deny an application for protection under the convention against torture without considering any of the evidence of human rights abuses in the record before it cannot it's here far section twelve zero eight  sixteen c three governs all applications for withholding of removal under the convention against torture and expressly states that when addressing whether it is more likely even not that an applicant will be subjected to torture in the future the immigration judge or the board of immigration appeals must consider all evidence relevant to the possibility of future torture including evidence of gross flagrant or mass violations of human rights in the country of proposed removal i want to be sure i understand you are com consider any of the facts that you clearly did go over an extensive record you agree with that i would agree that the idea covered an extensive record of testimony i would definitely not agree that the immigration judge considered any of the evidence of documentary  documentary evidence submitted in this case so your position is that that oral testimony was considered but no documents were considered yes your honor and on what you base that we're looking at page sixty six of the record the immigration judge quotes the standards that she has found to apply yet at no other point in her decision does she actually discuss the evidence of record no discussion of the department of state country report doesn't mean she didn't consider it  right that would be arguable if she had given any indication that she had considered it but in fact the i g makes no reference to it whatsoever in fact the i did a statement that quoting the correct legal standard is aside from a note on page sixty four and sixty five of the record that such documents have been submitted or you argue are you asking us to adopt a standard that if an i j doesn't refer to a there the court found that the i j a statement that the court had considered all of the evidence documentary and testimonial was sufficient to note that the idea had considered such evidence and the court of course clearly explained that the i j a is not required to discuss every piece of evidence but the eye jury is still required to consider the evidence here there's simply no indication whatsoever that the i j a did so significantly that evidence shows substantial human rights violations occurring in china at this time i would direct the court's attention to page one ninety seven of the record noting that police and other elements of the security apparatus employed torture and degrading treatment in dealing with detainees and prisoners senior chinese officials acknowledged that torture and coerced confessions were chronic problems the idea gives no indication that she noted under any of that no your honor past torture is one element to consider and here the idea committed i dish in a legal error in failing to consider the past torture and make an actual explicit finding as to whether mr fang had been tortured in the past this goes to the immigration judge a lack of a credibility finding specifically at page seventy the immigration judge noted that the court really does not have any idea what to  believe essentially the immigration judge just threw up her hands and failed to make an explicit credibility finding failed to make a determination as to whether there had or had not been passed torture and failed to consider any of the  conditions regarding forger that is legal error which this court must reverse i wouldn't also direct this court's attention to the decision lobby versus attorney general at four seventy eight f third one fifty eight that's a two thousand and seven decision there the board's decision did not reflect any consideration of evidence relevant to the flatly ignores the grounds presented by the petitioner fails to furnish the court of appeals with the basis for its particular decision that's in lafayette at page one sixty four that's precisely what the immigration judge did here under ventura this court is not permitted to consider that evidence in the first instance and so remount is appropriate in this circumstance record as if he were a credible witness and then look at the story told to see whether it holds to the others who should i guess yes that's right history is because the immigration judge did not make an explicit been adequately resolved but as again noted she just threw up her hands and failed to make any sort of expressed determination whatsoever in such circumstances the quiet must conform that the africans testimon good morning or honors me please the court my name is alan housman i'm an attorney with the office of immigration litigation the justice department in washington for the respondent the attorney general and i would like to address i think the two key points that opposing counsel has ra before the court in anticipation of appearing before your waters for the oral argument we submitted a twenty eight j letter pointing out several recently decided cases since the submission of the answering brief i believe the two of them are significant  point to the court to page nine twenty three where the ninth circuit said that merely because there is evidence of torture in yemen mean that this particular alley in petitioner will be tortured in yemen i think that is the circumstance here i think that's the point that the immigration judge was making in her decision i agree with the tissues counsel with the immigration judge did not make an adverse credibility finding i think that the court has to accept the board accept and the court has to accept the credibility of the alien in his testimony the problem the immigration judge had was as she pointed out in detail at the various points at which he testified or submitted a sworn affidavit the testimony varied and  basically the immigration judge said i've listened to several different versions with several different dates of the critical events and i don't know what to believe and therefore she she said and it appears that page seventy of the administrative record page seventy one which i think are really critical to understanding her decision she said that since i don't know what to believe from the various versions that i've heard she described urgency i'm going to have to base my decision today on the testimony that was presented and then she goes on to describe how the testimony contains inconsistency says and therefore while she wasn't saying that she doesn't believe the testimony she said the testimony hasn't provided sufficient guidance to arrive at  situation and since there wasn't sufficient guidance the petitioner failed to meet his burden of proof she did comment in one's very significant respect about the testimony and she said that mr fein's testimony was speculative as to whether or not he would be tortured upon return the immigration judge accepted the fact that when he got back to china he would be detained by the chinese officials and that undoubtedly they would question him why he had been outside the country for ten years when he had a permit to go visit peru for one year and that they would question him about that but mr fane goes on to say well what you're going to ask me about is whether i was a supporter of the student movement and there is no evidence to support his speculative belief so what we have here is the distinction between what are the facts and the facts the immigration judge doesn't dispute that he was arrested at some point he was detained at some point for fifteen days he was beaten during the period of detention he was deprived of food for five days doesn't dispute that what she does is she arrives at different inferences about what will happen when he returns to china and we believe that the record supports the inference is drawn by the immigration judge and that the petitioner has failed involving country conditions and the consequences of those country conditions for indonesia for indonesians are either chinese for chinese ancestry or christian religion and what the court pointed out in the majority decision which is that for a for eleven seventy three and then specifically at pages eleven seventy nine three eleven eighty is that even though we have a panoply background information which shows of violations of human rights or discrimination and persecution of a particular group of people it doesn't excuse the individual asylum something from presenting some evidence to show that he or she would be victimized in the context of those back of that background information and so while that the country conditions and the record evidence in this case in this hearing show that there are terrible conditions in chinese jails and that chinese individuals are tortured by the police there's no reason to believe that the police or the officials in china have any particular interest in mr fang i mean he has repeatedly testified at various points that he didn't know why he was arrested at one point he said he was looking at a car and that he had different explanations at different points the he simply failed to provide enough evidence to convince the immigration judge that he is it is more likely than not that he will be tortured in china and the petitioner has certainly presented no evidence and i'm quoting from the decision here at page eleven seventy three no evidence that she has been or is likely to be specifically targeted in fact ms long did not make any argument whatsoever that she feared being individually targeted here mr fang has a very persuasive argument that he has been and will be in the future individually targeted he was subjected to past torture personally individually he additionally contributed money to support the democracy movement participated in demonstrations and purchased over ten thousand copies of a biography which was subsequently banned and confiscated by the chinese authorities moreover mr frank has participated in  annual commemorations of the massacre in tiananmen square since being here in the united states now the immigration judge recognized that mr fang will be interrogated and questioned upon his return to china so the government's argument that he will not be subjected to any sort of torture is entirely contingent on mr fang's presumed ability to withstand this questioning and interrogation when the record demonstrates this is that page two eighty six the police and investigators still routinely use torture to extract confessions he's a man with a record of supporting the democracy movement who's been tortured in the past on the basis of that and this record c