and i along with student co counsel rebecca young and supervising attorneys gary watt and leah sparrow appeared today on behalf of the petitioner mr fernando geary urbina and since my time is limited i will focus most of it on the ca claim and try to reserve about three minutes for rebuttal ok mr geary is intitled to relief under the convention against torture because he has proven that it is more likely than not that he will be tortured and killed if he is removed to mexico the agency abused its discretion by failing to consider all relevant evidence and by basing its decision on flawed reasoning so i want to be clear here your argument is really that the denial of cat relief order to be vacated in this and it's sent back to the agency right you're not arguing that we should give cat relief no your honor here because the agency did consider the case fully and overlook a key piece of evidence and come to the wrong conclusion and mr a geary has proven that he isn't tight isn't the most you can get on this i was saying to the agency go back and look at this key piece of evidence are you saying that we are we should order cat relief by ourselves yes your honor this court has done that before i know i know but that's why i'm asking you if that's what that's what that's what you're asking us to do yes your honor  that is what we are asking for a bit because the record compels the conclusion that mr gary is entitled to cat relief and because the act states that cat relief is not discretionary this court should grant his petition and to the agency with instructions to grant the relief in the alternative the court could of course remand to the agency with instructions to consider the entire record in particular the two thousand and fifteen threat against mr geary's life which it appears that they have overlooked and in the alternative to that the court could of course remand with instructions to consider whether mr a curies crime was particularly serious  is the evidence how compelling is the evidence about the government's involvement in it in these any future activities if i understand correctly you're asking about the government acquiescence right correct ok here the record evidence indicates in the country conditions reports that the syn aloa cartel  works with the government and police officers in mexico at every level of government and that they've have police officers on the payroll not only that the specific threats delivered to a gary on at least three occasions told him that the cartel works with the mexican police and that they will consent or acquiesce to the torture the two thousand and fifteen threat that mr geary received while he was in detention is particularly probative because it completely undermines the government's or the b i as reason for denying the relief that threat indicates that the sinhala cartel considers mr gary to be a snitch that they are waiting for him in mexico to take their revenge and its state said they are seven hundred and nineteen that they indicated to have mystery geary that they had resources there to deal with his kind in mexico so the inference is that there's no reason to take revenge on mr a gary here in the united states where there are of course is no evidence of acquiescence or working with us in a low a any of this into account is that what happened or you think they gave inappropriate weight to what the claim was no your honor it appears from the  are seven that the b i a did not take the threat in to account that occurred in two thousand and fifteen there's simply no way to read that decision as considering that recent threat the b a s decision there states as the primary reason for denying it really is this the one to the rule is communicated through the sister of the communication to the sister which is that they are eleven o three occurred in october of two thousand and twelve but the two thousand and fifteen claim which was communicate our threat was communicated to mr geary while he was in detention and that was by javier and that occurred in march of two thousand and fifteen and then the  a characterize that threat as no contact in years so there's simply no way to read the two thousand and fifteen threat as having been considered in the agency's decision because it was only fifteen months old and situation no your honor that case involved the immigrant came from iran on a student visa and then he was part of a group called m ek and he helped to perhaps recruit and distribute materials on behalf of the group but there in that case were no direct threats to the immigrant it was simply the threat of future torture which was shown by the country reports soley and here to this court has said in parata versus sessions that country conditions evidence alone can be enough to establish government acquiescence or consent here because we have not only the country conditions evidence that speaks to government acquiescence when the senate low a cartel acts against snitches we have the specific threats that state that the car does work with the police in locating snitches and that the police take no action and the those statements are primarily provided by mr geary in his testimony and his declarations but the i g did find him credible at a r nine hundred sixty so the court and you want to be clear on this on the cat claim you think the record compels the conclusion that the government would acquiesce in some future torture the i j a found to the contrary as a matter of fact and the the i a e a upheld that determination and you're saying looking at this record the only conclusion that anybody could possibly reach is that your client would face future torture either at the hands of her with the acquiescence of the mexican government correct your honor because the country reports aren't  ambivalent on that issue of a stay so you know there's corruption but the government's trying to overcome it and and so you know there's it's not it's not entirely pervasive respectfully no your honor the country conditions reports may point to some efforts made by the government to combat the issue however there are it's far outweighed reports by the state department by the new york times by human rights watch that the mexican government is largely ineffective and the standard that this court set and moderate all versus holder is not that an immigrant must prove that the entire government would consent or acquiesce to the torture but only that a single official would and here at a r seven ninety nine a r eight hundred two there is and other places there's ample evidence that the court has said that the country conditions evidence alone can be enough to ensure government acquiescence of the diffuse question is is it oh well i'm not alone enough in this case to compel the conclusion of acquiescence not that it's not that i can case i'm saying perhaps alone it would be enough the country conditions evidence looking at page seven hundred twenty six and seven hundred twenty eight speaks of how the cartels and find and locate they locate snitches and then they torture and kill them they hang them or they leave them beheaded in public places with signs of fix to them to deter others snitches one report states that seventeen percent of all of the cartels murder victims were for being suspected informants or traitors to the gang and while that report does peak of the violence by cartels in general we know from the country conditions reports that the senate low a cartel is the oldest and largest drug organization in mexico so it's yes the country conditions evidence supports the acquiescence but here we have even more than that we have th specific threats mr geary was told we will wait for you in mexico and the police will help us find you and they took pictures of his tattoos so that they could make good on their threats yes sir this your time is running low before reconsidered in light of that case because his mental illness was not considered as whether in terms of his criminal culpability and so in light of gomez sanchez versus sessions we would ask that in the alternative that this court remand with instructions to reconsider as it did and cost us all over vs sessions was a new role and it simply wasn't available to mystery giri to appeal that previously and in the interests of judicial economy and not wasting the court was incorrectly decide because other be a decisions had ruled to the contrary so the b i a could change its own rule presumably without involvement of our court so for purposes of exhaustion  and i just want to see what you say warning your honour's may please the court my name is jennifer singer and i represent the united states attorney general the respondent in this matter given that petitioners counsel kind of focused on the cat claim i will just jump right into that as i think the safeguards i think they were sufficient safeguards in place turning to the issue of cat to feral the petitioner maintains that he will be tortured in mexico at the hands of the sin a lower cartel members because they perceive him to be an informant and there's two issues belief in those statements are true but the accuracy is something difference simply because someone says something doesn't necessarily make it true and there are statements that petitioner did make initially thinking that javier was in mexico when it turned out that that was not the case so even though he was credible his belief in what and what petitioner testified to yes that was taken as true but the accuracy of the law but i'm trying to find out what the r j found to the r j find that he that nobody in mexico really thought he was a snitch the i j a did not state that now ok so what is the accuracy of the i j a didn't deal with the accuracy of the statements why should we i think the found that the fear was speculative and in a sense yeah i think that's we can we can deal with that i mean that's a but the r j didn't say oh you're really wrong you don't have this fear he said you're just speculating about this fear that's correct and speculations are insufficient to warrant cat protection part of his i mean part of the speculative nature is that the distance between the threats that were levied simply because javier said these things to him doesn't necessarily mean that he will take action on those threats people say things all the time and don't fulfill what they say they're going to do so in that sense it's speculative also the time distance between the threats and the time the immigration judge and the board made their decisions only expanded and diminished the nature of the threat it's also unclear whether anyone would even know petitioner would be in mexico to act on these threats and the speculative nature is also underscored by the fact that just the record itself but nurse says that he's perceived to be a threat but it just seems very hear of your fear of being harmed when you go back and speculate what he did he didn't say you're the premises the premise of the premise of your fear is false that's correct but here that's what you seem to be arguing you should be arguing well there's no real evidence he was a snitch there's no real you know what the i j a said was look you may have had some threats are you find credible when you say people threatened you but your fear of being harmed when you go back is speculative that's very different than undermining the basis of the sphere and that's what you seem to be arguing that's just one aspect but the i g did say that the  diminished because the threats did happen a long time ago that's what the i j a said and that still borne out by the record i j also seemed to suggest that petitioner had no idea where javier was and that go his whereabouts has a direct impact on whether anyone would know where petitioner would be when he would be in mexico if he was in mexico where in mexico he would be so even start the chain of events going to bring him under the radar of philippe or javier or any other cart and i j did say those things and those are speculative turning to the issue of acquiescence which is a separate issue because this cat claim in my view fall simply on the speculative nature aspect acquiescence is a separate aspect which the i j a inboard did separately address and the record just simply does not compel the conclusion that the mexican government will acquiesce to petitioners torture or yes yes there is corruption yes javier said that they have some bodies in the police department but that is simply not enough the record also shows that the mexican government combat's corruption they just  i think there are some three or four articles in the record from two thousand and sixteen saying that there was a huge crackdown on the sinaloan cartel including the arrest of out shopping that was recent that was just want to monks of several arrests and that they're cracking down on the cartel that goes to show that you know the government is trying to combat crime combat the sit alone cartel in particular and try to curb corruption that record just simply does not compel the conclusion that the serious crime determination so i the the court should the the proper remedy and that is for the petitioner to file a motion to reopen based upon new evidence that claim well it's not new evidence see that's my problem if we were met the pending petition or to that surely not you but somebody who looks like you in front of the agency will say this is not new evidence he knew about it a long time ago so why why isn't he a more appropriate thing for us to do to say look you had case law would seem to suggest at the time this was not relevant to judge smith's question later whether or not he should have asked them to change the case law but now the case law different and send it back and you can consider this why not do it in this proceeding rather than in a motion to reopen bar i misspoke i meant based upon new law because the petitioner could have exhausted this before the bar he could have been sanchez himself the whole premise of that was mental health goes to the particularly serious crime determination this whole case is essentially about mental health and competency and so that's judge that should smith's question and at the time the immigration judge made the original decision the board had not yet decided matter of g g s so at the time the immigration judge made that decision it was more than appropriate for petitioner to argue that his mental health  sure what the actual state of the law was with regard to taking into account mental health issues into the p s c determination but obviously it wasn't necessary factor to be considered otherwise matter of g previous authority that allowed the consideration of the mental health factor so that was well in effect in the matter d s s was not in effect at the time and there would have been no impediment hearing that and if you didn't bring it up then then we do have an exhaust and claim that yes that's straight thins the exhaustion argument i mean this whole case pressures case really focuses around competency issues and at the same time he was litigated in the case before the i j a he had a collateral matter in criminal court seeking to vacate his conviction based upon mental competency issues so being petitioner counsel and petitioner was on notice i mean obviously he knew that mental competency was an issue in this case and that should have been after matter of ga g s the second decision after the fact because nancy because remember what happens is the point remains you've got to start all over again and the i j a says the way i'm going to start all over again is by reassuring way original decision so when was the when was the second i j decision to shoot back in i j i want to see is in two thousand and fourteen but the original one that was not re incorporated there's would be different posture now because given that gomez sanchez changed over ruled matter g s s then the appropriate remedy would be a motion to reopen based on the change in law i understand your po there's no further questions all rest on the briefs i think i think you i suspect you're preparing to do it but just to be sure you just heard this colloquy about the matter v s s the timing basically the exhaustion issue can you address that please yes your honor  second decision was in two thousand and sixteen the second hearing was in january of two thousand and six right and that was well after g s a well after each of us you know you or your colleague says well that may be so and if that were the original proceeding then i don't just and why you didn't raise it but you should arrange that back in two thousand and twelve or whenever it was when the law was unclear my question is what's the effect of the two thousand and sixteen remain riemann seems to say we're sending this back on the issue of mental competency so to me that's a remained that says put in evidence on the issue of your mental state it doesn't say it's restricted to a particular issue does not as i read it your honor but that there remain and when it went back in two thousand and sixteen was because the i j a had conflated the two step process set out and matter of  on the issue of whether this was a serious crime or do you think the remember is limited to that issue of the competency issue i have the way that i read it is that us and what we do have is the case law that says that it would be clogging the judicial pipes to for once this court had already granted review of the other