states nearly twenty five years ago as a refugee he facing removal back to iraq because of an inoffensive for a conviction entered against him after he was deported furthermore he was denied the right to apply for asylum and withholding of removal based on a flawed particularly serious crime analysis by the agency below and finally he has estab eligibility for protection under the convention against torture based on the overwhelming evidence in the record including us state department reports and multiple expert witness declaration conviction squarely on ice and the department of homeland security for three reasons one because mr abdul ahad was the returning lawful permanent resident the burden of proof is on the d h s s to stablish  of those issues are factual issues the burden of proof is a legal issue and as a factual matter the agency the facts are essentially that the record conviction in the record from aruba whether that be we do we only ask you and the reason i'm asking about water fact factual questions and what are legal or of course the question of as his inadmissibility the facts themselves are set forth in a conviction documents from a group but whether that satisfies the i nees definition of conviction is a legal question the application of of the there is a significant body of law that indicates that a foreign inessential conviction is not necessarily valid for immigration purposes under the i a e a and this case law goes back to nine hundred and sixty four in the board of immigration appeals decision and matter of adama that while the agency will normally respect a foreign judgment it will look behind in absentia form conviction to determine if those proceedings were fair and the minimum due process safeguards i were the proceedings here not fair and consistent with the process there are there are several reasons why because the order against mr  it was entered following his deportation he had no opportunity to challenge the evidence he did it he did have an opportunity to go back for the for the trial and i thought i thought he just decided not to go back i notice and he made a conscious decision not to participate in the trial is my wrong on that he had no opportunity to go back when the conviction was entered on november th at that point he was in the middle upper move  proceedings and was not able to return to rube prior to his departure he did contest the allegations are though he admitted that he had the substances taped to the he he may have been able to do that but once he was deported he no longer had the opportunity to return to contest the charges and it really did not delay the criminal proceedings until a time when when he could return  he somebody else somebody else taped the coke a discreet my understanding based on the police reports was that someone had convinced him to take these substances to his feet  take the united states he thought they were some sort of prescription drugs ok i'm for the record was not developed below once the immigration judge determined that that offense was a particularly serious crime the immigration judge did not take any testimony saying that that your client was deported is that is that consistent with the record i my understanding was he entered into an agreement under which he could voluntarily leave if he chose and he accepted that offer but those proceedings on hold until he was able to return to that country where is there anything in the record that suggests the agreement was it would be allowed to go back to the united states and then come back and have a hearing  proceeding would stop until the defender was able to return to the united to be able to return to stand trial for the charges whatever defending his move from wonder switching to another the original proceedings don't continue on in that  absence refresh my recollection where you say is it was a written agreement he entered into with the aruban authorities i believe was an oral agreement it's not my reading of the records not not clear i want to exhibit art to his a translation of the aruban documents elsewhere there's the original dutch but they don't they're not matched up page by page as not exactly clear which doctrine goes with which an original document the agency further erred in determining that mr abu a conviction in aruba is a particularly serious offense that would bar him from asylum and withholding of removal it even putting aside that focusing solely on his application for protection under the convention against torture the the record including the documents submitted to the board of immigration appeals in support of a motion to remain on file during his direct appeal and then in support of a motion to reopen following the board's decision affirming the removal order stablish the significant risk of torture to a call the and christian who's being deported from the united states following an allegation a conviction for a significant criminal offense including one that involves drug trafficking the state department reports which this court found quite significant and persuasive in to publish decisions early this year in the pot a decision and then more recently in america's decision indicate that called being christians in this situation i will be detained at entry into iraq especially where they  valid iraqi documents that will be questioned not be suspected of being either american foreign agents or significant security risk to that country they'll be questioned and in iraq questioning  involves torture has a normal course of practice and even if they're able to leave even tension at the airport they have to navigate numerous checkpoints staffed not only by the regular iraqi army and security forces but who's not been to iraq and thirty years who belongs to a persecuted religious minority they would face a significant risk of being tortured i believe the b i determine that these were just  seventeen and more recently the two thousand eight hundred country condition report represent new and significant change in the conditions in iraq by focusing more clearly it harms the danger facing iraqi christians especially given their dwindling numbers in that country there and those dwindling numbers mean that they lack the political and military support to protect their own members following the court good morning greg pennington on behalf of the attorney general i want to start at the beginning of the removal proceeding he was charged as being in the miscible at the detroit airport he was charged for a reason to believe he has or was involved in illicit trafficking of a controlled substance and he has never challenged that finding a venomous ability he's got the burden of proof backwards it was originally his burden to show he was inadmissible to the united states and the immigration judge sustained that charge when he failed to show up at his st hearing but he has never challenged that in the motion to reopen or in any of the appeals to a particularly serious crime now the aruban conviction can be a conviction under the immigration act either if it's a final judgment of guilt or if there is an admission of sufficient fact theories i just outlined he argues that it was the wrong burden of proof but the statute makes clear that it was his burden of proof and he also argues that there were not sufficient procedural safeguards in the aruban proceedings and i think the court's already touched on that there was plenty of safeguards he was given his notice of right his white to an attorney is right to appear in contest the charges it was his choice he wanted to out is a judgment of guilt and that satisfies the st prong of the definition of conviction so that that alone bars him but even if you find that it's not a judgment of guilt if you look further into those those  records there was an admission of sufficient fact of guilt he admitted his guilt to the public prosecutor and then the judge posed some form of penalty even as finding he had to spend fifteen days in jail but under either route under the definition of a conviction is sufficient but as he argues if the record is inconclusive then he still loses this court is held an applicant for relief or protection from removal cannot meet their burden with an inconclusive record under any avenue the court approaches that it should find that this was a conviction for a particularly serious crime he failed to meet his burden to show it was not and as for the findings that it's a particularly serious crime there's another two routes this st as judge bush kind of alluded to in the beginning this rolla but the criminal aliens are still applies to any other factual findings by the agency and that's what the agency does when it goes on this case by case particularly serious crime determination look at the facts and circumstances of the conviction to determine whether it's particularly serious and i don't think in any account the agency would have used its discretion in find and finding that a conviction for taping over a pound of cocaine to your feet and trying to smuggle it into either canada or the united states is not a particularly serious crime so that leaves mr abdul had with just the for a livable under the convention against torture and at the agency held an immigration judge and a thorough hearing and thorough decision this because mr had to have never doesn't have any experience on the ground in iraq this was really just a battle of the experts you had the department of homeland security unpublished that the agency you know does not under the substantial evidence for the use standard the court doesn't get into this battle of the experts and relaying of the experts as long as there's credible evidence on both sides in the agency reaches a reasonable decision this court under substantial evidence i think d going to disturb that ruling are incidents of violence in iraq but they don't show an individualized risk that mr abdul has himself will more likely than not be tortured and it was the same in the motion to reopen he wanted smit additional country reports and new declarations and the board held that those new declarations were in fact new because he didn't show that he couldn't have obtained them before and to the extent they were new again they were just cumulative his experts say he will more likely than not be tortured the government experts say is not more likely than not that will happen at least by the government or with acquiescence by a government official  christians how do you distinguish those cases from from this one i mean it doesn't this show that the agency maybe here isn't acting consistently with respect to chaldean christians yes judge bush it's it's so dependent on the records in each case i mean these are highly factual tick records and we just don't know what was made and arguments of support we don't know which arguments were made by the government or the petitioners attorney in those cases and if you look at these decisions one of them was remaining from the board to consider experts but it was no reason why those experts were excluded in the st instance so the board simply remanded to the immigration judge to consider them and one of the other cases the board remanded because the immigration judge excluded a witness because there was no t v or resume attached to the declaration but the board found that there actually was to the immigration judge error and the board remanded so the judge could consider that declaration and in the final these kind of inconsistent decisions if you can call them that and found that you know one inconsistent decision doesn't show that the agency is acting arbitrarily in denying one applicants claim and granting a different one because the records are so facts specific and i think in one of these cases you know the court recognized that the board members in the immigration judges are not atomic time they reached disagreement over the factual record before them so these cases then an can you talk briefly about our jurisdiction to consider the disputed facts in this matter right so th supreme court kind of carved out the review of deferral of removal claims and the convention against torture is that it's it's kind of a separate order so anything that still within the the final order removal that doesn't court declined to reach that issue you know in a footnote and we're not deciding whether the criminal bar still applies to withholding the removal but like explicitly excluding that from its decision this court is still bound by its prior decision holding that the criminal alien bar applies to factual finding and withholding of or mobile claim or an asylum claim or here we would argue that the particularly serious crime the finding the particularly serious do on the issue of our jurisdiction to review the factual findings would would be more prudent for us to hold that yes it appears that our prior precedent is still in place however in the abundance of caution will never last reviewed the factual findings and may make a decision on that as well or or should we just ended on there is no jurisdiction to review factual f and would be the better course for us to do because it's subject matter if they can i think the courts should address it but it would also be prudent to just as a matter of you know in the supplemental brief withholding the removal wasn't even on the table here really because of the particularly serious crime so the only thing the court really needs to look at is that particularly serious crime and if it up old particularly serious crime determination that all we have left in these petition for a live removal and we don't have to get into that jurisdictional best whether it still applies and where the line is drawn for reasonable probability of that bet but for the ineffective assistance of counsel he would have been allowed to remain in the united states and the court would not have reached that conclusion had the state of the record at it was a similar situation to this the court upheld the original finding that marcus did not meet his burden of establishing cat eligibility based on the record it was before the immigration judge but the court then it based on new evidence that was submitted to be a hay occluding the two thousand and seventeen state department reports because they represented a significant worsen a significant departure from the conditions in iraq for prior prior to that to address the question of statutory withholding of removal although supreme court expressly put that question aside the government argued in that case to the supreme court that granting jurisdiction to review factual determination is in can't cases would also open the door to jurisdiction over factual questions and withholding of removal cases and justice thomas dissent also focused on that broadening jurisdiction and then finally the particular serious crime argument that we advanced in our brief is a legal one and not a factual want which is that the agency is misapplying the particular serious