ms garcia mata had proven she was more likely than not to be persecuted in mexico because she had been named as a cooperating witness in a criminal prosecution of a human smuggling account counsel i don't mean to interrupt you too quick with that sounds like a legal conclusion if i which part is law the board's case is called matter of zio in that case the board says the prediction of what is going to happen in the future predictive fact findings is a finding of fact that the board reviews for clear error the question of whether review but in the meat of it you can see did novo reversal of i j fact finding specifically there's about four ways we can we can see in the record that the board used to novo review and set a clear council by supreme court footnotes in general and by this court's jurisprudence in most circuits mix questions get de novo review i don't mean to say it's a make it is a mixed question of law what i mean to say is there's some fact stuff here and there some legal stuff here and we can find the facts stuff at least in the way  get some facts ok so that the text of the board's decision makes it pretty clear that they were reviewing the i just fact finding to know specifically when the board quibbles with the immigration judges treatment of these text messages the board says we don't think they were as credible or we don't think they were as mean as immediate as the immigration judge said that finding is a fact finding a matter of zio talks about the prediction of what is likely to occur based on the evidence and that very much deals with threats whether the threats that have been want launched at you are likely to occur in the future the board's decision to sort of nit pick and pick apart the idea is analysis on these text messages is a reversal of a fact finding and yet the board doesn't specifically say it's doing clear air review and in the text of it it looks a lot like you know the review what's the specific paragraph of the opinion that you're referring to on the text messages that you say shows do nov review is of on page two it's on page two is it the second paragraph it is second paragraph yes it's this the last sentence or this last two sentence of the second paragraph and the start of the third the dissent is also a good at least well it says we agree with d h that the i g s findings finding is not supported by the evidence in the record now what does that mean could that mean clear air we think it's to know the court in ramirez pedro said when the board is doing clear error it has to say so that it has to state the standard and it has to say which specific facts it's dissenting board member said we are limited to clear error review the department of justice and its briefing says well she was just saying what the standard is i think her use of the words we are limited is an indication to the majority you guys have overstepped  in her view there was not a clear air but i don't know whether that tells us whether the majority found a clear answer when all concluded that there was a clear and she just disagreed or whether i think the words we are limited to clear air combined with the fact that the majority doesn't even say the standard it doesn't say to her it's a pretty strong indication the fourth is we know what the board did the board did not remember if the board finds clear error in fact finding it's supposed to remain to the immigration judge to refine the facts because the board can't do that on its own it's not a fact finding about body here the board did not remain and it reversed the i g s decision and just ordered her removed we think that's a deal no go action they didn't the facts not just the text messages another reference of page five of the record the board said that the i g was speculating about whether these threats were credible or not there's nothing in the record that says the i g was speculating he didn't say he was speculating so for the board to say this is mere speculation is really a finding of fact and it's a finding of fact the board isn't entitled to do i found the quote the quotation from is that the board and i quote does not conclude that there was clear error and the ideas expressed finding and thus the court reversed i think the last point is that the department essentially concedes this point in its briefing at page twenty five of the department's brief it characterizes the discussion over the text messages as follows and i quote it merely weighed the messages differently from the i j a because they came from  source that's the quotation from the department's brief page twenty five if the attorney general believes the board reweigh the evidence weighed it differently from the immigration judge because it didn't like the source that's do novo review and that's exactly what the factual findings different they can accept the facts than weigh them differently they they can when they're applying the facts the law the matter of zio came out after waldron i think it cleared up this question about which part is law which part is facts here but that's that's not our case so you it's it's a board case if you're right i mean the court isn't bound by it but the the court generally would defer to agency determinations intervening their own regulations which is what this is i think this is a little bit different than waldron though because the board here isn't saying we're going to take the facts the facts as they were found and apply them differently to the standard the board here said we don't like the facts the predictive finding about what's going to happen we don't we don't think it's supported i mean the board could say we accept these facts but we don't think that amounts to persecution as a legal matter you think that's permissible i think that would be permissible and you say what they did here was on the first step to say we don't accept these facts right and that has to be clear air finding under the rules of the board i think so and i think they have to say i would so what do you want as relief you just want to remain under the board and directing the board to articulate the standard review and then explain their rationale better i think the cleanest solution is to remand because it gives the board a chance to explain itself the court i think could grant this person withholding of removal because she's already been granted that by the immigration judge and the board and you could reverse the worst session and just end the case i would prefer him and that's better i think that because understand under administrative law how we could do the other and there's no law in this circuit that says that it can tell the agency to have more proceedings because it's a non discretionary required grant of relief but i don't only if the facts are as right and this isn't that clean of a case where you have i mean what you're really saying is we don't know if the bor i think what you're saying is i guess maybe you're saying you think we know that the board applied to know more of you but you might be saying it's not clear whether the board what the board was doing because i don't minimally it's not guilty or yeah because you have this i think sort of snarky opening line from the dissent saying hey guys we have limitations but she doesn't specifically say you guys apply didn't over of you then you have the majority opinion it doesn't say to noble or clear clear error i think a remand would clear this up well went back on remained in the board said we think these findings were clearly erroneous and then explain why they thought so then you'd have to appeal again and whether that i suppose whether that finding your conclusion is supported by substantial evidence is that it would go depends because the board can't do its own fact finding so face a clear error then they have to send it back to the immigration judge to say what the facts are the board can't do that on their own one of the problems in this case is that the immigration judge's decision is so short because it trial the department said we're only going to be basing our argument on this one issue has she been persecuted in the past waving this other issue of particular social group and then when it got up to the b ira the department points to these things missing from the immigration judge's decision and says look it's a sloppy decision well it's short and he said i'm giving a short decision because they waive those issues at trial so we don't have a clean enough record i think from the fact finder if the department of homeland security wished to challenge those issues we probably would have conducted ourselves differently at trial we don't know that until we get up to appeal and on and you know the judges sort of person a decision is thrown under the bu could review whether the any evidence in the record supported that decision i think there is evidence in the record now none of that none of the i j a nor the vi really talked about it the i j a suspicion says i looked at all the evidence and i considered it no matter whether i mention it the board in footnote two says we didn't look at all the evidence we looked at the testimony testimony and the text messages because that's all the immigration judge considered winning that by itself was an error because for the board to do clear error review it has to look at the whole record and figure does it support the immigration judge's decision but on remand the board could do that it could fix the error and then we would have a cleaner record if we lose we file another appeal in the court can review the record hopefully we would when she's already been granted withholding approval by the department of justice immigration judge i'll reserve the rest of my time thank you very much very long we're from the government did grant withholding over move to her but despite her failure to meet this burden and the board reversed citing the problems with the immigration is not just decision the board specifically found problems with what was likely to occur to her and whether the mexican government would regarding the immigration judges finding that the smuggling organization had the capability and knowledge to carry out any threats it had made against ms garcia monna now while the board did not say we are finding clear error in that finding that's exactly the analysis that the board did and the board did cite the relevant regulation it's eight c f r one thousand three point one d three that sets forth that it will apply clear air review to findings of fact and an overall review to questions of law and what the board did acknowledged the evidence that the immigration the judge based this finding on it addressed that evidence and that particular paragraph shows that the board in fact did look through the record and find that there is absolutely no evidence to support that finding now the immigration modest testimony that she overheard someone in the house in the gallus getting beaten for not getting the job done and a comment that the smuggling organization had been around a long time and did not leave any loose and now if we look specifically to the first part of her testimony this is on page one fifty two one fifty one and on two fifty two she specifically testified that she found that she heard what sounded like a person being beaten up because that person because someone was supposed to be looking out for the meskin army but didn't and got caught and when she heard that person being beaten she heard somebody saying quote unquote this is what happens when you don't get the job done so that testimony and what she heard had nothing to do with her that finding of fact by the immigration judge it had to do with someone in the smuggling organization who didn't do what he or she was supposed to do and apparently got beaten for it had nothing to do with an individual in her circumstances who hired the organization to smuggle her in and washee was then paroled in to serve as a witness for the prosecution she never even had to testify but it had absolutely nothing to do with someone in her circumstances and whether that organization would have the capability has the capability and knowledge to carry out threats against her and the second comment that the organization had been around a long time and didn't leave any loose ends that was said to her when she was in the house in the gallus before anyone cole would be caught at the border and in her testimony she makes it clear that that comment was said when someone in the organization was explaining what the organization was about to her that essentially what exactly that person said that the organization had been around a long time had a lot of experience and crossed all of its t s and dotted all of its ties and probably china nerves down a little bit to make her feel a little bit better and that is on page one forty eight to one forty nine and then the board was correct to that there is absolutely no evidence in the record to support this factual finding now there are articles in the record that relate to the treatment of individuals who were long term informants with the us government against drug cartels and these individuals their testimony in cases led to the convictions countless individuals including very high level individuals but again she is an individual who was paroled into the united states to testify but she never even had to testify carry out any threats against witnesses no let's go on the question of whether the board applied its own rules ok what do you rely on to say that we know the board applied  parents in particular all the board did in that case was say in its decision we find clear error in this particular finding of fact but the board didn't acknowledge any of the evidence that that was based on didn't address any of the evidence and didn't make any indication that it had in fact look through the record to see if the immigration judge had made a mistake in reaching that finding and also in water and that was the case regarding whether an individual met the hardship requirement for two twelve h waiver and in that case the immigration judge found that he did and the board reversed and in reversing the board you statements that were contradictory to what the immigration judge had found to support the determination and again didn't address any of the any of the evidence on w the immigration judge had relied on didn't acknowledge any of it didn't look at anything in the record and so this court said we even if you are finding clear error in these particular findings you haven't explained anything but the board in this case didn't  your explain but they didn't say they were finding a clear air that's true that's true sadly and with that i think i don't think anything has to be done i still think substantial evidence supports that determination and even though the board didn't use that particular word it's clear failed to do i think in this case the fact that the board didn't use that phrase really was harmless error for lack of a better word because it could be sent back and the result is still the same the board will add in a line saying where if that's what they were doing the are and while you presume the think they would do that but how does that isn't that circular doesn't that presume the answer to the question whether they were in fact applying clear their view i don't think so i think from what they were doing they clearly were finding clear error and we look at the rest of the evidence in the case and what the board found in terms of whether she met her burden to show it is more likely than not that she will suffer harm rising to the level of persecution o return to mexico and we do have these text messages and counsel makes the argument that the board finding that the text messages don't support a don't support a finding a persecution that the board was doing some sort of clear air review and overstepping its bounds but all the board was doing was using factors that this court has set forth to determine if threats support finding a persecution the fact that they were not specific they were lacking in immediacy and they were not so menacing as both of those cases there were threats that were arguably more menacing then they were in this case and using those factors this court found that those threats did not support a finding a person so let me ask you on page twenty five do you contend that i think you say that is it your position that the border is just weighing the evidence differently it is it is my argument you know the waldron case that you rely on for that on page three sixty of the waldron case it says the i j a findings of fact may not be overturned simply because the board would avoid the evidence differently right well i guess where there is the black letter law and saying that the board weigh the evidence differently what i was trying to say was the board looked at the facts in the case and in determining whether they met modest legal burden that the board found that they didn't that's really what i was because they we the court say on the next page would be i has the discretion to weigh them differently when you accept all the facts well and then you're at the stage of the ultimate determination you follow that you see the distinction i think this court is trying to draw between pages three sixty and three sixty one of waldron i see what you're saying ok which side just case on of is going to page three sixty or page three sixty one i don't want to confuse this if you could repeat it again joe no i didn't mean to say is that the first standard that's on page three sixty or is it the standard on page three sixty one i believe it's on three sixty from if i don't know i'm sorry which is on three big i weigh them differently when they start parsing them and describing what they really think that the facts are what the board was doing again was not what the facts of these threats were it was looking at factors that this court has set forth to legally determine if threats rise to the level of persecution for example in that case my longer that i mentioned earlier this court found that even if the threat flowed on quote we will have your skin was a death threat it did not support a finding of persecution because it was too exaggerated it was not supposed it was not specific and it was lacking in immediacy and so this court has set forth these factors to make that legal determination as to whether a threat supports a finding of persecution and that's what the board was doing in this case and the record just not compel a contrary conclusion ms garcia modder herself on page one fifty seven and one sixty five testified that even though these text messages that her husband received were a veiled threat no one in the organization had ever threatened to kill her and when she was asked on multiple occasions during her during her marriage hearing on one fifty five to one fifty seven what she thought these messages meant she consistently replied that these messages meant that this individual chicano wanted to talk to her and ask her what she said counsel how can we make any sense of the page two key statement in this case we agree with the d j s that the immigration's findings are contrary and not supported by the precedent of the court circuit how can the findings not be supported by the president of a court get it i get what you're saying that's not things findings of law that's no good right i think they have an oar in there you see my or you know what i'm saying yeah i do see what you're saying you know this to be completely honest with you this is not the most well written decision i've ever seen by the board it's really not in that particular sentence is a little odd but i think all the board was saying is that while it used the word findings you know it should have used that word in the i don't think it was for the factual findings it was really referring to determinations conclusions and whether that ultimate conclusion whether she met her clear probability of future persecution for behold and you think you've lost me a little bit because i thought you started out your argument saying the board did fine clear and want and not it found clear error in the finding that on the smuggling organization has the capability and knowledge to carry out any threats it had made against her  three but as to your saying they found that was clearly your own yes and then they took the rest of the facts and yet did a reweigh are you know when and and applied to no overview really to determine that she did not establish it is more likely than not that she will saying then our decision is based on the findings of the i j a and wall counsel argues that the immigration judge in this case didn't look through the entire record and maybe should of set forth all the findings of fact that's just simply not true the immigration judge in this case on page two i think his argument is it should have been remanded once if if in fact the board did find one fact to be clearly erroneous then we don't know what the i j a would have done if not permitted on that fact the i might have found more facts or well i disagree with that because in this case there is really nothing to show that as the that anyone in the smuggling organization has any interest in harming her and so the board's decision really was correct we have this woman says hired a smuggling organization and she says she heard all of these things in the house and she's really asking the court to take this evidence completely out of context all we have are these text messages that she concedes are that someone wants to talk to her no one wants to harm her she testified no one threatened to kill her and also asked your honour's to please keep in mind that this is a case where while she mr pulled into secondary inspection at the border on page two sixty nine into eighty five the record makes clear that it was not her fault she was in fact permitted to cross the border and mr did or said something that caused the suspicions to be aroused it's not clear from the record what he did or said but that's what caused the two of them to be pulled in the secondary inspection so they were and she was paroled into service a witness but again she never even had to testify that's on page one sixty six she's really asking the court to make a lot of jumps in leaps in finding that you know her burden is to show that the record compels a contrary conclusion and she has not in her brief or in her argument before this court shown that and substantial evidence does support the determination specifically that she didn't show it's more likely than not that she will suffer harm rising to the level of persecution these text messages don't support it no one's heard from the smuggling organizations since november twenty fifteen and the board did properly find clear error in the determination and the finding that the no one the smuggling organization would even have the capability and knowledge to carry out any threats it had made big harm i guess that's a problem with all of the answer myself with thank you for your i'll be brief just two things the department's attorney alleges all we have are text messages it's true all the image all the board considered were text messages that's what a footnote to says and the testimony but the record has a whole lot more than that sworn statement she gave at the border saying she had been threatened it has her husband sworn statement page two sixty nine it has a caution sheet from the jail that said this is a that's a page two ninety nine which is what you give to an inmate who is who is in danger for having cooperated with the prosecution evidence that she is in danger and then fourth the federal court filings that are available to anybody with a pacer account identifying her as a cooperation witness we have more evidence than just text messages the problem is the board didn't look at any of the other evidence and it said so explicitly rarely do we get such an explicit statement as you find in footnote two to the i j a rely on that he specifically said he did he said even if i didn't talk about all the evidence and that's it page seventy four and seventy five of the record so even if i didn't talk about all the evidence i looked at all of it i think the i j did do a careful concerted job he held a day long trial listen to all of the evidence and said he had read all of the record can the word findings mean conclusions if you legal conclusions i think it means factual findings in the context the board how do we know that on page two when it says we agree the immigration judges findings i think we can read matter of o talks about factual findings there's a different word for legal conclusions and that's legal conclusions or conclusions of law that's i think also the way the regulation is worded the regulation that talks about the standard of review what about the fact that they cited the regulation that includes the standard review if you go to that regulation it includes both the dyno and the clearer standard so that doesn't tell us which one they were using the dollar to mean it includes both because it includes to no case the board had specifically said clear error when it talked about the standard and the court said in ramirez sparrow that's not good enough we have to look at what the board actually did and the board here didn't over review even though at the top it said clear error that's what the i'll get a page for you the last thing i want to mention is an argument my colleague made about that the board will just add a line when a court remands it counsel doesn't represent the board counsel represents the attorney general there is a regulation that permit the attorney general to certify this case to himself if he wants to if he wants to redecide the case and adeline i think she's just predicting this issue came up in a seven thirty case called rodriguez versus holder where the seventh circuit said if the attorney general wants to say what the board is going to do the attorney general can do it by certifying the case himself otherwise the attorney general can't say what the board is going to do the board is an independent body and the court should remain the case for the board to do its work thank you you know thank you but we thank both sides for the argument the case is now under submission