it please the court mike rayfield on behalf of walter code or ts who's in the courtroom with me today the order of removal entered against mr ortiz would likely be a death sentence for him if it's carried out the government doesn't dispute that if mr ortiz is removed to honduras he will more likely than not a severe pain and suffering at the hands of honduran gangs mr ortiz's family seven members of his family suffered brutal torture at the hands of gangs and after his brother attempted to leave  thirteen and the evidence in the case shows that mr ortiz his own former gang membership and associated tattoos would make him a walking target for torture from honduran gangs police and social cleansing groups now because the government doesn't dispute are showing as to the st cat prong at least with respect to with respect to gangs i'd like to focus on the acquiescence requirement of the cat if that's alright with the court two main categories of evidence compel the conclusion that public officials would not only acquiesce in mr ortiz's torture but actively participated in it the st is evidence the police generally don't protect citizens from gang violence in honduras and often collude in it the b i a recognize that there is quote widespread corruption and collusion with gangs among the police that said a r eight the court this court said the same thing in colby holder a decision in two thousand and eleven based on  state department human rights reports that it had been submitted to at that time and according to the country report that was submitted in this case from two thousand and fifteen nothing meaningful has changed gangs in honduras continue continue to have quote widespread  nity according to the country report and there is still quote corruption and impunity within the security forces in honduras that's a r five hundred and ninety two six thousand six hundred and one so that's the country report and then you there was also some evidence that the government made some efforts even if not very effectively what do we do with that in terms of understanding acquiescence to responses to that so the guy i did find that the government had taken some steps to to address the problem of gang violence and corruption in the police forces but but that's that that's that's insufficient for two reasons st of all it's in irreconcilable with this court's decision in madrigal beholder which holds that the question under the is whether the government has the ability to root out gang violence and police corruption not its mere willingness to do so and the government contests conceded in this case that the governments have been quote mostly ineffective that's page thirty three dollars of the government's brief now we think that that should really end the discussion under under madrigal but even if the court were to focus just on the willingness of the honduran government to to root out these problems the outcome should be the same because even if the government is shifting away from the dura policies and some of the heavy heavy handed tactics at the national level at the local level nothing nothing meaningful has changed police continue to both turn a blind eye towards an collude with with gang members and police officers and worse yet police officers are continuing to actively go out and torture former or suspected gang members former or suspected gang members themselves so if we agree with you that tells us that the agency erred acquiescence question should we remain for the v a to reconsider like they did and not like we did in moderate all or should we actually order cat relief to be granted which is what you're requesting so we don't think is necessary here because although the b i a did make this this legal error both the i j a and the b i a appear to have fully considered the evidence and any view of the evidence in our view at least would would compel the conclusion opposite to the one that the b i a reached to remember to be a waste of time yes i'm not i don't know about a waste of time i wouldn't say that but but i don't think a remount is necessary because the record has been fully developed the agency has fully considered the evidence it's just reached a conclusion that that is compel that the record that is contrary to what the record compels could you talk about us rolla yeah sure i'm happy to so the supreme court as you know granted certain to decide whether the courts of appeals possess jurisdiction to review factual findings underlying the denials of withholding and deferral of removal now in doing so it decided to address a circuit split on which this court is clearly on one side of it this court has held since the lemus vs new casey case in two thousand and eight that the b i a does have that i'm sorry this court does have jurisdiction to review the factual findings has jurisdiction under its precedents over the last ten years to decide this issue now if if the court is asking me whether whether it should it should await the supreme court's decision i don't think that's necessary in this case is is fully court's precedents are clear on what the court can do can do here and the grant of certain itself is not an indication one way or the other that the supreme court is going to decide this this differently we think the supreme court is going to come out in on the side of what we think is the right side on the on the side of this court's precedents and the fact that granted cert in a in a case where that had come on the other side if anything suggests that it's that it's leaning towards this this court's you understand so i have had trouble understanding even what the supreme court is going to be thinking about and so it seems like there's a question maybe of whether you can't challenge factual determinations in the sense of if the agency said the person is from this part of the country and actually you want to say that from that part of the country you can't contest that fact in this type of proceeding or is it you can't challenge the overall application of the law to fact which is what our court allows primarily so i don't quite even understand the cert grant what the question presented isn't a straw well if you look at what the th circuit  likelihood of torture and we have since and acquiesce is correct yes that the fifty whether you've met the fifty percent threshold threshold or not so what happens if we wait and the supreme court says you don't have dickson to make that decision well in that case i mean in that case we would ask for supplemental briefing because as judge friedman pointed out we also have a legal argument here that wouldn't be affected by the supreme court's decision our position that the supreme court even if it comes out on the other side of the circuit split would only be that decision would be limited to factual factual findings it still wouldn't prevent this court from from resolving issues of law underlying a underlying a cat the issue of law in our view is that the b i a erred in holding that mere steps towards this towards deciding the towards resolving the problem are enough under the cat acquiescence problem that that that that decision is a is it depends government has merely taken steps towards resolving the problem is enough under the acquiescence prong that is that i'm sorry go ahead i mean interrupt you keep please finish your sentence that that does present a legal question because it goes to the to the definition of acquiescence and this court in in as raw we would still ask for supplemental briefing to at least address the start but i'm having trouble distinguishing your framing of the question from the intertwined finding that under these facts the condren government may have the willingness for the express a effort to take steps to combat reprisals against former gang members for example but can't do it the it's the can't do it here prong of that that seems to me to be intertwined with factual findings that knows rollo would none the less impact can you address my concern if i don't i wasn't a well framed question i'm sorry it was perfectly i respectfully disagree with that because either the the the the issue that would remain after nasrallah is even if you take the facts as true then have to be a nd and underlying factual finding which is that in this case they were willing but able and doesn't that i am still concerned about that being dependent on finding certain facts which are his relationship to his brother the likely torturers knowledge of his relationship the placement of his gang tattoos and why that wouldn't prevent them from being detected all of those are very specific the history of the violence against seven members of his family all of those are very fact the pendant and if we don't have jurisdiction to unless what you're saying is that nobody challenge those  that's correct st of all that in in our situation we think the government and the b i a didn't even make a finding against him as to cat prong as to cap wrong one at least with respect to gang membership so that that's undisputed now now your honor i think be allowed to not allowed you wouldn't be able to grant the primary relief i'm seeking which is pure cat relief at that point the there would be the only way to remain to the b i a would be to address this error of law at which point the b i a would have to make new factual findings under under the willingness and versus ability test so on that argument it seems like if we were to decide things now says say we agreed with harley if we did that now that might be subject to another all a problem if the court goes the way you don't want to nostra but maybe if we now remained for correct because this little error was made we'd not have to level under the cat it granted that might that decision may in fact be impacted by israel or somewhere somewhere down the line but i don't think just because the court has granted certain that on this issue i don't think that means this court has to wait the the the this issue is has been fully briefed and right for this court's determination under its existing precedents and so you know i'm not i'm not going to be presumptive about how the court should handle its own docket but but i do think that it's it would be appropriate as there is there is no need to await his relatives this question and i would like to save a little time for a bottle that's all right thank you thank you thank you the court elizabeth chapman for the respondent in this case the immigration judge gave extensive and careful careful consideration to all of the record evidence apply the correct legal standards and determine that the evidence did not demonstrate that the petitioner more likely than not would be tortured in honduras by the government or the government to consent or acquiescence the record supports the petitioners finding and counsel describes the issue here what the circuit split is about to give the th circuit in the th circuit finding jurisdiction for two separate eason's and then there are mean to the circuits fighting no jurisdiction and in this case the government doesn't have any opposition if the court would like to wait to see whether or not the court the supreme court finds that there is jurisdiction in a case like this would that make a difference here in other words if you could respond to the argument that there's a legal error and the facts that would lead to the correct application of the law to those facts are undisputed so we can grant relief now even if knows where all the work to come out no you can't review factual findings but you could certainly make a determination on to the issue of whether or not the petitioner demonstrated he more likely than not would be tortured and hunters and the government doesn't concede that he would be tortured i think that petition i don't think you don't concede it but i guess it's analogous to a summary judgment review that is if the facts that bear on the outcome given the correct legal standard are undisputed right then as a matter of law a certain result occurs without any need to review those facts i guess the question is can we determine that the facts are undisputed without reviewing those facts in a way that would be impacted by  sorry can you repeat the question yeah that's a good question i think that if i understood the petitioner correctly the argument is the the pertinent facts are so clearly laid out in the record they are undisputed right we determine whether or not the agency correctly denied kept so the facts are what they are it would just be that there's no jurisdiction to review that's a nihilist cat protection there would only be just jurisdiction to review legal or jurisdiction to do anything more that is we'd have to send it back to the agency to say these facts are are not enough no i mean if there's a legal issue the court can certainly decide the legal issue and we could do that under stand that but i guess the question is does the threat of nos or all of saying no jurisdiction deprive us of the ability to characterize the factual findings in a way that would be needed to grant relief under the correct legal stand is any legal issues the legal issues would be to legal issues here one is the definition i suppose of acquiescence which i don't think that there is a legal problem here i think that the the court magical magical is acknowledged and i think that magical is applied properly here what petitioner seems to be claiming is that under magical so long as you can show any evidence of police corruption that sufficient but magical doesn't go so far as to show that as government's consent or acquiescence and our brief we cite to a case which is court of the holder and in that case the courts looked at the evidence and said ninety percent of the police force in that case it was mexico ninety percent of the police force acting inclusion with the kings so there it's more likely than not that any torture that the petition was separate was by or with the acquiescence of the police and under magical what they're saying is that if the police of the lower level not necessarily the entire federal government but if you could show that some form of the government is going to acquiesce to torture that sufficient here in this case we don't have ninety percent the petitioners expert witness dr bormann he testified that it was inclusion with the gangs ok if you were to be told that forty percent of the greater los angeles police force would likely acquiesce in the torture of select people targeted people would you find that acceptable that seems to me to be percentages are meaningless to the people who are outside of them and mean everything to the people who are inside of them but forty percent i understand that i'm not saying that's not a large number it's much larger than it should be but it's not more likely than not and that's what the standard is the standard is more likely than not so you still have to he does were eleven percent more if we're looking at fifty one percent then yes you'd still have sixty percent of the police source that's not inclusion with the gangs so the standard is the petitioner has to show that he more likely than not would face torture by the police by the government's forty percent it's still a high number i'm not discounting that legal question  i don't see that there is a legal issue here as to whether or not there's been acquiescence whether or not the petition has demonstrated acquiescence i mean that seems to be a factual question but why isn't petitioner correct that the i contradicted madrigals assessment that the b i erred by focusing only on the mexican government's willingness to control the gang not its ability to do so i mean isn't that  exactly the agency did hear talk about well they're trying and it doesn't matter if they're succeeding but just because they're trying that's enough doesn't matter go tell us that's not correct well there's there's been some blurring between this unable and unwilling standard and acquiescence those are actually two different standards an able and willing comes from asylum in withholding of removal with a sound withholding removal of the standard is the petition to demonstrate a well founded fear of persecution by the government by somebody the government is unwilling or unable to protect cat protection is a higher standard it's not unable or unwilling it actually requires state action so the standard there is state action by the government or the government to acquiescence which is why we have cases subsequent to magical garcia movie on where they say just because the government or the government is taking action and the government is trying to root out corruption and trying to stop gang violence just because they're not entirely successful that does not demonstrate corruption and ending the game problems that's not sufficient to demonstrate acquiescence and that's as lazy enters their sack and we have since would include though awareness that it's happening and just looking the other way right exactly but that's not what we have here we don't have will blindness looking the other way bang your head in the sand the government is taking actions they're not entirely successful but they are taking actions in trying to end corruption well it seems like part of the problem is we've got like a national government issue and a local government issue so the freddie percent number is local right exactly so and the forty percent is people who the government government officials who are actually helping not just looking the other way right it's some sort of connection is what dr apartment said it's people who have some sort of collusion corruption with the gangs i don't know he also said that it was all but inevitable that the petitioner would be targeted the petitioner would be subject to the violence torture and that there there would be i'm sure it's in the record as to his testimony but clearly he testified that in his view the petitioner was inevitable target and would right and looking the other way does count as acquiescence right but trying to do what you can to root out the violence and end the violence and root out corruption and corruption but not be entirely successful and that's not the same as looking the other way but yes the national government is taking some action but ineffectively and the local people have forty percent who are helping and everyone else looking the other way because we know there's a huge problem then why is it well we don't know that the remaining sixty percent is looking the other way to the forty percent what we do know that somehow seven members of his family had previously been subject to some pretty horrific sounding acts so we also don't know we do know that they didn't report that to the police and we don't know that the police was acquiescing there the torture or the likelihood of torture have to be in the hands of the national government no it has to be by a government actor and that's and that's what magical is saying that it doesn't have to be the entire government so long as you could show that some government after us but you still have the more likely than not standard well that doesn't go away under magical didn't that i'm having trouble understanding what the board did it says however in light of the mixed record of government collusion and gang violence namely the evidence that the honduran government has taken steps to curb gang violence and corruption not entirely successful and testimony from the applicant's expert that it was uncertain whether the applicant would be tortured by durham authorities upon his return the immigration judge found it was not more likely than not that a honduran public official or an official acting in an official capacity long as a public official the board acknowledged that and engaged in the analysis and just on the in this case the record wasn't sufficient to show sufficient acquiescence i guess i'm having trouble and again this action perhaps to review factual findings i'm having trouble with the quaid ng your insistence that fifty one percent of the police force locally has to be corrupt enough to acquiesce to find that  that it was a stablished by a preponderance that this gentleman that would there would be one police officer who would be enough if he was so likely to be targeted what i'm saying is even under magica you still have to show more likely than not and i understand it doesn't go away that's the sign i nd that protection i'm not disagreeing with you at all i'm having trouble equat it has to be fifty one percent rather than forty percent overall of the police force locally that might be corrupt in order to reach that finding as to a particular individual without regard to  his specific background his family background his prior connection to gang members who have left gangs all of those factors that we do have here i mean and then i see what you're saying i don't see that fifty one percent tracks that you know i see what you're saying w but i'm using that forty percent number is is to clarify in the you would have to show if you're going to just base general corruption in the police force and say that that is to fish and to show that the petitioner's going to strikes or does that i think it goes beyond and here's why he is specifically likely to exactly but it's not saying here is why the government specifically is going to acquiesce in his torture and that's the key here with ca protection is that it requires state action well understand but one police officers are right and that's why you haven't brought has remarried you do have one police officer but there it's more likely than not that that police officer there was the police officers that were actually doing the torture i wonder stand that  don't have that here because right he had met the chance yet but the question is is there a likelihood and i don't know that you have to find that over half the police force is corrupt and were moved to make that finding when you have specific fa the supreme court is what it is that there would not be jurisdiction over the agency's determination that petitioner did not meet its burden for kept action and does that mean there is no jurisdiction to review anything no there's still jurisdiction to review constitutional issues and legal issues so another legal issue that the petitioner presented here is whether evidence of past torture is sufficient to demonstrate future torture that would be a face torture on the basis of the government steps to court your torture at the hands of the government because of the government steps to stop gang violence would that be a legal conclusion that to me that sounds factual and you to me that sounds like a factual you're applying the facts to the law if it legal issue is whether they the standard for acquiescence was incorrect but i put in the st draft here wouldn't you say it's a legal error to assume that any steps taken it anywhere in the country preclude acquiescence sure you could equally say it's a legal we think that there is some kind of madrigal error here illegally because of how the agency considered what counts as acquiescence then we could go ahead and decide that and we don't need to worry about  if yes if the if it's a pure legal question if it's a pure question as to what is the definition of acquiescence that doesn't matter what the facts are you could apply it is that it's your position that we can't order of the grant of cat relief in any way because that a is the government's position that we should hold them all and as a court we should hold all of these cases just all year even if we were to in a different case no i mean i just i think the court can do what the court  said no relief would our decision have to do not have implications for what other avenues might be pursued to seek the ability not to be removed for this petitioner assuming he was to be denied i don't think he has any other avenues because of his crimes i don't think that there are any other avenues he has an aggravated felony conviction so i don't i think that this is the only avenue  so i don't think there's so do you know if the government has a position on whether our court should hold all these cases or just side these cases or what we should do at this point you know i don't but if we were did not to deny relief that would be the end of the case yeah i mean i suppose the government can file a hearing for reopening but they would and if we don't and i was dixon is not going to change it but is it your position that we could write a and actually now that i mean i did run the courts inquiry from last week saying that you wanted to discuss by the office if you were in the office his position to hold all the cases i would have been told to hold it so i know that the our office is not asking for cases  wait for his rollo than if we denied relief in your case and yet these don't read anything into it if we denied relief and those are all it says you don't have to dickson to review factual findings in these kinds of cases does your client have any avenues that are negatively impacted by the decision we took not that not that i'm aware of no you either way your client would lose right now but that's right so if the supreme assuming that there is not the court finds no legal error denies relief right and then yes that that's that's correct right i do want to say that i think i may have been a little bit overly certain about what the issue is going to be decided in as are all and i think maybe i came out on too strong of on that i think it's not necessarily the case that the court is going to decide that the ultimate factual determination of whether there's a greater than likelihood of fifty percent chance of torture is a a factual question that's not reviewable so i think that that that although that is what the th circuit held it's not necessarily what the court is going to decide it's still possible that the court could make a distinction between the underlying facts you know what happened who was tortured you know who was beat up and when and the what the application of the cat standard to it to whether there's a great in fifty percent chance  like i'm sorry i if i was so we don't know is what the court what impact the court's decision however broadly it frames that will be on those favored candidates for judicial review mics questions of law in fact yes and in fact i believe there are a few cases up at the supreme court now that are grappling with the question of what what it what constitutes a mix question of law and fact in this congress is going well yeah a mix question of law in fact means that it's got questions of law questions back in the problem is which is which right yes and we always went through and we always have jurisdiction to determine jurisdiction then how does that run up against figuring out once long what's fact and but far that lets us roam we don't know that until natural and tells us at least with more clarity than we know from this the grant  but if you if we re with you that there is an error here of law by the b i a then you win that's correct and that would that i don't think anyone would say that that would be impacted on by nasrallah and maybe that is the course i should be that's what i think would be best for my client i understand if the court is concerned that that might be affected by minister all eventually and i see i'm out of time but it would be ok if i just briefly address the forty percent issue so the what the record shows as the government points out is that forty percent of public officials are colluding and participating with gang members now the fact that's let's less than fifty percent is is irrelevant the question is not whether over fifty percent of public officials are are or are corrupt the question is whether it is more likely than not that a public official would acquiesce in his in in in his  i mean this guy of this guy had a forty percent of public officials are actively participating or than certainly it's reasonable to infer that more than fifty percent that there's more than fifty percent that someone is going to acquiesce in in his in his torture that would be our position and that because of the history of his family and gangs so far yes and that doesn't even take into account or is it because of his tattoos are like why why what what would get you from forty percent of more of for him in particular all of these things the fact his family history the fact that he has that his family has connections to m s thirteen his tattoos the fact that when he goes to the st thing that's going to happen and when he goes to the bore it when he goes to the board of if he's removed is that the police are going to likely up strip off his clothes check for him for tattoos figure out that he's a gang member and then possibly report that information to other gangs to other gangs in honduras and that forty percent figure but by the way doesn't even take into account the police officers that are not colluding with gangs but are actively going out and torturing suspected gang members there's it's important keep in mind that there are two groups of of police here who are active who are likely to acquiesce and mr ortiz is torture one is the group that is that is turning a blind eye when gangs commit violence against other citizens either because they're terrified of the gangs or in collusion with them the other category is the police that are actually going out and committing acts of torture themselves either pursuant to this mano dura policy or because they're involved in one of these clandestine social cleansing groups that are committing an average of six x three x additional killings per day but certainly when you take those things together and when you have a gang member going at gang members going after other gang members the that is the person that is the situation where you're where somebody is least likely to be able to turn to the to the police they can't and turn to the police that are colluding with gangs and they can turn to the police that would make things worse by actively helps the court tremendously