i thank you very much judge powers it mannion may please the court at this case presents two questions the first of which is whether mr lopez was convicted of a particularly serious crime as the immigration statutes use that term for the reasons i discussed he was not and he is therefore entitled to apply for forms of discretionary relief that the agency didn't give him access to look withholding of the move all the second question is whether he's entitled to relief under the convention against torture the reasons will discuss he is because the record establishes beyond doubt that he will face a serious risk of serious physical harm or death if you returned to mexico and talk cocoa or to live to start the first issue one of the immigration statutes mr lopez was not convicted o particularly serious crime and that is so for two reasons first of all the agency never relied on the fact he was convicted of an aggravated felony which is the government's near exclusive justification for that conclusion here even if one were to examine the underlying argument to be agents never relied on yes or never says it's necessary to decide this question but even if this court were to review it it's pretty clear that mr lopez's conviction under indiana law is not for an aggravated felony as federal law uses that term under the controlled substances act and therefore what you have to do is you have to examine the very limited set of documents that shepard says is appropriate and a so called modified categorical approach when you examine those documents things like plea agreement doesn't indicate which of the crimes he's pleading guilty to when you indicate the judge can look at the judgment of conviction and all these documents reproduced in the short appendix at the end of the opening brief doesn't give any indication of which crime he was convicted of when you look at things like the you know eventually judgment passing judgment non of these things indicate which subsection of the statute he's charged and convicted of people only thing that even comes close to the thing the government relies on entirely is the indiana information which says at the top that he's being charged with a violation of subsection b of course is a reference to all four of the crimes under age two including the financial crimes event including a statement by a police officer a report of what he saw on the day that mr lopez was arrested he said i was in a kohl's department store parking lot and i saw the following things i affirm this under oath and it's signed by prosecuting attorney now this is a it's this court described in the us a police report under oath nothing more and nothing less and loses a case about indiana informations was particularly on point the police officers account of what he saw under shepherd does not come in as one of the things that's considered in the modified categorical approach that is for lots of reasons as the camp said that in this report said in the camp what a police officer says he saw me turn out to be downright wrong more importantly a person doesn't plead guilty to a police officer account of what he saw these guilty two elements of an offense and it is quite irrelevant what really happened in that parking lot and that poll's on that particular day because it's not a conduct based inquiry and so given that none of these documents indicate with the kind of requires none of the more conclusive judicial records as sheppard puts it none of them established what he was convicted of and so as a result the default under moncrief and all the other categorical approach cases is that he was convicted of the least of the acts criminalized which in this context would be the financing crimes meaning he is not convicted of an aggravated felony under federal law now as i said the government defends this at some length but the question is at some level somewhat academic because the board's order could not be upheld and to that basis no matter what because under in mobile and all of the other sort of black letter administrative law cases that are out there get up whole to be a order except on the grounds to be agency invoke typically the government is among the fiercest proponents of that will because it defends agencies discretion to make determinations for themselves in the first instance if that's so then in this case it doesn't even really matter if the court were convinced that he is an aggravated felony because that wasn't the basis for the courts or now the only other basis that the government invokes for finally mr lopez was convicted of a particularly serious crime which is that under the board's decisions there is a category of particularly serious crimes that are not aggravated felonies and i would footnote this by saying as we've noted in the briefs we don't agree with that position we understand that this court held in  invokes matter of y l as the basis for this is the kind of rule decision we're going to use to determine that he was convicted of a particularly serious crime the problem as the government seems to recognize in their briefings is that matter of while is completely  crimes they're not aggravated felony and so the board's order has a self contradictory quality to it it says in one sentence is not necessary to decide whether he was convicted of an aggravated felony and really the very next paragraph begins the discussion and detail application of matter of y l and all of the daunting six points factors that it in on c s and it's just not political on these facts it simply isn't and given that we really have no basis to uphold the board's order at all because again the particularly serious crime determination requires the weighing up with this court is called the multiple does it all the things that might come in all the things that might be relevant to a determination of whether under all the facts and circumstances this crime is particularly serious not an aggravated felony when the board invokes a rule that is designed only for aggravated felonies and that of while is quite stark in its reasoning it says almost goes and says all drug trafficking felonies are going to be particularly serious crimes per se to reserve this narrow category of cases because these are such serious felonies there's this narrow category of cases where if you can show all of these six things at a minimum that is what the opinion says if you can show the six things at a minimum the nabi it's not a particularly serious crime that bar is so high that it really did cause a you know prejudice here because if you just applied the sort of more general facts and circumstances test that the government concedes would be the correct one for this case then you don't have this daunting six point checklist and as a result the board's opinion can't be upheld on the ground that it applied the right legal rule because there's really no reading of this opinion that does anything other than apply a matter of while does not as the government argues just sort of mention that to indicate how seriously the agency takes drug trafficking crimes or anything like that i mean this is a something like a short judicial opinion it is applying the factors out of a matter of while that seems perfectly evident so given all of that it seems from the record that mr lopez he's wrecker evidence really does indicate that this is a person who will be subject to terrible harm if you sent back to mexico because he is gay and that hiv positive relocation to mexico city which the government really hang its hat on is not realistic for him because he doesn't know anyone there is a terrible disease that is fatal if not treated and he needs a support network and the government really hasn't introduced any evidence about why that would be a realistic move for him other than the fact that he moved once to united states when he was twelve you want to serve some time for a bottle so i'll reserve them this gave us petitioners to furl under cat because he did not meet his burden of showing it is more likely than not he would experience torture in mexico now first before we even dive into the particular serious crime issue the we must address for that is why the board did not touch the issue of aggravated felony because it knew it lacked the jurisdiction but moving back to that village felony petitioner is an aggravated felony the indiana statute is broader than the federal statute for drug trafficking  must look at the documents we go to the documents in indiana information is a charging document with the prosecutor attorney signature and that's on page forty three is what mr petitioners holdings had on is the fact that there is what the crime is that petitioner has committed we don't care if it's in the cole or wal mart department store what we're looking for is what element is petitioner can would fall under and that is the knowingly deliver now the fact that you also scuse me and second point of distinguishing split was is that in that case the judge read in the facts of the case from a police report that was attached possibly stapled to an information now our facts are on the information itself it's on the face of the document and in inherently more reliable therefore lewis is distinguishable so petitioner is removable as an aggravated felony this is the first court that can review that so when the board now the union said you know we're not going to touch if this is an aggravated felony we're going to look at a matter of me i'm factors which is the discretionary particularly serious crime determination now ye its decision however it uses the language from matter of an am saying the three factors to consider the nature of the conviction the type of sentence imposed and the circumstances and underlying facts of the can conviction dates matter and yes it has six criteria but those six criteria could be used in the circumstances underlying facts of the condition of the conviction now when looking at the discretionary three factors in direct or peripheral those are all going to the nature of the conviction and i'm sorry the underlying facts and circumstances of the conviction and the board summarises the last statement we agree with them to term excuse me immigration judges would be a cherry violation to determine it was a person a particular serious crime but the futility drop doctrine would apply because all you need for a particular serious crime to be person a is more than five years this case involves twenty and that situation this petitioner maher show is more likely than not he will experience torture in mexico and under the regulation you need to look at all evidence of the possibility of future torture and then it cites for major things relevant information regarding mexico country conditions evidence of past harm possible relocation and gross flagrant or mass violation of human rights the last one is not applicable here now yes petitioner supplied evidence showing that he he could experience harm in mexico he uses articles some eight of those articles involve transgender individuals which is not petitioner however he does now the government also provided  evidence including the two thousand and thirteen human rights report which showed how matt mexico has laws protecting bt it also talked about no complaints of human rights abuses in the first nine months and it talks about how mexico relocate and not having someone having a sister not a poco not knowing anyone in mexico city is not meeting establishing his burden that he cannot relocate and as far as evidence of past harm which of course you also consider he was nine or ten years old proximately when he experienced two and in incidents one from a boy named julio in another incident nine or ten years old which was twenty five years ago and notably he has not even been to mexico since that he has not met his high burden of more likely than not he would experience torture for deferral of removal and if this court has no for the questions ten years fifty percent can be cut for good time so he's served about five years he's currently in p h s custody because its earliest release date was twenty thirteen thank  thank you very much just really two brief points on revival first one cat the idea that essentially every gay person in mexico should have to move to mexico city or risk torture is somewhat ridiculous he knows no one there the fact that there's a resort  which is you know on the you know gay tourist magazine does not prove anything about the safety of that city and the government really does rest almost their entire cat case on the existence of mexico city and its ability to move there is a terribly serious disease knows no one has been there in twenty years it's really is there's no evidence that would be a realistic option for him now as to the issue of her to particularly serious crime the only attempt that the government really makes to distinguish louis is that the probable cause affidavit was described in that was as attached rather than as they say here on its face i can't see what difference that would make either way it's the sworn statement of a police officer which lewis says is just a police report under oath where and on which page that affidavit appears really couldn't make less difference for the modified categorical approach as for presumptively serious crime the order here doesn't do that the reason that it doesn't do that is because it's not applying matter of n a m this is a decision and this is an order by the board applying matter of why all is really hard to read it any other way and it is for the agency in the first instance not this court to say would qualify in a matter of mam anyway the point of general and the point of mobile and all the other cases that establishes principles that the agency take the first crack at that not this court no matter how good the government sort of post hoc rationalizations for that outcome may be  the only other thing is they mention the final administrative removal order this case this court's decision and he establishes pretty clearly that the you know this court has jurisdiction consider this issue the aggravated felony issue when it reaches this court even through the process here to a final administrative move order and the board's decision doesn't say we don't have jurisdiction to decide the aggravated felony question it says we don't have to do that for other reasons so again that's just not really what the order says i am over my time there are no questions