morning your honour's my name is sylvia spars and i represent mr all this may please the court there are two central issues for this court to decide whether there is substantial evidence in the record to support the denial of protection under the convention against torture for mr all the right is and whether the government has carried its burden of proof by clear and convincing evidence that mr all you've got is his conviction is an aggravated felony and the answer to both of those questions is no in regards to his cat claim mr levi this was a former gang member who had quit the gains back in the late ninety's throughout his life he accumulated one hundred thirty four tattoos and twelve of those which were gang related he had the gang related tattoos were visible on his hands and on his face considering the above the obvious risk factors and the significant country condition reports and articles that highlighted the immediate danger to individuals like m this that he would face because of his tattoos and also the presumption that he was again a current gang member and in combination with the credible testimony that he had and the testimony of his mother which identified a cumulative evidence it would be it's not reasonable for a fact finder to find that somebody like mr only lied is would not meet the fifty percent or more probability that torture would occur to him the  major problem in the immigration judge's decision and the board of immigration appeals decision is that they neglect to review the country conditions and the numerous articles that were submitted the human rights study by harvard indicated that gang members were harassed and physically abused by the police and targeted by assassination by rival gang members the indicate the report further indicates that police rarely if ever protect gang members the office of the national human rights report indicates that death squads operate and operate within the police departments the united states country condition report also indicated there was widespread corruption and weaknesses in security forces and high level of impunity within the government the office of men for human rights indicated that the prisons held more than ten thousand gang members and that the the the prisons were overcrowded by three hundred twenty percent which created a torturous environment and there was a substantial risk for the health and the lives of the prisoners the congressional research report indicated that el salvador had the highest concentration of gangs and that there was prisoner abuse and torture was not uncommon this court has addressed box versus holder and cole address that the agency doesn't have to look at every piece of evidence they cannot ignore highly probative evidence of the country conditions which is what happened in this specialists talk about the disease the visibility of the nevada statute in question here ok has nevada ever looked at this particular provisions divisibility judge we could not find case involves multiple substances so it is different and then our case and so why should we i guess declined to follow the tenth circuit and it decision and i think it's recess versus holder which found it to be indivisible well we don't believe it's very persuasive because it doesn't talk about also the jury instruction so in order for the case to be divisible it is also requires that there be jury unanimity regarding the elements of the offense and there hasn't been any cases discussing the jury unanimity for the offense we cited to some examples of jury instructions for these types of cases and it wasn't very clear and if there is any ambiguity and bigotry in this particular case because mr olivares was a legal permanent resident the burden of proof is on the government they have to show by clear and convincing evidence that yes the record shows he has been convicted of an aggravated felony and that's not here there's only the mulla case that they cite to all the time hasn't been any other cases cited by the government and the jury instructions are also unclear if we if we if we find this assume that this forty five or five three or point three three seven statute question here is not divisible were does that leave your your client does his two thousand and twelve conviction under four five three point three two one matter here at all no judge because if it's just a controlled substance offense and not an aggravated felony conviction then he would be eligible for cancellation of removal that's the reason the board of immigration appeals only address the aggravated felony conviction as a traffic drug trafficking crime because it would disqualify him from cancellation of removal if it's just possession of a controlled substance or transfer of controlled substance and that's not considered an aggravated felony and he could still as transport and sale of a controlled substance so that's what made me curious the the the statute reads transport ends and sale so just try to figure out why that one was distinguishable i don't  so i mean the definitely the border immigration bill didn't address these in their decision said that this is not relevant because we just got a look at the aggravated felony the only offense that really matters here would be the two thousand and four offense so if it's if the court would find that it's not divisible then he would be eligible they couldn't do the categorical modified approach and look at the record of conviction and he would be eligible for cancellation of removal since you've been a little permanent residence since one thousand nine hundred six and has three u s citizen children minors who had a loving relationship with him had not been a gay member for over twenty years and also had other significant family members in the united states please the court victor lawrence on behalf of the attorney general this court should deny this petition for review because under a proper analysis petitioners two thousand and four conviction under in the valley the statute qualifies as a drug trafficking crime drug trafficking particular controlled substance in order to convict under this and are as four five three three three seven yes your honor and our basis for that or is it enough that it's just that he had one of the substance listed your honor it's the government's position that the of the controlled substances is necessary to prove and for a jury to convict on and we base that on the language specifically in the ball there opinion from th in order to convict under that or is there anything else that might be helpful to further sort of stablish that well i think there are two things one there's that idea that the statute itself is listed in the disjunctive so they're talking about various different elements court there are no particular jury instructions that we found that are authoritative state of nevada course in the mathis decision by supreme court the court has indicated the supreme court has indicated that it should look to authoritative sources of state law and the most authoritative source of state law in this particular case is from the nevada supreme court as decision and moeller which says you have to identify the identity of the controlled substance in order for there to be a conviction of the language and how it's written in the injunctive but you also look at the decision of the supreme court once you look at that and you determine that it's divisible then you could look at the documents and the documents further support here that this was a case in which the individual is convicted for purposes of selling marijuana and that is a controlled substance under twenty one you associate forty one day and therefore he is not rated fel cancellation of removal now on the withholding claim this is this is a little confusing that in subsequently reviewing the briefs and concerning this further  the that the board indicated that the petitioner did not exhaust this claim and i think the principal argument we have for withholding is that the board that the petitioner did not exhaust this claim about it being a particular series particularly serious crime when it appealed to the board and as a result he's waived that claim with respect to withholding so the court should deny petition for review with respect to that withholding claim finally on the convention against torture the issue here is whether or not the board's decision is supported by substantial evidence it's our position  that it is supported by substantial evidence to the board in the agency noted that the petition has not been a gang member for over twenty years and the there is no real evidence of acquiescence by the government or  government official so while the immigration judge noted that sure this person has one hundred thirty four tattoos there's a possibility that you know he could experience some harm with his return till solved or the question is he satisfied just burn the proof under the convention against torture has he shown that it's more likely than not that he will suffer torture and here the immigration judge found that it was not and further found that there was no evidence real evidence acquiescence and the best that the petitioner dude can do to come back and challenge this is to point out things to me not that hey you're missing this piece of evidence all the petitioners started rattling off different things about what the country conditions report show her main argument and her brief was that the board did not review or did the agency did not review the country conditions report that's clearly belied by the record if the court looks at the immigration judge decision at page one of three through one of five it's clear that the immigration judge did in fact look at the country report just didn't find them to be highly probative and the immigration judge explain why then when this when the case got to the board of immigration appeals the board of immigration appeals largely relied on the immigration judge's reasoning to indicate that the it agreed there was no torture so i think petitioners statement about the harvard law review article particularly complaining that the board an agency didn't really delve into this article i know  that that petition never really said anything about what's in this argue article that so important that would cause this court to believe that the record should compel a contrary result under substantial evidence standard so overall i think the court should find that this was a drug trafficking crime therefore it is an acrid felony she would be the petitioners he would be ineligible asylum cancellation removal and again that the convention against torture claim is supported by substantial of this particularly when you look at the fact also that this individual hasn't been in the gang for over twenty years so what and this is something that the agency relied on and this is part of the substantial evidence i think that they relied on what evidence was there in the record then an individual who has not been in el salvador in over thirty years and has not been in that gang in over twenty years would actually suffer torture upon his return there and many of the sources that the petitioners cited with respect to gang violence have to do with individuals who are youths in el salvador who are still in the gang or appear to still be in the gang converse lee this petitioner somebody who now is over forty seven years old and does not appear to be  youth so a lot of that one questions the relevance of a lot and approach how probative a lot of evidence is that petitioner is raising with this court so unless court has further questions we would ask that the court denied this petition like to point out that the government has conceded that there are no other cases but the miller case and the mohler case is different than our case because it talks about multiple controlled substance offenses and that's a real distinction for our case and addition they haven't pointed out to other jury instructions which are it's really mean important in deciding what are the elements of the offense so if we don't have a clear jury instruction that shows that there needs to be unanimity then how can in regards to the cat claim the problem here is the government repeating the same issue that the immigration judge and the board of immigration appeals has indicated a lot is they say what kind of evidence there's no real evidence that's the problem they don't look at the country condition report that has been submitted and all the various articles that highlight that individuals just like mr olivarez that have multiple tattoos and have been a former gang member or gang member are at a heightened risk of torture and they completely discount this evidence without any reason the reason is because oh boy he hasn't been a gang member in over twenty years but if this is a take away the tattoos he still has and who's to say that once the police arrest him or detain him or stop him or a rival from as a result of his correct don't you have to show that there is a probability more widely than not that there will be torture because of this tattoo yes judge we believe that there is there is a heightened risk and that one risk translates into more than fifty percent because of the numerous tattoos that he has and all of the other fact patterns the fact that he has visible tattoos on his face his hands which he could not cover he testified that he could only cover them if he wore gloves in el salvador that's going to be even more suspicious and then he also had tattoos on his face that he couldn't cover and combined with the country condition report and all the other articles that we cited to that do say that individuals with tattoos that are former gang members or gang members that there is a risk of torture that these people are routinely arrested detained imprisoned without cause just because of their tattoos or because of that because they are belong to being because they belong to a gang or were again members and so that's why it's more than fifty percent here with all the evidence that was presented plus the you and also the regulations require that all evidence be evaluated here again the court the immigration court and the b a in the government's argument is that there is no real evidence and they're discounting all this other evidence that was included in the record of proceedings and there's no reason for them to dismiss it and the this court has been very clear on having treeview all of that evidence it's clear error if you haven't reviewed the evidence and as and you can't just simply ignore evidence that is highly dispositive and for those reasons we would request that the court find that there was substantial evidence in the record to find that there was a probability more than fifty percent chance that he would be at risk of harm by the government and also to find that the government has not met its burden of proof to show that it's an aggravated felony because the divisibility is is not clear on with what the mother case and the failure to bring jury instructions that show that there is a unanimity that is required for each of those elements thank you very much appreciate the arguments presented here in this case