so you may be receiving good morning to you good morning your honor is may please the court your honor is my name is daniel claffey and i'm appearing today on behalf of mr martinez the petitioner thank you for your honor where  honest we're here today for the case of a proceeding under the differ over mobile under the convention against torture under this statute it requires the petitioner to stablish it would be more likely and then not that he would be tortured or for moved to guatemala further that torture must be inflicted by or at the instigation or with the consent or acquiescence of a public official or the person acting in an official capacity of course in july of two thousand and eighteen the b i a dismissed the decision affirming the decision of the of the underlying immigration judge mr martinez argues here that the b a s decision should be overturned for a few specific reasons known only does he propose that he did in fact suffer past torture which is an element of being able or unintended to verity of pain and suffering is not in fact torture mr martinez would counter argue that an unintended results meaning in this case the triggering of his hydrocephalus which is the condition that he suffers from and the need for emergency surgery to implant shunts in his brain in guatemala does not in and of itself negate the act itself of being beaten with a pistol on one occasion of passing out and leading to  unconsciousness which is what led to his emergency stay in the hospital and the emergency surgery on a separate occasion that those instances in and of themselves are not only unintended consequences even though they are consequences  a themselves but our argument is that it doesn't negate the acts themselves and that those acts themselves could still constitute torture in the past so furthermore your honour's we also  with respect to the petitioner martinez there's a single incident where he said he was hit by the butt of a gun by the police correct then the nd thing you cite there's nothing else with regard to him the nd thing is you cite to his uncle's murder and the family's refusal to pay a tax to morass right correct on his head making him a target for future attacks but the only incident and help me if i misread the record the only incident of alleged torture is the incident of being hit once by the bought of a gun by the police officer there was your honor an incident that preceded what happened on that occasion and it was actually the st incident that occurred immediately within two days of him returning to guatemala he ended up in guatemala city because he had family members residing in guatemala city and in the record it discusses the fact that after two days after his return he was in fact approached by members of the mottoes in zone eighteen which is where they are very prevalent in that area of the city and where he was st requested and strongly that's correct your honor because he is unaware of who may have committed the act when he was on a bus when he lost consciousness so that cannot be identified who those actors were in that circumstance well tell me how we could possibly read even our case for the attack how that would amount to torture under the cat yes your honor well our position is that it's not only that acts which can constitute the possibility or the more likely than not standard that he would also that he would suffer torture in the future which could satisfy the recall requirement for a cat claim so we are not relying on only that incident in satisfying their right but did use and the subject evidence jesting that he would be singled out and guatemala so our argument is that taking all of those instances to gather that that forms the basis under matter of ga as well as john pierre gemayel the question this right is there any evidence that know anything about his matter is there any evidence that they knew anything about his medical condition there is no evidence that they knew anything about his medical condition because it also states clearly in the record that mr martinez in fact was not aware of that condition at that time that it was latent but that some of the the doctors believe that what had occurred meaning assaults head resulted in it triggering the hydrocephalus to the point where he began having fluids that were building up in his brain that resulted in the emergency surgery so we stated clearly in the record that the police officers did not know also primarily because mr martinez was unaware of the medical condition at that time but also of course part of our argument is the fact that it is well known now that it's physically visible and then upon his return that would be one of the bases that in the aggregate could lead to the possibility that it's more likely than not that he can could be targeted for that reason and again your honor we also cite and i'd just like to briefly get into this matter of ga twenty three i n n decision three hundred and sixty six the b i a from two thousand and two the board in that case found that the evidence of the quote the evidence of the record when considered in the aggregate supports the more likely than not standard meaning allowing for multiple factors to be taken wholly to constitute the possibility of the meeting the more likely than not standard so and that's where we reference in our brief that in the instant case he also mr martinez also possesses these combination of factors substantiating that standard and we go through all of the different factors from the initial meeting with the matches leading in final to the fact that his uncle the very individual who aided him in leaving the city to be able to reside with him in place and was killed murdered only two weeks after his mr martinez's departure to the united states and that's also documented in the record with his death certificate and it furthermore to the fact that the immigration judge in the b i did not make any different finding that mr martinez in fact did testify credibly and in detail as to the circumstances each of these incidences that occurred to him in guatemala finally your honour's i also want to point to that if he were to go back to haiti the haitians would treat him as a criminal on account of his status as being hiv positive and having aids and that he would be peace in the around the ears with metal clubs and so on and so forth on account of his aides they wouldn't treat him and cetera very very i mean the evidence of torture just jumped off the page yes i understand you know and the problem here is this is of all you really have is one incident where they hit him in the head with the barrel of a weapon however wrong that may be i'm having trouble seeing how that sustains a fair inference that he's returned that he's likely to be tortured by the police on round two that's at least the problem that i'm having yes your honor and while i understand i certainly understand the strength of the facts and that decision in john pierre and i think the correlation that we are drawing from that case to mr martinez here is the fact that it was written in that decision that it was a unique set of circumstances specific to john pierre that led to the finding that it was more likely than not that he would be subjected to torture and so that's the arguing in this case with mr martinez is not necessarily honing in the specific facts the mental incapacity in the hiv aids in the medication but the fact of those peculiar circumstances while in mr martinez it may be the visual aspects of his medical condition but those in the of themselves purport to show the argument in the basis that he himself also has a unique set of circumstances that would lead in the future in conjunction with issues issues that occurred in the past that would lead in the future to that meeting that more likely than not standard that he again could be targeted just to see was the st time but again even more so this time based on that perception in the view and the fact that now it is known that he does have something that he does suffer from a medical condition but again that in conjunction with the other factors is our basis for arguing that it is more likely than not that he would suffer torture in the future in guatemala th substantial record evidence supports the agency's decision that there was no past torture and that he did not demonstrate a probability of future torture i believe the court has already addressed the evidence with respect to past torture i am happy to go into that if you would like or i respondent can rest on his brief i don't want to take up the court's time i leave it to you we have no question then i respectfully rest on the brief which i believe addresses all of the issues thank you thank you you have reserved three minutes may use all of that or some of that or none of that however the spirit moves you thank your honour's it of course in light of the government's position i will concede my remaining three minutes your honor thank you very much in this court will be in recess until nine am to