may please the court my name is chris bergen and i'm representing the appellant in this case how this case arrived at your death through two tours of duty in afghanistan and basic training and many specialized training is my client was never assisted by the u s military in becoming a u s citizen we did request that the case be prosecutorial ie closed with ice  fore the immigration proceedings began and they denied that we did go to trial in front of the i j a our case was denied pealed to the b s a they refused to remain and or reverse and we did then request a stay of removal from ice at which point we were left with this remedy which is before your honor's today the nature of this case is a request for deferral of removal under the convention against torture only and the issues that i brought out and i want to bring out today deal with this concept of substantial risk which was think first by judge posner and rodriguez molinari he tried to to kind of describe how how one would would interpret the actual standard for to furl of removal which is more likely than not that someone would be subject to torture of returned and i think you know not to say i know what was in the judge's mind but i believe the judge was trying to say there can be doesn't break any difference who wrote in units of the court and what the judge was thinking correct the only question is what was in opinions of the court ok and i must say i don't understand your argument counsel you do several opinions of the court that have referred to a substantial risk referred to it as being less of a risk than more likely than not which is fifty plus percent how would you possibly be prejudiced by the immigration officials using a lower standard of risk than the fifty percent standard that you say is legally required well your honor i don't think it was meant to be a lower standard it was express lee devised as a lower standard that's what the opinion said no one can doubt that a court of appeals has authority to deviate from statutes and regulations but the direction of the movement is clear well it is not announced as a higher standard even if that is true your honor if i agree with you on that then the issue though is  your client has no conceivable complaint not just the problem i would disagree your honor because i think the substantial risk term doesn't isn't if it's not in a context if it's not explained as the judge didn't and lo and ari where he specifically mentioned you know other terms like that the term wasn't used in a vacuum he said he mentioned that that there could be  a substantial risk and a substantial risk and substantial grounds it to me that the substantial risk turn without any kind of explanation by the immigration judge or the board of immigration appeals would be like a dandelion in your yard well that's dying i don't know it's almost way try to qualify risk yes what does the record show in this risk about the probability that either a drug dealer or a former i return to mexico will suffer bodily harm could you repeat what just the records show about the probability that a convicted drug dealer or a former geog will suffer harm in mexico ok we can estimate both the numerator and the denominator i assume so what is the record show but i believe the record shows clearly through my client's credible testimony i'm not asking about your client's testimony i'm asking about numbers persuasion but i think we did personally through the credible testimony americano through the death of his codefendant who fled to criminal case the drug case through the fact that he there is a military bunker that set up for the ported veterans in the in mexico that the government itself brought up during the course of the i js are during the course of the hearings at the r s a zero eight three line seventeen three eighteen what's the purpose or need for deported veterans punker in mexico unless there's a pretty big risk that military affairs veterans are having trouble with cartels or criminal organizations who know that they have military expertise so i also think the government's own state department report along with the many other international i supposed to point to data showing that nine hundred people were murdered in the city of chicago last week how risky does that make it to live in the city of chicago is it depends on how does it mean that anybody has it more than fifty percent risk of being murdered in chicago you know it depends on who you are and where you live and where those crimes occurred in this case my coach who lives in one of the poorest areas of chicago what is your risk of being murdered depends on its negligible you can take nine hundred and divide it by the population all right so let's suppose this record shows that nine hundred drug dealers were murdered in mexico yes how risky does that make it to live in mexico we need to know the denominator what does the record show about the  i don't think there's a way it can be done the way your honor wants to in this context i don't think human rights are based on mathematical form statute and the regulations say more likely than not right that's a greater than fifty percent probability and you say that's the right standard well the how do you form a fraction without having a numerator and denominator but i don't think it's a mathematical formula though i think it's as any trying a fact they just have to hear the evidence credible evidence testimony you have to see credible evidence the murder of  credible evidence the government's own state department reports which say that the violence is rampant they warn us citizens not to go to those places all that adds up to more than more likely than not it's not like nine hundred i mean how many military veterans go back every year versus how many get killed i don't think that's the proper form form that i don't think it's a mathematical formula to decide if someone's life is at risk and they're going to be in danger of being tortured or killed and i'd like to reserve the last fifty seven seconds  that argument however is nowhere in his brief stop in or even the opening brief and therefore it's been waived instead to present one and only one exhausted argument he argues the agency held in to a heightened burden of proof for  concedes that the agency applied the correct substantial risk standard but argues that the agency misunderstood this standard for one reason or another he fails to set forth a basis for this argument although the regulations state that no person may be removed to a country where is more likely than not that such person will be subject to torture this court has held that the proper inquiries whether there is or is not a substantial risk that we counsel we did not hold the regulation invalid the problem is the difficulty of attaching merrick figures right so as i understand those opinions the panels are trying to re estimate or provide a verbal formula instead of  have used the more likely than not formulation as your honor is indicating it's simply another explanation of the formulation which is set forth in the regulations my point was merely to say that even though the regulations use the words more likely than not  has explained that what that means is a substantial risk not invalidating the regulation but simply providing an explanation that's more manageable for judicial purposes in this case both the immigration judge and the board applied the proper standard helpful ok so this court has fleshed out what they interpreted substantial risk to mean the immigration judge did not there is nothing in the record that shows that she and then seated how she interpreted substantial risk which i would argue then makes it unclear whether if they're not going to use if the if the court if the immigration judge is not going to use the regulation terminology of more likely than not incur and use substantial risk they have an affirmative duty to explain and put in context what they meant by substantial risk otherwise it just moves on and on into jurisprudence where then substantial risk could actually mean what it actually means which is a much higher standard then more likely than not substantial risk