under the convention against torture even rebutted evidence before both in the immigration court established that it's more likely than not that mr manning will be killed if he's returned to jamaica to be a a's conclusion to the contrary petition because mr manning was not ordered removed on the basis of his prior guilty pleas several circuits have decided that for you question that's right that's correct your honor a number of circuits have decided that question exactly that but it was not necessary to the court's conclusion and again in this case mr manning was not ordered removed on the basis of his of his conviction i mean the judge low you took a different view concurrence in a footnote i think when was it two thousand and fifteen you're familiar with that one i think church abuse view your honor i think was was expressed your right in a concurrence in a case that actually i don't believe addressed the specific question before the court here which is whether an alien in this case who is not charged is removable on the basis of his convictions in which the immigration court did not consider his can his convictions in connection with the decision on remove ability and it wasn't part of the final order of remov and fifty two a to see basically required remove ability to refer to an order removal being issued or just that the alien was in fact removable because he met the  that is that is true your honor but i again there was a it was an it was inconsistent i think with the with the decisions of the other circuits and we get in addition to that it was also inconsistent with your honor respectfully i believe the terms of the statute and also the principles of statutory construction that had informed the other circuits that have considered this question why the terms of the statute statutes talks about the alien being removeable through that it's right it's as a final i'm not commit a serious felony and get convicted and my removable i think you're subject to being found removable your honor and that under the i and i think this is the th circuit's th circuit articulated this i think concisely removal is referring to the order or removal or whether it's for referring to the the alien that's right that is that is the distinction your honor and i guess what i would say is that even if they're worse and then to get on this question i think all of the canons of statutory interpretation is removable by reason of and then it lists the statutes that would be the basis for him being deported or removed that's director sullivan that is what the statute says here and other there are other provisions however that numerous reasons in addition to the reasons on the face of the statute why that's the appropriate reading of the statute one of them is the presumption in favor of judicial review of administrative actions but but another which goes to that point your honor is that there would be serious due process concerns here if that would flow from a contrary ruling in the sense that it would prevent an alien from an op with a prevented alien from being able to challenge his or her remove ability or the basis of his or her remove ability before the fact finding court client proved demonstrated that he's more likely than not to be tortured right and making two points your honor one of which is that substantial evidence does not support the immigration judges determination on this and it's a factual determination but in addition to that and separately from that as we articulated in our brief the immigration judge here erred as a matter of law by not properly considering all of the evidence here that strongly supported the conclusion that mr manning will be killed if he's returned among other things the immigration judge didn't seriously consider the affidavit of professor harriet who concluded specifically that mr menees life would be at risk if you return to jamaica that the court did reference professor harriet's affidavit but only in the context of government precedents the appropriate appropriate appropriate review by immigration courts and by the congress which right against a gang leader in her notorious case in jamaica right everyone knew about it that's correct your honor it was well risk in prison in the u s and u s protective custody but but your honor the risk that he faces in the u s and this i think is evident in the record from the comments that he received from other jamaicans in ice custody  the risk that he would face would be risk at the hands of other jamaican gang members it's the same risk that he would face when he returned to jamaica and more fundamentally again your honour's the court the immigration court did not consider the import of island that's correct your honor that was an error both legal error and also an error because it was not a decision that was supported by substantial evidence but i mean why i mean to the it's a country of three million people it's twice the size of delaware it's it's i mean if it were a state it would be i think thirty six in terms of population it's a pretty big place it is a big place and if i may i understand my time's up but i'd like to try to answer  can if i can point out again that this is an error both an error of the law and a factual error and it's an error of law because the immigration judge put the burden on mr manning to establish that he was not able to relocate that's inconsistent with the terms of the relevant regulation as the th circuit held and not in all the nado in bank it's a legal error in which the court applied the burden or an improperly but separate in aside from that the court also just didn't consider  fact because the i j found him to be credible has to be credited your honor i think if the i g if the i g found him to be credible the i g needs to explain why she did not credit that aspect of this testimony that aspect of his testimony is is the ultimate issue right that's the conclusion as to whether or not he faces torture i think the conclusion on which he testified is whether his wife would be at risk if you were outside of the confines of jamaica which his so his belief is entitled to be credited as a fact again i think your honor the issue is that the immigration court needs to explain why she didn't credit it and again i don't think you can procreate lior sufficiently again i think part of this there are two levels of which this question operates one is whether the immigration judge was factually right or wrong in her case and conclusion but the other is whether she is a matter of process explain thank your honor may please the court i'm scott stewart on behalf of the attorney general in this case the board of immigration appeals upheld the immigration judges fact driven denial of protection under the convention against torture however this court analyzes this case petitioner cannot prevail i'd like to make sure to cover both the jurisdiction and the merits in the time i have your honor st taking up some jurisdictional points your honor there is there is a division of authority on this on the question of jurisdiction here i think the best view the view most consistent with section twelve  been ordered removed by this reason that's not the language used i think the best reading of that text is the one adopted by those those two circuits and i think here your honor we have a we have the situation where it's not like we're asking this court to how do you respond to the process argument in really address that to challenge that determination i'd say that to the extent that that may be president some cases it's not going to be present in other cases you're on and i think this one is is a reasonable example it's it's one thing for example you can see different things on a spectrum one would be we can't decide that in some cases will have jurisdiction in other cases we depending on the particular you launched the argument i think what i'm saying you're on the court will be able to assess one way or another you know is somebody removable on this basi it's just we have some bad facts in the record but we don't have a conviction and we don't know what that conviction would mean the court may not know that he is removable for a covered basis here however we have a situation where this petitioner pleaded guilty to nd degree delroy edwards foot in a club and delroy ordered me to shoot him in the parking lot outside it i don't think there's it's contested in this case that this terrible offense which qualifies as an aggravated felony so i don't think this gets to maybe some harder questions about where the court would potentially have to dig deeper as to whether somebody from move on so that's why i think my best response on that your honor those are i think the key points i want to make sure to hit on on on jurisdiction your honour's and i want to make sure i also hit a few fact points because because the colloquy my friend went went deeply into some of those i think some of the disputes that are really kind of been raised here on these factual points are the nephew  harry harriet expert declaration the protective custody issue the burden on relocation and how do we treat a finding of credibility as to as to future events and i want to make sure to hit all of those your honor as to both i'd st point out your honor that there was a lot of evidence in this case in the i j in this case heard a good amount of testimony and was attentive at page sixty two the the i j a flatly says in considering my decision i have considered the testimony of the respondent in exhibits one die within a month maybe two weeks these are just conclusory assertions there's not a clear basis for it there are in this record a lot of sweeping statements that purport to predict or decree so to speak what what is going to happen in the future and they just don't give the bear the weight that that my my friend places on them i think a similar point here can be made with the expert declaration the area declaration your honor again this is a five page declaration it appears at pages five and forty of the record only the last three of those pages really gets into the analysis of the issues here and when it comes to petitioners actual situations the conclusions are quite modest and the analysis is quite terse i mean the key language i think on the conclusion this is page five hundred and thirty eight the immigration judge says my apologies professor harriet says that he believes that were mr manning to be removed to jamaica his wife would be his life would be put at risk we don't know the quantity of that risk later in the declaration he again just says his life would be put at risk the immigration judge needs to look at all of these facts and say ok look as the immigration judge reason through i'm looking at all the facts he left jamaica thirty years ago he testified over two decades ago i don't i'm not seeing a situation where he can't relocate he says he won't judge said on i believe it's page sixty six he says he's not going to go back to his old neighborhood so he doesn't run into the same people the immigration judge also point out look this is a gang that its numbers are diminished the petitioner isn't even sure if it still exists as a gang it's not clear that other gangs are going to go after him the the posse was confined to his local neighborhood area presence keep him in protective custody for twenty eight years if he was not in danger you want it was a different kind of danger it wasn't danger with respect to to jamaica that was for those who testified against a gang member organized crime or something he points out john gotti as an example so on a couple pages later i believe the i g addressed this the i g understood it and i think correctly understood that this didn't really go to his problem in jamaica and what he would face due to his past associations with this gang who say that on what basis do i say that your honor that had nothing to do with his problems in jamaica is that in the record i have put into anything in the go farther than to say look you just said it had nothing to do with jamaica and i was wondering if you had any evidence in the record that you could point as to that would allow us to conclude as you do that he was in protective custody because  nothing to do with jamaica maybe i can reframe a little bit better because i think you thank you thank your honour's that there is nothing in the i have not seen anything in the record that does a stab wish that it has nothing to do in jamaica and i would say that the i g was in the best position to find the facts here and there and the record actions can come from jamaica to the prison system i wouldn't i wouldn't contest that your honor i i guess i would say that the record doesn't compel a conclusion that this discrete up a problem from jamaica but i do i do take your point and understand that your honor i would just say that the protective custody here thing at least so far as i read the record is they revisit it every six months for twenty eight years when he was in protective custody and every six months they made a decision that he needed it again your honor but i think it is just a really is reasonable explanation for that is that snitches in prison generally face big problems because they're their snitches and they're just not like report here talked about as i recall or before you run out of time it's wrong to address the burden question it does appear that the immigration judge determined that that or said that manning has not established that he could not relocate and that does suggest that the i j a was putting the burden on the petitioner to you know to prove the inability to relocate isn't that if that the page numbers the th circuit says that the statute does not place a burn in on an ample can to demonstrate that relocation is impossible and it did the actually here do that place t the on the applicant no your honor response on that st i think if the i j a had decided the soley on the location he wouldn't have gone in we needed to go into these other issues in just a couple pages down from the statement that that my friend highlights your honor  the the court said look this is i think the holistic kind of reasonableness conclusion you know although we understand we know the i g understands that his extensive his extended family  the critical language responder has not had any contact with his family for at least seven or eight years that are there and there is no reason why he could not go back to jamaica and relocate to another part of the country without contacting his family or placing anyone on notice i think that's a reasonable distance germination your honor and again it's analyzing the context of other features the passage of time and just the status of the rankers gang that many are in prison or just no longer around as even petitioners evidence reflects and i think that all goes to show that this was not an error of law your honor these were reasonable factual couple of quick points one thing i want to really emphasize here is that there are two there are two reasons fundamental reasons here why the court should vacate and remand the b i is ordered the st is that it was not supported by substantial evidence but the nd is that there were errors of law in the way in which the immigration judge considered the record here it's not enough to say in a blanket sort of way the way my friend here suggested that i've considered all of the evidence and then rea a decision that doesn't specifically acknowledge and address important pieces of evidence that would that would require a different conclusion and one of those key pieces of evidence is as your as your honor noted that the government did testified against i think i think on the on the snitch or informant point i agree that a reason why he was in protective custody was that he was an informant against words but professor harry a professor here its report specifically says that that same fact why his life would be in danger if you were to return to jamaica that there is within jamaican posses a code that in force that requires silence among policy members and that punishes posse mummers with death if they violate that code inside the differences in  prison people presumably know who you are where if you're relocated to a country that you haven't been in in thirty years you might be able to be absorbed anonymously i think your honor here the testimony in the record here suggests that he could not be absorbed anonymously and again i don't think the court properly insufficiently considered the question of whether he could in part because i think she put the burden on him to establish that he could relocate outside of jamaica but beyond that again i don't think that she properly considered all of the evidence in the record here and explain why i things like professor harriet's affidavit the nephew's affidavit other things don't require a different conclusion the exact same errors that another panel of this court relied on in hamilton looking to well established circuit precedent in which it vacated and remanded a very very similar order against another jamaican who was in a very similar situation and last year are seventy further questions very good argument thank you