for rebuttal to find me yes thank you your honor is the facts of this case are not in dispute as my client was found credible by both the immigration judges who issued the opinions in the two immigration court it's the records show that nestor entered this country as a child terrible gang violence and no it's the record shows that he didn't suffer persecution and all salvador the record also shows that a massachusetts state court found that nestor has suffered abuse abandonment or neglect and that it's in his best interest not to be returned to o'sullivan in fact no one disputes the fact that nestor will likely be seriously harmed and possibly killed if he is to the only question here is whether the law allows the us government to still send them there despite his undisputed eligibility for relief from removal nesters eligibility is based on his status look the same department of homeland security or if you're already in remote proceedings with an immigration judge adjustment of status is an opportunity has to secure permanent resident status without leaving the united states generally if you have an approved immigrant visa petition and you're not eligible for adjustment of status for whatever reason you process your immigrant visa at u s consulate overseas and this is called consular processing case argued that s i j simply cannot console process because they lose their status when they leave the united states and it does make sense congress intended for these children to adjust their status in the united states and not go back to their home country where they have been neglected abused or banned this is why it allowed these children to apply for just one of status even if they entered the country illegally which is typically not what we're arguing we're asking this court to review two important legal errors that be a failure to apply the required legal standard when it was conducting its dunno what discretionary determination and the p i a s application of a wrong legal favorable factors such as family ties hardship length of residence in the united states it cetera will be considered as countervailing factors merited favorable exercise of administrative discretion or not may be considered but will be considered court is at least signaling that it is aware of the the necessary considerations it seems that in the decision they highlight it was what it found to be most important in terms of the way  in your honor the b i a and it's to paint decision did and restate some of the findings by the immigration judge the immigration judge did a very detailed twelve page analysis of all the positive factors versus the negative factors the basically restated some of the positive factors and then said the criminal history is so terrible that the positive factors do not weigh the negatives it did not analyze one of the most important elements that the iraq requires them to analyze hardship with the version i think of an answer to thompson's question when you say it did not analyze one of the factors so that the line between a challenge to the weighing of factors which can't succeed and the challenge on legal grounds to not applying the framework which candidates succeed is pretty easy to see i think with a little more difficult for me to see is what line you're asking us to draw you can see that if they're just challenging the weight given to a factor that's not good enough if you are just challenging the mix of factors that's not good enough you could see that they acknowledged the factors so then the question is are you or are you not conceding that if you are conceding that it cites to an alternative version of the argument would be even though it identified the right factors in this case it did not even engage with one of them not evidence but forward of that factor and that somehow legal error i think some of our present suggest in that direction but i don't know whether that's you are actually i would argue both your honor i would argue that the mere mentioning of some of the positive equities does not equal analyzing the heart so we would st of all we would say that parchin would not even considered there's no evidence that harsher was considered and number two no this is such an important factor this is the big elephant in the room that should have been considered and should have been analyzed that you know he should have done a better job in gauging in this analysis as you said especially since the immigration judge ordered relief even gratian judge analyzed everything and said i think weighing all the pros and cons i think that the criminal conduct is just you know sort way how would you describe considerations that were missed as far as the hearts of those concerned st of all the b i a found that nestor had had suffered persecution and how can you analyze hardship and mess that fact and not talk about the fact that  he specifically would be as the country conditions expert said vulnerable to being harmed or killed if he goes back because he reported on some m s thirteen members to the police how can you not even an art another important consideration how can you analyze hardship and miss the fact that you are deporting a special immigrant juvenile how can you ignore the state court's ruling has been better don't abuse or neglect it how can you ignore the court's ruling that it's not in petitioners interest to be returned and el salvador how can you not consider the fact that the department of homeland security your sister agency has already award where the ward did exactly what it was supposed to do in this case the board said the migration judge also correctly weight the trauma the respondent experience and duress and the fact that us yes had determined that it was not in the best interest to return to that country the war didn't here and lastly if i may there's another important consideration regarding hardship be i am conducting the discretionary analysis should have paid attention to the fact that to the specific nature of the discretionary determination all we're doing here all the immigration judge was doing here and the guy who was supposed to do here is decide whether nestor is eligible to take advantage of his special an immigrant juvenile status and get permanent residence without leaving the united states that's all what the discretionary analysis was about it does he need to go bat or can he get the status here and we're we're quite a bit over time but i would like to ask you a question about the nd point that you outlined at the beginning with respect to your assertion that the be i applied the wrong legal standard when it rejected certain findings of the  immigration judge and specifically if you could explain to me your argument with respect to its rejection or apparent rejection of the finding that he had rehabilitated himself since his last serious offense could you talk about that for a minute yes your honor thank you very much for the opportunity to talk about my nd point the judge did find complete rehabilitation what the its decision they said although the immigration judge found the respond it had begun to show rehabilitation at the time of the here and respondent only been recently released from prison so there are two arguments possible arguments here st of all that the b s a discredit immigration judges finding of rehabilitation and even though the judge said so we don't think so you can argue that yeah he didn't mean yeah actually meant to attribute less weight to the finding of rehabilitation ok even if you give him the benefit of the doubt the judge the immigration judge never found that the respondent ha show rehabilitation the i j a did not found find that the petition had gone to repair the relationship with his mother and sisters if the immigration judge did not find the petitioners participation had just  participating or have begun getting on the right track the judge found complete rehabilitation and because the yeah they found differently they were supposed to use the clear air standard which they did not do this is why we think it's illegal or so does the term rehabilitation itself constitute a fact or it or should we be focusing on the raw facts only the raw facts leading to that conclusion and i guess my question is is this a clear error standard or is it an application of some rule or principle to the facts where it's more of a sliding scale i take it you would say the finding of rehabilitation is is clearly a factual determination in the clearer standard applies is that right is this absolutely correct your honor this is a factual finding and he overturned that factual finding without using the proper standard other thank your honor in this petition there are two additional claims which are convention against torture and witness based p s g claim for asylum and we holding and let me start with can that be i made a finding that no one at the government time the police accused him as a suspected gang member nd time police you can ordered him thirty times why not trusting him police made one arrest but not others even that a pretended member was subsequently released now he's credible testimony is consistent with object of evidence the security forces in his country deliberately abandon their post they disappear when gangs are present the gangs are working in  argument of exhaustion issue as long as the b i made a finding and entertain the claim that should resolve the exhaustion issue now and there is a good cause why disclaim was not raised in his opening brief in two thousand and eleven now at that time the law in the start get of the exhaustion was not clear when the issue was addressed by the cia but not raised by the non citizen before the agency that question was settled in two thousand and thirteen for the st time so nine years why does it help you the law was clear in two thousand and eleven usually if the law is open enough to countenance that argument and someone does raise it in their reach we treated does not raise we don't say well we understand why  didn't raise it since he wouldn't automatically when it is that it's an open argument you can do it you're not making the argument that our president precluded the argument no i'm not making and i don't really understand why that explains the waiver why not considering that it's not or what's the phrase witnesses a witness who went to the police who openly went to the police to report the gang activities you don't think there's a potential question about that particularly of gang activity no your honor yes ok may please the court jonathan robbins here on behalf of the acting attorney general good morning to all of you this case is been around for a while the underlying petition for review from two thousand and eleven to two thousand and twelve was actually fully briefed and went all the way to oral argument but before decision was issued in that case several agency memorandum came down regarding the treatment of of the children who come to the united states and the government determined that it would be appropriate to remain in the case in an exercise of prosecutorial discretion to aleppo petitioner to see whether administrative closure proceedings would be appropriate for the court's reman order as well indicated that titian would have the opportunity to apply for to see whether a of status would be appropriate unfortunately since that time the petitioner engaged in some significant criminal activity unfortunately some of that activity was sometimes violent and so when he found himself before the board again in two thousand and seventeen the board is evident from their decision was not predisposed to a positive exercise discretion so because the opening arguments sort of presented in this order all address the most recent petition for review from two thousand and seventeen st and then moved to the prior f over a just applique adjustment of status applications and this board decision is a quintessential discretionary denial of that form of relief of the board weighed the favorable and negative factors in the case and did exactly what it was supposed to do it as argument i don't like the way he's saying that there was a factor highly developed in the record of march which had to do with the future persecution the person but suffer in the fact that they were given a special status and  of that was even the dress not that it was not weight that is his argument your honor but very often it's it's actually a bit of a stock argument in these cases because the law is so clear that there's no jurisdiction to review this type of finding what often happens  our cases say that obviously the question is how do you decide when a case isn't category a or category date unless you're saying that if if the agency doesn't even consider evidence that there isn't a factor that's not legal error which i don't understand you to be saying why don't you address be helpful to me if you could address in this case by the petitioner is wrong to say that given the nature of the evidence it was put forward of hardship on this the face of the beauties opinion it's not evident considered that evidence rather than simply didn't weigh it in the way that the petitioner wanted well because the test of the board's decision reveals that it actually was considering those factors when we're talking about hardship oh i'm sorry i thought you said that he was arguing that he didn't get that they didn't consider the hardship what he's saying is that there was substantial evidence put forward hardship that had to do with persecution special status as a juvenile and what would happen to him if he was returned and that none of that evidence was considered not that it was not weight that was not considered in the hardship because they mention only the harm that would be done due to criminal activity and el salvador with no indication they were grappling with his unique situation that's not a claim of a two way thing that's a failure to consider at all so if you could just address that aspect of this was with respect to the fact that it would be particularly dangerous for him given the level of crime and violence in that country now i'll agree with you that the board didn't write an exit jesus on the hardship in that regard but they are acknowledging his point that it's going to be dangerous for him to return to that country because i guess what i'm saying do you think that saying the level of crime violence is the same as consideration of the fact that he was at particular risk of persecution those are not i don't well he the board use the specific terminology particularly dangerous to me that's an indication that they were talking about the specific danger to him and not just some sort of general dangerousness and i would also point out that the way the petitioner raise this was he's sort of suggesting a broader notion that they aren't considering the specific hardship to him but when we're talking about hardship a lot of the factors that petitioner was raising are intertwined with hardship so for example when they talk about his family ties to the country yes they may not explicitly be using the word hardship but the fact that you're going to be removed and you have ties to the country is implicit hardship so i think what the petitioner is attempting to do is mischaracterize the board's decision because it's language maybe wasn't as precise as it could have been is that there's a difference between your family's going to miss you and i'm going to be killed when i go home will again i would point to the board's decision which specifically talks that it will be particularly dangerous for him to return or the board talked about a number of factors and i would also point out that the board factors that is the it's the nd part of that that just worries me that they didn't come up at this point because this is particular to just have those as given the level of crime and violence there the worry is just that they're not facing up to the issue and didn't consider the fact that it's not just he's worried about the general level of violence there but that he's worried about the fact that he is a marked person well that's certainly his claim but that sort of relates to the denial of particular dangerousness to the petitioner to me that suggests that what that says is that they're considering the that he could potentially face harm in the home country and of course with respect to the individual us harm that he has to show that was addressed in the proprietor petition for review when they specifically looked at his the individual his term that he would face for asylum of the holding of removal so i think what i would also point out that if you look at what the board's decision doesn't this six the the i j finding of rehabilitation that the b i a appears to have rejected can you explain why that that is ok under the clearly erroneous standard yes the board was not making a new finding of fact there they said they acknowledge what the immigration judge found that he'd begun to show rehabilitation but that he had only been recently the other side says he th a found rehabilitation they describe it as complete rehabilitation is that the distinction were i mean i don't see anywhere in the decision where they were he specifically talked about complete rehabilitation i think the parsing the language a bit finally between the the what the board is doing here the problem with the board had is that the rehabilitation was recent that is not a different finding that with the i g found in fact the i g expressly noted that the rehabilitation was very close proximity to having released from prison so what the board is doing here is affording different weight to the meaning of of the of those small amount of time of rehabilitation i don't think that they're saying that there wasn't rehabilitation that to me i think is maybe parsing the board decision to a point where anything you know factor but but your opponent argues that it was a finding of fact that he was rehabilitated and the board did not overturn that finding affected acknowledge that the immigration judge had found that he'd begun to because they move on in right next to say that that he'd only recently been released from prison and so what they're really focusing on there is the proximity of time again so that means they rejected the finding that he was rehabilitated no i don't know where in the board's decision to say he's not rehabilitated what they say is that only a very recent phenomenon from when he's being released from prison so if the board does not say or or say we're overturning the immigration judges finding  rehabilitate i don't think that they're saying that that's not a complete rehabilitation i think they're just trying to accurately restate what the immigration judge said i mean i think it's parsing their language to a point where i don't think the board i think the board foresaw that that was going to be some sort of finding that they're overturning the factual findings of the immigration judge i think that's a bit of a stretch from the from what the board's decision is doing here and i want to emphasize what the board did here is entirely appropriate i mean it is absolutely into the board is absolutely entitled to look at this case and say we think the significant criminal history in this case outweighs the favorable factors here we have that you know that you know that's not what we're asking for secure their legal air and the question is if in the course of doing that assessment they made legal errors then there are only but i would also point your on to the fact that this was a three member panel of the board not the normal single member they were giving extra attention to this case i mean the board is entitle to a presumption of regularity that they're considering the case i mean they have to have read the immigration judge decision talks about the surge a status that talks about all these different different issues so it's not as though the board was somehow unaware of these issues and i don't think this is a failure to consider i think this is maybe a failure  state specific reasons but the law has never required that the board's pacifically state every single point that's being made what is appropriate is that they consider the entire the case and show demonstrate that they fully grasp what the claim is and i think this decision is sufficient to show that that's what they did see i'm running low on time your honor was asked about the specific cat claim first of all that issue was should be deemed waived as your honor alluded to as r alluded to in the opening presentation petitioner is not arguing that he was precluded from making this argument is arguing that a case came out that if we chose to excuse the waiver what's the prejudiced doing well i mean it's very late in the game i mean we're talking many years this case went all the way to oral argument and they didn't raise cat i mean it allows for th the limit our changes of tack simply because somebody had switched counsel it with the government's position that it would be completely inappropriate to do that a footnote but we only we primarily focused on where argument because petitioner had raise it in any any time prior so it in other words either the government is in a situation we have to argue the alternative and then we're and then we're not prejudiced or we are late will it i would point out that we cited to supreme court law that said that the court should discourage this type of th hour change of tack so take your honors point on prejudice but you know there are a lot of issues that are or are waived where the other side could have made the other argument and we did in fact did in in a footnote point out that this record did not demonstrate that the government would acquiesce to torture i mean the evidence actually demonstrably shows the opposite in this case when the police thought the petitioner was a gang member they arrested him that's indicative of the police force not acquiescing to gang activities so the notion that they would acquiesce to torture of somebody is not borne out by this record it's not borne out by the local officials that were specifically the individual has to be the petitioner in this case so on the merits we wouldn't we would suggest that the that the evidence certainly does not compel a conclusion that the police would acquiesce to torture but again i think this is a very strong case for waiver the prejudice issue aside i mean this case went to it wasn't just brief it was had oral argument and they did not raise this case the only reason it's even live is because the government agreed to explore prosecutorial discretion in the case so for the court to rebut it now ten years after the fact we think the government's position is that it is too late and we think the and seventeen it was not predisposed to a favorable exercise of discretion i don't think that's the right way of phrasing it i think went to be any issue its decision it was actually points the positive points that the immigration judge noted and then the actual analysis of the actual discretionary determinations limited to two sentences given the violent nature of the responded to tiffany's in this country almost since arrival we conclude that the favorable factors of record do not the unfavorable it pretty much says there is nothing you can put on the table that will make us exercise our discretion favor i would also like to point out when the government says that the cia did consider the petitioners say jase that they point out to this language on page one the a decision which says the immigration judge granted the respondents application for special immigrant status under section two thousand four hundred and fifty eight of the act this is actually very telling and i don't think it's just a typo o bviously the judge did not grant the special immigrant status the department of homeland security had done it many years before that but i think that what the it was doing they were in essence r s s finding that this person is eligible for the special immigrants that it's and i think that the board was actually confused on what it was that it was reviewing they didn't think that the s i j status had been granted improperly and if they decided to change that result and finally i understand that this court does not and will not engage in re weighing of the evidence before the agents i get that i just want to highlight the difference between the existing case law in the circuit denying review of discretionary determinations and this case the case of nestor most cases in which this court denied review involved very thorough decision by on the cat issue could you just address the fact in the record of the arrest the petitioner or his gang activity in el salvador doesn't undermine the position you're taking about government involvement with respect to the  n fact the opposite so he's not a king member he was found credible by the igi including all of his denier asked an active or even a gang member now because he was accused as a suspect  prosecute on the homicide cases if the victims are either marginalized community members and or to suspected gang members so applying that object if evidence to this case as an individualized assessment of the like torture even if he goes back to back his country even if even if some come in actors do work against gangs to arrest do protect some victims they would not protect him so that argument actually works full supplement the brief which was thirteen thousand words and govern only spend five thousand words so common can not say that it was prejudice because the cat cat or the witness base peers to claim is based in this supplemental brief and government has ample opportunity to respond what the government did was just include one for known about the cat issue based on that this court should exercise discretion to entertain both claims and this court should  ice finding in both claims and remained the case consistent with the decision thank you ana thank you thank you all that concludes the argument in this case attorney romanov ski attorney kevin attorney robins you should disconnect from the hearing at this time