his home for the past twenty eight years to zambia a country that criminalizes same sex sexual conduct is notorious for its culture of widespread violence against sexual minorities here the  committed reversible error by applying standards more stringent than the regulations dictate when it required evidence of gross flagrant or mass violations of the rights of individuals in zambia and required m provide evidence that his past torturers are still looking for him today nearly thirty years later the b i also committed reversible error by failing to fulfill its regulatory obligation to consider all of the relevant evidence in determining whether mr nigh renda is more likely than not to be tortured upon his return to the india whole versus holder makes it clear that quote where there is any indication that the v a did not consider all of the evidence before it a catchall phrase does not suffice and the decision cannot stand at the v a applied the correct legal standards to the entirety of the uncontroverted record the substantial evidence compels the in the torture of gay men it participates in such torture i'd like to focus on the b i use use of the legal standards here the regulation requires the b i e consider all of the evidence relevant to the possibility of future torture section of the decision that was discussing the evidence the standard was i think properly articulated two paragraphs higher on the page one and i mean that the respondent has not demonstrated he is more likely than not to be tortured vire with the con case which entirely as i can tell of and i should pose this question is there anything other than the fact that he's identified and presumably would be known to authorities and other people in zambia as a member of the l g b t community is there anything else that your the decision itself actually reflects as the standard as opposed to a discussion of evidence the standard our position is that the cia relied on this one just one factor in what it needed to consider in deciding whether or not it's more likely that he would be tortured and took that one factor and made it it seems like you have two arguments so that argument you are you also made that they turned one factor into a different spaza to factor individuals and i understood judge clifton to be asking about the second and why why that's improper when he has to show a particular is risk and that is his claim for x well let's say he is the first  person to be tortured in zambia if that standard focusing on mass gross violations of l g b t individuals he wouldn't be able to prove that he might be able to prove that there are mass violations going on  human rights you know against women and that is relevant according to the regulation any mass grows or flagrant violations of human rights in the country of removal is relevant to the inquiry but does it speak to his and his argument he has to demonstrate that the evidence compels the conclusion that more likely than not he will suffer torture upon return as i have reviewed the very well prepared papers this case rests entirely upon the fact that he's openly gay so the fact that there is abuse of women in zambia really doesn't speak to him he doesn't purport to be transgender and so i hear what you're saying there are bad things in zambia but he has to make the case that relates to him and torture by zambian officials the state department report that was submitted before the i g and reviewed by the b s a does say that some of the most egregious offenses are happening buys the indian officials and they include unlawful killing millions i don't know what proportion of the population is gay or openly gay but twenty eight prosecutions don't suggest more likely than not that greater than fifty percent chance of being prosecuted and i think one thing you said is the part of the percent of the population population is ten thousand one thousand one hundred but do we know we don't have those numbers but the important thing is that the state department country reports that was submitted before the i j a showed an over one hundred percent increase in the enforcement put before the agency demonstrating the violence and torture that these individuals face in zambia this includes mob violence people are beaten and left for dead by members of their community because they are gay people are rate because they are gay family members even try to quote beat the gay out of their family members who are gay and lesbian and these victims can't go report these attacks to the police because they are afraid that they're going to be arrested detained and tortured as documented in the state department country report another example of the v i i cherry picking evidence is using a comment from the first lady which completely mischaracterize  record and ignores all of the other statements from actual elected officials including the current president her husband who's just that the government would be monitoring any advocates for l g b t rights and would not been arrested for confections consensual same sex sexual conduct and both amnesty international and the human rights watch refer to this as forms of torture because they are just scientifically invalid as forms to percent chance that he will be tortured on account of his sexual orientation or for any other reason there are two reasons why the agencies decision was correct the first being that there is no evidence whatsoever of past torture and the second being that there is no evidence of the or mass violations of the l g b t community in zambia and both of these categories of evidence are the board is mandated to discuss and consider both categories of evidence in determining whether there is a likelihood of  torture that's found at the regulations and in this court's decision in qana beholder no nothing in the record here compels a contrary result on the issue of past torture it's so could the agency have looked at this record and found there was a likelihood suggests that some people are raped because they're gay i don't see that point on their brief and i'm not aware of that being in the actual record she also mentioned that there's evidence that people are beaten by their families because they're gay also again i don't remember that in their brief and i don't know where that is in the record so another thing they point to is they point to one article from amnesty international i think that's at page two ten of the record where it says police carried out quote unquote homophobic attacks there now there  about what those attacks entailed so we're not there's no way we can know whether those attacks rise to the level of torture which includes severe mental or physical pain or suffering she also counsel also pointed to the fact that an article that says that most officers falls prey to their own prejudices when just start just starting their duties again discrimination isn't torture and we don't know what that means as far as what these officers are doing against people who are suspected of violating these laws and the the point counsel makes about they rely heavily on the fact that at the outset of the country report there's a sentence that says police frequently use excessive force including torture when apprehending criminal suspects now there's nothing to suggest here that this petition or will be arrested in connection with these laws and there's also nothing to suggest here that even if you were arrested that he would be subjected to torture as a result even if you were arrested and were detained for having violated this law because nothing suggests that any torture would happen to him or anything rising to the level of severe mental or physical pain well if that the country were does have a section that specifically discusses the the burdens placed on  side for the same quandary i had before if there are not insubstantial number of prosecutions and the number is growing and i suspect the openly gay community isn't so large how can you say that there's really no evidence that he's at risk of prosecution if he returns to zambia well it's not more it's not more likely than not that he's going to be arrested in connection with the law as you pointed out earlier judge clifton we're talking about maybe twenty three cases brought under that law in but maybe there are only thirty openly gay people in zambia how do we know it's true we don't know it's a country of roughly fifteen million people but even if you were to be arrested in connection with that law and arrest in and of itself isn't torture so is there any evidence but then there's this isn't the country i mean even the b i opinion talks about it doesn't talk about problems in jail i mean isn't there and notion that people are treated very badly in prison possibly tortured yes that's correct but under the regulations in order for that to const to be specifically intended to inflict pain and suffering in other words just because prison conditions are bad in zambia that doesn't mean that the authorities have put those conditions in place in order to specifically inflict pain and suffering casey decision from two thousand and eight says that if an alien quote must show that severe pain and suffering was suffering was pacifically intended the actor intended the actual consequences of his conduct as distinguished from the act that causes the consequences now in that case vegas i think it was an alien who had mental illness he was going to be returned to i can't remember which country and the his argument was similar in that he said well if i go back to the country and they put me in a mental institution mental institutions they're horrible and i'm going to be tortured as a result as a result of those the way that the institutions were set up and the court said that that's not enough you have to show that the authorities specifically intend to torture people who are in the institutions that they create the circumstances in order to torture people i mean that the i have talks about the human rights abuses in them and killings torture beatings and then talk about prison conditions so there's nothing in this record that i can see that to the extent those stand there may be something that could count as torture intent doesn't seem to be the problem and we have no indication that there's like people hitting their heads on the prison walls by accident or something correct your honor there's nothing to suggest that there there is  there is no evidence in this record to show that any of these prison conditions were set up or specifically intended to inflict torture on anyone whether it be someone arrested under a different law or someone arrested in the law that petitioners claiming he will be and without that he simply hasn't satisfy the standard for a finding of future torture so your opponents made two arguments i think about the  error they claim the v i i made in the application of the standards i didn't really see respond at least to the one that where they say that they made this this factor dispositive so that evidence of gross flagrant  mass violations of human rights they argue that the agency top rated the lack of that standard as dispositive when it really should have been one factor among many i didn't see a response in your brief to that and i'm wondering whether you have a response  your honor respectfully i disagree we did respond to that i think the point was that the agency should should have considered mass violations as a whole in zambia rather than that's why i think they made two arguments and on page twenty three i think they made a different form of the argument which is that the agency treated one factor as dispositive when it's not supposed to be a dispositive factor and i'm wondering what your response to that is my response to that is that they didn't do that what they did was consider that generally human rights violations in zambia were or there are some and then secondly as just clifton pointed out they went in to discuss the evidence to see whether or not as they're bound to whether or not there were those girls violations of human rights pertain to specifically to the community in zambia which is relevant to petitioners claim here now whether or not that's a dispositive test to be honest i don't really even understand what that argument is the legal standard here is whether it's more likely than not that he's going to be tortured the fact that the agency is considering the relevant evidence which is relevant to the likelihood of future torture doesn't make it a dispositive test what they're doing is connecting the dots and saying here we have some human rights violations now let's see if there's any evidence of those violations relevant to this particular applicants claim and that's we made that general argument in our brief and basically pointed out the fact that they did air by considering the grosser mass that we did address that argument and i don't know that her argument is it doesn't really accurately reflect what the board did here unless the court has any other questions i'd like to conclude so for the reasons state in our brief and for those presented here the government specific is that the position for you should be dismissed or in the alternative should be  thank you i'll try to be brief since i ran over i do want to give the administrative record citations for the rape and beatings that i gave and that is at the administrative record page two fifty six and three twenty two and also like to focus on  the enforcement issue we were discussing earlier cases in the ninth circuit were cat relief has been denied there have been zero cases of enforcement of laws that is not the case here we have evidence of the twenty three that you call but twenty three is twenty three too many and the evidence shows that the number the standard is more likely than not may if he were eligible for asylum this is probably pretty easy case but he's not and so we have this intentionally high standard and so to tell me if it's not zero he wins that's just not what the law says is the more likely than not standard goes to all circumstances so tarnal used to this person this person this fate has to be more likely than not facing torture and what is there other than his l g b t status without a doubt it has to be more likely than not his risk but his risk comes not only from government actors but also private actors at the acquiesce of the government and mr i ran the show past torture that he experienced not only physical by being chained to a bench and beaten but also mental torture he was systematically stocked he was threatened that they were going to out him to his community which would have been a death sentence and they even threatened his imminent death going so far as to show him a dead body in the trunk of a car and it only stopped for him because he fled the country did he make the mental torture argument below yes he did and i government service with thanks all around the case just argued is submitted