good morning in the it please the court i'm hilary walsh and i represent mr ramos in this case i'd like to reserve two minutes for rebuttal thank you this petition challenges the board's revocation of mr imus's deferral of removal which was initially granted to him in two thousand and five and taken away in two thousand and fifteen in the underlying removal proceedings now the facts of this case are complicated but the law mandating remey and is very simple and it is this when the board of immigration appeals cases under the convention against torture it must consider all the evidence and we have two instances here where the board failed to do so and therefore remain and it is mandatory if the court turns to page four of the record it sees the board of immigration appeals decision this is page two of that decision the last paragraph it's three sentences is the sum of the convention against torture and now says the second to last sentence discusses the evidence linked to me if i ask you to focus on that discussion of the convention against torture quite the b i said as we agree with the i j c adverse credibility determination we have to give mr ramos's testimony full weight before this court well here's here's my here's my difficulty so help me with it if we were reviewing the i j a his decision here it will be i we were just looking at the i j s decision would we would we deny the petition for you with respect to the catcalling if you were looking strictly frankly i j v i j seems to have said i'm not sure i believe everything he said but now but i still don't think he's made his burden of showing the two elements either that he was tortured or that will be with with government acquiescence if we're looking so only the i j a is decision but it would be a very different case when it would but it would still end in the same result and that would be a remained in i mean if we were before the the i j a and and we didn't have the board's decision kind of clouding what the actual issues are we have expert witness who testified in the immigration judge accepted that as credible and it was an opinion of an expert and that expert gave testimony that said and it's on page one seventy two of the record for the court's convenience that he predicts that mr ramos faces an almost inevitable risk of a agree just physical harm and a high probability of death if he is removed all salvador but that it does that is does that mean that we can only conclude that he will be tortured with government acquiescence if he goes to also acquiescence really isn't at issue in this case because of what the expert testified to well i know he had evidence but the but the there were other things in front of the i j a there were country reports there was your testimony of your client it cetera i mean i guess what i'm asking is couldn't the i j a have come out differently on this evidence you say there's only one one conclusion possible so yes you are there is only one conclusion the experts  experts testimony was not contradicted by any of the existing evidence nor was it contradicted by anything that the government put forth if the i j simply erred by choosing to disregard it the board repeated that decision and kind of double down on it by also not considering the evidence the the testimony from ms ramos that's one of the primary problems in the board's decision is miss ramos testified this isn't mr mr ramos as younger sister right she testified credibly to the immigration court about the past persecution her family had in a rather pass torture that her family had endured the past threats that had been unfulfilled in her ex personal experience in prediction about what would happen to her brother if he were removed now this is especially concerning and this is especially problematic in mandates remained here because the board of immigration appeals didn't consider any of mr ramos as testimony about this and we know from you first of holder this court's holding that past persecution is one of the primary factors of the court relies on when determining convention against torture claims so we have the board of immigration appeals dismissing all of mr ramos as testimony about this and in failing to consider or even mention mrs robb miss ramos is testimony about it in addition to the problem that arises with not giving an accurate characterization and statement about what the expert testified to so something that nobody briefed and i wondered about looking at this case mr ramos gets deferral under cat at some point in time yes so somebody must have concluded at that point that he hadn't there was a likelihood that he would be tortured if we turned with government acquiescence he then commits a crime which makes him ineligible for were certain relief at least under the government's view i know you attack that and then why did why why does that change terrorist threat crime was before ok to be friends but what it was like whatever whenever whenever it occurs that crime doesn't change his fear of torture if were turned and so i'm trying to figure out why the previous determination doesn't have some sort of binding effect in this neither side argues that and so it is there reason why the reason why the immigration court and the government in the immigration her proceedings cited to the regulations changed for the better for example no he just basically starts anew he still bears the burden so in that regard them a gratian court was correct stepping forward from there the rest of the decision the decision snowballs into massive errors that what's what's the legal consequence of the lack of credibility at this point the court would need to give mr here the precedent that this court has set says that we were before the ninth circuit were to give mr ramos i think the best relief at this point is remain to the board of immigration appeals for a couple of reasons not only because of the errors i mean just undeniable under cole versus holder no denying that we have major problems here in terms of the cat analysis but then we also have problems under the board's own precedent in terms of the particularly serious crime finding being that the board did not do any analysis that's what it's required to do under the first step of matter of nam so that's a problem that the board needs to address it also needs to address the cat claim itself with with respect to giving mr ramos a presumption of credibility given the absence of an adverse credibility finding and finally given to my  and the the board's finding that mr ramos has committed an aggravated felony the precludes him from asylum really because it was what the board found was a crime of violence without stating what part of the definition the kind of violence was  that definition is unconstitutionally vague so we have many issues that although i wish that the court could rectify it here remained as necessary if i may reserve the rest of my time for a bottle you may thank you for hear from the government good morning jeanne hamilton on behalf of the attorney general before i get started into the credibility issue in this case i'd like to address what petitioner just raised as to the issue of the maya and immigration judges in the board analysis of whether or not the petitioners conviction constitutes a particular serious crime under this circuit's president the the statute for which he was convicted in two thousand and three for making threats with intent to terrorize constitutes an aggravated felony under eighteen u s c subsection sixteen a so there is no confusion to my didn't changes to my focused on sixteen b we have clear court precedent holding that it was an aggravated felony on those grounds under sixteen we also have the issue of the immigration judge and the board oh it's not a categorical felony because we're talking here about a particular serious crime analysis that's correct and so for the particular serious crime analysis we had in latter seeing versus holder the circuit court of appeals analyzed the elements of the offense of california penal code for twenty two and laid those out those elements were recognized by the immigration judge and cited in his decision so i take it  say here are the elements of the offense the way the immigration judge did so are they required to do that it is our position that it is not required to do that they noted with approval of this analysis and it was there it is binding ninth circuit precedent  so the notion that there would have to be any further analysis of the elements of the offense is misplaced but i'd like to turn to that would that conviction foreclose really it would foreclose if it was determined to be a particularly serious still an option and that has to be evaluated and that's what he was and he is seeking cat to further he was previously granted cat referral and he is now seeking cat for all turning to the issue of credibility answer the judge schalke and his question is no it doesn't preclude that really that's correct sir turning to the issue of credibility it's interesting that the petitioner now challenges the notion that there was an adverse credibility finding below in like to point to this court's attention page twenty seven of the administrative record which in the top of the page in all capital in bold letters states the immigration judges finding that the respon is not credible is erroneous so you argue waiver of some kind that's correct sir where where is that in your brief we this was not fully fleshed out in our brief or fleshed out at all to be and you then file a response it doesn't say oh you waive that argument so i think you've waive that argument you're are we would we certainly address the issue and we maintained in our briefing before this court that  the adverse credibility finding was explicit ok that's that's a separate issue and we ought to address that but i'm just saying i'm not sure from my perspective at least you can show up here for the first time with an argument that they've waived something that's in their including the petitioner believed that there was an adverse credibility finding made by the immigration judge in the was fully briefed out before the board of immigration appeals and there's multiple instances where the petitioner had an opportunity to find you very believable you've got to say i'd make an adverse credibility determination we've got all these cases that say anything but that's that something that explicit isn't that verse credibility determination so what what did the i g do that here are our position is that he did in three instances he made references to his adverse credibility assessment of the petitioner but under this court's precedent to give us just one it was early early early in the decision he notes the petitioner's credibility and i'm sorry i thought i have this on a note and don't have it in front of me there are three specific references where he noted if we did a word search everything the i j a wrote about this case would hit on and on the words verse credibility determination there the specific words adverse credibility determination would not generate a hit so let me give you the exact language that he used the court observes initially there are concerns as to his credibility as a witness is that an adverse credibility determination or precedent taken in the context of the statement followed by the two subsequent references to the credibility issues that the that the immigration judge made we would consider yes i thin this is later these factors reflect poorly on the respondents credibility you think that's an adverse credibility do that i've actually did a word search and i've got to three times use the word credibility the next time he says aside from his life aside from respondents credibility i want to get to the merits and that he gets the merits so the only two times he uses the word credibility are in a sentence that says there are concerns and later and says do these factors reflect poorly you think those two together are an adverse credibility determination taken in the context in which they were said yes your honor we do believe that there was an adverse credibility terminations made there is no precedent in this court that stands for the proposition that there have to be magic words that are uttered and there's not a specific phrase that has to be sustainable into the case that would case the panel determined based on the statements that were made in the context in which they were made that there was an adverse credibility finding that had been rendered there's been a law since one thousand nine hundred seventy there there has your honor hasn't it sort of played this up a little bit our position is that it hasn't tightened it that that's a distinct and an analysis of this particular issue clearly there are contexts in which  example with and under this court's precedent i proceed a litigant might be treated as and more favorably in terms of the way that he briefs the issue of whether there's an adverse credibility terminations or not made by the judge but in the context of this particular case with this particular petitioner he was represented not only at the immigration court level but at the board of immigration appeals level and now at the circuit court of appeals level and that there was clearly an understanding that an adverse credibility determination had been made at each stage of the process of being able to see your time's winding down but i have one question i think you can answer yes or no to i thought as i read the board's decision it's based on this if let's assume there was an adverse credibility determination the board's decision is based on that determination is it not the board doesn't then separately go through and say and even if you were credible he has improved his case the the board noted with no we would argue yes i'm not asking you to argue i'm asking is an insert to his question no i don't believe so your honor ok thank you very much you we've got some in two thousand and five the real i d act completely changed adverse credibility law for the entire united states so in one thousand nine hundred seven decision i don't know what it is but the the rules have changed and they changed in two thousand  i want to draw the court's attention to the fact that the government has yet to address the merits of the cat claim it did not do so in its brief and has not done so here and the big question mark remains why and it's because they have cole versus holder why this court shouldn't we may and i also want to draw the court's attention to the fact that this would have been an easy thing for the government to agree to remained on but instead my client has been in detention for the past three years he has children who he has not seen for that duration of time this is extremely frustrating because the law is so clear on these points with respect to the particularly decision when reviewing it particularly on things like particularly serious crime findings we can't bootstrap in the immigration judge's decision and just to correct the record the board of immigration appeals didn't cite latter saying in its decision finding that the elements proved this was a particularly serious crime only in the immigration judge did thank you we thank both counts i think this was for taking this case pro bono we appreciate it helps the court thank both counsel for their excellent briefs their arguments in this case will be submit