and if i could i just want to ask you about pro bono representation sometimes we don't see that at first glance on the papers how are you appointed that pro bono in this case we took the case on referral from the legal services organization notification that this is pro bono would we like to express our gratitude for attorneys who devote their time to helping us in cases like this the reason we pick it up is my law clerk noticed standard and because it rests on the board's failure to properly review the immigration judge's decision both of these are legal issues that the court has jurisdiction to consider under eight u s c twelve fifty two turning first of all legal standards the immigration judge applied the wrong legal analysis to both the two thousand and two beating mr smith suffered and to into the likelihood of future torture as to the two thousand and two beating the i g concluded that because the people who beat mr smith were not themselves government actors the beating could not rise to the level of torture as a matter of law that is not the correct legal standard the immigration judge was required also to consider whether the evidence demonstrated the government of jamaica acquiesced to this type of private act or violence the immigration judges failure to consider that as an error of law that merits reversal and he reached the legal conclusion that the two thousand and two beating did not constitute torture on the basis of an incomplete formulat law that he then carried over into assessing the likelihood that mr smith would be tortured if you is removed to jamaica it's important to note that the immigration judge accepted all of mr smith's evidence deemed him completely credible and explicitly relied on both mr smith's written declaration and his oral testimony and making findings about this two thousand and two beating including his finding that the men who beat mr smith did so while using derogatory slurs the board for its part failed to pick up on this legal error the decision of the board contains no discussion of the immigration judges analysis of the beating in two thousand and two and it contains no analysis of whether that meeting rose to the level of torture as a matter of law so either the board adopted the immigration judges application of the wrong legal standard or the board fair failed to carry out its legal obligation to review the conclusions de novo either way the denial of cat relief to mr smith rests on the basis misapplication of law as to the likelihood that mr smith would be subject to torture if he is removed to jamaica the immigration judge again committed legal error under kaplan the immigration judge is required to make findings about what i likely to happen as a matter of fact and then to analyze that under as a scuse me and then to analyze whether that rises to the level of torture as a matter of law the immigration judge did not make those findings instead he turned right to a mis application of the law he analyzed only whether the government would torture mr smith and he did so he did so holding as a matter of law that he could not consider the jamaican laws that provide for imprisonment and fines as a consequence same sex sexual conduct this is completely wrong this court has squarely held that punishment pursuant to the law can still be considered torture if it defeats the object and purpose of the convention against torture the perhaps start with which is the i g found the baseload improve country conditions it was not likely for the government to acquiesce in any future torture of smith was that  j didn't specifically adverted to that letter that he page fifty four the appendix correct yes when he admitted it into evidence yes yes so yes he acknowledged that it existed he admitted into evidence he did not however consider the likelihood that those threats would be carried out he didn't consider the possibility that again mr smith would be beaten and harmed by private actions while police officer stood by well it just seems like assume or we we take the record on the basis of giving credit to the fact finder that they actually did consider the evidence of record unless there's something a red flag that tells us otherwise yes and  are present and what exactly what's what's the red flag that tells us that when the judge admitted that letter from the mother that the judge didn't consider that as part of the the record so he didn't discuss it and the oral decision at all but there are other indicators of the immigration judge failing to to give due consideration to the evidence so for example he spends quite a bit of time talking about the two thousand and fourteen state department report but he misquotes that report in two different respects he misquotes it as to the number of jamaican laws that were not being enforced and he missed both it with respect to the state department's finding that police the police force in jamaica on the whole fails to investigate or punish let alone prevent private acts of violence against people who are or are perceived to be gay and frankly your honor this is where the board's job is so important the board was required to look at the back channel findings of the immigration judge and review them for clear error there's no indication that the board did so in fact the board's decision explicitly says that there's an absence of evidence that anyone is likely to torture and it's just nothing he's removed say so what specific evidence are you saying that the board overlooked  i believe well so the board the quote concerning the lack of specific threats mr smith light specifically overlooks the letter from mr smith's mother it's directly contrary to her to the conference of that letter in addition the board and the board consider only the board report simply dismissed out of hand most of mr smith's documentary evidence he didn't consider whether the newspaper articles whether the report from two different human rights bodies in addition to the stat apartment report demonstrated a pattern of gross flagrant and mass violations of human rights he simply said contrary to the court's holding in p s yeah i guess that general country conditions information is never sufficient to to demonstrate a likelihood of future torture so that was since the regulation explicitly requires the fact finders to consider all evidence in the record pointing towards the likelihood of torture it is a legal question whether the board and the immigration judge complied with that all but well but i'm again i'm the challenger in that i'm not sure you have shown us where they failed to evaluate all evidence of record except to tell us that in the oral decision some pieces of evidence were not reference is there something immigration appeals to provide enough evidence for the court to review whether in fact they've given due consideration to all the evidence i mean there's there's language to that effect in his second v i guess among many other cases aren't you really just challenge in the immigration will acquiesce those are facts findings are they not they are and that's why in caplan this court explains ultimately the question of the future likelihood of torture is a mix question of fact and law which is why it's so important to separate out the first question the factual question of what is likely to happen to the petitioner to the immigrant if he's removed the country he fears and the fact finding here was he's not likely to be tortured because jamaica has made improvements in the last decade plus in terms of treatment it would be unusual for this court to uphold that as a finding under kaplan among other things because it's not finding specific to mr smith it fails to consider for example the likelihood that mr smith would actually be prosecuted under the laws on the books  the moral decision simply says repeatedly the government of to make that the immigration judge believe he could not find as a matter of law that the government of jamaica is torturing algy people there is some language around acquiescence but that's not the ultimate that's those are not the conclusions that the its part the board of appeal the board of immigration appeals fail to review those fact findings and the legal conclusion that may have flown from it not only because the board failed to discuss at all any of the immigration judges legal conclusions or fact findings but also because the board added legal error particularly in terms of the chain of events analysis in which they didn't gauged so the board said that the board concluded that it was unlikely mr smith would be subjected to future torture because it was unlikely that the jamaican government would become aware of his sexual conduct this is this is just completely wrong as well it fail further it fails to account for the argument mr smith actually raised which is that he would be harmed by private actors with governmental acquiescence this is the error that the board committed in roy and this court reversed as a result if the board had intended to analyze the likelihood that mr smith would be subjected to the and taking a loss on the books so the government now argues the correct question would have been whether it is more likely than not that he would be prosecuted under those laws and not whether the government would find out about the sexual activity if the government generally is no longer prosecuting under the laws water the only conclude that mr smith would be processed respectfully your honor that is a question that the board or the immigration judge should have considered as a matter of fact neither did so there are no findings in the record about the frequency with which people are prosecuted under the laws there are you just criticise the border or i j for making that finding there's no there are not prosecutions they're not prosecuting it presently so the immigration judge cherry picks from the evidence to conclude that there are not that none of the laws are being enforced that's actually contrary to what the documentary evidence demonstrates including the newspaper articles that mr smith submitted in the actual text of the state department's report from two thousand and fourteen but isn't that a critique of the i g is fact finding based upon the evidence of record yes your honor it's but  i'm trying to persuade this court to look at it as a question of what the board should have picked up on how it carried out its clear  the board was required to look at each of the immigration judges factual findings and consider whether they were supported by all of the other dents in the record there's no particularly on an issue of this significance there should have been some discussion in the board's decision and there is not  about whether they're prosecuting these crimes about the frequency with which people who are perceived to be gay are prosecuted by the jamaican government and your argument is there is no mention of that in the be a even though it was mentioned in the i g that's correct even though you are you are arguing that the i j a made a determination that was contrary to the state department report into the newspaper clippings entered into ev broyard another key says is that the board has to provide enough information about its reasoning to help this court understand how it reached the conclusion that the board's the board's decision has very very little analysis there is stripped a series of conclus chief this isn't a reasonable fear and then he has a conversation with the man and the man starts talking to america and says i don't support the gay movement in america something to that fact that i got in a fight because he's believed police were there at the time of the funny to educate the police as to the reason for why he would repeat that question or is there any evidence of record indicate why the why the fight was occurring assuming that there were police on the scene in other words you know two guys drunk two guys friends who were mad at each other or in this case a man who is being patrolling for illegal taxes there's nothing in there showing the police or watching the fight much less they overheard the slurs and that's the reason why they fail to intervene all right so is it your argument then that that incident did not rise to the level of torture it's trying to walk the court you have the claims involved because i don't think that was really put a button for stephenie put before the immigration judge this idea of the police were looking on they turned their back because of slayers he said his declaration course says you don't believe the i j a overlooking the evidence including the evidence or referencing these pages of your brief and we don't think it would change the result anyway but even looking at the mother's letter and never references homosexuality the letter a letter does not show a clear problem of torture because you homosexuals or anyone speak to that and again the board did look at that is specifically cites these pages of his brief we talks about overlooking the mother's letter among other things including this has also submitted via articles which show jamaica recently had a successful proud week in august twenty fifteen tended by the americans and and then this is not in the record but a quick google search shows you that the another successful broad week this last august editions of vastly change and even looking at the torture the fishnet claimed experience which the agency said it was not torture that was in two thousand and two fast forward many years later conditions have vastly improved so the government is now making a series of involved factual arguments that are so important you would have expected to see them in the immigration judge's decision the immigration judge does not discuss any of the reports that mr graham that's just discussed and clearly that evidence was so important because the there was enough dispute about there's enough ambiguity that there should have been clear factual findings on the part of the immigration judge before he analyzed whether or not what was likely to happen to mr smith would rise to the level of torture to the two thousand and two beating mr smith so first of all mr smith specifically discussed specifically testified about police officers being present at the scene of the beating and not intervening that's it pete that's it pete eighty nine of mr it carries over on to page ninety mr smith is not required to show that the police officer specifically knew that he was being beaten because he was because he was perceived as guy nor does he have to show that the police officers heard it has the intent burden don't have to show that the government deliberately decided not to intervene it's enough to show that they had the opportunity they knew they had the burden and they they didn't intervene right but i saw the intervention and you're seeing th doing do we know that they were even aware the fight was going on your honor the immigration judge said that he accepted all of mr smith testimony including the stress with testimony and written declaration concerning the fact that police officers could not have missed the fact that a beating was going on so i don't think his burden extends beyond that testimony that the immigration judge deemed only credible i think the immigration judge should also have considered carefully and light of the documentary evidence whether there was sufficient evidence that police routinely fail to interview to intervene to protect people who are subject to anti gay violence to make a finding of willful blindness you have many other cases that indicate are similar in terms of the mistreatment so for by the titian there's nothing i'm not aware of cat cases not asylum or withholding his right i'm not i'm not aware of cases in the circuit that are squarely on point with respect to the fact however any any other circuits or i would be high just we know we had or we didn't we didn't i haven't seen any so i'm just i'm not suggesting they're out there but i mean i i think the i think the bromfield decision from the ninth circuit is instruct e but i think also if you step outside a little bit and look at say piers check on v h s which does present a different set of facts that somewhat similar i mean there was a there past threats to the petitioners life and then he submitted copious record evidence of the likelihood of future torture in the form of country conditions evidence that this court held to be sufficient to show a likelihood of torture and that's to qualify him for carlie and was there a finding of past torture and i believe there was not your honor but i'd be happy to check now again we can look