but i will of course watch my clock and your honor this petition should be granted for three reasons as an initial matter the b a accepted as true the facts in mr garcia's declaration and those facts in combination with the unrebutted country conditions of us compels the conclusion that it is more likely than not the mr garcia will be tortured if he is returned to mexico second the b s a failed to consider particularly probative evidence in the record including statements in mr garcia's declaration as well as portions of the state department report finally the b s a failed to consider the threat of harm to mr garcia in the aggregate instead analyzing each of the three sources of potential torture in isolation armors i'd like to begin with the threat of harm to mr garcia that he faces at the hands of police officers if he's returned to the streets in mexico so previously he was beaten on at least two occasions severely to the point where he has permanent back pain as a result and the b i in analyzing this this source of torture failed to consider that mr garcia was beaten during questioning as this court has pursued and why i'm sorry the b i a failed to consider that mr garcia was beaten during questioning and not just during arrest and so when the b s a says in its decision that some of the harm mr garcia may have suffered was incident to lawful arrest what it didn't consider in this case was that if he was beaten during questioning that i don't he was also beaten while in jail and hearing questionings and i thought what they really meant was it just wasn't that serious i am not in their head the state department report which puts forth evidence of frequent incidence of individuals who are taken into custody and are not just beaten as the b i didn't feel as though that rose to the level of torture here but are actually tortured unequivocably tortured with electric shocks and other terrible types of things that are laid  out on this one of your argument is that your position that if any person from mexico can show that it's more likely than not that they will be taken into police custody that they are entitled to care really given what's stated in the state department report because it seems to me that's the logical implication of accepting your argument here so i do think that in this case there's a tremendous amount of evidence that mr garcia was also beaten several times previously so it's not simply that because the short answer is no i don't think that that's the ultimate outcome of my argument i would say that in this particular case because mr garcia was severely beaten on two prior occasions and in combination with the fact that this evidence does exist in the state department reports that all of those factors combine ultimately i mean your argument overall is that you can't take these things and piece right that mr garcia big given his situation i e he's either going to be to focus on this discreetly thank you your honor and yes i understand that's the nature of your argument but it seems to me there's just two components to it it's one how likely is it that he's going to wind up in this versus that situation right now i think you basically established one hundred percent likelihood that he's either going to wind up eventually in police custody or in one of these state run mental institutions then the question simply becomes how likely is it that anyone who's placed in that situation is going to be subjected to torture so i mean it seems to me you're back in the same place of saying well the evidence either supports that pretty much everybody who is either placed in police custody or placed in a state run mental institution is going to be is more likely than not to be subject to torture so i tend to judge a person's point i am not trying to make that argument and go quite that far i think that when one is looking at the specific facts of this case and you look at what has happened to mr garcia in the past both in police custody himself individually and in police custody as well as in the mental institution and  consider that past evidence in combination with the state department reports i think that those all of those factors together compel the conclusion that it's more like they're not going to let's just say hypothetically that your evidence establishes only that it's there's a thirty percent chance that somebody taken into police custody will be tortured and there's only a thirty percent chance that someone who's placed in the state run mental institution will be subjected to torture i don't think you get to those together and say therefore right because you're either going to wind up in one wind up in the other but if either scenario it's still there's less than a fifty percent likelihood that your client will be subjected to torture i don't see how that establishes the time of the c really i think actually under that hypothetical i think you're right about that piece which is that if there's a fifty percent likelihood that mr c is going to wind up in a mental institution a fifty percent likelihood that he will end up in police custody and in either of those situations the b i had determined that there was only a thirty percent likelihood that he would be tortured in police custody or tortured in a mental institution then you know at the end of the day he would other then you could add those pieces together but under just your very specific scenario if he is actually just stuck forever in one or the other the math wouldn't work and he wouldn't be more likely than not to torture which case from consider particularly probative evidence in the record or failure to consider where do you get that from i mean because they didn't mention they didn't mention it and and what specifically did they not mention so they failed to mention that he was beaten during questioning they also failed to mention that he that there were altered cations between patients in a mental institution and that when police were called they simply didn't respond and so that gets to the intent i mean  although the mental institutions in mexico had these squalid conditions because the government did not intend to torture individuals who knows institutions it didn't it didn't rise to the level of torture but in vegas the court w careful to leave in place the fact that and i think this is from saying that where a private individual evince is intent to torture all that is necessary from the government is acquiesce punish them or elicit testimony i guess because that's what this judge is so therefore even if it's done by a private person doesn't have to  there needs to be intent on the part of the private individual and for the government it needs to be will for willful blindness or acquiescence and i see that i'm out of time thank made pleas in court i'm john of the robins here on behalf of the attorney general good morning to everyone the key issue in this case is whether the record compels reversal of the board's denial of petitioners application for protection under the regulations implementing the convention against torture and petitioner is a clear make basing his claim on the fear of torture from a number of different sources for specifically he's claiming that he fears torture from the ariano felix drug cartel he's claiming to fear torture from the unidentified kidnappe s he's claiming torture emanating from the situation involving the mental institutions in mexico and he's claiming torture from the mexican police start with the police ok well with respect to the police actually in proceedings below when when had two claims pending he had a cat claim which is the only claim here but he also had a withholding of removal claim so he was presenting evidence of persecution and torture and he had sort of sort of mashed everything together and sort of put forth a lot of evidence of harm and sort of vaguely determined that this was evidence of persecution and torture but when the immigration judge asked for clarification from his attorney below and said and he said this this these beatings from the police seems more like persecution but it doesn't seem like it rises to a level of torture would it be a fair assessment your claim to say that you're basing the torture claim on the mental institution things and not the police and fishnets counsel said yes so now it's just fatal to the claim i mean i remember seeing that fine ok i'll grant you that so but we have state  department reports that suggest that actually torture is quite prevalent when people are taken into police because it's true that that is true that there are incidents but as your honor noted if if the state department's reports alone runoff then anybody who's going to be arrested by it's he's not just anyone who's likely to be in custody and because as we were saying before he he's not because he's going to be in one of these other situations where he also has some evidence that he himself has been at least subject to very very poor treatment well certainly well it depends on which portion you're talking about because some of the instances where he claims that he suffered harm suffer f which is why i called you know of our brief argues only that we take everything is true we did not argue anything else in our brief we certainly in the in the description of what happened below talk about the immigration judges problems with the below but we're not arguing that it's not credibility we take this is true that should have been clear on that but with respect to for example the harm that sorry the harm that he faced with respect to the aryan felix drug cartel in the in the problems that his family encountered the claim suffers from a problem of demonstrating the requisite state action he has to show that the mexican government would consent or acquiesce to the torture or that a public official would do the same and the evidence actually rebuts that because the evidence shows the mexican government has really gone after the aryan if you look at drug cartel and doesn't act we also consent to their harm that his family encountered he says that was the aryan felix drug cartel and so in terms of the aggregate sort of harm that that would add to the calculus in determining whether he has a fifty percent chance of torture that doesn't add a whole lot because that's not harmed by the mexican government  well no your honor but the question as to that's certainly one of the way she attempts to distinguish the case but here's the problem when we're assessing a torture claim just because something bad happened the past doesn't create a presumption that something's going to happen in the future now that evidence shows that mexico not sufficient to demonstrate the acquiescence or or or consent that is required under the regulations which define torture so it was while it would certainly be awful that this incident happened where some people were indiscriminately killed the question is what how does this speak to the likelihood of there no no i'm accepting i'm questioning the likelihood of the of this type of event happening in the future given that the state department but i mean if there was a more than fifty percent chance that somebody was going to be indiscriminately shot in a mental institution it would be likely that the state department reports the mental institution reports the background articles would give some indication that this is a real risk i'm not saying that did happen in the past but what we're looking for is the future likelihood here and the evidence is just too scant to meet that fifty percent roughly what is your understanding with regard to can c do we do i mean with with the past that's just a norm no no past events are certainly an important consideration in torture past torture can be indicative of the likelihood of future torture but there's no presumption created that that much is clear from the regulations so the question is is does this past harm that he faced with respect to the shooting indicate a likelihood of future toward torture and given that the state department reports don't really give anything any indication of this is something that happens in mexico on a regularity when people are taken into police custody and it seems to me he has shown that it's quite likely that he will eventually at some point if you return to mexico find himself once again and please custody so why isn't that sufficient well that sort of brings us with that there's a the house the evidence whether the evidence meets his burden of proof of demonstrating a fifty percent likelihood of a threshold i'm not i get i'm not questioning probability or because you're saying that he didn't have enough detail i e it doesn't seem to be true he did say that he was beaten to the degree that he has a permanent injury and that was during question ok take that well he also says by the way that he was brought before a judge and he was and he wasn't there for a prolonged period of time so in terms of the severity of the harm there are other factors that he also alleged and at the end of the day this is sort of akin to i mean it seems to me to be quite akin to the string of cases that we said to in our brief where people suffered similar types of detention people i mean people were quite also questioned in other cases about searching for do you believe that shows in iraq yes of page certainly the immigration judge did a page sixty nine acknowledging that the report detailed evidence of abuses against individuals of mental health disability mental health  a well i don't know that the board specifically mentioned the state department recent reports with respect to police beatings but they obviously did consider the reports and the case law is clear that that board does not have to explicitly mention every detail from  when we have a situation we have hundreds of pages of reports i mean i think it's relatively clear the agency consider the state department reports this is these are thorough decisions by the i j a and but both the board there's not a lack of consideration of evidence here can i ask you a question if we were not to be persuaded by your argument here what would happen well the ideas decision was based on two findings only one of them was upheld by the board the board of hell the finding that assuming everything he said was true then we would that's why would happen if the immigration judge had an alternate finding he said that even though he credited petitioner as a speculative from a from a excuse me a subject of credibility to the point that a lot of the evidence that he had conflicted with the of the of the claim so if that were the case that the board would have to have an opportunity to address that alternative finding by the immigration judge if it were reminded but does this mean i'm out of time i think i'm  conducting torture is that it's five twenty three f third at ninety nine and then in terms of the state department country report which judge fisher you asked about  there's no indication in the record that the court considered or that the be i considered the state department report in the context of the police beatings and finally in terms of whether the course of action judge wofford to your hypothetical in terms of what would occur if if this case were to be remanded i think there are two options in cases in which the record compels the conclusion garcia would be more likely than not to be tortured there are plenty of examples of this court granting outright relief well that's what i was asked because i don't see how we could do that given that the way that the posture in which the kids comes to us is  the agency below has just assumed without deciding that everything he has said is true so i was i guess i was contemplating that if we were to reject the determination that well then somebody would need to i guess figure out in fact whether all of what he was such would be president but that's really what i was trying to inquire about is that your view is well my my view is that because the b i took as