the government argues that the court last year a stiction to consider position is a challenge that the agency is determination was legally inadequate and therefore legally erroneous  that is we know that's not correct under the very case of the the government sites and in which this court deferred to the board's holding in matter of and i am that and i j can consider all reliable information making the particularly serious crime determination well what the government is alleging as i understand it is that a particular series of crime is something that is given of discretion review that's what i understand the government that's better they're saying and that's wrong because i know of why because twelve a t o c twelve to a two d specifically provides for jurisdiction for legal challenges for for the legal issue whether the agencies and now it now assess as we argue was legally iranians and deficient because there was no address credibility determination reality and i appreciate that argument and i swear i wanted you to get you there because i think that's where  harm he suffered while in the custody of the police why does that not say and petitioner wasn't credible for anything else well because it doesn't say that and listen i think that the it it says the only time that's your addy is credible no it doesn't because you're changing it he says he was credible as far as his has description of his past archer he doesn't say he wasn't credible as to anything else there's lots of other things that he testified to including what happened in the incident with stand testified and things my only worry is that i found look right in the record in the i j a says well i think it's credible to the harm he suffered and doesn't doesn't say anything else about his other testimony exactly ok so i guess i got your answer so let's go to the second if in fact this is a credibility determination then i guess the credibility determination would not necessarily have been made but as i understand this if you will could be refuted by record evidence from his guilty and his conviction as long as you're only relying on the record evidence of the guilty plea in the conviction then it's ok so i said all right in this case the respondent was typically serious crime the nature of the crime was domestic violence and that serious the elements of the crime include infliction of willful infliction upon the person and corporal injury results in a traumatic condition that doesn't seem to get away from the record evidence at all and even the provision of his report is in the record that's not the issue the issue is that if this court that absent an explicit explicit address credibility determination the petitioners testimony must be credited for just a minute that's not exactly the rule the rule is that that would be so unless you only consider the record evidence of the guilty plea and conviction which i'm reading you exactly what they said but that's not the analysis that happened here this wasn't a strictly elements based probation report is after he said what he thinks and then he said and also we've got additional evidence from the probation officer report i don't think reading exactly what the i j a said but he doesn't make that the basis i think this is the record evidence of his guilty plea and conviction then he adds the probation report will appoint a a r sixty a our sixty says the court concludes respondent was convicted of meticulously serious crime in making this finding the court finds the nature of the conviction domestic violence is serious the elements of the crime include willful infliction and that corporal injury results in a traumatic condition that's the elements in a not themselves are serious the facts and conditions involve the use of force and violence the sentencing court further found the crime serious that imposed two year period incarceration and then he throws in and finally the probation officers report document no because two pages earlier he's in his actual analysis that's kind of a concluding paragraph two pages earlier he's already talked about the factual assertions in the provisions of his report at length that's an  ninety four i think the decision is in the record a few times so but two pages before when you were looking at he goes through in detail those things i think where he says the elements are serious that's the first stage of the n a a m analysis where you determine whether the elements bring it written officer's report was i think quite clearly the basis for his factual determination that the underlying crime itself based on the actual incident the occurrence was serious so what do i do if i swallow what you have to mand for the i j a to conduct in the first instance the necessary adverse credibility determined i was there for you want me to remain and i mean i'll be fair i've seen these before it seems to me that if i remain for what you want the i j a will say in two sentences this it is incredible and you'll be done well but the court can't fill that in for the i j a it said that again and again it's not this court's role it can't fill in that gap in the analysis he testified he was cross examined specifically at two eighty four to eighty six i believe about what happened during the incident he testified that the description in the provision of his report was not true the i g could have said that he found it not credible during that section of cross examination for any number of reasons we could imagine but the idea has to give specific cogent reasons for doing so and that didn't happen here and this court's case light has to go was to matter of je which the as i said it is saying that police brutality does not amount to torture and that's illegal my understanding this was a mental illness problem right well it's the it's the it's the i mean when i look at what i did which is what i'm looking at did not find that your client was tortured at the hands of mexico based on his mental illness and what they're really saying is the facilities in mexico or or i understand that that does not however amount to torture the actor must hand the actual consequence of the conduct i've read that's what they said they don't address at all the past torture by mexican police that argument was squarely presented in his brief to the be so is legally wrong is for them not to consider that because it is the best predictor of whether someone will be tortured in the future his claim is and this court has said that you must consider the aggregate risk from all sources and it can't claim the claim is that if you go back to mexico he repeatedly wandered off and got lost there off medications with no family members to take care of him if he ends up lost again or in other cases like when he wandered up to the border if you something that happens where he falls into the hands of mexican police he could be beaten for hours again like he was before and then also likely end up in a mexican state run detention facility where they are three seventy three the state department report says there is widespread physical and sexual abuse by staff members that is intentional physical and sexual abuse is intentionally inflicted by public officers if that happens to them that all had to be considered and none of it was thank you very much thank you you know  the crux of the petitioners claim is that because there's no explicit adverse credibility terminations it should be credit is his testimony should be credit is true that is not entirely true the petition is counsel has a business covered green i'm not so i wouldn't say that there was no address there's no explicit adverse critical as i'm trying to figure out if in fact there's an adverse credibility determination somebody usually says this is the reason you're not credible and at that point the dish you're asked to be confronted and then the i j a got to say something about well we confronted him but nonetheless there is no basis i didn't ever happen here you could correct on it there was an advantage doesn't seem to me i mean even though i was trying to see what counsel would suggest i'm worried that there was no credibility credibility determination and without a credibility determination where are we well there doesn't this is not an adverse credibility case this is a case about burden of persuasion burden of proof i understand that but if there is no adverse credibility determination then i've got to take it stuff is true in the case law does indicate yes you have to take this stuff is true however that doesn't rank lee what he said in his statements are contrary to the probation  t that's correct as well your own so then how does the i j a get a law get away with as your opposition argues relying on the probation report well because what the immigration judge who ha opportunity to do is to look at other evidence outside or inside the record if you can't look at other evidence if it's contrary to what the petitioner has suggested because he's already said that that is true determination had been made and he'd said he was incredible he could have looked at anything he wanted but once adding not made it it seems to me that counsel makes a great argument and that is if credibility to determination is made you're stuck unless you can say the only thing you're looking at is the record evidence of the guilty plea and conviction and i took him through that and he says no you look at what it is here there's a probation report that got right in the middle of this and the probation report is directly contrary to what my client said and therefore should not have been relied on the respond well even raised in and am and in the case that was that adopted that and iowa t's the courts decided that any reliable evidence outside the cooking rely on any of the i j a could rely on any reliable evidence but that's doesn't even hit the issue the issue is that if you've already said his client is his testimony is true if you're already giving him that make then at that point you can't it's not reliable evidence if it contradicts what he said but i think that the analysis goes beyond whether or not he has his testimony is true that doesn't stop the analysis well he could be taking the analysis for all contrary evidence you can look at forty eleven other things that don't contradict that evidence but once you've said that's what his client says is true you can add any other evidence you want that's contradictory to it or at least i didn't find the case i think that the our argument is that because there was evidence that was because the individuals the petitioners testimony our testimony at the hearing did not meet his burden of persuasion for the immigration judge that's why he was able to look at other evidence out other evidence including the probation report that was contrary to what he said that's pressure on him while it is contrary to what he said it with respect weight argument corrector i was it what it comes down to is a weighing of the evidence in this case we could turn this around and say even if you could see consider even if the probation report or the  local at the sentencing code in the criminal case had they believed everything that mister karr as testified to in the immigration but they could still make the same determination that it was a good particularly serious offense that if you serious crime based on the fact that they found that he was guilty of the offense he's never contested the fact that he was charged with the offense that he was guilty of the offense well that he was given two years incarceration for the offense all making it clear argument that you made that the basis and it's contradictory to what my client said that's what i was trying to get him to concentrate on i heard what he said i'm hearing what you say i mean if if i ha been writing this knowing full well that i'd already said this guy was credible i wouldn't have added the probation report which contradicted the very comments very things he said which i've already said are credible and then make my determination based on that i can't do that can i say well the petitioner only to be immigration judge said the petition is only credible and with regard to one's particular thing and that was with regard to the torture in the future that you and i both went through that a minute ago that's not a credibility determination that's not a correct one it's not a specific explicit adverse credibility determination but he didn't rely on that in determining that the offen was particularly serious he relied on that only in regard to the ca