good morning nic please the court my name is walter johnson i represent in the petitioner patrick as in our way let me start with the issue of jurisdiction because the attorney general has taken the position that there is nothing to talk about here that this court has no jurisdiction and has the court must know the attorney general has actually taken the position that you because there is no jurisdiction and there's no reason to discuss the factual issues in this case and the attorney general has failed to discuss those in his response of grief story under six years this congress stripped away the court's jurisdiction in section twelve fifty two a to see to review orders of removal that are based on the applicant's conviction of a now aggravated felony the attorney general says that mr agent dolly was ordered removed on the basis of his conviction of an aggravated felony and that's correct the attorney general says that that order is not reviewable and we agreed if that is what the attorney general then goes on to say that the court has no jurisdiction to review  in which the i j a denied mr dali's application for withholding and his application for relief under the convention against torture we say that's wrong and more importantly this court has said that long as it is based on the merits of those requests and not on the conviction for an aggravated felony and that's the case here now there are two published cases in a circuit that stand for that proposition there is a very recent unpublished decision last month that also stands for the same proposition the first case is on what calo versus gonzales in which the court said there is no jurisdictional bar over all petitions for review found by  petitioners with an aggravated felony conviction in their past with respect to a petitioners request for relief from removal the court still has jurisdiction to review such decisions when the i j a does not  denial on the aggravated felony conviction the court in that case went ahead and reviewed on the merits of both the denial of withdrew of withholding and the denial of c a t relief the court said quote we reject the government's invitation to extend the jurisdiction stripping provisions to circumstances where they do fine and i said we agree with the attorney general that there is no  sometime last year and has been recently amended the attorney general has submitted a copy of that amended opinion for the amendment is a clarification it really doesn't have any bearing on the basis on which we cited that case that case involved a crime of moral turpitude rather than an aggravated felony for purposes of jurisdiction stripping that makes no difference it's it's more or less the same thing now in that case that the i j a determined that that was a crime that was quote unquote particularly serious and on that basis the i j a denied asylum denied withholding but then went on to decide the application for c eighty relief on the the court in morale is set and we have no jurisdiction to review the asylum denial we have no jurisdiction to review the denial of withholding except for issues of law but we do have plenary jurisdiction to right and there's nothing new about that case what it just says is what i just is what i just said about anwar kahlo and and morales it says that if the denial of c a t relief is not based so i as to the rest i'm not sure exactly what to say because the attorney general has not addressed any of our substantive arguments on the law or on them or on the facts but one of those and deprive you from the opportunity to to pressure case and i have fifteen minutes to do so and i will now even if the court were to find that there is no jurisdiction to review the facts the court does have jurisdiction to review questions of law and constitutional questions now we haven't raised any constitutional questions but there are several questions of law and i'd like to go through those refly first of all the i j a committed a legal error when he basically disbelieved everything that mr azure dolly told him but he did not make an adverse credibility finding a lobbyist circuit is that adverse credibility finding must be expressed in adverse credibility findings must be based on a specific cogent reason for any stated disbelief what the i j a did in this case was to say mr way you're a convicted felon why should i believe anything that you say i really don't believe anything that you say well i was a little broader than that but why doesn't rule six o nine inform our decision in this case prior felony convictions involving more moral turpitude are universally admissible to it to address the credibility of people and that's what it seems that we have going on in this case i mean you've got a client who's been convicted of multiple counts of fraud that relates to his credibility the entire this case is so different from your usual credibility case because this is a person who's lived a total lie for fraud and appears to be a professional crook who sneaks into the united states to steal things by while he's working for banks a different case and the i j a simply says looking at this whole record you know given what i see of value coming from the record you know i'm one of you right now that why should i believe anything you say doesn't the finding of credibility has to be based on something that has a legitimate nexus with protesting about i don't mind i don't i don't think so all the time in courts prior felony convictions are used to destroy people's credibility you know i mean the priors come from something completely different here however it comes right out of the immigration context i don't believe it comes right out of the immigration context here and because it has to do with prior felony convictions it has nothing to do with good question what are you asking us to do well what i'm asking you to do is what i stated at the at the end of the the opening grief and that is mr ekdahl ways testimony because there wasn't a legitimate finding of of that he was not credible must be believed and on that on the basis of that testimony what i'm a further determination and credibility or whatever else should be determined i don't see and quite how you make the leap that we have to accept on this record his testimony is true decisions of of this court what the court has said in the past is that that the determination of adverse the adverse credibility determination has to be based on a legitimate nexus to the finding well let me read to you page from page one twenty four and what is this while the respondent stories do seem to be consistent in many aspects the court recognizes th is an individual who commits bank fraud who enters the united states admittedly by using false passports refuses to identify himself to officials many say from nigerian officials and that of course while i was in the united states again in gauges and fraud on several other  occasions thus for any rational person the respondents credibility would be placed into issue what is that you can regard that as an adverse credibility finding but the at that adverse credibility finding and this is a separate issue adverse credibility finding doesn't have a legitimate nexus to the claim the claim is i'm going to be thrown in jail beat out and tortured if i'm sent back to nigeria you know i didn't like that then the i j a says and all of this relates to whether or not you've carried your burden you're simply not a believable person period based on this entire or your entire record and that strikes me as a credibility finding based on among other things the concept that since six zero nine  he has the burden of of establishing the case and the i j a is saying based on everything that i see in the record or you haven't carried your burden but you haven't met the burden of showing that it's more likely than out of sight or so but here's the problem that the i j started that that  but this court has said a general belief that the that the applicant is not a truthful person is not sufficient in these circumstances but this is more than just a general belief and i mean this is a belief based on he was false passport that's more than just a general lack of credibility is it i mean i think that's fairly serious a fairly serious credibility problem i'm not going to argue against against common sense what you're saying does make sense mr as you go away is a convicted felon he did come back into the united states on a final false passport there are certainly cases in this circuit many cases in this circuit that his story on his claim about why he's entitled to relief it can't be based on something that's collateral for that and there are cases in this circuit to that effect that they cannot be based on a general  i'm saying that the standard i'm saying that the i jane made an error of law in that he made an adverse credibility determination that was based on something collateral to the claim and you can't do that you've got about three minutes good morning to me please to court there's no dispute here that the petitioner three fraud related convictions are aggravated felonies with the immigration laws that render him removable and there's no dispute that the second i think follows morale us but we have a different view of the statement that is relying on in the morale is case in morale as this court held that there were  questions of law to the torture convention and relating to the particularly serious crime determination and that it was following this court's decision and carlo and th s court said that there were two conditions that had to be met for this court to have jurisdiction first that the immigration judges removal order was not based on an aggravated felony conviction aggravated felony conviction now petitioner is argued that well he doesn't challenge at this court cannot review the final order of remove all he's asking this court to review a separate and independent order but i think that's incorrect for at least two maybe three different reasons first a final order of removal like a final decision or a final judgment from the district court incorporates all the subsidiary you are collateral orders in the case the final administrative order of remove a which is indisputable based on the petitioner having an aggravated felony conviction and third and with good reason this court has consolidated all the petitions for review in this so with respect i don't think counsel's argument about this being a separate order outside the final order of removal bar in section twelve fifty two a to see is well founded well the case that was given to us this morning says thus even assuming that the jurisdiction stripping persians under section twelve fifty two eight to see apply we retain jurisdiction to review a cat claim unless the that there are questions of the law and of course while fifty two eighty two d expressly says this court has jurisdiction over questions of law on what basis in the case that we're talking about here today i deny cat relief jurisdiction there's nothing about this record that compels a contrary conclusion that the highly be extremely deferential standard of review as to any of the findings that the immigration judge reached you've heard the other side tell us that if the story itself is consistent and there's nothing internally or externally inconsistent about the story we're bound to accept the credibility of the story your answer to  that is incorrect your honor not only because as this court pointed out that under rule six zero nine eight two which is more restrictive because it applies in federal court where the rules of evidence are more restrained than and a dministrative forum but also under this court's case law prior felony conviction relating to fraud is proper grounds for finding an applicant that lacks credibility and hear the applicant shows the intended loss of formats of the second set of convictions was two point four million dollars so i disagree with how also that that is relevant or doesn't go to the heart of petitioners claim it goes right to the heart of everything he says and whether it is or it is not true and to be sure the immigration judge as you read from his opinion pointed out several of the reasons for undermining more acts of probably after he was convicted for those acts of fraud and after he was put into remove all proceedings for the second time counsel is incorrect in saying that this court has a flat rule against pointing that it just said an immigration judge should consider all the circumstances relating to that use of a fraudulent passport and here i submit the immigration judge indisputably did that pointing towards the petitioner as multiple act fraud his multiple convictions of fraud and it's not saying anything about wanting withholding relief until after he was put in proceedings the second time and to be sure he must have known about that relief because when he was deported or removed the first time back in the year two thousand and two thousand and one he asked for withholding removal really so there's nothing about this record compels contrary result as to credibility in the same goes for the immigration judges alternative as to the lack of causation and the absence of sufficient harm that would meet the extreme concept of persecution and as petitioner describes it even more extreme concept of torture as the causation brief admits that page thirty six and thirty seven this opening brief that obviously corrupt government officials bribery extortion was a motive for what he described the nigerian police doing to him obviously that was a motive he just wants you to substitute your judgement for the immigration judges and say but it wasn't the sole motive and to be sure the position here testified that when he paid a bribe that's when he was released when he was let go by the  there's not just record that can tell us a contrary conclusion extremely deferential standard view as to cause on the record also shows by the way the petitioner testify about four murders that had taken beat up a little bit and under this court's precedent hocks ashcroft and chris dodd the ins this court said that undisputed unlike here where somebody had been detained a few days and beaten to the point where they had not only bruises but even broken ribs that did not compel a finding of persecution to meet the extreme concept of persecution and here we have a petitioner who says has argument as to harm you have any other points stronger than the argument the one argument that petitioner does have that this court does have jurisdiction over the nationality claim should also be dismissed to the extent  born in the u s territory or granted naturalization application and i know by the way titian are admitted in his first round of deportation proceedings back in the year two thousand two thousand and one that he was a about the facts because how about the nationality point before i forgot the nationality point of the last point mr azure dolly understands that under the law of this circuit he's he's not going to win on his nationality claim he wants to preserve that issue ok thank you on the facts i just heard counsel say that mr richard always testimony was that he got beat up a little bit mr edge and always testimony actually was that when he got off the plane in laos when he was deported he was thrown in jail  for approximately eight days that he was beaten with fists he was kept he was hands were handcuffed behind his back and he was beaten on a daily basis with a horse with that's not getting beaten up a little bit his study also saying he wasn't he didn't need any medical treatment there was no medical treatment i don't believe there's anything on the record that says he doesn't need any medical treatment but no medical treatment was available no food was available he was relying on a friend of his to bring in food i am not absolutely certain that he said he didn't need medical treatment but he did file a police report after he got out of jail saying that he was suffering from injuries from having been beaten when he was in jail that by the way is perfectly consistent with the u k home office reports with state department country reports with amnesty international reports all of which say this is typical behavior typical of treatment of prisoners in nigeria so i think in terms of just is does he have a reasonable for fear of persecution and does he have a reasonable fear of torture he does very much so and torture of the torture claim it has no it doesn't matter what the motive of the torture is whether it's extortion or not as long as it's torture doesn't matter with knowledge of the question ok so they beat you up a little bit answer yes all right did you have to get any medical treatment answer there was no medical treatment i understand there was no medical treatment there but were you released punch little were you released about a week later yes i was released about a week ok if i could if i could make a few quick points before my my time is up on on jurisdiction let me just read something from the morales versus gonzalez case and this is a quotation on the c a t relief jurisdiction there was merits hearing in this case on may twelfth correct pardon me there was a merits hearing in this case on the twelfth on the merits anyway on the merits before the immigration judge yes that yes i believe that was the date to answer judge voters earlier question there is a case called car versus ashcraft which we decided on page fourteen of our reply brief which says when an i j fails to make an explicit adverse credibility determination the petitioners testimony must be taken must be accepted as credible  substantial reasons that we require to support an adverse credibility finding that's on page sixteen of our reply brief and there are other cases to that effect  so your concern is that the immigration judge did not utter the magic words making a finding a factual finding of a lack of credibility in this case that's one thing not withstanding the fact that the evidence before the immigration judge may have very well established to the immigration judge and perhaps to others that this was not a credible individual but that did not go to the heart of his claim that we were that before ok thank you so you're you're part of and i have a question for you you can come back up for a second i'm just trying to track down what you said i thought you said that he said he didn't need any medical treatment now i understood your honor they are too i think it's one seventy six i understood his response to be agreeing with the immigration judge the immigration judges question that he did not need or did not have medical treatment well and i think given that i heard you say he said he didn't need medical  treatment i'm sorry i said it that way i understood his testimony to be to that effect they sicily you are i did you have to do you have to get medical treatment there was no medical treatment question i understand there was no medical treatment there but you were released and then there's nothing else about medical treatment that i can i understood him to be agreeing with the immigration judge when he said that there was no when he asked him did you need medical treatment i needed to  is my reading of the record no there was no medical treatment there was no medical treatment there ok thank you counsel this case to sort of submit it thank you