my name is vicky doberman and i represent the petitioner miss alvarez i'd like to reserve two minutes rebuttal in assessing whether miss alvarez more likely than not faces torture in el salvador the agency was required to consider all relevant factors by regulation that includes but is not limited to whether she suffered past torture whether she could safely relocate in el salvador whether there are gross or flagrant human rights violations in el salvador and all other relevant evidence regarding country conditions in this case neither the i j a nor the board considered all of those factors what did they consider they focused almost entirely on whether the past harm rose to the level of torture and whether it was done by or with the acquiescence of a public official so what evidence what evidence the future of torture should they have considered well the most significant evidence was the testimony of the expert professor van den he testified at length regarding the torture that the likelihood that she would be tortured and killed they didn't consider that at all if we if we were to credit professor abandons testimony or loan as evidence of  future torture would that mean that all members of m s thirteen who seek to leave the gang would then be eligible to stay in the united states under cat not necessarily why not well because each case has to be adjudicated on the record in that case and so if you are stopped there but if you want to professor vanden he's not really talking so much about her she's talking about things in generalities how things work in el salvador so very very bad situation as everybody is willing to acknowledge but if professor vanden is testifying as to conditions in el salvador wouldn't that apply to all members of m s thirteen who are seeking to leave the gang potentially and you know he testified and there was documentary of an evidence to support what he said that former gang members are gang members cannot leave gangs and if they try to the only way out is by death and i think that's you know well established in this record and so if in other cases that evidence is before the court then yes that might make out a case for somebody else in her situation but she has more than just his testimony she herself was targeted over ok but that what you told me what they didn't consider was f now you want to go to the past evidence well your honor i do because they only consider the past harm in the context of whether it rose to the level of torture they didn't consider it at all with regard to whether it was indicative of future torture she might suffer so again that was that was an error under the regulations and this court's jurisprudence i mean tapia moggi gaol which we cited in our brief the petitioner there he also didn't suffer what amounted to torture in mexico but he was threatened and some other things happened to him that weren't as agree just as what happened in this all over as ok so what passed harm to the b i a not well any of it because they only focused on it with regard to whether it rose to the level of torture so i didn't consider whether the fact that they're there they've stayed at the standard they've cited model and they prefer to consider acquiescence of public officials so they look like and whether ok but that would go to mr that would go to the expert professor vanda that's true go to the professor vanden it would go to the country conditions evidence the record that they didn't consider the state department and or and if so if we were to consider just professor vand n and look only to the evidence of future torture then the question would be are all members of m s thirteen who seek to leave the gang eligible for cat relief in the united states because if they return to el salvador they will likely be killed if the record is the same record as in this case the government but is that the record that you have or isn't yes i have a record and that is the argument that you're making isn't if all of the records have the same evidence that we do yes the government had the opportunity to present re evidence and they didn't do that in this case so in the future if professor vanden testifies in another case the government certainly can put forward evidence to show that is testimony is not accurate but they didn't do that here in fact the government elected not to cross examine the expert at all so you know there's nothing in the record that this is the government elect not to cross examine him based on the fact that we didn't haas romero on the books at the time you are not i don't believe that's the reason i think the government just his he his he provided eight expert declaration that was what you would agree with me wouldn't romeril make your argument a better org certainly strengthens it and that's why i said bras romero on the record at the time of this expert testified and they would have known we were going to look at that and it would have been reasonable for them to do so gross exam that i mean the primary focus there was that even if you're talking about rogue government officials is long as they're acting as public officials it's irrelevant that the country at issue has like a policy but they were but they were police officers right in that that that would that would satisfy the under color of law likely a one hundred ninety three standard in our in our country right i don't know if there's if it didn't i mean significantly add to what had previously said in model but it just kind of reaffirmed it maybe with clearer language that it doesn't matter if the country at issue has taken steps to combat corruption or violence what matters is how if effective those efforts have been and in this case the agency only relied on the fact that their funding has been you know poured into el salvador some of which was to target gang activity but there they didn't at all consider the fact that none of those efforts have been effective the state department report came after of the those efforts and it continued to document widespread corruption flagrant abuses of human rights torture by government officials it talks about all the gang members have been incarcerated they continue to exert authority over the judicial system from inside prisons and so you know none of the efforts that the government or that the i j a or our board cited to in this case in terms of documentary evidence have been effective and so under broadcast romero those are simply irrelevant and they're also not relevant as to miss all rise in particular because those kind of hard that the discussion was really in general you know what is the government done to combat gang violence but in her case she's a former gang member and so that makes her in a different position than other individuals just in general in el salvador because the evidence in this case shows as the expert testified and there's documentary evidence the supports that the government regardless of  efforts to root out corruption they don't protect perceived gang members from gang on gang violence is there any evidence in the record that police officer or other government officials in el salvador would particularly look the other way with respect to mr alvarez yes i mean they did it already in this case that's the past right and the past is relevant as to the future so you have a couple of incidents in which the police came and she says they came up late but they just said they told him to get out of there right so the past is relevant to the future and this court has said that is there any evidence that the police knew that this was miss alvarez or that they're looking for miss alvarez or that miss alvarez is somehow c special disfavor with the government so that officers in el salvador would turn a particular blind eye when they saw this alvarez being so there's no evidence that they're particularly you know angry at her but that's not the standard here the standard is would a public official turn a bike that brings us that brings us back to the point that what you're really arguing is is that is that former gang members who are trying to escape a gang that the that the salvador will not be able to protect them definitely on this record your honor yes it puts her into like a class of people but it is a class of people and not her in particular it's a class of people but it's her in particular as well because of what has already happened to her because she was already targeted over the course of the year she was there it's undisputed she was beaten three times sexually assaulted threatened with death repeatedly and then after she fled they gang members went to her grandmother's home and said we're waiting to kill her when she returns they went to a cousin's home with weapons and threatened his family so you know in her case there's been she's particularly been targeted by gangs and she was also the police you know regardless of exactly when they arrived at the scene of that second incident what they said to her is highly relevant they said you know i don't need to repeat it because it's in the record but they were going to also beat her up if she didn't leave so they clearly saw what happened she her cousin was bleeding his skull was fractured they knew that this happened to her and so they didn't do anything to protect her and that's also relevant  because the expert testimony compels that conclusion in men that you know adding to that her own past experiences and the extensive country conditions evidence in the record all compel that conclusion but secondly even if the court feels like it can't reach that question of whether the record compels the conclusion at the very least it has to remain on to the board because the board didn't consider good morning that please the court john hope for the attorney general there's no piece of discretion in the agency's determination that petitioners robbery related to or m s thirteen gang participation was a conviction of a particular serious crime substantial evidence also supports the agency's decision that the cat deferral claim has no merit related to him as thirteen misconduct in el salvador less to get that second issue first you agree with me for and all over witnesses are credible the agency made the decision correct yes your honor once they are credible then at that point i have to go for i have to go forth to determine what it is that we've got here she had passed harm which include beatings attempted assault death threats the i did arrest the beatings the sexual assault thought salt but i never saw the  threats is that a problem the the i j considered all of the evidence well but just a minute i went ride to the record and i see where the i j a looked about the beatings and the sexual assault but i didn't see but the problem i guess is i have to now determine whether she is matter burden of showing that she more more than likely not be tortured if she's removed and they don't say anything about death threats and i'm saying that seems to be a be a problem well you focused on a fundamental flaw of the petitioners brief an argument before the court in her brief on page twenty six in a reply preventing page thirteen fourteen she asserts that the decision under review is only the board decision and not the immigration judge's decision indeed the age of the board twice specifically said we agree with the immigration judges determined i say i your when you're missing my point i looked at what a did so i'm not listening to would any anything except what the i j a did i'm not looking just at the b i a but they never the i j a never addresses the death threats well i mean go to your next if i'm just i'll go there immediately but i will say that the agency considered the death threats in the board decision and so it's the agency decision is both the decision of the board and the immigration judge and the mere fact that the  asserts that the police were involved in her abuse in response to a question asked by a judge earlier is there any evidence that shows that the police were not going to take advantage of her or get involved in any persecution in page one sixty one sixty one of the records the police noticed that petitioner had to use him as their deemed too but they they they released her and said that and let her go if they were going to take advantage of her let me let me stop you just a minute b i decision as i understand it i don't see where they clearly showed that they conducted an individual analysis of alvarez's risk the i j a identified the immigration judge's decision that's it but that's a fundamental error in petitioner's argument and so the board three times before in its opinion pages five in six state that the factual the immigration judge are not clearly erroneous twice the board said we agree with the immigration judge and the immigration judge correctly determine the tax on petitioner while important do not can make torture so we would submit that the agency decision when you look at both the immigration judge and the board decision addresses all of the evidence with regard to position has claimed not only to past but also future persecution but kitchener argues that in terms of future persecution the first person of all that there's no she she doesn't argue there is any state action there's no there's no evidence at all that anyone from el salvador to police authority and we're not talking about state next year we're talking about the failure to do anything about in terms of the failure petitioner argues that the i mean for instance her true testimony shows the police did not come to her aid and instead suggested that of her and her cousin did not leave the officers would also beat them and so they are two thirty eight there was at least one instance where the officers were on the scene when the perpetrators were there yet the officers didn't do anything apprehend the gang members or help the victims that so they are one sixty eight so isn't that much more significant behavior than garcia on it's vs older it's not your honor in again those those observations assert a blind eye argument for petitioner but it was petitioners failure to focus the eye of the police on the m s thirteen assailants that is the reason why she didn't get help on page one seventy three of the record she admits that she knew the name of the leader she never disclosed it on page one hundred eighty one she gave the names of some of the people that were in the gang she knew the end recognized some of the people but she stated when the police came that she did not know who they were she lied to the police when the police arrived to cover up for him is thirteen colleagues that allegedly were abusing her that mistreated her so when she doesn't cooperate with police she can't fault the police for saying that or not for not doing anything so first of all there was no state action secondly no cooperation and third the agency fully considered all the evidence first of all they considered the evidence in terms of trying to solve the problem the immigration judge on page sixty seven three seventy four ninety nine details of the country evidence regarding the efforts made to  counteract him as thirteen and el salvador the board on page five in six similarly addresses that evidence that include the training the arrest the corroboration the collaboration with a u s gang  that the government had tried to enforce the law on page two seventy one the gangs gang members were persecuted for murder so in terms of broad ramiro there were three points first of all no state action secondly the agency did not require as in bras and romero that there was proof of past persecution in order or past torture they looked they said we've got to look at the efficacy of future torture but there's no knees and no reason to remain in light of bras romero because here the  agency did consider the efficacy efforts merely because a country has problems with m s thirteen we have problems with m s thirteen doesn't mean that there's a blind eye or that there is torture when m is thirteen action is taken in a particular case so we focus on the particular acts in terms of addition in terms of past persecution persecution there was never any medical treatment we don't deny here are credible testimony that on three incidents she was attacked but those circumstances alone do not establish th to the level of severe pain and torture to amount to the torture in terms of the particular serious crime argument i think the important point is that the agency did accurately state the law petitioner only asserted one page of her brief and none of her argument to the agency determination that this was particular serious crime and so therefore she's not entitled to asylum or withholding of removal the important point in that regard is both the the immigration judge noted she was sixteen years old and that she was young when this particular matter happened finally in terms of ineffective assistance of counsel the important point is the petitioner did not call cooperate with her lawyer she didn't show up for a meeting before she didn't show up the  proceeding until late then the court seems focused on whether or not there was torture there was no frankly i seemed for focused on that because it seems to me that i'm now at the point where i after i have substantial evidence supporting that determination than ours failed to establish this and for me the record was pretty clear that despite police officers arriving on the scene while alvarez was being they didn't do anything to stop the ems and for the thread and i said to myself it doesn't seem that seem logical and that's why i ask you the question that i get i appreciate that your honor the district on the important point in that regard is it was petitioners own words where she admitted that she covered up and lied her fellow them as thirteen gang members that precluded the police from taking any action to protect her secondly in terms of the threats there was never any indication that petitioner indicated that death threats were imminent and that is the standard you in your earlier question stated that your concern is the standard of review that the the evidence and all of the circumstances and the most important point in that regard is the boat board focused on petitioners failure to cooperate with the police and identify the gang members that assaulted her she lied about it she covered up she stated she didn't recognize them when she admitted that she knew their names and so she doesn't come before the court with clean hands in that regard and we think that that is what forwarded in the at particular circumstance the el salvador gardeners just to point out a few things that we already talked about as a neuron pointed out that the agency didn't consider the death threats at all i mean i just we read the board's decision they don't mention that at all  s over as did not admit to lying and covering up for her fellow gang members that's it complete misstatement of the record what she said was that she recognized them she didn't know who they were and that she was afraid to tell the police after the first incident because she was afraid of further harm and that was understandable given the evidence in the record that witnesses against gangs are routinely killed and this is even mentioned in the state department report and  the second incident i think i'm restating what your honor are already pointed out the police were definitely on the scene they say they knew she was beaten whether or not she provided the name she wasn't asked for that information she was told that if she didn't leave she was going to be beaten by the police so it's just simply not the case that she could have provided information the police had an obligation they saw two people being viciously beaten and they did nothing about it they told them to leave that or they would beat them as well so i think that's highly relevant to the likelihood of future harm that she would face and so regardless of the extent to which they acquiesce it's indicative of what would happen in the future and so for those reasons were probably other