legal errors in affirming the immigration judge's decision to deny any relief to mr tourists first the board refused to even consider whether any of the articles and reports submitted by mr torres or any of the facts of their in were subject to administrative notice bolstering his claim under the convention against torture instead they treated mr torres as request for administrative notice as a request to reopen the record which is a different procedure for different purpose with a different standard not applicable here second but really didn't they i'm sorry to interrupt you but did they really determine what he said was true and still rule i mean if t reports would have come in he wouldn't have changed that they still suggested that what he had told them was true well chad smith i think that the the what the board did actually was to not even take consideration of what were the critical facts in that that let the immigration judge to deny relief in finding that the knights templar were not operating and therefore there was not likely i understand how you when you want to make a good argument but the honest truth was they the i determined that what he said was true in other words his allegations that he did they said they were true and they said and then they still ruled against him so i was trying to figure out what would be the difference of those new documents would have come in i think the difference would have banned that first of all they were showing that what he was threatened with was by a by the knights templar cartel that you know was giving credibility to his that is true well i don't know if they took it as true because i don't think they were giving any credence to the idea that it was the night someplace cartel backed with by the acquiescence of public officials in the area they were the board was simply saying that there was that that there was not really really it seems to me that what we're really talking about and that's what the case really turns on is whether it's particularly dangerous crime but i  area and i'm happy to talk about that first because i think that is a very plain error by the immigration judge and the board i think if you take a look at this court's decision in the miguel miguel case where the court apply the montgomery ward factors for retroactively applying an agency decision i really do think it is really on all fours with the circumstances here i mean some of the factors that are looked at under montgomery ward are departure from previous practice reliance on the previous regime let's look at montgomery ward first one is this case one of first impression probably is well i think it's the exact same situation as in miguel i think you would really probably a first impression does the you know whether somebody at the time is going to plead guilty to a particular crime i think this i think it's smaller was in fact seventy four pounds of marijuana for sale right that is what he pleaded guilty to but i don't think that that has any a ability to the for the mcgovern reward retroactively i understand all i'm trying to say is there is an application if you will by the i j as to how he would come out in this particular situation using the friend ghosts factors if you will then i guess i'm trying to figure out if i go to the montgomery ward characters why it is so emperor miscible be retroactive because it seems to me that's a question i said i'm not sure that isn't one of first impression which would be something which we might have here doesn't depart really i didn't think abrupt departure at the time miguel miguel was not had he had lawful status at the time right but i don't think that i don't read anything in miguel that big l to turn on that what it turned well is the real i'm just going through the extent to which the farmer which the party relied on former law i mean he had no lawful exchanges so i'm trying to figure out why he had an expectation that he was authorized to be here sure before that he would have an opportunity to apply for asylum well determined by the case by case individualized printemps q factor so to back up a little bit neither the immigration judge nor the board of the board in a very passing sentence looked at this from the francesca factors they started with the retroactivity analysis i understand and i and i don't hear the government in fact to be arguing that there's any distinction between miguel miguel and this case accept for the difference in weight of the drugs i'll go to different drugs so i don't know how you know i think it cuts both ways but i think the important point is that that difference in you know the type of drug or the weight really not factor into miguel miguel if you can frankly to the extent to which the party relied on the former law it doesn't seem to me that your client had any really really real estate reason to rely on the former law because he had no far he had no lawful status well i think he had no expectation that life was authorized to be here with already had no he had no opportunity he had no reason to think he'd have an opportunity to apply for asylum but quite different than miguel miguel with all respect at smith the expectation is not with respect to what's happening right then it's if he knew that in the future that he would be very likely to be subjected to torture and try to come to united states and make that claim and learn at that point that oh by the way your conviction ten years ago we're now going to apply a completely different standard that was deported he's only requesting withholding of removal with all respect i think that you know the difference between withholding of removal and not having that is still a significant degree of burden that i appreciate your argument but i'm trying to suggest whether that is the degree of burden which i should suggest is the high degree that needs to be under the factors and i said to myself and i appreciate that i'm being a devil's advocate and putting in the past but who petitioners not being to parties requesting with their olding of removal if he would he be deported otherwise and there's no substantial evidence that he'd be prosecuted well i guess i think the difference like that well i'm just going through the montgomery ward factors which you say apply and i think they apply to miguel miguel and i think that they find this court as well if i can reserve my time may please the court christopher began for the united states government going to just to take up where you left off with opposing counsel the government just point out that the the ward factors first factor is considered neutral not be more in opposite not only because of the factual disparity seventy four pounds pushed across an international border for the purposes of sale which is torres coverless conviction is just could not be more different than purchasing point two six grams of cocaine for twenty dollars from an undercover cop in the united states however there is another difference and that is for retroactivity purposes that that was present in miguel miguel but is not present here and that is that miguel miguel was initially found by the judge not to have committed a particularly serious crime and upon him during the process of remaining back and forth from the board matter of while came out and thereafter the immigration judge found that his that very same conviction now was a particularly serious crime and so you had in miguel miguel the agency making two opposing pronouncements about whether conviction qualified as a particular the serious crime and in this case that that is not in play music is the board make clear this is the record of ford footnote three the board made clear that even under an application of montgomery ward tori's calculus conviction would still be considered a particularly serious crime because of the sheer volume of the drugs that were that he pushed across the border so the all that's to say is that whether you go with the matter of y l presumption his conviction firmly qualifies as a particularly serious crime and there's no dispute there's no dispute before this court about the effect of the application of matter while to the conviction his case so if we if we permit the analysis in a matter of while then we end up at a particularly serious crime and if in the on the other hand we permitted analysis on outweighed all the other factors which the agency was more than aware of because the board affirmed the immigration judges matter while analysis in toto without exception and without and that's plain from the first in marked contrast to the board's analysis of the immigration judges convention against torture where the board is far more selective and it approves it affirms a finding of fact immigration judges finding a fact about the the torres's failure to establish the requisite probability of torture but then stops there and then there after there is no further torture analysis as i understand it the i g a was really pa applying the age you will idea of what drug trafficking crimes are particularly serious crimes i j was really applying the six factors the a g it outlined and determining in general and as i understood it to be i further said it's not impermissibly retroactive because even without the factors the amount of the marijuana was enough for the b four to meet the criteria that's correct honor it would've been the same or so really we're talking about the ward factors as to whether it's impermissibly retroactive because if it's not him permissibly retroactive then at that point the i g a is correct right that's director on a and that's why we have to take up the factors however the fact of the factors in the government's view if the court undertakes its own analysis of the war factors which it certainly is permitted rodriguez we still enough at the same conclusion and that is because the first factor is neutral in the immigration context the second and third factors are closely intertwined but the board's determination that the sheer weight of the marijuana seventy four pounds in this case was such that his conviction would have qualified as a particular serious crime regardless of the matter of why regardless of any retroactivity and so and it is that determination that lands squarely on the second and third ward factors which are so closely intertwined as the garfield's rodriguez court outlines for us if he cannot if those factors don't favor him then he cannot prevail on a retroactivity analysis challenge under ward so the first factor is neutral the second and third factor is he loses because unlike m he was a drug career pushing seventy four pounds of marijuana across international border and unlike miguel miguel he has no detriment to reliance because at no point was was that conviction ever going to qualify as a particularly serious crime the board tells us in addition to the the what your honor pointed out that he had no reliance interest on being in the states as opposed to go mcgill who had been granted asylum at the time was one fixin to do is go through here and try to determine what these factors would he failed to establish clear probability of torture yes or other so there is there are two sort of piles of evidence or the first is what was actually considered by the immigration judge and then the second is what was introduced for the first time on appeal but but citing or or laying claim to the ministry notes provision and in running the requirements for a motion to reopen which by regulation govern the submission of new evidence so as that first portion of evidence that was submitted by the immigration judge and considered by the immigration judge there there was this disconnect between his testimony which depended entirely on the identity of the knights templar that's that identification was established by torres kevil that was something that he hung his claim on but his background evidence didn't support that well it seemed to me that for cat relief petitioner had to show more likely than not that he would be tortured in the future yes or not nothing to do with the past over the past might give some indication that's your future and also that the state action would be involved in the torture that's your whole fiesta put both up right that's true your honor and it seemed to me the i j a says would give you the total idea that you're credible and that  experience fear in the past we don't have anything here about torture and they also said there's nothing in this record that the mexican government would support the chief of police in fact we don't think the mexican government would support the chief of police who might suggest that you ought to be tortured by these gangs so then i thought the b o h said there's no evidence t waived any challenge to the immigration to that really the board's the board's qualified affirm and so the immigration judges determination about torture the petitioner as arguments before this court have depended entirely exclusively perhaps on the submission of due haven't for the first i want to appeal that was rejected as the board is required to do under the motion to reopen regulations and this court's precedent in the itu or bury a case and why would we even need to go to the second prong if he has not likely to be tortured at all so your honor i agree i think that the board the boards of terminations the boards affirm and so the immigration judges torture analysis reflects that the board affirmed but then stopped at the determination that torres caligula failed to establish the requisite probability of future torture without the requisite probability of future torture or any any further analysis about government ac not of the mexican government is irrelevant and it makes this case kind of brings that point home your honor that concludes my presentation if you're subject to your questions th that defendants concerning whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions so when miguel pled guilty in one thousand nine hundred nine he had a realistic chance that the board applying for a test you would find that the crime was not particularly serious and so and that the circumstances changed says the application of y l changes the game entirely so i think that's the reliance interest we're talking about your name again miguel and then go into the fourth factor again we've previously held that deportation alone is a substantial burden that weighs against rough draft after active application i grant you we're not talking about deportation here but the difference between withholding and not withholding but miguel goes on to say here the burden is much greater miguel testified his life would be threatened if he return retroactive order would impose and he was not being deported he was going for withholding of removal and i think it's an added consequence that there's no substantial evidence in this record to be persecuted well i think that this goes back to the first issue on the administrative notes and i think it is undisputed that none of the tribunals below the board even considered whether this should be administratively noticed it wasn't the sort of binary choice that the government likes to say that the board was put to you know the choice that they had was whether to administratively notice these facts that are in these reports just like this court that allowed in the oil can solve this case which i think is the most on point decision that the government really doesn't have any response to other than  unpublished and file means you know if you want to make this an unpublished decision that follows oyu that would be perfectly fine but i think that it shows that the same minister lee noticed countrywide facts that go towards demonstrating persecution and