steal this is a convention against torture case and actually if i could suffer monaco will want to reserve two minutes of my time i apologize this is a convention against torture case and in this case both sides agree castillo is at some risk but the board of immigration appeals concluded that it was not enough and in reaching a conclusion that the board made two significant legal errors in addition distorting the record and ignoring some really key parts of the record the first legal error is demanding a certain number of confirmed cases of torture in a category that we don't think  been expected in previous torture cases but the broadest legal error that i want to spend the first part of my time talking about is the failure to aggregate risk as required by this court and cole and in subsequent cases a uniquely dangerous situation you know salvador he has many risk factors some of which are right on his body and others are easily discoverable he's also in danger for many parties both different parts of the government different branches police and from two different gangs as well as from government sponsored vigilante groups these the bottom line question that has to be asked is whether this one man would be tortured which requires acknowledge that there were some significant risk a key part of that analysis particularly in the critical rejection of the conclusions of the expert witness by the immigration judge was to rely on the chain of events analysis from the attorney general's decision and j f s that was an issue in coal as well and it was rejected chain of events analysis is certainly appropriate in a certain type of case as it was agree that agency needs to look at aggregate risk but i'm having trouble figuring out why you think it didn't given that the b i i said we are required to assess the aggregate aggregate risk that is taking into account all possible charges of torture and then goes on in a that so why do you think they didn't do that well they certainly said it they said it several times so the first part of my answer to your question would be that a catchall phrase is not enough as this court said in kohl  our argument is about the application we the reason why we need the agency to give reason to so we can look at their reasoning and when we look at their reasoning it's not aggregation the risk is separation of risk there's no part of the  decision where we can see them adding these rest together other than saying that phrase you think that what they needed to do is say we think the tattoos give a fifteen percent risk and i mean do you have to put a number on each source of risk nutten not a number certainly not i think that would would be impossible but certainly have a discussion of what we have acknowledged that there is risk at the airport and we've acknowledged that there's a risk for police we did not think that those individually which now it's but here's why we think even taken together they don't reach enough beyond that there is an overall approach that i think is in capsulated by aggregate risk which is the bottom line question would this one man in his unique situation be tortured s so he becomes very generic and this is not a generic case this is a case about one person in a uniquely dangerous situation in el salvador so counsel one of the brilliant law clerks who assisted me also happened to have a ph d in neuroscience so she actually did the probability through a mathematical formula i mean it can be done that way if you're interested that's one minus three quarters to the fourth power if you assigned twenty five percent as the risk in each of the three categories she was making a point that you could have moderate to low risk of in three separate ways but you have when you when you aggregate there is a mathematical formula to look at that but of course we're not dealing about with accurate figures but what i mean as a judge rather than a law clerk with a ph d in neuroscience we don't think that way when we're aggregating we're not thinking about did we get above fifty percent or not so how do we know that the i j a in the b i a didn't do what they were supposed to do here short the premise your question if i can say was very intimidating i think we know throughout our legal system that we say preponderance of the evidence is fifty one percent it's maybe there's some type of case where you actually have an expert witness with numbers that's very rare and it's very rare and torture and asylum cases as well i think what we need to look at is similar to what i said to the judge for it to judge for a little moment ago to look at the overall approach that we want to look at how all of these risk factors and dangers work together to effect this one person rather than to separate them all out we don't need to say this is twelve percent and that one was twenty four percent and then we use that algorithm which is also typically what we need to do is see an approach of saying what is the situation of this one man not of all salvadorans with tattoos but this one man who's got a uniquely severe criminal conviction that was undoubtedly in a gang has many markings of having been in the m s thirteen gang and in another gang where we have a an expert witness who's given training to the government who is taking us credible saying the greatest danger to him is from the police we need to look at that man i acknowledge is that he's talking about a source of risk from authorities gang members and vigilante groups so i mean many of the things you're saying the agency needed to do it looks like it said it was doing at least and so then if you're just saying well but they didn't add it up right then i'm not quite sure how we can say that it's not enough evidence to support its decision when there's they did look at the things and came up with the idea that it's not fifty percent well if i can go into dangerous territory and take the math analogy but of simpler form of math i would say that this going to be aggregate risk but then when they do what they do after that it's not division and i don't know that is that just because they got to the result that you don't like not or that we know that because actually that there are you know many cases court decided where the agency simply fails to say the reason this is really not one of them there's a fairly long single spaced explanations of they showed their work but their work is legally flawed that but so what is the flaw because i mean they say they're looking at aggregate listing the risks where's the flaw where they take each risk apart so it doesn't know how can we tell that well they're what they say that this is a salvadoran with tattoos or deportees from from the us how do we know that they're not just like referring to him in shorthand in those parts when they also listening to other things about him i mean i'm not sure they have to in every reference to petition or list every fact or about him or it would be a very long  describing them every time the reference and write there's no part in the decision i think that we are we're not supposed to imagine too much about what they were thinking we are what they write and they've written a lot they have we still think that somehow this is not adding up especially given the case all that we have that there is that this is similar to cases have been decided before they found remember even in their chain of events analysis the first that is undoubtedly going to occur that entirely identical but have a lot of similarities the state the state department reports there are quite similar and in many ways there's no part in the b i a or the i just decision where we see them doing the addition and i would also say the overall approach is wrong without the union so far in talking about what the board did and what the board i didn't do that you didn't talk about the i j a which came very reasoned outline and so why doesn't the combination of one thing i did he did in making a determination together with what the board said sufficiently cover the issues that we don't need to send it back to the crux of the i j's decision was relying on chain of events analysis which should not be applied in this way in the case where someone has multiple parties in danger in them there's about two pages of the i just sit in it and it simply applying the wrong case because it's entirely about matter of j f s not about coal and that's in addition to the i j a rejecting the expert because he thought that the expert had exaggerated with this reference to extermination group something that turned out to already be on the record and then referred to in a future state department report which i think severely undermines that conclusion was that your second legal argument the rejection of the expert the rejection of the expert is really embedded in the aggregate risk question  because although i know that sounds like a i thought actually quite a question it's the i j reasons his decision by basically rejecting the experts conclusion and that's where he goes through repeatedly saying chain of events matter of  that we've taken you over your time also give you a minute for a bottle ok thank you very much r good morning your honor and you hear me yes thank you good morning good morning may it please the court my name is curious and i represent the attorney general and again hoping for the last time i thank you for allowing me to proceed was burned to show chance greater than fifty percent that he will be tortured if removed and the record in this case does not compel the conclusion that petition has met that burden what the regulations require is that the board consider all relevant all evidence relevant to the probability of future torture and that evidence includes evidence of growth flagrant of mass violations and other relevant information to whether or not the board didn't correctly aggregate petition is correct that what clear requires is that he must establish that taking into account all possible sources of torture he is more likely than not to be tortured by or with the consent of the government and tissue or is somehow misconstruing the agency decision they were not treated as separate divisible cat claims rather the to do this exactly but well for example in this particular case partition as individual was evidence of torture was that he had these various tattoos that were covered and some were removed some partially removed and that he would be he's a former gang member to ported from the united state but he himself brought forth that the sources of his torture were these four distinct individuals immigration authorities the local police vigilante groups and gang members so with his own claim the agency had to taking into account all the possible sources of torture how do you evaluate his claims of where these torture where torture could possibly take place and when in that consideration the agency mentioned all four factors that he did a five and they concluded that he had not shown greater than fifty percent chance that he would be tortured so the agency did not air by treating each potential source individually rather it assess petitions overall risk of being tortured and whether or not he established a greater than fifty percent chance that he would be torture by any of those sources that he mentioned  as well as the board considered the country to put the human rights report that was provided by provided in the record and the board even considered the most recent country poor provided by petitioner and his appeal so they did have and as this court has held country reports are often considered to be decisive in whether to grant cat protection so you know they along with they they considered a petition haven't found dr bormann credible do you think that's accurate i think it's accurate for the following reason it would i j did not say that the expert witness was not credible what the said and what the board confirmed is that a lot of the testimony that provided by him was not corroborated with objective evidence it's the opposite right i mean it seems like the i j a criticized him for  correct so that was based upon viewing the record and the evidence that was provided there was nothing in evidence to support from a state that exaggerated claims that he made so so it's a little that was provided in their testimony there was no error in making that determination that he that some of it was exaggerated because the record does not reveal some of the some of his testimony so why should you if we think some of what he  said about the exaggerations was wrong so in some places it seems to me that the i j a has mischaracterized some of what the experts in rejecting it so if that's true it might be true that some of what he said corroborated but other things that the i j a attributed to him i don't actually find in his report and it seems like the i j a was mischaracterizing the report in some places so if that's true what do we do but that doesn't compel the conclusion that petitioner has  stablished a greater than fifty percent chance that he would be tortured i mean that is one of the of the evidence that was considered but if you think if you continue on the crux of both the immigration judges as well as the board session that the overall determination is supported by substantial evidence and what what in the country reports do you think is just positive here well as the immigration judge noted on  particularly on the last page of his opinion on page and this page i think it's page fifty six of the record is that nothing in the record in the state department report conclude that there is a greater than fifty percent chance that partitioner would be tortured and this well is there's nothing in the record that petitioner has established that he individualize in particular as to him that he is more likely than not to suffer torture what particularly in there is that the the word acknowledges that there are reports of that but there's nothing in the record demonstrating that these instances are so pervasive so gross and so ma which is what the regulations require that it has to have a finding that there's a greater than fifty percent chance that he would be tortured if he is removed  i'm see i'm almost out of time so if there are no other questions then i'd like to conclude that this court should find that the record does not compel the conclusion that petitioner isn't titled to cat protection thank you counsel thank you very key moment let me start with the state department report that the i j a realized quite a lot on a reference to an inconclusive and investigations i think the more important part of the report is the executive summary which describes the sylvian authorities failed at times to maintain effective control over security forces refers to high levels of impunity and abuse other human rights problems including unlawful killings and cruel treatment of security forces i think a reasonable reading of this compels thinking that what the state department put in a summary probably should get the most evidence in an open ended investigation also the i j a stated regarding dr bormann describing the risk of abuse at the airport that was not corroborated in the record that's not true page eighty four this is in the of the record that's in the harvard report it describes a violation of deportees rights occurred during interrogation and searches that appear to be standard element in the reception process thanks to their several pages that go on there but my point is that what the i j a took from the record in many cases just isn't either an accurate description of the sources or d the board say about that particular argument the board effect to some extent simply adopted the i j a conclusions without discussing them and otherwise simply repeated the  conclusion so we're we're now here i think all of this was argued extensively at the board thank you counsel thank you your honor thank you both sides for the helpful argument for the case submitted