the petitioner mr del seed faces torture and death in el salvador this results from the board full heartedly adopting the immigration judges flawed russia now president you know says there's no jurisdiction here he's been the boy i think that the court does have jurisdiction in that matter isn't moot i do believe that the court does have jurisdiction in this case as both the petitioner and respond in agree but you can't confer jurisdiction on a court by agreeing either we have had a we do not have it at that's correct your honor i would draw the to the court's attention to the modern otto case in which the court found that there was jurisdiction despite  majority thought that was well i think that modern otto is distinct from this particular case your honor for the reason that it's not necessarily that he was back in the country that brought it back to life i think the concern in the  case was that he hadn't been in touch with his with his attorney for years they had no idea whether if he would prevail that it would have any impact on him at all whereas here the petitioner is in hiding waiting to return to the united states of the refrigerator that is not in the united states i do think so what are the collateral consequences and given that he's outside of the united states hours as we should look at the collateral consequences of th situation where cad is granted the removal order itself would be different the removal order would have a provision stating what countries removal can't can't be completed to hear he's been denied that opportunity to have such an order or denied the opportunity to be relocated to a third safe country perhaps at the other distinction i think prevent him from moving on his own right now is there well other than other than that there's law as you know in all these other countries where is the united states would be able to secure permission for him to go in relocate to these places safely where reason for us to think the u s government could get permission better than he could himself if he simply decided to move to pick a country i believe the answer yes he's been convicted of an aggravated felony he's been deported from the united states these are all things that he would have to disclose on his immigration application to any country in the world i don't know right now he is in a different country and the only thing pending before  is that the nihil of the deferral is done cat and so we have to say does that denial alone have a collateral consequence for him now and i'm having trouble understanding what the collateral consequences now the other i would argue that the collateral consequences respect larry that the collateral consequences that the united states government could parole him back into the united states and secure a safe third country for him to live in that they could do that now right under their humanitarians that has nothing to do with the denial of the cap there's nothing in the in the statute or the regulations that links them right there's nothing in the law that would compel them to do that whatsoever whereas if there was a removal order against him  ring his removal to el salvador the u s government would love to take that that and into account the other collateral consequence i believe here is that he could potentially be eligible for for other arms of relief were as in cower i believe that there was no weather forms of relief available to that particular individual blank hour they said you couldn't have a waiver of civility but i understand that you can't have a waiver in this case either because of the multiple murders i believe that the two twelve h waiver would be possible in this particular case the only reason it wasn't before the immigration court was because he was placed in essentially convention against torture only proceedings which is different than a full full remove all proceedings are the the other distinction i would say and coming back to the modern art of dissent i think that the primary concern there was is that if relief was granted nothing could be done for this particular individual because everyone had still able to present himself at the border and seek to for all of removal i don't see the distinction between the two because the whether he's in the country or whether he's present at the border it's going to be factually very similar in how they're going to be treated in their ability to seek deferral of removal under the convention against torture did he leave voluntarily he didn't leave voluntarily he was forcefully deported the petitioner asked for stay after stay from this court and the standard for the stay essentially said look what's the harm you're going to go back to el salvador and if you prevail on your petition for review you're going to come back if you take a look at the coward decision i don't believe that it interpreted the law or analyzed the law in its completeness which essentially the system set up by congress under our ira and the real i d act is this you can seek a petition for review you can be deported removed to the country of removal when the administrative order is final by the board but if you prevail you can come back and the government has been implementing that exact standard they argue in their own papers that that's most likely what would happen if you prevailed here that he would be paroled back in and absent this court granting this petition for review if the court grants the petition for review i believe and i think the government is also of the understanding that they would parole him back into the united states so the distinction between this case a he voluntarily agreed to be deported is that how you draw the line here i would say yes i would say that that it dept that's definitely one one part of it are you hoping never talk about the merits well i'd like to but i'd like to reserve some time for rebuttal also your option just briefly i see that there's three major legal errors in this case and you know even if you take a look at the government's or the respondents brief they don't talk about the standard of you review when it comes to the law they adopted the judge's decision the judge basically said ok if there's no statistics if there's no medical it proof equal to modern day medical  diagnosis that he's going to be tortured fifty one percent above he can never win on the convention against torture claims and i just can't cannot be the standard there was an expert witness who basically testified that he will most certainly be tortured not only by the government but also by groups that the government just simply cannot control what has he has tattoos on his body no it's a combination of factors his his religious beliefs which he had put into practice while he was in prison in addition to the threats made specifically against him this is not about just people with tattoos and it's not about former gang members in general it's about this particular individual and all of his factors combined and the judge says look this is this  failure to control it is just simply dicta and he didn't follow it which is just not which is not the standard if there's a group that the government cannot control i believe that they need to meet the burden in addition he's met the or hear from the attorney general or her representative good morning me please the court richard sanford you know we have the government turning to the jurisdictional question first we do recognize a few points that obviously we can't agree to confer jurisdiction on the court we do think th certainly if he prevails in this petition what does that have to do with it i mean that i've been failing to understand that because the a train general's discretion to parole a person in has nothing to do with our ruling on a differen of cack claim it has is purely discretionary well your honor in this in this case the i'm not sure i'm not so certain that it wouldn't be the t h s that my problem then but i couldn't i couldn't find whether or not they were going to do that or not obviously the they would look at the circumstances whether or not it worked in this case i think they believe that because of the nature of the offenses in this case that the removal was warranted and that there wasn't a valid basis for for granting the claim in the first place which is why the arguments that we made originally to this court regarding a stay motion and just a motion if the government thought parole was appropriate or presumably would not have opposed the motion to stay or move to lift the stay and that's the piece that concerns me with regard to jurisdiction because if in fact we would say that being removed because our court had denied a motion to stay would turn the motion to stay into a merits proceeding every time which is not how we've approached it what's the government's position with regard to whether we should deal with the underlying merits every time we take up the stay motion well your honor we think that the is that there is that is there a regulation that says that or you just say they would exercise their discretion to do adam what's the basis for that if he if he prevailed on the petition for review they would buy by this court's decision and and parole him back in pursuant to this court's  fairly arcane and i've read the sections multiple times to see how the g h s exactly goes about revoking if they decide for instance again another third country that they decide that he they can move into that he would not be removed there it's easier to revoke that under granted the furrow as opposed to grants of of withholding the other option and the other point regarding cars well as in car the alien voluntarily as had pointed out in our in our open group as well that the alien voluntarily withdrew his outpatient and consented to removal can you explain how that makes a difference i mean coward directs us to look at the collateral consequences of the particular denial issue so how how does it make a difference in our analysis when he withdraws his his application for relief he no longer wants to be have his removal removal deferred to to that place so that since it takes out any sort of crime when there were no longer weighing out the equities about whether or not the act was about whether or not the facts would compel a contrary result here petitioner still maintains that he wants to be have his removal deferred to el salvador  and so in this in that case we're still looking at the question of well if you do prevail would you and you were did have a rueful deferred where else would you end up going because again if you prevailed then it's a matter country had had moderated to this extent if this court had ruled against a government that they could move in there then they would seek to move in there again just to sort of the stand clearly so he's not eligible for parole back into the country now and it's going today i cannot guarantee that is their methods with certainty that they would say no i don't know about that when you have peace at the government so be useful to us if we deal with the gov its position is one way or the other well the like i said the da just were typically look at the facts the case and they would like the discretion to rule on that we rep we defend what the board immigration appeals ruled on here and obviously the the board in that case we believe made a correct decision but in terms of the actual mechanism for how that is there's an when the in the car case he was true his application or i would say we don't he didn't actually if you had replied and had that denied we might be able to way there that are closer in cower he withdrew his application didn't want to go back and never made any application that we know of to go back into the states here he contested that the entire time quickly turning to the merits of a fitness for a there are merits in there and tell us why the inability of the government to protect him doesn't give him a basis to claim can't really we are it's there was an interesting aspect to this case that i don't think you're going to see in a lot of cases the fact pattern here the immigration judge listened to the expert testimony four times at one point playing it in his car that's a record page two eighty four this represented and it intense review by the agency typically by the finder of fact it was an extension of it was a careful consideration of the case the immigration judge at all times queried counsel for both parties about the state of the law what they could do about it this is an inexact science this is not akin to the s s a grid that they use for analogies about defining someone whether or not they're injured or  have a disability this is an attempt to glean by trying to refactor as best they can and the bottom line is in this case like so many cases regional minds can differ is it a certainty that every immigration judge will look at this case and then i know there are probably immigration judges out there that might have granted it we think though under the court's standard of review that does the record compel the conclusion that any other trier of fact would come to the opposite conclusion that  past of torture is harm occurring to her here we're all looking prospectively role looking forward we're trying to engage in this inexact science and that the the efforts by the agency we think weren't particularly your honors with regard to the jurisdiction issue i would say this when a petition for review is upheld it's always restored the particular petitioner back to the status that existed prior to the implementation or final the removal order a lawful permanent resident is restored to a lawful permanent resident once a motion to reopen is granted individuals are often brought back to the united states and there are a lot to pursue the exact relief that that they were had in front of them and put precisely back in time where they were before the removal order with regard to the merits i don't believe it's only a factual analysis here that that was wrong the judge clearly states that he's not going to find that if a group cannot be controlled that that does not that that it is not going to be enough to meet the convention against torture if there is even a good intention by the government to control the group that simply enough to deny under the law he recall is requiring an evidentiary standard have modern medical diagnosis and that's his own analogy that he uses he says that when you go to the doctor they're able to do all you know analytics research diagnostic tests and come up with a very high degree of certainty with regard to these modern mechanisms whether an individual is essentially going to be tortured or not and that just doesn't exist he's requiring statistics and details that