one year ago and he is living there in hiding where he remains today that's probing of the record isn't that is true let's get to the right in terms of the record return to that  is currently at the supreme court has been accepted for service yury and will therefore be argued later this session and so if in fact we are to look at the fact that the a fact based review  torture to mr abi omar the individual the immigration judge engaged in a very individualized determination that his clan and his hiv positive status wealth would impact his risk of torture in somalia it's very clear in the that the aggregate rates of torture is also what is to be considered however the government in its underlying briefing at its briefing today has tried to desegregate the case into three parts st the risk of torture due appeals reviews the government's argument as to whether or not mr objects for tabi omar is a member of a particular clan the board found that he is in fact a member of the clan called the getty and the immigration judge in making that finding however in that same page the board goes on to say that they failed to provide evidence but the begetting did not receive protection from other clan it's our position that it's clear error to credit the testimony of mr mother with regard to clan membership and that somehow turn around and discredit it when it comes to the issue of the beget each clan their relationship with two other clans i would also know that the administrative record at page three hundred and twenty nine no clan structure and somalia and notes numerous clans and other related groups if in fact we were to follow the board and somehow be acquired to provide specific evidence with relationship to the begetting clan and violence and discrimination and again your honor that is just aggregate analysis that is clearly erroneous the judge considered both his clan membership and his h i v status in making her decision that he was would face torture wherever he went in somalia i think i think here the b i a i understand their structure doesn't say it may be clearly i think here they're aggregating them together they're taking the clan from two paragraphs before it putting it together with subject to torture and unable to locate within somalia so i would point the kemar case from the rd circuit which talks about probability is related to torture and there there were two primary actors that were player at risk of being torturers for that for that you and so the only if we were if we were to deploy a commodity type of analysis here the only thing that's missing so to speak from this record is the immigration judge saying there's a forty percent risk of torture based upon clay and a true eleven percent risk based upon each i v and therefore it respond has met his burden is carries the day so again the judge based upon the credible testimony of the parties and also credible the credible i would also point out that the immigration judge's decision at page seventy five dollars of the record notes the department of state notes that physical abuse of hiv positive individuals with no official risk response takes place in somalia stand alone claim based upon hiv and physical abuse is not equal torture well those are two different things in terms of what happened here with the immigration judge she was looking at both the h i b status and the klan membership and concluding that there is a i would also note in the judge's kick in the immigration judge's decision from page seventy five dollars she notes that minority clans faced higher rates of violence combined with a lack of access to protection and so it is not simply a matter of the judge relying upon overall state of affairs and overall state of civil disorder disorder or civil war or rather she looked at the individual lives evidence presented both in terms of country information and most critically respondents mother's testimony to conclude that not she also correctly in concert all evidence relevant to the possibility of future torture which again makes can't makes a scant record i think with regard to that essentially what we have in the decision b from the board is our findings of fact from the immigration judge there are points where the board has decided to various things on the record and the board has said we don't like these think we don't like what the judge said here would rather look at what's over here five in a row or six in a row but you get my point yes they do began several by saying clearly erred can we really say they've made that mistake when they say that in their topic sentence of the paragraph five in a row or six in a row yes i think we have so we can say that clearly erred and that's under remarriages pedro i mean it's not sufficient for the government just to say that we apply that we apply the standard without evidence of them actually doing so and again what they've done is we just disagree about whether it was clear error does mr prout will hear from me oh yes the morning your honour's she respect for the respondent william people are made please the court your robbers mr omar has the burden to prove jurisdiction and there's no question that he was removed pursuant to his criminal convictions therefore the criminal alien bar applies he failed to exhaust this claim before the board therefore this court has no jurisdiction treeview his criminal convictions therefore the only issue is whether he has raised a legal question for your review and whether the board properly applied clear air review is a legal question here there's no question that the board looked at each fact found by the immigration judge and made an independent determination whether that fact was supported by the record and they found that the did not provide any treatment on the back of the clan members therefore they found that the immigration judge clearly urged with that respect they also found that the immigration judge heard with respect to  whether he would be tortured based on his hiv status and they said that while there is significant and substantial discrimination occasional violence and the access to medical treatment is very limited that does not a rise to torture and they also found errors in the immigration judges determination that he could not relocate because the record shows that in mogadishu there is very little clan violence and discrimination so the record clearly shows that they took each fact found by the immigration judge looked at it and determine whether or not it was supported by the record they in effect say there's a lot of hardship anything before the board so the only issues that are alive are the issues with respect to the board's clear  review they said that the immigration judge did everything right they conce was supposed to where i'm convinced that there was a clear by the immigration judge does that amount to a legal error by the board well if you're unconvinced that the immigration judge heard then that would be in  mogadishu getting treatment at a hospital but you're not supposed to look at the facts only whether the board properly looked at each fact and then engaged in clear air review well we do have to figure out if there are two permissible views of the evidence right under the united states supreme court standard the anderson standard the board decides but there can't be two permissible views if two opposite opinion the board supports its views with the record evidence so there can't be too permissible for you and they say it depends whether the board's citations support what it is right and aren't you graphs that whether d well well like they said well they pointed to different facts in the record that show that this is not so much clan  identity these days but more like networking in which you know as opposed to having to seek protection based on your clan membership they pointed to evidence like that and so they they said just because you don't have a family network or claim a family supporter clan network that does not arise to torture read the government's presentation today focuses on and quote unquote independent determination of each fact by the immigrant by the board and that is not the legal standard because again torture torture convention claim rests upon all the factors but i think if the immigration judge relies on multiple facts to reach its conclusion isn't the board permitted to look at those facts and see whether they're clear or clearly erroneous certainly  certainly the board can look at those facts but that goes to get back to anderson which just because there are two alternate views of the evidence of record that does not necessarily lead to a conclusion of clear error true but they said that some of these facts were these factual findings were clear is the immigration judge found these particular points out these record cites the board comes along and says well we would like to look over here instead but doesn't make the link about why having you look over here is a clear error on the in part of the immigration judge and i think that fact i mean again i think the one thing that could be missing here potentially would be if the immigration judge had gone through the come our analysis and assign percentages of likelihood to the different to the two main factors which are his clan status and