thank you so much for your help curtis panels order in terms of bras this case is a little bit like bras plus we have some exceptional circumstances here which include infliction of torture by a high ranking police officer with unique power over the victim to have a pattern not just one but a series of incidents involving that police officer three you have repeated after since more than one instance where police were aware of and failed to intervene to prevent the activity in question now i'm not sure how relevant my question is but can you help me with a issue with regard to the factual record sure i'm not quite sure i understand what the teal one bureau of commercial police is i'm sure it's auxilary and commercial police is that different from the police department for tijuana is there any clue in the record as to what police agency we're talking about here i actually i don't have clarity on that either your honor i know that in the record there that officer gonzalez the perpetrator in this case was basically of a local unit a high ranking official in that local unit i knew at some point this a strong had to  go to a different i think the unisa pull high ranking officer who then told her to if you want to work you have to go back to your abuser i guess the basis for my question was and again i'm not sure it's controlling but the basis for my question was at some point there was an act of domestic violence where she needed a police escort to get her clothing out of the house but it was a different jurisdiction and that's what was confusing to me as to whether he was a deputy commander over those police officers or it was a different agency that was unclear to me as well and i do not assume your honor that either the first responding officers or the people that were called within that jurisdiction either knew who officer gonzalez was or therefore that was a reason they were afraid of him there's just nothing in the record from what i can tell that we can assume that unfortunately i think that's what the b i and  in a different judicial district then the office the police office when they said we don't have jurisdiction is outside our district that's right so the original where where she radioed for police and yes in the first instance was a different local jurisdiction and that she said that the officers there so just when it's time you call your local one when you get there you call your local jurisdiction to maybe help you out there there's no evidence in the record that when she did so she either leveraged any tied to that local jurisdiction or that those people you know knew who officer console's was they were just responding to a call there so what were the local her skewed me what were the government authorities that she went to who did nothing your honor i think there was kind of a series of i mean for that there is no question that the person who is abusing her if you will is the is a government authority and therefore the government is doing what they do because he's there based on her own marrow and i'm not sure even need to go any further than that we so whether she went to government authorities who would have helped her or she didn't go to authorities and therefore they never had the chance to help  are you suggesting that's not even an issue in this case i think ross and his private ross stand for the proposition that if the police themselves inflict the torture at issue about that is sufficient to find eligibility for capital so therefore to reach the eye as to cat relief if the police do it it doesn't matter that she didn't go talk to anybody to try to throw them out or try to do something with them the very mean very act of doing it is enough yes your honor in bras there were four off duty police officers and yet this circuit still found that that was sufficient the fact that they themselves or the police was more than sufficient for the more than likely standard your honor and that could go to a judge who has question about do we even have to get to us when some of these acts occurred he was in uniform he  cetera so do we even have to go to us to reach a conclusion in this case i think ross merely confirms kind of line of cases about state action before i briefed earlier kind of in the procedural history but here there's a clear eligibility for cap under the so we don't need to even address withholding i think withholding is trickier claim because of the matter whether it was tricky or do i have to address it if your honor thinks that she's also eligible under withholding of her i'm not asking whether i think and i'm asking are you suggesting that based on your pleading indicate whether it's possible yeah and i think well the auto doesn't restrict this court's ability to order actually directed cat relief and here is why i think in the few cases where the court has remained for kind of a question for example eros right was a case where that happened where it wasn't i think there was some doubt by the panel about you know if we were to remand it back to the agency we really don't know what the right result should been things of that sort and that was the multi not a burden shifting issue with the board and really consider country conditions at all that i think both the board and the i j a address country conditions your honor in this case and i will point you to the sites where that was true  they did address the country conditions but did they address of in reference to the relocation issue there was not much of it explicit discussion of relocation and it's my understanding that they didn't in dresses and the reason i don't think they needed to address and i guess i'm just trying to make sure you agree with me is because your client has the burden to prove she can relocate not the government so therefore if in fact she did not mount any proof there the decision to be a need did not need to address the issue i disagree slightly your  honor the regulation says you have to look at all of the evidence and so the government had an obligation to just a minute there is a case dead on that says your client has the burden as a relates to relocation says that it's not a burden sifting case what it says is that you have to consider all the evidence there is not an affirmative burden in the first instance on the on the applicant them so and so here your honor the government had not one but two opportunities to rebut country conditions evidence and to address relocation there was questioning on the issue of relocation and mr chavez destroyed i said i fear him everywhere his reach extends beyond this little town i'm afraid of going back because of him this should not be a do over case for the government this is gone up and down the i j a twice now and and the i think the record is clear there's no real new facts this falls with but the problem is that the board was government in connection with the violence so it seems to me it's a different analysis than it may have been before i think merely crystallizes existing law at the time the b i t had been decided by the time the b i had this case twenty thirteen the b i a new about this court's understanding about state actor who was a public official things of that sort but with regard to future harm as i understand it he is no longer a police official because he spent some time in prison but the record suggests that he somehow still has ties to the department even though he's no longer there the us as to him not to being an officer now it says that there's a warning that i read somewhere that he went to prison there is an allegation that he went to prison and that when he came out he immediately asked where was therefore it's a different analysis is it not the terms of future harm i don't think so your honor because again i think that very same page if i'm remembering correctly it did say that he might have gone to prison this was the i think the summary of the test right yeah exactly right and there it says let me see if i can find the exact cite here there was there was it was not conclusive as to whether he in fact i think there might have been an explicit discussion about how he there's a pending decision about whether he can go back onto the force so that that's the best case scenario we have in the in the record here what's your best case for this idea that you just gave to me that if it's  government official that the government has acquiesced and you don't have to look at whether she did anything to stuff it in other words in the normal petitioner would have to say ok i was harassed by this person and i went to the government and the government didn't do anything in this particular action were saying you don't have to go the government and the government not do anything just the mere fact that this was done by the government was enough but to me is the best case for that idea actually there is a case that we referenced in a footnote in our opening well tell it to me it's called dano and here's the cite eight hundred f third ten seventy two this was actually mentioned in our opening brief it hadn't been decided yet and it was decided after the briefing was completed well but the reason i asked the question you're the reason i asked the question it seems to me that brass romero is the case which now lays out the appropriate standard and therefore daro if you want prior to the i j and the b i is decisions both new rule and do have been decided both of those acknowledge that this panel has discretion when basically there are no remaining questions the facts and the law had been submitted that this court can order tell me what i understand what you're asking us to do but the supreme court made it pretty clear in ins versus ventura that it's not we're not immigration officials and it seems to me that we've got a moving target here with regard to changes in the law that may impact this case and that the prudent thing to do would be to send it back to the board to look at it again in light of these new authorities because i do think it changes the analysis that that is obviously within this panel's discussion but here's how i think about it if you believe that the law and vera has changed so fundamentally and we would argue that the state action principles that no i think you've made your please the court don conrad the united states attorney general in this case there is no dispute that petitioner was the victim of some severe domestic violence at the hands of her police officer boyd there actually hasn't been a finding yet of past torture in this case so that would be something that if this report does remain a tip that the i j a should consider in the first instance i g only found past persecution not past torture second i don't we don't believe that broadcast definitely requires we banned in this case yes he was a police officer when he committed these these domestic violence acts but brought us also requires acquiescence and in the broadcast so it doesn't seem to suggest that if the violence is perpetrated by police officers that that constitutes governmental involvement which as i understand that case equates to acquiescence if they are the actual a that the actions are not required to be under color of law has as we had previously argued in this court i mean the problem is it you know if your argument is it wasn't committed within the course and scope of his employment as a police official as judge nelson points out some of these acts of violence occurred in his police car while he was in uniform using his handcuffs and whatever else he used to abuser and that's go be a pretty tough road for the government to hoe if your position is that that was an abuse committed by a police officer i understand and in our in our position was in our brief that that even though he was a police officer and yes some of these acts occurred while he was in his uniform it was based on their personal relationship i'm his relation or stand on what i have in mind all those cases you know involving sikhs where they're taken to the police station and you know hung by their ankles and beaten with rods at the police station we haven't had any difficulty in concluding that that kind of conduct is torture being the convention committed by officials of the government so i guess i'd really be more interested to hear what your position is with regard to the law as it relates to change country conditions i'm relocation ok future yes well we believe that if if this court finds that under bras now we have sufficient state action which is basically the agency deny this case because they found there wasn't sufficient state action then it has to go back and it has to be remanded from the courtroom for like i said before determine if there was past torture and second to consider the likelihood of future torture which hasn't been considered yet in this case because they denied the board denied it on the grounds of not sufficient state hearing if that's the right word in order to take additional testimony to make that determination i believe that's necessary here because the likelihood of torture is a factual finding that the i g would have to find in the first instance and we don't have that finding so we want to see that puzzles me is i don't understand why her lawyer waived consideration of the her as per as testimony because it seems to me that's directly relevant to the issues that we're concerned about here i don't know the answer to that either your honor and perhaps she has an ineffective assistance of counsel claim against that prior tourney but that's not something that's been exhausted breitling let me ask another question pretty  out could not have satisfied they say the action we kwame just because there was a romantic relationship i think that b i was applying the law at the time which had clearly rejected the color of law argument that other circuits have adopted that this action besides i mean it's not just enough that you're a government official who commits the torture or the violence you have to show that you are acting under a color of law and in the board's opinion this was based on their domestic relationship even though he was a police officer these these his relationship was because of jealousy and and based on their personal relationship not not having to do with with that  argument hold water if by virtue of his position in the police agency he was able to squelch any official investigation into his behavior  other officers were afraid to come to her assistance because he was their commander and that might have that might have an effect on this but in this case you actually have evidence of police officers coming to her aid well as police officers coming from her office when her i believe her ex husband was being beaten up by her marriage as i recall the record didn't she present her complaint and present herself to the local prosecutor ever did anything we don't know what happened without one way or the other your honor when they didn't one and when she made the complaint one place he said we have no jurisdiction you'll have to make if i'm playing someplace else i think what happened was when they had when she called the police officers when her boyfriend was beating up her ex husband at the time the police officers from her district responded her boyfriend fled the scene and then she said to her district police officers i need to be able to get into my house to retrieve my clothes and they said you have to call the jerk the jurisdiction the police office with the jurisdiction over your residence kid she did and they responded and helped her get can you answer the question that i asked your opposing counsel at the very beginning with who are these police agencies i am really confused and reading this record i don't know the answer to that i think it's unclear from the record your honor  thank you your honor as i just want to address two quick points that were raised by the government the first is on the suggestion that there was no finding of torture here your honor although the i j a said that there was probably persecution here she actually used the term persecution she did so in the part of her decision where she was already talking about the convention against torture so and previously did she use the term harm i think is as i recall correctly did she not in the oral decision in two thousand and twelve she said here is the part where i talk about the convention against torture what happened to her does seem like persecution and then she goes on to talk about more torture the word she used the term harm rather than torture to use a term persecution i think if i'm looking at it did she not use the term harm i thought maybe i thought she was sort of choosing her words carefully without trying to put labels on it i think definitely there was a  mention of persecution and here's actually i think the more interesting thing and imagine a harm and a mention of harm and question is does that constitute a finding of torture under the convention it does given the circumstances here in two thousand and eleven in her first oral decision she actually explicitly found no torture that the same conduct didn't rise to the level of torture this i j knows how to explicitly say this was not torture what she didn't tell you i thought she was being very careful about her choice of words i think it was actually sloppiness where you begin to talk about the convention against torture quickly mention there was persecution here and then keep talking about torture there is more than ample evidence for this panel to find torture quickly on the second point which suggestion that there was no decision on likelihood your honor first new says that the principal factor in determining likelihood of future torture is past torture secondly we would argue