good afternoon i would like to acknowledge and appreciate in the court's order to consolidate our case this and i would like to briefly explained our division of the argument in the first ten minutes i will address the oath to petitions for review issue ineffective assistance of counsel which became obvious at the outset much of this evidence didn't come to me and tell a few weeks into representing the family so i am clear that the initial evidence was the last hour to comply and about the ineffective counsel and there was not much point to reconsider the first motion to reopen because it was totally deficient in theory and in filing and every way and i'd like to focus then more on the evidence of torture in syria i could just find a few more minutes i'd like you to be aware of the state department's own evidence said a r three three four three three five quote there was credible evidence that security forces continue to use probability of torture that collectively get their declarations cannot be dismissed by the government there are just first design asked the government's refusal to evaluate the prejudice of nine years of bad loitering is manifest injustice it's without substantial that thank you we didn't get to the remedy phase but hopefully a rebuttal thank you to two points that arise out of the all three issues and that will include a discussion of the motion of settlement before i do just so there isn't any confusion about the precise procedural posture under which the forget peroration is from the experts were submitted the second motion to reopen was indeed a second motion to reopen undeniably there was an element of reconsideration there but it was a second motion to reopen because the thrust of the motion w the cat claim per se it was the ineffective assistance of counsel mr olson to incompetence in his handling of the first real been and i think it is important in that regard to keep the lens in mind here we are working through the filter of ineffective assistance of counsel the ineffectiveness is conceded all we've really got is a prejudiced issue in this case and we're going to apply lin versus ashcroft and we're going to apply the test there and evaluate the evidence and the declarations have been quite precisely identified and in response to judge can be questioned just to supplement my counsel's comments i think if you look at the declaration of virginia sheri from my side of the case this is a record twenty nine and thirty there is a detail testimony his paragraph twenty one couldn't be more to the point this man faces torture and death because of his career as a pilot and his role in the government and the government's perception of his conduct turn and then very briefly to the ocean three merely whether you face a substantial likelihood of torture if they wanted to torture him for currency violation it wouldn't matter if there's a substantial likelihood of torture whatever their motives you can't send them back that's why we signed the convention if syria touching briefly on the i two forty six state issue i simply want to highlight the concern we have and it's elucidated in our motion the supplement for twenty two months from may twenty eighth two thousand and two there's been no ask you as to the scope of relief not merely just send this back to the b i am saying would you reconsider whether you're going to allow reopening but both to direct pre opening to direct to the i a e a to submit the whole pineapple your claims to an i j for a full hearing on the merits and to make the state of the district court issued under rule sixty two your own state with clear directions to the government that there is to be no sudden rush to try to get this family out of the country at the first seeming procedural opportunity and with that jail are some of them were released on humanitarian grounds and then finally the balance including mr family were released at the end of two thousand and two with a clean bill of health in terms of their behavior of community lack of criminality etc on the part of the district director but yet still no action was really extremely important issues that arise out of the out of the government's appeal or maybe this case and that is whether there is jurisdiction at all in haiti is simultaneous with this court exercising its statutory jurisdiction over the petition for  correctional people who say two of them from university of washington and two from human rights groups who say that if the family goes back to syria it's more likely than not they'll be tortured you know maybe they're self serving or their advocacy their kind of point of view in them but they are linked to the movie family circumstance absolutely and that's what makes it so easy for the board ninety remember this case went up on a petition for review back in one thousand nine hundred eight which this court considered a pretty absolutely the finding of the board in that case and the finding that was echoed again in the ninth circuit opinion and then i have cases is that there is nobody out there anywhere who is looking to harm this particular family in any way now through persecution or anything else the strong movie himself was arre anybody is going to do anything anything to these people if they were turned to to syria it would be based on the currency violation and therefore it wasn't persecution that's what both found if let me just ask you this the government's position is i know you're  you start from that point then you have a motion to reopen in which the petitioner of the person who's moving to reopen it is required to show evidence and he's right that something would change that is that he in fact would be torture asylum claim there is no evidence in this record there is none of these experts that say that because of the currency violation people of his age and experience or whatever circumstances are fortune it's very it's certainly not there motion to reopen who's sitting here in the courtroom was competent and she failed to submit any evidence in that motion to reopen that would indicate that the families are going to be tortured outside of the evidence that was based on that that the previous decision was made on that perhaps for the opinions of four you know that's why i asked you to read those opinions or honor every single one of those opinions for you relief requested in this case you have a person who was detained for all of those reasons there cited in the expert evidence but was not harmed was not tortured was not killed and was not even frightened over i'm going to take another look you waiting whether or not the evidence exists the board was evaluating that against the evidence that already existed in the record the evidence in the record is all those things that already happened before he left syria he was already taking before he l i looked at the statements of the experts looking for analysis of things that had changed that might cause him to be tortured i simply couldn't find me on the the issue of whether or not a person who returns on a currency violation it's just not there in the export of games is the issue of whether or not a person who spends some time outside of syria or comes to the united states or even files an asylum claim in the united states is subsequently tortured  in this kind of a circumstance is a motion to reopen hearing by the board it is notice and an opportunity to be heard it is not an evidentiary hearing it is a testimony it is not any of those things the burden is specifically placed on the alien to bring forward the evidence that different way than in the situation where the general country conditions say there's a lot of torture out there and the specific experience of this person with all of those criteria that the experts were exploiting about indicates that he's not going to be tortured because he wasn't under the circumstances when he was under their control previously and there certainly isn't any evidence of change country conditions  certainly they will indicate that he's more likely to be tortured now than he was then that wasn't offered by the families either the fact is the war of the exactly what it needed to do we devalue weigh that against something that was clearly overwhelming in this case that is they were not for he was not previously tortured under the exact conditions that the experts say would make it likely he wasn't tortured before he wasn't even persecuted before according to the first hearing  and the underlying facts that the experts are relying on haven't changed question i guess is where they're just they're having their say so too or changes the position of the board in this case is we can get as many country conditions statements as you want and this is and that is how these leaks these are people who are standing back are dismissed and say hey if you have a guy who used to work for the syrian air force any p the record of page four i mean if the b i can run at that and said here's what the expert said and then they have like a good answer to that i can give it more weight than the way they've dealt with it no indication from the record that anybody in syria wants to harm mr o'mara period and the board so if that was the case and i struck it agreed with that based on the evidence that was on the record that the the actual language of the statute and of the convention against torture says you can't send a person back where they will be tortured the subsequent intra protections of that including in the regulations and the cases criteria the specific items that the edge first listed as the basis for their reasoning they found that the immigration judge had also reviewed those exact same standards those exact same criteria what the board in this situation was compare the evidence that was offered by the alien in his motion to reopen to the record that existed and the most significant thing that they found was torture it's not going to be found in the transcript the work torture was not found in the i g s ruling the work torture was not found in this court's ruling judge can be asked what was in our ruling in two thousand based on something else that certainly was it was based on the notion that a case for political persecution was not made out that's what you talked about in two thousand and you didn't talk about torture or kept waiting for two reasons number one because literally it can't claim wasn't available and number two because even in the cont hall and his incompetence didn't bring the evidence out just wardlaw emphasized this here and that is the critical point fairness just say that there was a fair hearing in consideration on the motion reopen claims that didn't exist of the expert testimony when the board says well you got to show he will be tortured which is plainly not the standard when the board says well all of this was in front of the i j a when it plainly was not i mean the board can make statements over and over again but if those statements fly in the face of the facts and the record then we need to release these people have not gotten an opportunity to make their case through competent counsel this is one of those find points of fairness that for a century our law has guaranteed aliens due process they didn't get it here incompetent counsel de novo review of the board's determination is what controls and we have the facts weren't brought out there's not a question there about hama there's not a question there about his being an insider there's not an evaluation of torture there's that issue wasn't presented and then we have the additional factor that ok claim wasn't even as much available question raised that point and i think that for example mr go and it your honor if i could just go on here and and respond to the question realize that my my time has long since expired if you look at  actually the cut off for the on the cat claim would would go back to nine hundred ninety nine at the point where it was first available there's also the principle that you look at it and you also look at the principle of further evidence that's been developed and there is in the record press i mean in the functional equivalent of the new york times for the middle east and there is a specific testimony in the hideous corpus record which goes to the fact that this has caused agitation and consternation and concern for the safety of the remaining family family members that are in syria the syrian government in two thousand when it was time for voluntary departure and i will finish on this point and the family put in for passports all of them were given general passports but one person mr how moving he was given unless a passport one way back to syria that's the only place he could go i think it's a fair inference we have a pretty good idea why the syrian government that is that way we would