good morning may it please the court elizabeth bentley for the petitioner the i j a granted petitioner to alternative forms of relief based on extensive factual findings regarding exceptional hardship and likely torture petitioner would face if her moved to somalia reviewing that decision the b i a overreached its authority in three material ways each of which independently calls for a remain and st it failed to apply the clear error standard of review and impermissibly engaged in fact finding nd it improperly faulted the id's legal analysis under the convention against torture effectively holding petitioner to a higher burden of proof than required and rd it failed to remain the case to remedy any insufficient fact finding by the i j a these errors do not only deprive petition of a fair review of his claims when his most fundamental rights are at stake they more broadly undermined this court's precedent in waldron versus holder and more broadly undermine the integrity of the board's adjudication of removal orders i'd like to turn st to the issue of the standard of review governing regulations and this court's precedent require that the board of immigration appeals review the immigration judges factual findings for clear error and they prohibit the board from engaging in fact finding in the st instance clare review means that an i g is findings cannot be overturned simply because the board would have weighed the evidence differently particular finding as clearly erroneous it must squarely address the evidence on which the i j a base its finding and explain why that is clearly erroneous and the board violated these tenants with respect to both grounds of relief in the form of the waiver or at the convention against torture and turning st of the convention against torture where they accept the fact finding was quite extensive the board made a number of fact findings in the st instance regarding for example whether or not petitioner could safely relocate to mogadishu those findings either directly conflicted or were consistent with the i g f findings and yet the board did not explain how those how the findings it made based on the record render the i g f findings implausible or illogical which is what is required to have clear air under andersen if neither account is illogical or impossible if the idea is account is not illogical imposible there can be no clear error for example the board of immigration appeals found that the government has effective control over mogadishu and yet it didn't address the finding by the i but as this court held in waldron versus holder which was also a discretionary decision whether the underlying facts that the warrant may consider are still must still be found by the immigration judge and those are reviewed for clear findings and relied on findings that were in fact different than what the i j a had found which does require a remained here so that the board can correctly apply a clear review to the i g findings and then make its discretionary decision immigration judge here made a number of distinct findings that to gather reach the threshold of more likely than not to experience torture so she did not meet rely on any specific chain wear that rather she found that based on and these are the carried the factors that the regulations require judges consider in in determining whether something is more someone is more likely than not to be tortured she looked at past torture made extensive findings about the torture that he had experience d prior to leaving somalia she made a number of findings with respect to his clan and the hardship persecution the experience both at the hands of the government and militias as well as at the hands of  terrorist group over which the government doesn't have control and she also made a number of the rd factor in the regulations is general human rights abuses in the country and made findings to that effect and what they did make  one particular factual conclusion whether or not the minority clan are disproportionately subject to torture stated that that conclude factual conclusion was clearly erroneous our st argument is that they in making that decision mr piety clear review and in fact did not did not establish that that fact was clearly erroneous and you don't just look to whether they say that it was you look to their analysis and whether they adequately explained why it was clearly erroneous but at the even taking that point to return to the issue of the standard of review the judge here the point is that the judge did not rely on the hypotheticals especially when you look to what they meant when when it said that series of hypotheticals that references the government's brief which is which laid out precisely the chain that they were thinking of which is that if you look at that chain that they are specific facts that the i j a found and that the board did not find to be clearly erroneous or they mischaracterize fact that is also excepted by both the board and the immigration judge that the bennett jury a minority same thing the petitioner will be treated like a bennett now that is one possibility that the i g consider but this is the point about how she didn't rely on a series of links chain particular fact as the only way that he can establish more likely than not she made findings with respect to the ashraf being subject to abuse at the hands of the al shabaab as well so those are the differentiating pieces where the chain assumes that chain past torture by that partition petitioner and my understanding of the reading of the facts of that case was that the i g had not made findings specific about his clan as to whether or not they may be subject to torture as well in any event to the extent that the on any of these points the board had found the i g f findings to be lacking in any way our rd argument is that the remedy was not that the our understanding of what they did here was not again not rely on a chain of hypotheticals but rather added together you know a cumulative understanding of present facts that reach the more likely than not threshold the court clear workman for the attorney general given petitioners convictions for sexual assault against two minor girls this court's review of the board's decision is limited to claims of legal or constitutional a petitioner merely disagree with the board's decision denying him deferral of remove all under the convention against torture without showing that the board made any legal errors the board properly reversed the immigration judges factual findings for clear air and then accordingly concluded that he had failed to meet his burden of proving that it was more likely than not that he would face an individualized risk of torture with i j making a specific more likely than not that he would be tortured finding anywhere there's a lot of individual facts that talks about regarding the the  government and cetera but i don't see a more likely than not specific finding anywhere actually am i wrong about that i don't think so your honor because the  the mean finding that the board finds clearly erroneous and then goes about looking at the evidence and showing with sufficient justification and cogent reasoning why that falls apart and that it's clearly wrong  why then isn't the appropriate disposition rather then of especially affirming what the board dead or denying the petition for a view why should we send it back to the i j a for a specific finding on whether as applied to him it's more likely than not that he would be tortured because your honor that is a finding that when it's before the board is reviewed  immigration judges factual findings clearly erroneous that ultimately he did not meet his burden of proof and the board it's very clear that the board correctly held him to be more likely than not burden of proof  and he failed to meet that let me ask you this i have a note here and it's been a few days since i've i've read all the materials in this case but i have a note here that says that under cheema which was referenced earlier that the more likely than not court is reviewing a cat determination where the criminally review bar does not apply where this court can review the merits  and even further to the level of torture if something that the agency has to decide in the st isn't it what were members of his family targeted as well the special he was the last of the family to get out of the country  it appears for various reasons and by different private actors and the the board certainly took that into consideration and immigration judge it doesn't matter whether there were independent findings or whether it if one of those findings are all connected and if one of them falls apart as it did here then the whole the whole chain or group everything  to give up much of their territory so the board is focusing on the ability of al shabaab to harm petitioner and finding your honor the board is allowed to rely on evidence in the record as this court has repeatedly recognized in many  morales goes through that many of the discussed discretionary factors that can be considered unbalancing the weighing the equities for a discretionary waiver and one of them is rehabilitation if a criminal record exists and that's exactly what the board was doing here and that they were not consensual while he denied that the fondling ever happened and he denied that the the sexual penetration with the other minor was consensual and so he's basically denying the the idea of decision the very concluded you're into quoting has not shown that he has been rehabilitated from his serious history of driving under the influence of alcohol so in that case and in other this court has acknowledged that the board can rely on evidence that that was not part of explicit factual findings by the immigration judge and with respect to the hardship i'd like to address three brief points st judge grasped with respect to the board's consideration of whether or not the petitioner minimize his culpability that does amount to a new factual finding and  the board cannot make those individual and in fact findings as a part of its discretionary review as the government has said none of the cases that they cite involve a situation like this where the i actually looked at evidence in the record in the doesn't i don't read that to the contrary it focused on one particular finding and found that the the board did not reject the idea as finding and in fact had weighed that as a positive factor and if you question about whether a predictive finding of fact and specifically whether someone is more likely than not to be tortured is a factual finding that is under the board's presidential decision in matter of  so whether alternately whether or not the the immigration judges conclusion that he is more likely than not to be tortured that is a factual finding that must be shown to be clear the erroneous fact that we don't have any individualized factual findings or at least i couldn't find one there are some findings about in generalities doesn't that in your view would that require a read man back to the immigration judge certainly at a minimum yes you can read the way that i read the decision is that there implicit findings in the court can the can make in the board has to review implicit findings for clear air as well so i read an implicit finding is that necessary finding of hers in order to reach the conclusion however to the extent that that that was not clear th certainly that would be a basis to remain and to the board to have the i j a engage in for their specific fact finding on that question as a rd more general point the government walks through again a number of different reach a new factual conclusion rather you have to explain why the ideas conclusions were wrong the the b i a didn't do that and the the debate that we're having about these factual questions is the pre why the clear error standard of review is there in the st place to keep this type of conversation out of this court the clear standard of review is intended to have the immigration judge in the st instance reviewed the credibility of the witnesses review all the factual finding both because they're close to the judges closer to the evidence but also as a matter of efficiency and that is why the clear review is so exacting and in this case the board's findings to the contrary expose expose that  error very clearly here so to extent that there are any no further questions we request that the panel remain on the case back to the board for further proceedings