief and I'm not taking time on it today is we challenge whether they've even waived the session to the argument. But coming to your point, Judge Hardiman, I think that social visibility is the key point for Mejia Fuentes because the evidence that Miss Rickabau has cited is a statement by Mr. Sanchez that people like Mejia Fuentes are quote particularly vulnerable to gang recruitment. And that Mr. Mejia Fuentes himself said that he opposed the gangs. Well, we go back to the board applying SEG and EAG in terms of the same type of analysis. Where is the extrinsic evidence that the society of El Salvador or the society of Honduras use young men of this demographic as a distinct particular social group. But Judge, the coser picked that apart in Gatimi, didn't he? Maybe it's a good time to address Gatimi. He took off on that law. Well, I think one point to make is that Judge Posner does not disagree with the gang decisions such as Ray Mostbarios and Judge Posner also in his decisions has acknowledged that groups have to be definite and well defined. And in fact, he pointed out that using a term like middle class would be too indefinite. But that gets to the particular requirement, not the social visibility. Well, Judge Hardiman, in terms of social visibility, Judge Posner said, well, I don't understand what work it does. And I think that these cases would be decided the same way without it. Now, Judge Posner did not, I think, have the benefit of full analysis of social visibility, but social visibility goes to the external perception. And in fact, Judge Posner didn't disagree with that. How do you say that? How do you say that? Well, I think that the misapprehension that Judge Posner had when he used those as examples was the statement that the individual, had to be literally visible to a stranger or passer by on the street. The board's decisions have been very careful and very precise, and I hope I've quoted them correctly in my brief, that the attribute, the shared characteristic is the recognizable characteristic. Not you or I. The same question. What is the shared characteristic in those cases? The shared characteristic is mental attitude or sexual preference. How does that manifest itself, the person on the street? Well, I don't know that it necessarily will manifest itself to the person on the street, the point in terms of groups is does the society cognitively understand that these groups exist? Now, in Tabasso, it was very easy because homosexuals had to register. But I would submit that in other cases, one has to look at a societal understanding as to whether a group exists or whether the characteristic exists. One does not have to look at individuals, and the board has not said that an individual level characteristic has to be there. It links in actually to another point that I think you made in terms of prior questioning, which is why do we look at the society and its perception and not that of the persecutor? It's because the persecutor, one on one, can have many motives to go after me, vengeance, vendetta, random violence, and that really is the story of these El Salvadoran gangs. What we have to look at is, am I being targeted because I'm a pre-existing member of a pre-existing group? So, societal perception helps us understand that. But I'm not sure that's not. Because in terms of overall society, society may not really care how a given individual thinks about female general mutilation, gender preference. If the individual persecutors are manifesting the harm, why wouldn't it be the definitional lens of that person's focus? That determines the group. Well, I think the two reasons for that are first of all because... Because one is I hate to interrupt you. You can keep your chin a thought better than I can keep mine. And the thing I'm losing it is that it may well be that a group will be persecuted for certain reasons that the overall society really doesn't care that much about. It may not even be aware of, but there is another group of people in a given society who will set upon certain of their citizenry and persecute them because of and are called the persecutors because of the mindset of the prosecutors or persecutors of the persecutorial group. You're saying unless the overall society is cognizant of that or is willing to acknowledge it, there's no group. Even though people who belong to this group are going to be persecuted if they happen to encounter one of the persecutors in the street. I think the point is and the board in each of these decisions has looked at state department, other evidence in terms of what is the underlying.

One of you everyone, I want to just take a second to thank the Honorable, the Grom, Davis, very distinguished District Court colleague for sitting with us today and we're indebted to you and thank you. Hopefully you can get you back here more often. After that, we may have a see you again. But the complexities of this case, hopefully we can get you back here again. My pleasure. First case is Mejia versus Attorney General and also by the Basial, Dalton Mayors versus Attorney General. And I assume Mr. Effie you're going to argue for us for all the Basial, Dalton Mayors. That is correct, Robert. Okay. Thank you. Did I say Ms. Duffy? I'm sorry. Did I say Ms. Duffy? I think I may have. Mr. Duffy, you're honor. Yes, I do. Two women. Okay. Thank you. Mr. Duffy, I'm sorry. Thank you, Robert. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. The facts very only slightly. The facts very only slightly. So we don't start asking you questions, and I'll let you tell us, well,ор myOu вдруг'T So we don't start asking you questions, and you tell us or Oens, and you tell us or well, myOu我有 polar DoBuMusic experts graphio පම гру brewer y ඘�� irrelevant downstream.​ Okay. request for asylum under political opinion. I rely on our briefs for the remainder of our arguments. I believe Miss Rick Abba is going to address the specific issues of asylum as the facts tie into her particular case. You speak very softly, as do I. I'm maybe going to give way support. We'll do. Thank you, Rob. You mentioned political opinion. I wasn't sure that was before us, but you're not arguing that the personally held abhorrence in a glass hack to start a word to the gangs that are trying to recruit him is political opinion under section 208 and should have been regarded as such? Yes, sir. Yes, Your Honor. And it was briefed in this case. And the reason why political opinion should be regarded or his opposition to the criminal ideology of this gang and refusal to participate in the criminal ideology. Did they have an ideology at all? Well, ideology in a broad sense, Your Honor, but the country reports that are replete within the record indicate this is a very violent gang. The record shows that this gang engages in things such as kidnapping and murder and rape, decapitation, very hard activities. Our clients specifically refused to join the gang because he did not want to do that. He did not want to engage in that kind of activity. He was morally opposed to doing that. And in fact, one IJ, IJ in the immigration judge Castro said that the refusal to participate in criminal activity and the opposition to a criminal lifestyle is the quintessential expression of political opinion. The government in its brief has argued that this case is simply foreclosed by the Supreme Court's case in Elias Zacharias, but as we indicate, it's not. For multiple reasons, two primary reasons. First, the Supreme Court did not specifically address whether Mr. Elias Zacharias had or was expressing a political opinion. It commented and dicted to say, really, all Mr. Zacharias was doing was saying he didn't want to choose sides. Quite to the contrary, in our case, the facts are not disputed. Mr. Galdoven's testimony is that he refused to participate because he did not want to engage in that criminal activity. And that was testimony that the IJ considered to be credible. So the Supreme Court case in Zacharias did not even reach the decision as to whether Mr. Zacharias was expressing a political opinion because it said secondarily, we find that Mr. Zacharias has not proven that he will suffer or has suffered persecution on account of a protected ground. Regardless of whether it is political opinion or not, he has not shown that the activities of the gang members were directed at him in opposition to his political opinion or the expression of his political opinion, but rather simply as a matter of wanting to increase their own ranks. Again, the facts of this case are different than that. Mr. Galdoven was threatened when multiple occasions by this gang. And on the last occasion where they kidnapped him, dragged him up the mountain, tied him to a tree, and beat him brutally over the course of five hours. At that point, they said, we are no longer going to have you join our gang. We are going to kill you because of your refusal to join our gang. So when we look at the differences between Elias Zacharias and our case, they are completely and fundamentally distinguishable. And the government's sole response to our political opinion argument is that it is for close by Elias Zacharias. The cases are completely distinguishable. Now on the issue of- If you are right about that, then how do you limit it? How does that write? Because obviously one of the concerns the government has here, and frankly, I'm trying to make sense out of this social visibility, particularly element. And I'll talk to Mr. Hurt about it right. I'm beginning to think it is what, in any given case, someone says it is. I can't reconcile the cases on that. But at least there's an effort doing the part of the government that seems to be to contain that which would otherwise be not subject to being contained. Although, I'll get into Mr. Hurt, I think, a cost goes about as far to contain this, you can. But how do you contain political opinion? Because then anyone who expresses an opposition to almost anything based upon any round, you could cast as a political opinion. Well, if it is political opinion, and that's a judgment that this court has to make. But again, the opinion expressed or the opposition expressed in an only sacrifice was simply, the petitioner in that case said, look, I choose not to choose sides. He was approached and recruited by a gang element. And he said, I don't want to choose your side versus it was an anti-government gang. Versus the government side, I choose not to choose. Quite different. That's not the expression of a political opinion. That's just, as the Supreme Court in that case said, no more different than simple risk aversion. In this particular case, the stated record testimony of our client, which has been deemed to be credible by the immigration judge, was the expression of the political opinion that he chose not to participate in that criminal ideology. Whether to your point, Judge McKee, that is political opinion. I point to Judge Castro's opinion that the opposition to crime, how to treat it, how to punish it, how to deal with it, to be opposed to it or to engage in it, is the pen ultimate expression of, or the ultimate expression of political opinion, is what every society engages in. Let me, if I can, the age thing is kind of, one of the many things is a photo of me. Your client will soon be 26. That's correct, Your Honor, he's 25 right now. If you define the group in terms of the ages, and I think we're to find at some point, a young man between the age of 14 and 25, who are part of this gang, would not it become mood if your client is going to be older than the age of the cohort that he says that he doesn't want to join? It's a very good question, Your Honor, and the answer is no, it would not, because he has already been identified by this group. He was within that particular social group at the time. He was persecuted and suffered past persecution on account of his association with that group. And if he returns, if he returns when he's 40, they're going to persecute him or kill him because 15 years ago he didn't join their gang. Certainly, if he's returned now, Your Honor, we believe that he would. That wasn't my question. If he's returned when he's 40, Your Honor, I don't have an answer to that particular question. But clearly, to the extent that gang members will hold that against him, as they are holding it against him now, I can't speak to what that gang will do in 15 years, or who will be membership of that gang, but that gang is clearly a cross-national, and certainly cross-hound door in gang, because Mr. Gallham is persecuted on multiple different occasions by multiple different members of the same gang. So there's clearly a communication network going on within this gang that would allow them to know and find out that he's back in the country and the secretribution on him. But how do you define the particular social group? It has been defined, Your Honor, by the Board of Immigration Appeals, and it's a cost of decision back in 1985. And that opinion was adopted by this court in Fattin in 1993. And it's that which has an immutable characteristic. Immutable characteristic, not capable of being changed, or so innate to the person's conscience that it should not be changed. All right, that's the legal definition, but how are you defining what particular social group does your client subscribe or belong? It is young, Judge Hardam and it's young Honduran males who have been recruited by gangs who are refused to join the gang. But there's co-counsel sitting there telling us that that's not right. It's young El Salvadoran men as well. There could be two separate, there could be different political or different particular social groups in different countries that depends upon the country of origin and the cultural experience that they come from. So Salvadorans who rebuff the Mara Salva Trouture, constitute one particular social group, Honduran's who rebuff them are a different particular social group. Guadalaman's and Mexicans who rebuff them are two additional particular social groups. Certainly, Your Honor, certainly can be that way. And undocumented Salvadorans living in LA who rebuff them in LA constitute a separate particular social group. I wouldn't know about LA, Your Honor, it would depend upon the other countries. The gang is very potent in LA, it's very potent in Washington DC, many major cities in the US. Yes, Your Honor. But in order to qualify for refugee status, you not only have to show membership in a particular social group, but also that you suffer persecution that a government is unable or unwilling to prevent. And as I said to your example in LA, I don't know if it would be the same that the US government be unwilling or unable to prevent that. We certainly have evidence in this case that the Honduran government is unable or unwilling to prevent this persecution on our client. And I believe the same facts exist in El Salvador. If I could point you're on. But are these all what I'm getting at, are these all different particular social groups, are they all the same particular? They would be different, particular social groups. And that's, you lead me to one of the most important points in this case, Your Honor, the change that the BIA has, has, has brought about with these recent decisions, adding these new requirements that were not previously there. If those requirements were imposed, many of the groups that had been previously recognized, not only by this court, but by the BIA, would lose that protected status. For example, this court in the Gomez decision back in 2008 found as a particular social group, women who have escaped involuntary servitude after being abducted and confined by Colombian rebels. There's no way you would know from a social visibility analysis that those women would be distinguishable from other members of the group. This court has also recognized escaped children who have escaped military, conscription. I was going to ask you about that because in that case, Lukawaga, what would seem to be different and difference may dissipate based upon how you just define the group? Because they always faced a realistic fear of persecution because they had been child soldiers in that country. As I initially understood your group, you weren't arguing that would be a fear of persecution for having resisted recruitment into the gang, but the persecution was for resisting the government into the gang. It if he's at an age now where he would no longer be subject to recruitment, it seemed like, again, upon return, there wouldn't be a good faith or realistic, well-founded fear of future persecution. Are you saying I'm wrong because the way I'm looking at your definition? Yes, yes, Your Honor, I believe so. First of all, with respect to the legal standard, it's already been, I believe, established by this court that our client did suffer persecution in the past and as the court pointed out. Because in the past he was within the cohort, where it could be recruited. Exactly. And as this court pointed out in their previous decision, as the law applies, once we have proven past persecution, the burden shifts to the government to prove that there will not be future persecution, there's no such evidence in that particular case. Why didn't they meet that simply by saying that he's no longer in the group where he would be subject to the persecution? That would be enough to undermine the presumption. That would assume Your Honor that this group will no longer persecute him simply because he's fallen out of a specified age frame. But the evidence is that this group will persecute him and they've already threatened to do so because of his refusal. His past experience was the refusal to join this gang and because of that, that was the genesis for the threats against him to his life. There's no reason to believe that those threats won't continue in the future and, again, the burden shifts to the government to do that. The main point about the change in this standard, Your Honor, is that it will officiate many groups that have already been recognized by this court as entitled to protection under the laws, both domestic and international laws for refugee protection. An agency... The Board does, in fact, have the authority to look at circumstances as they develop and to refine the standard. Do they not? Absolutely, Judge Daves. And obviously, given Chevron, there's a particular standard of review for the Board's adjustments to the standard. Is that correct? That is correct. You suggest that this refinement is arbitrary and capricious and not entitled to the deference under the law. I need you to tell me specifically why it is arbitrary and capricious. It is your correct, Your Honor, and that was the United States Supreme Court case, which indicated that a Board is entitled and is entitled to deference in making decisions of interpretations of statutory provisions. But the United States Supreme Court and the State Farm decision back in 1983 indicated that if a Board is going, but if an agency is going to change its interpretation, it has to give a reason analysis for that. And there is, in fact, a presumption against the change. Why is this not a... Why is this change not permissible under the United States Supreme Court standard? Because it's inconsistent, Your Honor, with passport decisions. As I said, it would take many groups that have been previously accorded protection as refugees, both domestically and internationally, and no longer give those groups the same protection that this court previously said they were entitled to. So it's inconsistent with prior Board decisions. That might help you on social visibility, but it doesn't help you on particularity. What's interesting, Your Honor. In SEG, SEG was decided just in 2008, and the holding correctment from wrong is that Salvador and youths who have resisted gang recruitment do not constitute a particular social group. There's no change there. Can you answer Judge Davis's question focusing not on social visibility, but on particularity? Why is that not entitled to Chevron Deference? It's one of the problems with the BI's change to the standard, fundamental change to the standard. What do they mean by particularity? The SEG case, Judge Hardiman, defined particularity as follows. The essence of the particularity requirement is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized by the society in question as a discreet class of persons. The Board itself doesn't understand what particularity means. It has defined it the same way it is defined social visibility. And if we apply social visibility to groups that had been previously recognized by this court, such as the escape child soldiers in the Lucrago case, and the women who have escaped voluntary insurvitude in the Gomez-Laga case, and numerous other cases cited in our briefs, those were individuals who this court said are entitled to protection as refugees. If we allow the BI to change its standard now, we will say that those same groups are no more or future applicants who request the protection of our asylum laws will no longer be entitled to the same protection that this court accorded the same, not similarly situated, but the same situated individuals in the past. That's what makes this decision arbitrary and capricious, Judge Davis. That's what makes this decision not entitled to deference under Chevron and under State Farm. And I would add further that in SEG and EAG, Judge Hardiman, the Board got it wrong. Part of its reliance on his decision was on international law, and they cited the guidelines put out by the United Nations High Commissioner for Refugees. The guidelines put out by the High Commissioner gave an alternative standard for the definition of a particular social group, either those with immutable characteristics or, or if they don't have immutable characteristics, then those who have a certain social perceptibility. In relying upon those guidelines, those international standards, the Board got it wrong. International guidelines don't require that. And what's more, the change to this definition goes contrary to congressional intent, which is yet another reason why this court is in total to strike down this definition. In passing the 1980 refugee law, Congress intended to bring US refugee law in conformance with international law. That principle was specifically laid out by this court in the 15th decision in 1993. Well, international law is governed by the guidelines put out by the UNHCR, which says that a particular social group can either be those with immutable characteristics or those who are perceived as a group by society, by imposing a societal visibility, and as I indicated, particularly seems to be the same in the Board's confused definition, by adding a social visibility requirement to refugee status under U.S. law, the Board in one stroke will not only take away refugee protection to those previously entitled to it, but will also take U.S. refugee law out of a consistent pattern with the United Nations law, which is specifically what Congress intended. And one last thing, Your Honours, in ruling on the Board decision in SEG, it relied in part upon a misunderstanding of international law. It also relied in part upon the Gomez decision in Second Circuit. Now, what's interesting about the Gomez decision is- What do the other one first? What was the misunderstanding on international law, other than section 2, oh, which of the guidelines- My apologies, Your Honour, what I just indicated that what the SEG case in relying upon the international guidelines was that the international guidelines impose a requirement for social visibility when they do not. They clearly do not. And in relying upon the Gomez case, the Second Circuit decision, what's interesting about that case is this. When a cost that came down- A cost that has been the defining standard for recognizing particular social groups for nearly 25 years, many circuits, including this circuit, the first circuit, the seventh circuit, have adopted the Acosta standard and followed it very clearly. There was one circuit that had a slight variation upon that. That was the Gomez decision, the Second Circuit, back in the mid-90s. And what Gomez said, it applied a bit of a social visibility requirement to the definition of a particular social group in the Second Circuit. And what Gomez says very clearly is, we're looking for a level of social visibility such that the person who is persecuted would be visible to his or her attackers or to society in general. That's a significant difference than making social visibility a requirement to society in general. There are many people, when you look at the examples of the cases that we have so far, the abducted children's soldiers that this court recognized in Lukwago. But I'm troubled by that because if it's enough that you're visible to your attackers, then you could be a particular social group of one. What if this gang wants to recruit someone because he knows nuclear fission and they persecute him. They want him to be on their team and help develop weaponry for the gang. They know him, he's visible to them. You're saying that because, even though society wouldn't recognize this nuclear physicist as a particular group, he's just an individual, you're saying that because the gang, he's visible to the gang and they really want him, that that man would constitute a group. No, he would not. He would not. So it has to be society at large, then it can't just be someone who's visible to the gang. No, because your honor, the particular social group under Acosta has already been defined. You are just Acosta, nothing beyond Acosta. Exactly. We start to do Acosta against it. The problem is adding to Acosta, more precisely, Judge McKee, changing Acosta. What Acosta defines particular social group as a group of persons sharing common characteristics. Those common characteristics must either be in native to the individual. They can be such things as race, kinship, or they can be shared experience, landowners, former military officers, or they can be things that a person should not have to change because they're individual to their identity, but it must be shared characteristics of a group. And I believe defined by this court, if not this court, than the US Supreme Court, as anyone more than one person. But the the troubling aspect you have with that is the same troubling aspect that we're having with the Judge Hardiman, which is imposing a social visibility requirement, which is inconsistent with par law. I'm willing to concede for a minute that you're right on social visibility, but I'm still wondering where the particularity is. And I guess your answer to my previous question and following up on Judge Davis's question is that you're you're eliding social visibility and particularity in the one definition or I misunderstand you on that. If you are, it's my fault you're on my apologies. I'm not trying to meld them together. I think you're saying you need the board. The board has no idea the difference is. Don't you need both? You need particularity and you're arguing and I think with some real persuasive force that the social visibility issue is problematic. But don't you still need to persuade us that your client falls within a particular social group. And that's a particular social group that SEG, at least with respect to Salvatorens, has said unequivocally the Board of Immigration Appeals has said this is not a particular social group. Yes, yes, Your Honor. But particularity to the extent that we're talking about some definition of the group has always been part of the definition. And I would add that this court in its prior decision, which is another statement of one of the recent cases I saw that came out. In its prior decision, while this court did not specifically rule on whether Mr. Galdemez's proposed particular social group was in fact a particular social group. And this court did not do that at a deference to the law, to the United States Supreme Court's law in Thomas versus Gonzalez, I believe, which says that this court should not in the Court of Appeals in general should not in the first instance decide whether or not a group is a particular social group. This court sent the decision back, vacated the immigration judges entire decision and sent it back for a proceeding consistent with the opinion for multiple hours. One of those hours was the immigration judge and therefore the Board of Immigration Appeals, the fact that they didn't even decide Mr. Galdemez's claim of particular social group. This court correctly sent it back, but what's of interest, significant interest, is this court respected the presidential authority of the United States and sending it back and not ruling on it in the first instance. But it said in Dicta, this certainly sounds like a particular social group to us. What would be the remedy? Would the remedy be to send it back yet again and say, look at this, and determine whether or not a particular social group without adding the requirement of particularity and social visibility? I believe this court can do one of two things at this juncture. Consistent with the Gonzalez, the Thomas versus Gonzalez opinion, which prohibits this court from deciding the issue in the first instance, this court has already given the Board of Immigration Appeals its try and it's gotten it wrong. I think this court- We don't know if the board would say, well, I think what you know, but in theory, we don't know whether or not the board, if they didn't impose a social visibility in particularity, would look at this and say, all right, this is a particular social group under it. Let's assume it's another legal fiction. We engage in it all the time. Let's assume that we don't know what the board would do if this case would go back without those two requirements. Why shouldn't we pursue into that legal fiction? And procedurally, I think that's the way we normally would normally proceed. Send it back and say, you were wrong on social visibility in particularity. Look at this allegation and determine particular social group without adding anything to a cost. I believe that is one of the things this court is certainly entitled to do. Essentially, what Judge McKee you're saying is, do what we told you to do, do what this court told you to do before. This court can rule that social visibility in particularity should not be considered for all the reasons we discussed today should not be considered part of the standard. Strike that, send the case back and have a ruling on whether Mr. Galdemann's constitute a particular social group under the standard as existed under under a cost and adopted by Fattin. But I also believe this court wishes it can make the decision itself because the Thomas versus Gonzalez decision says you can't do it in the first instance and you've given the board the opportunity and I will add that this would not be the first time. The seventh circuit in the Gatemi decision as well as the Santas, the Ramos versus our Recolder decision have specifically found that these two newly added requirements changed the existing law and shouldn't be part of it. In Gatemi the seventh circuit, this was a August of 2009 decision said that these new things, social visibility in particularity as defined by SG make no sense. It says if you were a member of a group that has been targeted for persecution you will take pains to avoid being socially visible. The seventh circuit also ruled because it was inconsistent with seventh circuit prior law just as SG is inconsistent with prior third circuit law just as it is inconsistent with Fattin and that's what the seventh circuit did. It said we ruled both of these standards to be to be contrary to the intent and we're not going to follow them. It said the particularity standard is contrary? No, no, your honor. Hardamon said the social visibility standard was... No, that wasn't me. I wasn't sitting on the seventh. Pazner. You said Hardamon. Don't insult Judge Pazner. My apologies. No Judge Pazner, he took the social visit, much of your social visibility argument, echoes what he was criticizing in Gatimi but in Gatimi he specifically wrote, we have no quarrel with the rejection in those cases of the attempted classification of specific groups as particular social groups. And then he cites the first string site of many is the ninth circuit decision in Ramos Lopez which held young Honduran men who resist being recruited into gangs. He's saying they are not a particular social group. And I can't find a single court of appeals decision in the country and I don't think anybody cited one where a court of appeals has held that either Salvanoran men or Honduran men or any other men who rebuff efforts by the MS to recruit them constitute a particular social group. And I can't point you to one either Judge Hardamon. I will say that the ninth circuit is the only circuit which I can think of that has endorsed or has ruled that such a characterization does not constitute a particular social group but those decisions didn't come out until after SEG and EAG. And I believe in that decision, the Santos Lima's decision, the court specifically noted that it had not previously considered whether this group constituted a particular social group and therefore it was operating so to speak on a blank slate. So fundamentally you're asking us to weigh in on the opposite side of an emergent circuit split regarding the validity of SEG. Yes, I am. That's the ultimate issue here. Yes, I am your honor. And this this court, this circuit would not be standing alone by doing so. And the seventh circuit has already done so. And I would add that for the same reasons the seventh circuit did so, it did so in part, part because it said it didn't make sense, but part because it said it was contrary to its prior precedent. And as I said, this new standard is contrary to prior third circuit precedent as it would take groups that were previously recognized and de-recognized them if that's possible. And the important is when the battle lose the war. I mean, certainly possible that we would find the sure right on these two new elements that would go back and then looking at a cost of the Clown was still not able to prevail. Judge anything is certainly possible. I've learned that in my experience with this BIA, but I would indicate to this court that this court previously ruled in rules, not the word, previously stated in Dicta that this certainly sounds like. This certainly sounds like a particular social group. Judge Rendell wrote the opinion. This sounds like many of the same characteristics as the BIA has already recognized to be particular social groups. And we have to remember the essence of what? If that it is, and maybe it is, I said maybe to make sense out of the precedent. It's a duck test. If it sounds like, looks like quacks like, walks like, then it is. The opinion read the group in which Galdemnist claims membership shares the characteristics of other groups that the BIA has found to constitute a particular social group. Again, and I argued this case approximately two years ago before the court. The court was constrained to send it back under the precedence of Thomas Vs. Gonzalez. But it felt strongly enough about the issue following the briefing in the oral argument that if put that in its brief that this certainly sounds like, it meets the characteristics. It's a shared characteristics among a group that is of such fundamental importance to the conscience and identity of the individual that he should not be forced to change it. I would add that as well, Judge Hardeman. In the other decision that recently came out on the 9th Circuit, the Diskasky decision, I believe, indicative Judge Kleinfeld got it wrong to be completely blunt and fair about it because he said, this does not constitute a group of persons who were resisting gang membership. And the judge said, this does not constitute, this person does not constitute, his proposed group does not constitute a particular social group because he is free to change his circumstance and therefore he wouldn't be persecuted. Well, he said the same thing about the taxi drivers and was, I guess, was quite a model who opposed guerrilla groups. You know, it was a seed to the guerrilla, like a man, but Judge McKee, you hit the nail on the head, that's exactly it. The courts around the country have declined to recognize particular social groups precisely because someone could change their own circumstance. You no longer have to be a taxi cab driver. And in some cases, you can become a guerrilla. That's what the court said. You can become a guerrilla. You're going to seed to the groups demands. And that's where Judge Kleinfeld got it wrong in Discarski because the whole principle behind a cost that, as recognized by Fattin, is we will recognize those that have shared characteristics, not just in a quality such as race and kinship or shared experiences, but those characteristics of an individual that are so fundamental to their identity and their conscience that we shouldn't require them to change it. But they got wrong in the Ninth Circuit in Discarski and not recognized in that group as a particular social group, was they said, you can change. You can just become a guerrilla. Mr. Galbames, you can, your destiny is in your own hands. You can join up and you can do what the gang guys down there. That's precisely what a cost was guarding against. That's precisely the protection that a cost that in Discourt and Fattin promised to these individuals. And that's precisely what the BIA is attempting to take away. Mr. Adolfi, thank you. Grimors, thank you, you're welcome. Thank you, Your Honour. Mr. Rickabal? Good morning. My name is Jessica Rickabal and I represent Petitioner Jose Mijon Tez. Much like the Galbames case, the primary issue in this case is whether young men from El Salvador lacking family ties and morally opposed to gang membership may constitute a particular social group. Based on the evidence that Mr. Mijon Fuente is presented before the immigration judge, he presented sufficient evidence to establish membership in a particular social group under the framework that this court approved of in Fattin. Unlike your colleague, Mr. Galbames, you've got an adverse credibility to the content with. How should we look at that? And why was the IJ and the BIA were a word that IJ and the BIA were wrong in terms of finding your client was incredible? Well, first the BIA did not take a position on credibility and under this court's president. You're right. So that question goes away because we have to assume the credibility. It was the IJ who deemed him not credible to the BIA and ruined that. You're right. Correct. Your Honour. Mr. Mijon Fuente was the corroborating affidavit of former MS member Alec Sanchez, provide the best conceivable evidence of why he is a member of a particular social group. And it's this evidence that is what distinguishes this case from other similar asylum cases or where applicants have failed to show membership in a particular social group. Mr. Mijon Fuente specifically testified that MS targeted him based on for recruitment based on his membership in a particular social group and ultimately persecuted him for his refusal to join their ranks. Specifically, he testified that MS approached him two days after the death of his great grandfather and told him that he should not be alone in the world and that they could offer him protection. He declined membership but they again approached him only a month later and said I do not want to be a part of criminal activity. However, MS gave him one more chance saying that if you don't change your mind, you're going to experience problems. He understood that problems meant that he would be physically harmed. MS in El Salvador was recognizable by people in the community because he, because MS had open public associations. Mr. Mijon Fuente testified that he recognized MS members because they hung out by the soccer fields where he played. But also that there's ample evidence in the record that MS had certain markings of gang and dish at tattoos that made them recognizable in El Salvador. But do you tell me how you define your social group? Yeah, we do thank you. We do know the facts. How do you define your group? My particular Mr. Mijon Fuente's particular social group is young men from El Salvador lacking family ties and morally opposed to join gangs. What family ties? He was after the death of his great-grandfather. He lived alone. He didn't have any family near him. And MS recognized this particular aspect of his circle. No, I'm not asking about the facts of this case and asking about how you define the group. What family ties? The death of a great-grandfather, the death of an adult male, the death, what family ties are we talking about? Would the case be different if he was being raised by his great-grandfather and his great-grandmother? I think that here it's different based on what Mr. Alex Sanchez, the former MS gang member, and that is that MS specifically targeted him, a targeted people that didn't have any connection to the community with family. He was a sister, though, doesn't he? He did. He ended up living with her. He didn't end up living with her. She was actually living in another part of the country. But he had no other family to speak of in El Salvador and certainly not in the area in which he lived. And she's still there. No, his sister has since moved to the United States. Okay, that's after the record, I guess, according to the record, she was still there. At least at the time of the IJ hearing, she was still there. Yes, Your Honor. Okay. Mr. Mayor, one more. But so, Fent, will you define family ties as having no other immediate family in the vicinity? Yes. And how do the gang members or how does the Salvadoran society know that? Well, El Salvadoran society based on the record is quite small, clearly based on the record in this case, MS, new petitioner from the time that he was young, a teenager, and they were pervasive throughout society. He specifically knew one of the MS gang members by name and is clear based on his testimony that MS knew that he didn't have family ties because the very first time they approached him was only two days after the death of his great-grandfather and they told him, I know you're alone, you shouldn't be alone, join us. His mother's in the US since he was young, right? Yes, since he was young. So she moves back to El Salvador, he no longer is a person without family ties. The fact that she possibly could move back to El Salvador doesn't matter because once MS has identified Mr. Major Fuentes as someone that opposes them, he's on their list. He's made himself a target. All right, well that makes sense to me, but then that takes away your notion that it's dependent upon lack of family ties. I've asked you to just hypothesize that mother moves back, so he no longer satisfies the lack of family ties criteria on. So are you in essence arguing that his rebuffing of their forcible recruitment efforts and their beatings that they inflicted upon him, that's what makes him part of a social group? That is certainly what makes him part of a social group, but his lack of family ties in the first instance is what caught MS's attention for recruitment and that first instance of having no family ties when they tried to recruit him, made him in a particularly attractive target for recruitment. And once he was on their radar... He was vulnerable. Yes. But that's a mut- the problem that is that's immutable. The family ties aspect is mutable. The fact that he rebuffed their efforts is not mutable. That's happened and no one can change that. But the family ties issue strikes me as a mutable characteristic. You don't know if he's going to remain alone in the world or whether he's going to have cousins or uncles or mom comes back. We don't know that. Right? Well, I think what's important for the analysis is what his situation was at the time the MS first targeted him. And at that time he had no family ties. And because they were recruiting him and he rebuffed their efforts, he is forever going to be a target to MS because in a sense he was showing them no respect as Mr. Adams. The second part of the equation either immutable or one should not be quite required to change. Is that help you? Should he be required to say, hey, mom, you got to come back and live with me and quite a mom? Is that something that we should, the government should expect that his mother should all bus will be removed back along with him? Absolutely not, your honor. He shouldn't be required to try to obtain family ties. And there's no evidence in the record that his mom would, for example, move back to the El Salvador. El Salvador. Yes. And Mr. Alexander, I'm sorry, from his experience as a former MS member, he knew how MS operated. And he knew that MS specifically targeted individuals that were vulnerable, particularly those that didn't have family. And that once they were a target of MS, they couldn't escape the attention of MS. And if they refused to join MS, they would take that as a sign of lack of respect and they would persecute him for their ideological beliefs that criminal activity is wrong. What about the same thing I asked your colleague about the aging out of the cohort? How old is your clan? Are these 29? Yes, you're on the Kempst United States when he was 24. So if you were to go back to be about 30, does he get to the point chronologically where he's no longer in the court that he's being persecuted by? No, I think that's similar to the family ties aspect that it matters what age he was when I- So his age is going to change. His family situation may not change. We know his age will change if he stays alive. All of our ages are going to change. Well, MS, the group membership ranges an age from young boys to 40-year-olds. So there's no suggestion that the same- Who's the target for recruitment, you know? I'm sorry. What does the record say about who they target for recruitment? The record says that they target young men specifically for recruitment as an initial matter. And it's this initial recruitment that makes him part of a particular social group because once he's caught their attention, he can escape, no matter what he does, no matter if he gets older or not. And I think that also based on the facts of this case, it's important to note that his brutal assaults from MS occurred over a period of two years that they didn't lose focus. They didn't forget about him. And since MS? Any separate instances of assault were there and what happened exactly? There were two separate instances of assault, Your Honor. The first was after a couple of encounters with MS where he said that he would not join the ranks and they told him that they'd give him another chance, but he'd have problems. During the first instance of assault, he was going to a local store and MS members recognized him and said, we've given you enough time and you didn't join us. We're tired of you playing games. They started pushing him, hitting him, and started beating him with a baseball bat after he decided to try and defend himself. He was beat so severely that he sustained a broken clavicle and the only thing that scared off MS members was when a nearby neighbor fired two shots into the air. He went to the hospital after that incident. He made a police report, however the police said that there wasn't enough evidence to prosecute his attack. Which is a second instance of persecution? Yes, the second instance was also a persecution. They pulled him off of a bus as he was coming home from the beach. They just started beating him so severely that he lost consciousness. He wound up in the hospital for two weeks and spent six weeks at home before he could return to work. MS also told him in a letter while he was at the hospital that you escaped this time. But if you tell anyone about it, you won't live to tell about it. Based on these facts, I think that Mr. Major Fuente's has proven that he has certain characteristics such as sex and age that made him a particular target of MS in the first instance. And secondly, his more opposition to gangs is something that the court should not require him to change. The BIA aired when it relied on NRAAME to decide this case. But before you get there, I'm trying to understand how you connect the violence with his political opinions. What's the, how do we know that he's beaten because of his beliefs? Because he specifically told MS that he didn't want to be a part of their criminal activity. And they said that he would have problems if they refused to join. If he refused to join. Based on that exchange, they knew that he was opposed to joining them on his ideological beliefs. And based on what they told him, that they would persecute him if he continued to hold those beliefs. But they're a violent gang and violent people react strongly to others who don't take their suggestion. So how do we know that it's not as simply as a result of their inherent violence as opposed to on the, as a result of his beliefs? Well, I think, and I believe you might be picking up on the government's argument that... It's just a legitimate question. We'll talk to the government in a few minutes. I think that any time that the violence rises to such a level where paralysis might result such as Mr. Major's when, when he's friend Carlos or a murder, that it stops being about recruitment. It's about persecution, certainly for that individual. And it's about persecution based on their ideological beliefs that they won't join the gang because they're morally opposed to criminal activity. If you're right, I mean, it's concerning me and I'm sure it's concerning the government. The parameters of the group. The group is defined so broadly, so morpherously, and so open and indedally that almost anyone could imagine a circumstance in good faith where they could fit the definition of that group. I mean, does that a workable approach to either a cost or the asylum statute in general? And my guess is that's why the board tried to engraft to additional criteria on it. And we can talk about that. It and I will be Mr. Herp. But what happens when the group morphs into something which is almost without containment? Yeah, and I don't think that this particular social group is one that's not sufficiently contained. There's no suggestion that MS targets other segments of society for recruitment in the first instance. It's primarily young men, particularly those that are most vulnerable in society like Mr. Major. So the persecution center around something which is significantly important to the quality of life in a society that we should be cognizant of. For example, this is from the didn't want to sell drugs. This is something goes on in big cities in this country every day. Somebody gets up in the morning they go to school and they're targeted and beaten by the local drug dealers because they won't stand on court and sell drugs for them. If you transport that to another country and you have somebody who's saying, look, I was being asked to sell drugs. I saw if I didn't sell drugs, they're going to beat me. I did not want to sell drugs and more of the opposed to drugs. Therefore, I'm part of particularly social group and we can go on from there. Is that a workable definition, is that a workable approach to what asylum means? I think that we have to stay within the confines of the fact that this is... And some of the government has unable to control the activity. Some of the governmental nexus is there. I think that within the confines of this case... We'll win right in the opinion and we may win right in the opinion. And when it's out there, it's law. And wherever we say, clever lawyers and sometimes not so clever lawyers are going to try to take what we say and show us why it applies to their situation. We heard before an application of homosexuality in Cuba being applied to your case. Now, I guess is when Mr. Duff is making your argument, you weren't saying, hey, Martin, that doesn't apply to your guy. He's not a homosexual living in Cuba. He's not a female who opposes female general in the election. Why bring in the cases up to the court? Wherever we say is when I have precedents and significance beyond the narrow confines of this case. I'm trying to figure out how do we get a handle on that. How does the board get a handle on that? Your particular social group becomes so amorphous and open-ended. What do we go with that? Well, the BIA, it's important to observe in this case, didn't say anything about problems with the particularity of Mr. Major Fuente's social group. It only made a reference to social visibility. And certainly, since the only case it cited was in Ray A. Me, which had... Will you understand the difference? I don't think Mr. Duffie does. I don't. We'll ask Mr. Hurt. I'm not sure I understand the difference between social visibility and particularity. And frankly, they both sound like a lot of gobbling look to me. I can't make a lot of sense out of it. Well, certainly from the BIA's opinion in this case, it's not clear at all what they meant by social visibility. But Mr. Major Fuente's defined his particular social group in a very limited way. And it's based on the record, he was recruited by MS because he had certain characteristics that he could not change his age and his sex, and ultimately persecuted because he refused MS's efforts of recruitment. And these are very discrete characteristics. It wasn't as if MS simply was... Bruising him because he was there. They were bruising him because they wanted him to join them, and he did not join them. And they specifically targeted him because of his age and because of his sex and because of his lack of family ties, because he was vulnerable. These are particular characteristics about Mr. Major Fuente's that make him different than the rest of society. But also he brought other members of El Salvador that fit within these characteristics, and so he is a member of a group. Particularly when the BIA cited in RME, it's not clear at all in this case why they were quoting social visibility from the opinion. But in RME started with an essential premise and its reasoning that a group must have distinguishing characteristics, and it found that upper-class Guatemalans were not sufficiently different from the rest of Guatemalan society because they were at much at risk for extortion by a criminal element than other people in Guatemala with more modest means. Conversely here Mr. Major Fuente's was targeted by MS because he was young, because he lacked family ties, because he was a man. And these characteristics made him different than the rest of El Salvadorian society, and they are discrete enough for it not to encompass the rest of society. Mr. Coimbat, we do understand we ought to go over a little bit. Did you reserve time for Abadal and Mastravi? I don't think you did. Your Honor, Mr. Duffy collectively reserved time for both of us. Thank you. We're here for Mr. Herd. Thank you. Your Honor. Thank you. Good morning, Your Honor. My name is Ted Herd, appearing on behalf of the respondent Attorney General. Can you pull the mic to point down just a bit? Yes, thank you. You're pointing right at your forehead. Sorry. I mean, a real weird visual from up here. All right. Is this better? That's great. Thank you. Okay. Thank you, Your Honor. I'd like to allocate my time, obviously subject to the Court's questions, to the principal issues raised by Petitioner Galgamesh, which is this challenge to the agencies formulation, including the social visibility and particular requirements. I also hope to spend a little bit of time dealing with the specific access to both cases. Two issues that we may have. Maybe at least my perspective, could you help me make sense out of the difference between social visibility and particularity? That is something the difference in both two is the difference. I cannot get my head around and also can't get my head around what that adds to a cost. Other than frankly, it looks like an ex-post facto attempt to harmonize all of the law and try to take the outliers and come up with a formula that you can fit them into. Let's make them up with these two artificial constructs and grasp them onto a cost. Your Honor, I'd like to take those questions in reverse order. Okay. If that's okay, I think it might help at least my chain of the analysis. In 1985, when the board decided matter of a cost, as Judge McEw noted, it was dealing with a group that did exist. It was dealing with an El Salvadoran taxi cooperative. So the irony of that case is there was a group and no one questioned that there was a group. The question was, what are the innate characteristics that might give recognition to the members of that group had been persecuted by the guerrillas? So when we look at the boards at effort to both go at immutable characteristics or in the case of people who banded together to be a cooperative, it looked at the issue of experience and looked at the very difficult question perhaps of experiences that one might not be required to change. What we've said in our brief is that as the board developed more decisions, it actually started looking at what we call the social perception, social visibility notion. We cited matter of R.A., which although vacated for other reasons in 1999, discussed the external perception issue. I know. I read your brief and I understand your view. What I'm trying to understand is why you did what you did. So I guess the first question that I have is from your perspective, what was missing from the Acosta formulation? What is the ill that you were attempting to address? Well, I don't know that there was anything missing from the Acosta formulation, but as the board... But R.A. would fit into Acosta, wouldn't it? Well, the facts of R.A. of course went off in a different direction in terms of issues of spousal abuse. So the facts of R.A., I'm trying to separate out if I could from the analysis in R.A. Maybe the case I would go to is matter of H, which dealt with a sub-clan in Africa. And if you look at the facts of that case... Why wouldn't that work under Acosta? Well, because in that case, a lot of the board's discussion is directed at verifying that there was a standalone clan, an African tribal unit, that was being persecuted. So they were looking... They actually, when you read the decision, there wasn't a lot of discussion of the characteristics, but a lot of discussion of the societal evidence that the clans in this part of Somalia were very discreet. And the petitioner was part of a clan that was 1% of the population, and they had linguistic and other commonalities that were distinctive. So that again, but that Acosta, the risk using an account of membership of the particular social group refers to, the risk of a group of persons, all of whom share a common... Now we have a sub-clan. You can't get much more of a group than that. All of whom share a common immutable characteristic. And then the boyandid powers of members to change are one which they ought not to be expected to change. A sub-clan gives you that, doesn't it? Well, it gives you that, but I think the point I'm trying to make is that what the board is doing on a case-by-case basis is it's looking at each punitive proposed group that comes to it, and it analyzes, is there a group? And in these cases, they've been able to... How do you... You're saying you look at, is there a group? Which is kind of like saying, I'm going to build a card and I'm going to start with a card. How can you determine if there is a group without having a definition of a group to begin with? It's almost like the old saying, wake him out of something and wake him into it. If you're looking at something to determine, is there a group? In the process, you change the calculus of the group. I'm not quite sure what that gets you in front. It looks to me like what happened, as the executive mentioned earlier in my question, that you've got this body of a law which is kind of all over the place. And this is a concept which I suggested to miss Rick Bout does have the potential for being incredibly amorphous, open-ended so that anybody can come up with enough commonality in a particular society to put themselves in it, which is a very legitimate concern on your part. So you come up with a way of defining group which lets you at least think like you're getting a handle on it, but you're not really adding anything to the initial calculus. You're not really limiting the problem. A cost that works very well for determining the subclinofica cuu in that case. And if you add female general amputation on it, cost of works very well for that. Homosexuals in Cuba, cost of works well for that. Work cost that does not work is cab drivers in all Salvador. Some of the people in Columbia have been shaken down by FARC. In those cases, cost of really does not work because you don't have an immutable characteristic there. The standing of the Perhandeir in the street, children, as Judge White said, is opinion. Those things can change. Well, I think one of the issues is really what I'll call indeterminancy, which is that as the board has confronted in its presidential decisions, these more recent proposed groups, what each of these petitioners have in common is that they're coming in and saying, I have certain characteristics. They're fundamental to me. Other people in my society have these characteristics. We are being persecuted. Therefore, we are a group. Now, I'm oversimplifying a little bit, but the board's concern, and that's why it is refining, if you will, or evolving in terms of looking at these cases, is that there has to be a group before the persecution exists. I don't think anyone has ever challenged, and the UN High Commissioner's guidelines acknowledge this. A group has to pre-exist and predate the persecution. It is not going to be formed by the persecution, otherwise you have the circularity problem. So what the board is trying to do in the gang cases, for example, is ask, is this a group that would be recognizable in society? Because they can't be recognizable after the persecution. I mean, in Gomez Zuluaga, the Colombian woman who was kidnapped and threatened by the drug cartel, she wasn't part of a social group until after she refused to return to her captors. I mean, they released her under the promise that she would return to them after she finished her dental program and cared for the, apparently the dental needs of the, the, the, the, the, the, the, the, the, the, the. Well, you're right. And so she obtained the status of being a member of a social group by virtue of the fact that she did not comply with the FARC's requirement that she returned to them. And she persuaded our panel that the FARC would not take kindly to the fact that she, after being released under condition that she returned to take her, their dental needs, that she denied them that opportunity. So how do you square the argument you just made with our decision in Gomez and L'Oaga? Well, you know, with the caveat that I don't know how that decision would be decided by the board today in 2010, I can say that what distinguishes Gomez as well as L'Oaga and L'Oaga, I think, in the same reason, is that while the court in each instance did not recognize a very diffuse or broad social group of children who might be conscripted or of women or others who might be conscripted by the FARC guerrillas, there was a narrower, very... Well, that's what I'm getting at is I'm not sure the group is the hard part here. It's the particular group. And isn't there just seems to be something anomalous about the analysis here because the particularity requirement seems to suggest that if you're part of a small group of people like the woman in Gomez and L'Oaga, tens of people, perhaps hundreds at the most, do win. But if this is happening to millions of young men in Central America who the MS is coming after, you don't win because you're not particular. You're to use Judge McKee's words, I think amorphous, indefinite. You're just such a big mass of people that the board is going to say perhaps for practical reasons that well, we just can't give this group particular group status because then we're inviting 12 million young men from Central America to get status in the country. Is that really what's going on here? I know you're on there. I think that I think and I know that this may seem that I'm deriving too much out of a cost. But even in a cost, the principle, the statutory construction principle, the Latin, the used to generous, was trying to look at the words membership in a particular social group in the same way as the other limited grounds for protection, political opinion, nationality, religion, and trying to reconcile them and not make membership in a particular social group, a catch all or a safety net where the people are not really part of a bona fide group. So particular assist us in that because particular helps to define the boundaries of the group. And that's what said in AME. The board didn't come up. I would say the board hasn't come to this as a revelation independent of other people. The UN guidelines talk about perception of the Australian case. The general commissioner says, the high commissioner says you got it absolutely wrong. Well, if we have it absolutely wrong, then why does the European Union directive that we quoted in our brief adopt the same formulation as the board in the old senator? In the disjunctive and the conjunctive. And I've not heard any reply on that. Do you agree with Mr. Duffy that our decision is essentially what we do with SAG? SAG either is entitled to Chevron deference and your position carries the day or SAG is not entitled to deference and Mr. Duffy and Ms. Rick Abbas position carries the day. Is that is that painting it correctly? That's roughly correct. Although I would certainly say that this court had a concern with the board, we would ask for a remand for the board to reconcile these trains of legal thought and not for the court to reach this issue in the first instance. But but you're right, Judge Hardiman. This goes to Chevron deference and it seems to me that and I would like to discuss Judge Hosner and Gatimi if I have a question. I should read that and I've almost got a stiff neck from madding so much. Well, and if I can just add before you get into that, the BIA's order in the Mejia Fuentes case somehow elided social visibility into particular social group. It doesn't say that Mejia Fuentes is not part of a particular social group. That order says he lacks sufficient social visibility and therefore he fails. Well, and I didn't, you know, I could be more confused now than ever, but I thought there were distinct characteristics and that the petitioner needed to prove both, but maybe I'm wrong on that. Well, Your Honor, I guess I would say with regard to petitioner Mejia Fuentes, one of the points we raised in our brief and I'm not taking time on it today is we challenge whether they've even waived the session to the argument. But coming to your point, Judge Hardiman, I think that social visibility is the key point for Mejia Fuentes because the evidence that Miss Rickabau has cited is a statement by Mr. Sanchez that people like Mejia Fuentes are quote particularly vulnerable to gang recruitment. And that Mr. Mejia Fuentes himself said that he opposed the gangs. Well, we go back to the board applying SEG and EAG in terms of the same type of analysis. Where is the extrinsic evidence that the society of El Salvador or the society of Honduras use young men of this demographic as a distinct particular social group. But Judge, the coser picked that apart in Gatimi, didn't he? Maybe it's a good time to address Gatimi. He took off on that law. Well, I think one point to make is that Judge Posner does not disagree with the gang decisions such as Ray Mostbarios and Judge Posner also in his decisions has acknowledged that groups have to be definite and well defined. And in fact, he pointed out that using a term like middle class would be too indefinite. But that gets to the particular requirement, not the social visibility. Well, Judge Hardiman, in terms of social visibility, Judge Posner said, well, I don't understand what work it does. And I think that these cases would be decided the same way without it. Now, Judge Posner did not, I think, have the benefit of full analysis of social visibility, but social visibility goes to the external perception. And in fact, Judge Posner didn't disagree with that. How do you say that? How do you say that? Well, I think that the misapprehension that Judge Posner had when he used those as examples was the statement that the individual, had to be literally visible to a stranger or passer by on the street. The board's decisions have been very careful and very precise, and I hope I've quoted them correctly in my brief, that the attribute, the shared characteristic is the recognizable characteristic. Not you or I. The same question. What is the shared characteristic in those cases? The shared characteristic is mental attitude or sexual preference. How does that manifest itself, the person on the street? Well, I don't know that it necessarily will manifest itself to the person on the street, the point in terms of groups is does the society cognitively understand that these groups exist? Now, in Tabasso, it was very easy because homosexuals had to register. But I would submit that in other cases, one has to look at a societal understanding as to whether a group exists or whether the characteristic exists. One does not have to look at individuals, and the board has not said that an individual level characteristic has to be there. It links in actually to another point that I think you made in terms of prior questioning, which is why do we look at the society and its perception and not that of the persecutor? It's because the persecutor, one on one, can have many motives to go after me, vengeance, vendetta, random violence, and that really is the story of these El Salvadoran gangs. What we have to look at is, am I being targeted because I'm a pre-existing member of a pre-existing group? So, societal perception helps us understand that. But I'm not sure that's not. Because in terms of overall society, society may not really care how a given individual thinks about female general mutilation, gender preference. If the individual persecutors are manifesting the harm, why wouldn't it be the definitional lens of that person's focus? That determines the group. Well, I think the two reasons for that are first of all because... Because one is I hate to interrupt you. You can keep your chin a thought better than I can keep mine. And the thing I'm losing it is that it may well be that a group will be persecuted for certain reasons that the overall society really doesn't care that much about. It may not even be aware of, but there is another group of people in a given society who will set upon certain of their citizenry and persecute them because of and are called the persecutors because of the mindset of the prosecutors or persecutors of the persecutorial group. You're saying unless the overall society is cognizant of that or is willing to acknowledge it, there's no group. Even though people who belong to this group are going to be persecuted if they happen to encounter one of the persecutors in the street. I think the point is and the board in each of these decisions has looked at state department, other evidence in terms of what is the underlying