ok my name is rick jeffrey i will be speaking for seven minutes we'd like to reserve three minutes for rebuttal start the clock all over lopez was raped on account of his sexual orientation second petitioner and respondent has agreed that this case needs to be remanded for reconsideration of the conventions against torture a claim under the ordinary r guess there are two well why don't you tell us what evidence he didn't present on that issue because since you do have it does have to be compelling and i'm not really seen that so tell us your your honor the record compels the conclusion that he was that he was raped on account of the sexual orientation for two reasons first we have first we know that his rapists were attracted to him second we know that garland knew that he was gay third gharlane testified that he was afraid of discrimination and it views on account of his sexual orientation quite evident that the motivation for the attack was on account of the boy's sexual orientation and don't have any there was no question about it and was a lawyer just did that performing deficient lee because of that we certainly think so your honor additionally though the so for instance on page two zero eight of our record the judge the lawyer asked darlene what was happening what what is attackers were saying to him as he as he was being raped and the judge actually interrupted that question and went on to other matters that were unrelated to the issue of the motivation of kayakers and throughout the record that pattern repeats as well so it seemed as though your client was not comfortable directly discussing at me at my eyes and he would he didn't use language that directly attributed the motive i agree your honor and i think that that was a combination of poor representation and and deficient we're not looking at i see here though right no your honor but he did return back home to the country when and after the raid to help his mom when she was sick right that's right and how long was he there month and that was after he filed with the our after he filed this notary request that he says was abandoned by the attorney as i correct we're not sure whether or not it was an attorney he calls this individual an atari oh so it may not even have been someone that was licensed to file an application for him and is the only piece of evidence in the record that that occurred  of immigration consultancy fraud that it's well that that doesn't it but that's not the only an inquiry that the court has to make because he has to show certain amount of diligence and it was twelve years later right so that's that the court could still say ok i believe you that in a trial file s but twelve years you have some sort of responsibility to make sure that something something's going on you didn't and so that that you know that the bar then applies your honor darlin also testified in his in his asylum application that he regularly followed up with him called this individual was told that in fact the application was filed in accepted so he might not have had a reason to to continue to pall over those past twelve years having having thought that the application was done but his affidavit doesn't say he was calling in the tenth eleventh twelfth year is right  and why is that well your honor our client was found credible and remain and should be limited only to the narrow issue of whether or not the rape qualifies as torture under the conventions against torture it's not an excuse reman does not excuse to relate it well but you're pushing a rock uphill in the first place and it's like you want your cake and eat it too besides i mean if you are you probably i mean if i mean and so i mean these are both relatively new cases that are very related to your client's case and if we didn't do that you would want is to limit it to the prior record if you were mandated on those issues no you're right your honor we would not want those limited to the prior record and did you want to give your co counsel some time yes your honor th under the convention against torture he suffered horrific treatment in hundred years from the ages of twelve to sixteen when he was raped by two rapists over those period of years but such treatment does not automatically render him eligible for asylum withholding and protection  convention against torture all three of those applications have elements that must be met in order for the individual to qualify for the let's go right to your you agree that it has to come back on cat yes corner but we would actually not want to be limited to a finding of past torture because as your honour's know in the catch from nation it's forward looking so past torture does not necessarily it doesn't create a presumption of future torture it's only one factor in that consideration so you want the open remained on cat exactly but now since i think the briefing there's been there's been a case called i think progress romero said talks about a reason standard that would apply to arrow case it distinguished as a teen ok swear this court applied the one central reason to a withholding analysis and this case is similar to that where both of those that you know ok and in this case the agency found that there was no evidence whatsoever that there nexus so in such cases they're not to mix motive cases the agency just found that there was no evidence at all of nexus so in those cases it's sort of irrelevant whether it's one central reason standard or whether they're a reason standard for withholding that opposing counsel i think it's correct that as i read the transcript to that when he was asked the question somehow i mean it seemed like the judge was uncomfortable letting the testimony go through it just seemed even reading it i know  there just isn't any evidence so it could be that there just wasn't a little bit talking past each other on this because when judge wardlaw said isn't there basically isn't there aren't there isn't there some evidence that that was the only reason that it happened and you're saying well there's no evidence that that's why it happened so i guess what are we to make of the i chase interpretation of mr may he has testimony that when he met h attacked or attackers it was attraction for them men and i think the i j said that mr may he felt an attraction for them right and that's actually what we had argued in our brief but it's true that it could mean either thing it could mean that has a his rights were attracted to him or it could mean that he was attracted to them but it's actually irrelevant because even if a rapist is attracted to the victim that doesn't mean that they're raping them because we know jack to that argument  we could send it to the agency and have the agency apply bring it and normally we do write well if this court disagrees with our position and does choose those two options we would prefer to remount and have the board decide in for that reason whereas in this case the record was devoid of any evidence showing that his attackers were aware of or even perceive that he was gay or for sexual orientation so we have no idea if his brief us were also raping other people there's just no evidence that it was on the count of the protect is the only oven and so the government being unable or unwilling to control the action him going to the police officer on the one occasion unwilling question was actually not what the agency relied on basically this case is focused solely on the nexus determination and although for the future prosecution aspects country conditions evidence were relevant but the unable or unwilling  fredricka is not the issue of this case but when you're looking at whether or not there's a pervasive issue within the country and then there's certainly going to be almost part and parcel of whether or not there is control the level of persecution so in this case that's really what the agency was relying on when they found that he didn't show that it was more likely than that that he would be persecuted as opposed to just merely discriminated against which of course there was some discussion by counsel for the petitioner that his counsel should have done more that there might be i see you know in a fish ineffective assistance of counsel or whatever we can look at that though that can we i mean we have to look at what the record so is it is my understanding just so i understand your position is you're saying had to put something and to show nexis and that there's nothing to show nexis correct your honor and if you believe that his counsel prejudiced him in doing so the proper remedy for him would be to file a motion to reopen with the board of immigration appeals alleging ineffective assistance of counsel against his prior counsel who did not even him about nexus or why his asylum application was untimely and i also want to get to the issue that our position is that he felt to exhaust his asylum to nile based on the one year bar so in this case he was exhausted that and it was his burden to do so before the board so what about petitioners angle that he was found to be credible when he said what happened doesn't matter to you doesn't matter if when he filed whatever he  we take that is a given but then there's still this delay of twelve years and presenting it or challenging it right is that your position yes correct even if we do take what he said on his i five eighty nine that it's true and that's the only evidence that he presented the nomination this no tardio so even assuming i wasn't on target when it was fraud it was his burden to within those next twelve years figure out what was going on and in fact in the case that this court decided that case also involved and the fact  found a real attorney and filed for asylum and was only three months late and then included that declaration saying everything that had happened and her application to the immigration judge so in those circumstances the court found that an exception applied as it is it your position that when he went back to honduras then that he abandoned that as well yes that was actually not in the record but that is correct that that's the legal effect that when you depart the united states after you apply for asylum do we know when he came back in two his attackers were aware of his sexual orientation one of the attackers was in fact his teacher and although that was testified by his brother a mystery years testimony is in no way contradicts that testimony he  says on air to twenty two that he met them when he was going to school so it's actually consistent with his brother's testimony and further he tried to report this to police news nothing in the record that says that shows that police  did show i would be show expressions of sexual orientation in a way that made others aware second turning to the i five eighty nine form of diving never rejected the i five eighty nine agree and he does acknowledge his sexual orientation when they asked about when he was married when he got married he says that he knew he was gay he says the news came at the age of ten as well and we agree that