thank you both counsel for really well what is the argument take the matter under advisement recall the last case of today which is kaplan the attorney general number zero eight at what the was done here it looks as if what the b ira was doing is they're not trying to interfere with the facts but they're m forty three a one that's right and that and that's exactly the situation but you're at it how did it differ from this case it is fundamentally different while new challenge said that you can that it's not a necessary legal element and you can look to but the sentencing determinations here the sentencing determination on the one count to which mr kaplan into to guilty plea the sensing determinations contain no determination of law no determination of loss the district court doesn't make a finding with respect to you had a possibility of two different has you could take one that was helpful one that was harmful and it wasn't but that's really different from but here i think we have a fundamental legal error on the part of the the board of immigration appeals because as i say the government concedes you don't have to in order to have a conviction don't have to establish any laws so the government makes the funding i think the elementary or i'm saying that because mr kaplan pled guilty of necessity admitted the loss would have helped me with something please mr mosley mr kaplan pleaded guilty securities fraud that's right and the criminal information that was filed in that matter states that investors paid kaplan and his accomplices approximately nine hundred thousand dollars words to that it is now it does not and would permit allegations in the criminal information to constitute particular circumstances where it would it would judge smith i submit if establish guilt here my question to you is when he pleaded guilty to information that he reserve any fact in the information and say i'm not pleading guilty to that particular fact we don't know that  he certainly was objected to in terms of being legally dispositive because at that time we were arguing that this had to be a necessary legal element of the offense just just add on the court said do you realize that i could give you a fine up to two million sentencing but and certainly all the case the cases for example he cited page nineteen of our brief our opening brief and then miller and all make clear that the government the government doesn't have to it isn't necessary  it to establish any particular law so that for example i don't think you could use his guilty plea as president carter clatter alist aapl assuming there was some shareholder suit down the road in the cases that we cite deal similarly where there are pleas to tax a discretionary designation of a particular serious crime when the a g determines that the length of the sentence imposed which was slightly under five years that the alien has been convicted of appear to be serious crimes how do we get around was not a particularly serious crime and the government in point absolutely raised absolutely no francesca's all obviously also been superseded by the statute but what happened in this case and what makes what i think is the fundamental error with respect to that aspect of the case is that the government is the government made no i made made no such argument i made no such argument before the immigration judge raised the issue only for the first time on a serious crime and aside from everything that occurred throughout the lengthy process at various levels and back and forth in this case so what is your argument that that a particular serious particularly serious crime is not the kind of i would say very large sophisticated fraud that occurred here but rather what but limited to drug crimes and violent crime well what i'm saying is the president up to that point specifically limited and specifically  general's construction then a particularly serious crime well what is what two things are unreasonable first subst of leaders are really both procedurally there's no explanation of why it departs from the precedent that that it was excuse me the precedent that that was limited in such a way and secondly say limited in only that language doesn't appear in those cases does if they that they were in those cases there were violence or other characteristics of the sort you argue but i don't recall any of those decisions holding it only because there's violence and we so categorize that that's that's that's true much judgment show but the on again on withholding the the central problem here it is that we were never given the opportunity to put in any kind of rebuttal evidence with respect to this because the government never objected never argued before the immigration judge in the original hearing in april whatsoever before the immigration court that it was our last day you're arguing wave i am arguing first waiver and then secondly due process lack of opportunity to be heard to put on this because this was raised for the first time on is that what you are immigration appeals scuse me  all the time and that's what the morning but the board is not a district court in the board's powers come from regulations and the regulations are very expansive about their ability to review de novo anything except a fact finding and when you read the whole language it looks to me like it has to be a historical fact not a predictive fact well two things that if i if i call that all the examples you give about district court quite true but quite a row now but the regulations the regulations board did as i read their opinion is to say notwithstanding all those facts as being what we have to accept the conclusion from those facts that there is a high likelihood that he will be discriminatorily and intentionally tortured by the government in the ukraine just isn't a reasonable deduction to draw from those admitted facts but that but that factual conclusion was for the immigration judge to day no but he did and i think in that regard the boards the board says it's a judgment call and the regs pacifically call out judgment calls is something subject to the novo board review but that but the but the right well they say judgment but they talking about a person you're talking about testimony by an expert that is subject to how much the rubric of application of law to stated facts only to find in this situation we don't have an issue as to whether what faces m kaplan is torture or not we're not talking about merely bad conditions in a prison the examples of torture through extortion that the expert witness gave with someone having his teeth pulled out until he agreed to the governor's record by private or by the government by by members of the ukrainian security forces acting in in that same way and that's and that actually for the government are acting as rove well acting acting exercising their power as part of the government we don't have an issue about whether what happens is torture we have an issue about whether torture will happen and and in that regard but doesn't it have to be tortures caused or sanctioned by the governor or with the acquiescence of the government and that's specifically what the expert specifically what the expert and that's not how and the board didn't decide the saying this is not going to be this is not going to fall within how we define torture the board said the boards that we view this not as a factual issue and therefore we look at it our way and we don't think there's enough and i submit that's contrary to the to the regulations ok thank you but if you're back in rebuttal mr plow case blow your honor but i'm not saying you did oh i'm sorry not say i did i don't know the answer that question i believe that that might nip this case in the but it would certainly be helpful but i don't think it's needed here based on the supreme court's decision want because there they said it doesn't matter whether he admits it or not we don't need additional information of the last amount it's merely a qualifier and the in from the information in the criminal information is sufficient if an rebut it by the uses make out clearly convincing evidence and in fact this court in monroe look slowly to a criminal information and said the alien never rebut that figure there's no indication anywhere in the criminal record that the to or what he reserved for what he said well your honor as a supreme court noted there were two at least two chances in every case for the alien to state his position on the losses versus in the criminal case and there's also since  thousand there is simply no rebuttal whatsoever by the aliens case regarding the last amount in those circumstances the information is sufficient yes i agree the plea carla he would have been superior because there is there is an admission of sorts there but here you have the information and it's just myth no two we have three references in the sentencing information report rather that the last was at least seven hundred thousand dollars that's for a new but it's instances of the last amount of it quite in question here not that not controversy over just how reliable the who to the ring concept is surely you would concede that it would be good practice to introduce more than just information that would be good practice to introduce transco have no argument with us or but here i believe under me when this case was first brief the it was an issue about need be the last amount be an element of the crime that's over with now with me john i think that case went for even further in falls under all other issues the board said it right here your honor is the decision that there's a it's a question of judgment and application of the legal standard first those are the two so it's a mixed question of law and fact and a matter of junk past or historical facts here that what happened if you will is nothing happened to mr kaplan because he wasn't in the ukraine the the what happened here is the current state of affairs in the ukraine and that's what y protection the concern that you have if you're writing such an opinion is that you don't want to have something imply that a disagreement with an outcome a b o h disagreement with the outcome that the i j a came to be couched in judgment and therefore unable to know review when in fact it's nothing more than in overturning the facts and my question to you is how do we go about doing that how do you write an opinion in such a way that we make it clear that you can't have a subterfuge by calling it judgment when in fact it's really facts i think there's already decisions out there that say the board can't just give lip service of the correct and it has to apply it as well here if you may recall your honor the board reversed the cat the torture determination and the case was remanded back to them to clarify exactly what they did here that's what matter of v k the publish president decision does here and there the board was very clear they said facts predictive types of facts are based on  the past and in that sense it's more in the realm of facts then judgments or discretion or legal analysis or construing statute that's not are well out is that we disagree i believe when you're determining a cat claim it's not just what might happen in the future it's also what might happen if that's if the treatment that might happen rises the level of torture if that treatment is carried out by the government or with the government acquiesce here so it is those are just several specific dimensions of a predictive inference but it still seems like it's a prediction that's heavily factual in nature because it's based on fact future predictions and say those are clearly erroneous they haven't happened they may never happen there's no way to know that now and that's exactly those things should but there is if if if the government had eight witnesses that blew away this former k g b agent  this would be a very different case that is as i recall there was no contrary evidence at all the only evidence about the likelihood of torture properly define was the evidence presented by the expert for cat that's correct your honor and had there been such testimony that those parts of both sides of the testimony that related to current conditions the what happened that would be some pretty clearly erroneous review those parts of the testimony on both sides would be subject to denote a review as far as predicting what might happen to this particular individual in the future and had had we did had testimony on both sides about current conditions in the ukraine then the immigration judge i agree there is no contrary evidence about the current state of affairs in ukraine in this case only the expert for mr kaplan testified here however that does not bind the board to accepting his predictions about what might happen to mr cap in the future who might be carrying that out and whether that would constitute torture under the convention against torture legal requirements so i think i mean the board can disagree with  interpretation of his record i would submit that that the attorney general's guidance on how the regs should be interpreted as well as the board's published interpretation here is subject of deference i believe should be controlling absent a clear error or or even question that is the question is how does this role play out let's say for example that the i j a says that based on the evidence that is before me testimony of people within the will in this case the part a particular count in ukraine based on people who have talked with the security forces that if this individual comes back he will be taken into custody wow in at common law with common law evidence principles and then post for ease we admit all kinds of expert opinion events which is inherently predictive and which is regarded as factual and those facts are determined one way or another by a finder of fact by jury most of the time or much of the time right there sir so what is different in this case is that this is what the reg calls it may in fact applying traditional evidentiary principles be more in the nature of a factual determination but that's of no import here i agree what the regulation yes that's what's controlling here and that's why precedents regarding how this court views the board's findings or or other contexts you just mentioned are not contravene trolling here because the a g wanted something different for immigration cases and he spelled it out in the regulation pretty clearly he gave guidance on it and the board has just interpreted it and it's all i believe can fix logically consistent so for the purposes of bit of the board's review of immigration judges decision things that this court is used to seeing call fact questions and other contacts are not because they've been spelled out under a different scheme by the attorney general and that's that's really the key here understands let me let me ask you about the second sentence in the attorney general's interpretive commentary  illuminates the intended meaning of of the regulations that the sentence that i'm focused on read the immigration judges determination of whether these facts demonstrate harm that rises to the level of quote persecution end quote and whether the harm inflicted was quote on account of and quote a protected ground or questions that will not be limited by the clearly erroneous standard now one way to read that sentence is if it's a question of defining what the word torture in the law means that would be treated as de novo because that's substantially a legal issue like classical statutory interpretation  and the same thing with phrases like persecution and on account of but i didn't see here that there was any issue of construing the scope of the of the these terms in the law it looked to me that the the issue being addressed here was essentially not whether it would be torture but what does agree of likelihood was i think we all agree we all would have to accept the idea that a crummy jail doesn't constitute torture so even if it's certain he's going to be put in jail that isn't enough but there was testimony i think on rebutted that he would not only be put in jail but that in jail he would be deliberately tortured by agents of the ukrainian government because of his religious affiliation and i don't see in their interpretation of legal words i see in there a purely quantitative issue about the degree of likelihood of what would plainly be torture so were am i wrong i don't believe your honour's characterize it means quite i wasn't it wasn't like a haitian case where they jail all corrupt police officer who seek to extort money from him there were many numerous ways he might end up detained and if so he said that that the conditions were so deplorable that if detained that would be torture he also did say as you no for torture and what those are facts those yesterday was a fax those are facts from which he may extrapolate it and opinion correct your own and you can extrapolate it one way or the other and they those those all the requests and those are plainly that where he might come in tension the police the judgment is how likely are any of those scenarios to occur if they do occur how likely is that mr kaplan would be singled out for torture there are legal routes under the rules and under common law that it's principles for those jurisdictions that don't have codifications by which you could keep out of evidence an opinion that is predictive in the nature of the first and most obvious one would be that you have an expert who is an expert he cannot qualify that's a legal determination by the judge acting as gatekeep another would be that there have been certain facts that are predicates to the expression of an opinion those predicates do not provide an adequate foundation upon which the qualified expert may opine that's a legal determination that the opinion that is proffered is speculative in nature a word that is featured somewhere in the long history of this case in with least one of the b i is a junctures i believe with the case that's legal but that's not what we're dealing with here we're dealing with a a declaration by an administrative that para that an immigration judge is a very well suited to assessing testimony and evidence of what happened present condition he has no great advantage over the board in fact may be a disadvantage when it comes to  assessing matters of judgment or application of law a lot of fact that's something the board is possibly better suited for i'm not really arguing the merits of the board's decision i mean they've got just you cannot distinguish the merits of the board's decision versus the standard which they applied here i think it's the board very clearly laid out why we are applying the novo standard here because we're talking about predictive facts we part company with the predictive judgments made by the as we can know what we know we don't part company with his past findings of the current state of affairs and that's why we are going to differ with the i g here because of regulation says that from medicine just more discretion that's something that we can look at novo and there was no fact finding here and i would submit that if the interpretation urged by petitioners adopted that there will be very little that the board can review if you can't review things like this or  out in the regulation where this specialties of both bodies lie and he did not report to say how this court reviews or decisions or what this board considers to be questions of fact the law is it's very limited very specific and i think the a g s guidance and the immigration i'm sorry in the board's interpretation so in this regime it may look like a duck walks like a duck and quacks like a duck but we still can't call it a duck it's a mixed question of who are in fact it's not a fact yes or not i mean that can you can you state in a simple clear sentence exactly what the law component is in this case  to state clearly in one sentence exactly what the law component is of this decision the law component is whether the facts that the expert testified to satisfy the legal standards for protection or the convention against torture which involved does the treatment that he is that he's posey likely receive is that going to rise above torture is it going to be carried out by a government official or the or with the acquiescence of the government those are the legal standards for cat protection torture we all have our own idea what torture is but just because you testify that he's going to be tortured doesn't mean that he qualifies for cats protection your honor there's standards and there's a whole body of law as this court well knows on what constitutes torture for purposes of the convention against torture and i would add that it's not just questions of law it is most definitely but the regulation also talks about matters of judgment waiting whether whether he proved enough alosi meet the legal standard thank you very much act here on which are mostly as you're coming up mr most likely the obviously what we've been spending a great deal of time on is in effect going sixty seven of the code of federal regulations of fifty four eight ninety and the question then becomes you know obviously what happened to an individual is a fact that when determinations of are made as to what you think will happen should this person be removed when are they fact if at all and when are they predictions that can be questions of judgment that can be reviewed in nov by the b i with respect to that regulation i think the interpretation of the gov the interpretation urge here run's runs the risk of swallowing up the position with respect of fact by the by the infamous is on judgment and i think if you look and parse the attorney general's explanation he was clear in those areas where you would depart from considering something a factual determination and i think it significant whether you say express curious that he specifically exempted did not make any reference to a determination and it really is if it is a determination not as to whether it amounts to torture but will torture happen and that kind of determination will it happen was specifically exclude was was not mentioned was not considered by the attorney general we have one non presidential case by the circuit which deals with so many but how does it how do you get to the point i mean to to include one is to exclude all others determines that a prediction here is a fact that i'm missing something you know what what i what i'm saying here is that if the attorney what i'm saying here is that we deal as joe smith mention with a general thanks how much do we know from the range about what is contemplated by the term judgment in the the term judgement i think in these circumstances if you look at the immigration law background against which is rose talks about do you grant the kinds of forms of discretionary relief that the act imposes well see  cancellation of removal you you you make the determinations as to whether the whether weighing the good and the bad in the person's life you let him stay here that's what i that's i submit and that's the background against which this was specifically addressed this obvious you know that i mean that's why we're spending a lot of time into this as an important issue as to how we go about interpreting the regulation because in fact the regulations are really the be all and end all we get it this isn't where you you you engraft necessarily onto the immigration context what you would normally decide in a litigation context but if but the  purpose of these regulations i submit if you read the preamble i think it's reasonably clear is that the burden off the board of immigration appeals by road and make the system more efficient by recognising the factual finding powers of the of the immigration judge and in terms circumstances judge ambrose that it is a fact when in terms of normal federal court litigation against which this arose it would be it it would be considered it would certainly be considered a fact absent specific exclusion of that from the regulations which doesn't happen here ironically the government's position this case of the final part of their brief is to say given how the board is reweigh this we're subject to a substantial evidence review which is the kind of review you would have if prediction that if the no votes so we're not really into this no i would say if it if an expert bait and undisputed expert gives his opinion that this will happen the immigration judge who hears the testimony credits the expert makes the finding as the immigration judge here as a factual matter that this finding that torture is like her that i submit is a fact and in terms of the overall purpose of the regulation it's the kind of thing that should be subject only to a clear error review so the board could never upon review say we're looking at that ruling and in reading the record of all these same predicate facts upon which the expert opinion made this prediction expressed this opinion we conclude that it is speculative it is conjecture isn't that a determination of law and secondly could that be a matter of judgment i don't know i want to judge just that i would submit not i would says suggest that that just to call it speculative when you have an expert who's uncontradicted as to whom the government  do that that's a red herring contradiction has nothing to do with whether or not as a matter of law this is an opinion that can be expressed whether it's secular or not speak well if it is an opinion there was no challenge to the experts ability to express the opinion it was rationally explain and the immigration judge made in fact an ability in terms of of expert qualifications  ability in terms of foundation for actual credit nizer neither neither neither was neither the challenge or the governments of the government couldn't put on it's an expert in this case and that's why i think the supreme court well let me and there were some who later said courts b i it's accurate that they did not take his predictions of what would occur  as as being solidly based and so they disagreed with them now let's say this person puts in an affidavit that's the only evidence and there's no other evidence put in you're telling me that if the i j a then decides that that is a predictive fact that there's nothing to be i can't do a review with respect to it it would depend judge i submit the extent to which the government challenge the government raised a challenge a legal challenge as i think drugs mission to the person's qualifications that would be one thing but that's not the case and here we have a case that's come up where the immigration judge also made a finding that they don't even challenge they didn't challenge which is that his life and freedom the the withholding standard would be would be threatened because he's a jewish refugee being returned this court but we're through to answer a little bit further to your honor's question this  likely to be subject to a forced abortion or likely to in other words be persecuted upon return to china and the court held that the board's reversal of an immigration judge is finding in that regard easily live with under these circumstances by challenging the experts by submitting contrary evidence and pursuant to a regulatory scheme that was designed i submit to free the board of immigration appeals from the burden here and ultimately free t federal courts from that person i mean as a prank that me ask you the the question that was asked by judgment shelf historical facts we all agree are facts that can be found by the immigration judge what predictions as to what will occur of those facts or are they judgments i submit that those are facts i think because those are facts because you draw a factual conclusion  that this will likely happen based upon the events before and it's precisely the kind of factual determinations that again this court has recognized in other contexts will the merger reduce competition that's that is predicted to be sure it is an inference but it is it is an inference rule fact and there is nothing in the regulations that say factual conclusions based on expert opinions that something will happen in the future  are subject to today no one review i mean the attorney general has the power to and then the regulations to do that he's dissatisfied with the result but that's not the plain language i submit of the regulations ok thank you and i thank both of you for of really very well presented arguments this was in effect oral argument at its best because it became a discussion if there are this obviously isn't a footnote issue that would happen with and i would ask afterwards if you would  go to the clerk's office and have a transcript of this or argument prepared i also just don't know if we will do it but by way of just a heads up it's conceivable we may ask for some more briefing on this but