good morning good morning particular circumstances in details of different accounts of torture well ok you presented contrary of the dense but why isn't this just a situation of the b i a my understanding is  a credibility determination against your client but the b a s said no we're going to look at it and didn't didn't adversely fine on your for your client on that but when you have contradictory evidence because there was evidence both ways how can you know because b i a agreed with the other evidence more isn't that a problem for you i mean that's what that's what courts do you know when you hear evidence on both sides you can believe some more than others so you can waste some more than others and when that happens that's a pretty difficult standard to overcome on appeal concluded that mr concluded that mr cherice would be more likely than not tortured from providing the government so by the government by the government and by the he acknowledged that your client was thirty seven years old he said he looked kind of young but there were things that sort of took your client outside of the you know the age where it would be problematic and i think that was an it didn't he also had me done something about his tattoos too yes and he admitted that he really wasn't readily your client edited he wasn't readily identifiable as a gang member i mean it's like i could've been in a gang but you know now that i've gotten a little more senior i might not look so likely that i would be in the game and i've covered up my tattoos and all of concluding that mr chavez would be tortured by the games i submit your honor that the gangs and police on the streets are also told or will not be looking for mr cherry says idea of a birth certificate to verify his age they never discussed dr viendo this testimony that they're too big to hide for long they're highly visible they're also aggressive nature in extensive and it would be very difficult in very painful to remove th this was never discussed by the agency but we have to decide is not whether the agency discussed or did not discuss but with substantial evidence to sustain the agency's findings i mean th of discretion would be a fails to provide a reason reasoned explanation we submit here are is that our position here that the agency failed to engage in the proper legal include to consider the aggregate speak into the mike there thank you they please the court briana strictly on behalf of the respondent the attorney general of the united states counter space on the record evidence petitioner has failed to demonstrate that the record compels the conclusion that he is more likely than not going to be tortured in el salvador either based on his former gang affiliation of m s thirteen a rival gang of mara eighteen or the police can i ask you just sort of jumping to it since we've set that there's not a lot of time are you recommending that you were saying there's no jurisdiction because there was an exhaustion as to the aggravated felony right correct so with and so are you recommending partial dismissal i'm partial to not dismiss a part and i am part or correct because he did not exhaust the particular serious crime determination there's no jurisdiction over that he does not raise it's just simply not before the board the only thing that is before this court the only thing that's before this court is the cat before for you answer my question methinks my questions are thank you very much as to the withholding of removal your position is that there is no discussion of the factors regarding particular seri particular serious crime determination and that he did not exhaust that to the board right and so this court has no jurisdiction under twelve fifty two d one which mandates that the specific argument in this case with raising which is that the sixth rebuttal factors or whatever that you would call them from matter y l need to be exhausted in the first institute for you agree with m honor so what do you what about what is here and and it should be denied what is properly before this court is the agency's denial of the cap to furl claim and that is supported by record was even credited the the difference though is that unlike petitioners promise of his argument that this testimony of the expert was uncontroverted that's simply false it was i'll give you a couple for instance so for example on the age determination dr van counsel during testimony brought this back up and said ok now you report first to getting members as being young what is the average age he said between nine and ten most likely into their twenty's confronted with the fact that m chavis falls way outside this range he admitted that it did and his only rebuttal was that he looks young this is not an expert opinion mr cho was only on a telephone call the expert there's no evidence in the record that he looked at anything except the tattoo photos if you looked at a photo petition or there's no evidence that it was a recent one the i j a was in the better position to make a determination that this was not sufficient you know again there is  published but in peterson palmo this was a basis for the court's denial of catcha for all by finding that you know there was not there was evidence in the record that supports that the gangs and salvador target youth not men in their forty's and  found based on that testimony was that petitioner did not demonstrate that he wouldn't be able to cover up the petition was five tattoos right one of them is an m s tattoo that's on the his foot and below is ankle and that's the only one that left that has a gang affiliation to m s thirteen the other ones he was able he had one other one previously but was able to cover that up and then you know there's there's a tattoo of his mom his mother's name a ta of a dragon and a tattoo of i believe him to encounter aztec warriors and what was more important was that petitioner when he was testifying said and i quote if you were able to see a picture of me my picture of me now you wouldn't be able to trace any gang affiliation and so even though dr van does come in and said that you know he could be recognized based off of these gang tattoos and that he might be associated  affiliated with a gang this is this is undercut by petitioner's own admission that if you're going to look at him and that's really the triggering event in petitioner's case right is that he's going to be recognized as a gang member and he is saying if you just look at me you're not going to see any signs or a picture of the petition on the record there is pictures of his his tattoos are in the record minutely the copy is not great but he did describe the tattoos  again there's only one m s tattoo left and he admits that the he was able to camouflage the other one which was larger and on his legs in a more conspicuous you know in a prominent location and there was no testimony whatsoever given why he couldn't a decision so is it your petition is it your position that they wouldn't have been discussing it and the record if it didn't have something to do with the case or what so we would disagree that it wasn't cost in the decision the immigration judge's decision specifically finds that he didn't give any evidence on why he couldn't camouflage it or why he couldn't cover it up with another tattoo he just didn't provide the evidence so you know the  immigration judge specifically list out all the tattoos and no but you know they rendered a finding that this was not substantial particularly in light of the rest of the of events which is that if you just look at him there is no trace of gang affiliation and that's out of are enough to justify cap relief let me just ask you one question on i think petitioner sort of started out with not really addressing the exhaustion issue and then kind of came back on that but let's just  hypothetical purposes if we were to decide that we have jurisdiction to address the issue of whether the petitioner overcame the presumption that the petitioner's conviction was a particularly serious crime should we were manchanda agency to analyze the criteria under the matter of white or if not why isn't enough to show that you know when we look at matter of y l it not only requires those six factors those are at a minimum that's what the court said so at that point they're still above and beyond evidence and quite frankly this is you know the government's position is that the court doesn't have jurisdiction to cover this because the the agency would be have to be the first one in the first instance but this is all the more reason why this was important to be exhausted right because the agency should get the first did getting to the hearings yes ok fine thank you i see that my time so i meant to do any of my colleagues have any additional questions all right thank you for your argument interrogation techniques used by the police and sometimes they would just talk to him and find out where he was going and sometimes they would beat him up so he didn't say this was in this case more torture to occur with the evidence of that i believe the government took it off the table by considering that this issue was not was not decided by the agency on the issue of