like to attempt to reserve three minutes for rebuttal all right march your clock when the b i received interviewed mr may he has appeal it should have made findings on four different topics whether mr may he is life or liberty would be threatened because of his protected status whether he would likely meet that harm if removed whether the use of practices and convention conditions of the mexican mental health institutions constitute doesn't it does not matter that the p eight in the case invokes the clear standard we have to review it independently and decide whether that be a faithfully employ the standard and when we look at their decision we see that this cannot be the case because they found they disregarded the immigration judges findings that was clearly supported in the record and instead substituted its own findings that went in cherry picked something that wasn't even an issue it wasn't briefed by either parties it was never considered and instead found and decided against mystery here on that basis and for them to go in and the decision of the immigration judge then we would have been withholding removal analysis is at least two part and they need to find they need to find a cassette in the interim whether this harm would happen because of the aliens protected status or whether or and whether the alien would likely meet that harm and so the could have said we agree that the likelihood standard was not met here but we also and we can't bring it before you here today and make that argument and that's why it must be remanded back to the b s that they make these findings these represent findings so we already went into the found that the record had no evidence of a motive for the abuses that mr me here would suffer if he were sent to the mexican mental health institution but this finding is is confusing a little bit logical and to be a never really explains what they mean by a motive but the case law is clear here even the case that the p a site  if not for their protected status and for the v a to find that the harm that mr me here would meet in a mexican mental health institution apart show that he's been diagnosed with a serious mental illnesses and he's been on medication and able to function is their testimony or insentient and that if he were departed to mexico he would no longer have access to that kind of treatment because mexico puts mentally ill people into these men's mental institutions yes the record shows that there is basically no alternative for individuals with serious mental health issues but to go to these mental health facilities there are no resources in general hospitals or in the community and  and whether you know mr me here would receive this treatment this is not really the issue here is whether he would be mistreated not the lack of the respondents brief tries to esas lack of proper care but that's that's not the issue here and what what would be relevant if we were able to argue the likelihoods the likelihood analysis would be you know whether if he didn't get if we can't get his treatment outside of these mexican mental health facilities then he will be off of his medication he'll be he would act out and he would come to you since no authority but  documented and continued such as the the widespread practice of physical restraints the abuses of psychotropic drugs drugs and you know force the bodies that's not really abuses that well that's what i'm trying to tease apart and really understand your argument that there's there's a couple issues that i see here one is the type of harm that could rise to the level where constitute torture things that you would mention and forced the bottom nice being tied down for extended periods of time how do you go from that to specific intent to inflict harm and pain and i believe the willful acts show that you have to have intent for this to happen and you can't negligently tie someone to physically restrain someone to their better wheelchair for days and then you can negligently the bottom line is someone  so that's one way that you get then another way is is through the proof that you know the mexican officials have been on notice this di i report from two thousand reported all of these atrocities they said they wouldn't address them they haven't addressed them ten years later it's been over ten years and the same abuses have been documented and that there's no been documented to be occurring at this basically the same rate  private party has the specific intent and the government acquiesces in the practice i think judge paul is pretty clear in separating out those two just who is supposed to have the intent to torture is has to have a specific intent to torture centimes and torture is a government sometimes the charger is a private party and then if it is a private party then you have to show government acquiescence and i think the the public mexican you're saying these are big government institutions ok so then the government institutions are acting through their own employees of her and then you have to show that the employees have the intent and the government  acquiesces i think that just showing that the b employees as only the employees are government actors and if the employees we can demonstrate specific intent on behalf of the employees then that's enough i don't have to show that the whole morning jane shocker for the respondent edition has a difficult burden in this case first as an applicant for withholding of removal and cat he must prove that it is more likely than not that he would be tortured that he would be persecuted or tortured on account of a protected ground for purposes of withholding removal with specific intent of the government for purposes of kat he must prove that that is more likely than not to occur and to prevail on his petition for review he must show not just that the evidence supports a contrary conclusion but the evidence  conclusion and there is ample record evidence that the government does not indeed and to persecute or torture mentally ill individuals who are in public mental health that's what it was i was trying to get at is there when if it's government officials who are running these hospitals and tying down mentally ill people to tears for most of the time performing the bottom me is having all of these doing all these terrible things to people and they're acting in there and as in a ploy eight years to do so and it hasn't well here as in v a guess there's no question the conditions are terrible it's important to note that the the our i report the disability rights international report upon which petitioner heavily relies is from two thousand and ten we also have a two thousand and thirteen country report which makes reference to more recent disability rights international reports that are not in the record but going back to that two thousand and ten report from disability rights international they specifically know at page four ninety two of the record that the purpose of their report is not to place blame on any individual working in these public institutions they say these people are working under extraordinarily difficult conditions there are limited resources allocated to mental health care in mexico and what resources are available have then mismanaged in the years since the two thousand report there have been changes as reflected in the two thousand and ten report and the two thousand and thirteen report d r i in two thousand and ten called out mexico as an international leader in advancing the rights of people with disabilities because it's bonser the convention  for the rights of people with disabilities at the un it noted that new facilities at pick paid for eight of the record new facilities have been constructed by the government that are greatly improved than the previous facilities because five twenty this is all in the twenty thirteen state department report i'm sorry this is in the two thousand and ten d r i report which does show that some conditions of persisted but other conditions have improved significantly new facilities paid fo eighty eight four eighty nine as i mentioned sponsoring the convention for the rights of people with disabilities in the un page five twenty two twenty five of the d r i report talks about the head dollar bill model model a model that is moving away from institution based care to community based care and that's where we pick up the two thousand and thirteen report sorry the two thousand and thirteen state rip department report the excerpt i'm referring to is at three eighty three mentions a more recent disability rights international report something that's more recent than the two thousand  report that's in the record there's a more recent two thousand and ten a more recent d r i report is referenced in the two thousand and thirteen state department report and in this in the state department and thirteen which is in the record at pay three eighty three it says d r i has noted positive signs in mexico that the country is moving from an institution based system to a community based system of mental health health care that's at page three eighty three of the record and that's even if even if s up september twenty third team changes really haven't been implemented there are reports that  the government made promises that it would allow independent review of its mental health facilities but that is true those as of two thousand and thirteen those changes have not been made i'd also like to point out that all of this is analysis is focused on public institutions in mexico there are also private mental health facilities in mexico that's in the d r pages any likelihood mr meo would go to a private institution we don't know we know that during his hearing at page sixty five of the record he said he simply didn't know whether he would be able to get his medication and he also said  didn't know if there was anyone who could help him pay for his meds again his burden is to show that is more likely than not the government intends to harm him upon his return to mexico and he's simply into those as far as making decisions regarding can and they're withholding a removal correct so the the b i a did and now we're looking at the the b i e s determination based on  statement in dicta by the immigration judge that wasn't even explained in that opinion what do we do with that right so the i j a in dicta said he would be inclined to grant because there would be a more than ten percent and at least ten percent chance that this individual would come to the authorities to come to the attention of the authorities he said that he hadn't met the what that there is no support in the record for the conclusion that the that the mexican government has any motive to is support in the record in that i did make that finding based on the support in the record well in fact is even petitioner can see that at page five of their reply brief neither the state department nor the d r i ascribe any motive to the government in fact at page four ninety two of the record the d r i specifically said they did not intend to place any blame on the employees in these public mental institutions the board can reverse a factual finding for clear error when it is illogical or implausible and without support in the references that may be drawn in the record it's illogical and implausible that a country that the d r i calls out as a leader in advancing the rights of the people in advancing the rights of people with disabilities that that very same country would intentionally p persecute or torture mental mentally ill patients and say hey are you in that report saying hey here's what we've observed but we're not trying to cast blame on anyone does that really mean that there's a finding or evidence or not evidence as to whether or not there's an intent or  for type of relation between what's actually happening in these institutions the buffer the fact that those individuals are there they're receiving this type of treatment that's very troubling there's there's no question that the treatment is troubling it was troubling in vegas improvements have been made some conditions persist but in v a i guess the court found this court found that there was no specific intent on the part of the government and withholding we're not cat is defining that such harm is motivated by membership in the particular social group events that just seems totally illogical because the motivation is that they're mentally ill so they're put in the institutions and the particular social group advanced is a group of mentally ill people that just seems illogical to me with with all due respect that logic comes directly from one of this court's cases it's a case called mendoza that doesn't really tell me yes i really like that that this court concluded that there was no basis to conclude that a group that members of a particular social group and again in mendoza that was an individual who had both diabetes and mental health issues made very similar claims to the claims that are before this court the court ultimately rejected his particular social group claim but said that even if you were a member of the dow woman we had just a challenge to the general the ad health care system in mexico or wherever the country was now write it down as a challenge to the general health care in fact most of the cases in your brief are to the adequacy of general health care well in mendoza it was also mental health facilities he suffered from mental health problems and in that case the court concluded that even if you were a member of a particular social group there was no evidence that he would be intentionally targeted this sub standard care would be intentionally targeted toward mentally ill individuals or individuals with diabetes or other issues and there are a long line of cases from other circuits the eighth circuit and raf inten said limited resources which is the case here it's not an intentional harm that's inadequate this isn't this isn't a limited resource case this is that those cases are the inadequate health of money when you give someone a limb by to me there's been no specific claim here that you will be subjected to will bother me again we don't have a likelihood of harm analysis to work with here but at two thirty one to ninety one to ninety six is the record the alien indicated that he intended fully intended to comply with his medication and we simply don't know he himself up to sixty five simply said he doesn't know whether the medication is available he doesn't know isn't that either been issue than what the the b i know that ultimate burden is whether he can meet his burden of showing he will be tortured we don't know what will happen to him upon his return we do know that the record or in withholding large likely than not that he he would be persecuted more likely than not we don't know because he doesn't know whether his medications were available he doesn't know whether people can help him he cannot therefore meet the more likely than not standard and i see my time is short but i'd like to remind the court again that the evidence in this case may support a contrary conclusion but this court is tasked with determining whether the record compels a country conclusion and judicial deference is  especially propre in cases like this one in the immigration context where decisions implicate sensitive questions of foreign relations the state department i mean you know to try new things was lurking in the back of this decision because this decision  faulty on a number of levels and i'm glad you raise the elephant in the room i mean this is the kind of case where if we if we say go a particular way in a not and then in less then very policy problems and issues that i don't see a statement of interest by the state department here and normally if that is you know if that's something we should be considering we would have  statement from the state department oh i don't see that so if you're arguing political question which i mean i can see lurking in the background political question or international comedy or other issues here but it would have to have something a lot more than this is lurking in the background i can tell you just quickly that all asylum applications are forwarded to the state department for comment as a standard practice the state department relies are in their twenty's and their country reports we have the tw country report in the record here there is no indication in the twenty thirteen state department country report that mexico intentionally was in such a time when i'm talking about i'm talking about this the it's a separate thing they would have filed something they fought if they file something with us to say you know your decision well and book a foreign policy relationships with mexico what they filed in this case is their country or a potent file their country apart in this case it's country report el a conclusion contrary to that reached by the agency all right thank you very much again so first i want to emphasize the likelihood the respondent really tried to emphasize on the likelihood analysis but that analysis is not at issue here and that's one of the primary reasons why this must be remanded to  that they can find on likelihood second the characterization of mexico as a leader in mental health reform is is misleading in fact the primary finding of the d r i report is that the major is that after this ten year follow up investigation almost no change has taken place in mexico's mental health system and the government's promises of reform have not been f cannot believe we can't cherry pick some of the good parts of the d i r report to try to to to try to characterize mexico as this great country that's leading the charge on mental health reform and third really want to go back to vegas and distinguish that from the present case as we said there are affirmative abuses and practices ongoing doc documented and ongoing at these institutions over the course of ten years from over ten years and these have to be these these officials working employed by the government are willfully willfully acting actual actions not any evidence of real impact just statements and empty promises that they would change it's clear now this record has this record which is distinct from  und and that there was specific intent to harm and that there is specific intent to exact these practices that amount to torture yes