when you're ready thank you your honor may it please the court my name is casey jones and i represent the petitioner mean a boss in this matter and what law school are you from the university of idaho college of law thank you very much ok well thank you  may i reserve two minutes for about all your honor yes and i'll say the same thing to you it counts now and so keep an eye on it as it goes down thank you your honor i will be addressing the asylum issues before this court and my colleague mr jonathan shirts will address the convention again against torture the government in this case acknowledges that the board's decision to deny mr abbas his claim for asylum as a gay man from ghana cannot stand as it is however the government is asking this court to send the case back to the beginning to get a third chance of getting this case right and this is not necessary this courthouse on something that bears on whether it's necessary and that confused me here and i recall when this fellow was seen by a psychiatrist the psychiatrist doubted his credibility the i j a found that he was credible the b i did not as far as as i remember reach credibility instead the b a did not say whether it agreed with the i j denim two i believe it's page eight in the administrative record is the board's decision and it says that the i j a found no reasonable cause to believe the respondent was incompetent to perform the functions necessary and it held that that finding seekers not credible or whether it doesn't reach that your honor my understanding from this record that i j found that mr abbas was credible in this case and the board's statement here that the finding is not clearly reference it says that the immigration judge found no reasonable cause to believe the respondent is incompetent to perform the functions necessary to represent himself in proceedings this finding is not clearly erroneous or you can be honest or dishonest and you can be competent to ring competent in either case your honor in this case he was found credible he was deemed competent and there are no arguments advanced yes your honor the board does not go into competency beyond the credibility portion that's why i mentioned with them not to be making a determination one where the other own credibility yes your honor the information the case before us has been preceded under the notion that i just found him credible or competent which i agree with is different than competency but the evidence here is to be taken as presented by mr abbas and the evidence in the record compels the conclusion here that the canadian government is both unable and unwilling to control private conclusion this court has set forth several ways that an applicant can demonstrate that the government is unable or unwilling to protect individuals who are subject to violence by private record or for us state department's all unanimous in their discussion of the conditions in ghana on the ground and the fact that police often harass or even extort victims who attempt to victims who attempt to report their crimes your honor as i see that i'm running into my colleagues time if you have any further questions i'll turn it over to my colleague ok specific claim i where they say they responded to seeking relief based upon a claim that he has been and will be persecuted and gone on account of his homosexuality although the immigration judge expressed concern regarding the credibility of certain aspects of the respondents claim he ultimately found the respond and credible the b i a does not reverse on that point and as this court's prior presidents of held if the b i a does not address something it is considered to be taken as to assume that the b a a intended to leave intact the credibility finding of the i j a what's the case that says that your honor i don't have that case in front of me but we would certainly be able to present that upon rebuttal ok but in regards to the convention against torture your honor mr abbas is claim requires him to prove three things first that the harm he suffered was torture a conclusion the board rightfully corrected and that opposing counsel does not challenge here second that it is more likely than not he would be tortured if removed to guyana the evidence in the record compels this conclusion i compiled does it with our us by our house or with bar us the convention against torture case the torturers had marked him on his forehead so it was not concealable and he had been advised by the torturers who were police that he would be known throughout mexico in this case looks like is father and his family and people in his locality would know about him but i don't see why we should conclude from this that that he's going to be tortured anywhere in his own country thank you your honor the answer to that question is that the country condition reports that were submitted by the government in the very first i g hearing and the additional condition reports that were submitted by mr abbas later on all discuss deeper vaillant i discrimination abuse  extortion that occurs throughout gaza there are instances in the no question about it you're absolutely right on that but just because they discriminate against or persecute homosexuals and that the law is discriminatory against homosexuals it doesn't mean torture there can be one without the other you know why why should we understand that he'll be tortured if he goes back your hon that the existence of past torture is the principal factor on which you'd realize in determining if you certainly a factor yes and the principle factor as this court said and it up held that in two thousand and ten and e t v holder and the fact that he was tortured i had it carries heavy weight and i there's evidence in the record that his partner he brought him was who did not have the opportunity to escape was brutally murdered afterwards because of this relationship and so there are also affidavits one from a cousin of one from another person in his neighborhood both of which discuss the fact that he will be killed you if we were to reverse on grounds or grant petition for and say that assuming the truth of the testimony asylum is available and withholding is available to you does he care about can't relieve us your why because this court has the opportunity to correct the errors made by the board below and we would like to preserve all opportunities for our client to have relief and this court can do that it has done that in the past it has granted all three and had it did that and if new review gonzales in two thousand and five for example and your honour's we would respectfully ask this court to do just that to grant how his petition for review to reverse the board's decide denial of asylum withholding under the refugee act and convention against torture  may please the court victoria braga appearing on behalf of the attorney general the court should remain and this case to the board of immigration appeals for further analysis consistent with the court's intervening precedent specifically this court's on bond decision affects the agency's analysis in this case in bringing us the court consider the situation of when a government is unable and unwilling to protect people from private persecution and i couldn't actually see why the cases th precedent specifically a free and castro martinez in those cases when analyzing whether a government was unable and unwilling to protect people from private persecution the core provided that when a petitioner did not report harm he suffered to police this created an evidentiary gap that the petitioner was required to fill with other evidence in cashel martina as the court used this gap filling issues with the record specifically bring us focused on the fact that the court in allies in this question should elicit or focus on a petitioners testimony regarding whether he reported harm that he suffered to police and if not why not and although the immigration judge in the board relied on the fact that the petitioner did not report harm he suffered to the police as both petitioner and amec is in their briefs state to this court that question was actually never asked of petitioner so there's no regarding his ability to report the crimes that he suffered and the harm that he suffered to police and the police's response so given this court's precedent would place is such a focus on that analysis it would be necessary for the court to remain to the agency to allow the agency to develop that the record in that regard so that the case could be properly analyzed under this court's precedent including bring but i'd like to look at it just feels question it's against the law to be a homosexual and garner why would you go to the law and say i am a homosexual i wouldn't be arrested immediately that may be true but again the record is unclear on that point the petitioner was never asked whether he reported the harm to the police and if he didn't why he didn't additionally why he did not was that he be arrested isn't that clear from the record well i don't know if the country report provides that he would be arrested i think the state department country report actually says that although certain types of behavior are criminalized underground as law it's unclear whether that was actually used to prosecute ho homosexual activity and he goes to the police and says these bad things have happened to me because i have engaged in criminal the in what is criminally prohibited here would you please protect me it's not very hard for us to think you know that's not going to work out very well for him so i don't see why bring us requires a rematch and when under bring us and related cases the other was a fair amount of evidence in bringing us itself  as as we see in bringing us are imperfect but we given the law and you know i just don't i just don't see the comparison well again there are several reasons to remain and under bring us the first being that bring as arguably or bring this did explain that arguably under prior president petitioners were subject to a heightened burden in proving this question of unwilling and unable the agency here if it did indeed imply that heightened burden and again given the cases that the immigration judge cited it's likely that the agency may have the court needs to remain to the agency to allow the agency to analyze consistently with bring us an additional point regarding bring guests and the focus on a country's laws is that bring is provided that in cashel martinez the agency falsely equated or under castro martinez and the country's laws regarding whether homosexuality is prosecuted were falsely quoted with on the ground progress so the agency not having the benefit of bringing us which directs that the agency should focus not on the last pacifically but rather on how homosexuals are treated in a country and the government's response to that analyzed in a way that was inconsistent with bringing us and focused on ghana's law so it would be necessary for the court to remain and to the agency so that the agency could focus instead of specifically and only on abacus have noted the close to thirty articles in the record showing the on the ground situation in ghana not you're arguing of course that we should remain and in light of bring us have you argue that we should and get an adverse credibility or credibility finding one way or the other from the b i have you made the argument we have not made that argument to the extent that the case is remanded and further testimony is taken specifically on the and in order to find out what the b i thought about the credibility of this particular petitioner i don't believe me there are over there and i think to the extent that testimony and evidence is a credibility is always that issue so as we are arguing that the case needs to be reminded for the development of the record to the extent that further testimony is provided the petitioners credibility i understand you're saying if it goes back on  and may well be entitled to reopen evidence one could understand that but it sounds like your agency made a deliberate decision in this case not to as the agency has noted competency is always a fluid situation so to the extent of the case were remained it and further testimony were offered they somehow i feel like because we're using the more formal diction here people are failing to think about what it means competency is is he not credibility is is he why nuts and lying people who are not can tell the truth and people who are not nuts can lie his credibility would also be at issue if there are no further questions i'd like to conclude by asking the court to remain the case in light of intervening precedent thank you thank you would you put two minutes on the clock please thank you your honour's there are three for you going to be the entire i will thank you for asking there are three points i would like to make on rebuttal the first is that the board specifically and their decision stated that they were testimony given is taken as true my second point is that the overwhelming country conditions in this case compel the conclusions with respect to both asylum and the convention against torture that the government is both on able and willing violence that the government is aware of this that police often harass and extort the victims on a r two eighty four as well there's an article about amnesty international condemning a chief for calling for the endorsing of gay people in the country as in the u k border agency down to eighty five they also referred to statements made by the western region chief calling for the arrests of gay individuals and asking landlords and tenants to report on gay people the evidence in the record is very clear that gay people are not safe in going to anywhere and this is clear as well for mr abbas as my colleague mentioned in the record as well on our two hundred and two hundred two our letters one from a discussed mr abbas respectfully request that this court grant the person the his petition for review and reverse the board's denial of asylum withholding of removal and convention against torture any further requests that this court remain and his asylum claim for an exercise of