has been removed two but every day there presents a new fear of harm to him the immigration judge the agency in this case made multiple errors and considering his case in the principal error is that the agency failed to aggregate the different sources of torture in this case as stated earlier mr rodriguez fears torture by three different specifically reserved by the board in this case the board did not reserve issues of the not reserved jurisdiction and the immigration judge had the authority to review issues and in fact should have reviewed all issues only me an consider all the groups he didn't or them cumulative so he considered separately the fear of torture by the gangs and then separately the fear of torture vigilante groups in the separate decision the supplemental decision and then separate the fear of torture by police so it's possible for example your honor that there could be a forty percent chance of fear of torture or likelihood of torture by the gangs forty percent by the police and maybe twenty percent groups and when you commit this this likely of torture together that that brings you to the more likely than not standard over fifty percent and that's the problem with this case is that the  that as well so you have a principle decision in the supplemental cision you have effectively two different standards or two iterations of the standard for acquiescence across the two different decisions so in the first decision there's just a very kind of summary statement of the standard of of cat relief that you have to shows more likely than not that you church or or that you will be tortured if returned to your you know country with the acquiescence of the government in the second supplemental decision there is a more detailed iteration or explanation of what acquiescence is and it's a and i guess the government i would probably disagree about this but i still maintain that they relied improperly  to it and i think one thirty nine and one forty in the analysis but nevertheless it's it would seem to me that there's really two different statements of the standard there's one in the supplemental decision which is a more  lengthy statement of what the standard of acquiesces says in the principle or in the or in the first decision there's just a very summary statement of what the standard is and then with regards pacifically to the likelihood of police torture there's just a conclusion says i think it does make a difference when you have a case where you're talking about torture by the police that the police themselves are engaging in torture as opposed to a different case where you're talking about police acquiescence acquiesc exclusively to third party torture so i think that would be a different case i think in this case when you look at it each torture individual lies i think you miss in effect the proper review of acquiescence because i think you know for example in for well for one example in discussing acquiescence the in the supplemental decision the i j a states that it states essentially that mr rodriguez has and then i think when you put that together with the likelihood that for example in what jennifer now the expert talks about that the common practice of returning gang members to rival gang territory by the police this is again the police are involved in intentional torture with with rival gang members who are not involved but the returning people to rival gang members for the where they may be tortured and then the police are engaged in torture also when you consider all those things together i think that really brings you a stronger case towards acquiescence as opposed to if you consider them each individual as their own kind of i think it was the ninth circuit talks about as case terms of we're not talking about group police officers i think the evidence is it's pretty strong that there is a practice of or at least a pattern of torture by the police themselves in this case i would point again i would point to the regulations in the regulations say that it is acquiescence by a public official that we're looking at and when a public official breaches their obligation to protect then then you're potentially looking at acquiescence in that case if if the government certainly is affective in in combating or holding people accountable then i think certainly that would go into the totality of the evidence that you would sit or in considering whether or not bifurcating the two decisions in this case i don't think the immigration judge effectively looked at the other evidence of torture and particularly the expert evidence i note in this case that in the second decision the  immigration judge seems to dismiss or discount some of the expert evidence because he says or she says it's a broad categorisation not that's inaccurate this court has consistently held that in order for the agency to discount or disregard expert evidence it has to provide a cogent reason to do so in this case we have the testimony of jennifer  she she testified she was subject cross examination and her experience was not a broad categorization of harm in el salvador it was a lived experience as a personal experience she talks v  civically about specific instances of individuals who were harmed that she knew that she worked with that she talks for example about the case of an individual who was stopped by the police in a grocery store he was stopped i mean you know the store he was made to reveal his tattoos he was a former gang member then he was taken to a site he was tortured for hours and then he was left unconscious in rival getting territory after having his certain you so that his tattoos could be revealed to the rival gangs so that is a very much a not a broad categorization that's a very specific kind of  at the end of the day this is an evidence based increase in their legal question and i am interested in the government's position the petitioner or stake because instead of considering these three possible sources of torture cumulatively  should break with the third in the ninth circuit and say that this was the appropriate analysis this was the the appropriate analysis in this case because even even assuming that there is some sort of error in the immigration judges by for what is the the evidence and that's in our brief to this court i believe and it's also in the regulations and i think there's a published board decision that's the evidence of torture does have to be evaluated so there was a and we agree i think that the i  i think i think that's where we disagree because i think that our position is that the immigration judge did consider all three possible sources of torture together and by incorporating or because i look so in the immigration judge's decision the immigration judge incorporates i referenced the previous decision which referred to the other two sources of torture and three times in the immigration judges decision the immigration judge refers to the fact that she is considering all evidence relative sources or harm if you look at the board of immigration appeals decision in this case the board had before it all evidence relating to the possibility of torture including an argument from petitioner regarding this aggregation point and so the the board of the immigration appeals to extent that you find any error in the immigration judges breaking out of these groups the board had the opportunity to consider it yes the  board issued matter of bourbon our adoption and affirmed the immigration judge's decision and so they took on board all of the immigration judge's reasoning and ultimately concluded the reasoning was wrong i think that the that they don't explicitly say that but the absence of magic words doesn't doesn't take away from the fact that they had before them all evidence of this and that they  aggregate and and that the board had an opportunity to look at both of those decisions the board had all of the evidence before and all of these planes and then had the opportunity to consider them and rectify any perceived  that the there is a finding that the evidence in this case was considered by the immigration judge the immigration judge consider the evidence relating to possible torture by gangs by vigilante groups and by police and concluded that as a whole it's not that the immigration judge concluded that in each one the immigration judge broke it out as a matter of how the immigration judge organized her decision but the son conclusion was after analyzing each one of these threats separately because they're all separate threats with separate evidence that goes to whether or not those th reats would result in torture and the immigration judge analyzed each one of those threats separately and then reached the ultimate conclusion that the petitioner in this case was not entitled to protection and didn't meet his burden of proof and that was the way that the immigration judge put these all together without necessarily using explicit magic words but the some conclusion was i've looked at all of the evidence and it's not the case that you more likely than not face this risk and and to the extent that that we are arguing that there was no error in that decision the record also doesn't compel the conclusion still i think that we don't dispute and in our brief that there is that there there may be some risk of harm that that that is contemplated by the judge and as well i think that the issue is more  that when it comes down to a fact based increase that the record just doesn't compel the conclusion that the harm that he faced is more likely than not you know or is torture where he had his expert witnesses testify to a range of possible harms that he might face including social stigma including including harm far falling far short of extreme lee egregious harm that would be torture and while there are anecdotes in the record that are horrific to read they are they are not to be read in isolation and they are you know sort of single incidents and that doesn't compel inclusion that this particular petitioner basic nature of this inquiry that if you could if you could see the facts two ways that doesn't mean petitioner wins if you can see the facts to weigh and i agree if i mean i certainly understand what you're saying if there had i guess why i think that the the acquiescence in this case there is there's substantial evidence and the record that suggests that that the government of all salvador is taking steps to corruption and they have tried legislation they've tried to truce between the gangs they've they've tried various measures that have not and that have been varyingly successful but i think that that goes to not it's which is not to say that there isn't evidence some occasions in which the government or as you pointed out the police have either turned a blind eye or having bad conduct but that that's not the standard the standard is whether or not the government is acquiescing they're willing to take steps to prevent these kinds of harms from happening in addition support his claim but whether or not experts testimony is enough to establish that the record compels a conclusion in his favor when again there are these two independently dispositive prongs of the agency's decision one based on the likelihood of torture of government acquiescence to say that although there is there some evidence evidence from expert witnesses that persuasive that may not be that isn't enough to show that the record compels aggregation of evidence point the immigration judge did discuss all relevant evidence and how she was considered already relevant considering all relevant evidence that some pages one twenty three and one twenty five the record  and again the board had before and all the relevant information including the immigration including the immigration judge's decision but also the petitioners argument that that the information wasn't considered cumulatively and so automatically the board issued a decision that addressed in a broad in broad terms the overall risk of torture that her faces without breaking it sure yeah you know i don't think this is necessarily a matter substantial evidence we certainly made that argument we made that argument in the alternative we think this is a legal issue legal argument and we don't i do not think this is a matter of siddur but in terms of the substantial evidence i think there is compelling evidence on the record that the that the agency did not properly consider that would demonstrate and i think  in a compelling way in fact mr rodriguez there is has met his burden of proof i would just point that mr rodrigues areas testified credible so this court has found in previous cases that credible testimony alone potentially could meet somebody as burden of proof he test to hide his own threats of harm to him and what he thinks would happen to return till salvador and he also testified about how a similarly situated individual that he knows who was recently who was removed to el salvador and then was killed shortly after arriving in el salvador so he has his credible testimony he then corroborated that with considerable country report evidence and three four expert witnesses or at least secular declarations from four expert witnesses and one who testified subject to cross examination that in fact  rodriguez faces the likelihood of torture if returned to the door because of his it's tattoos his former gang affiliation he would be he would be identified as is either a rival to the gangs or as a gang member or by the police and vigilante groups and then faces and more likely than not chance of being tortured if for me it so we think it does satisfy that he does satisfy his burden of proof we think the evidence is compelling nevertheless it's not our it's really an alternative argument for us our principal argument is a legal argument and it's that the i j a the agency did not properly consider the evidence did not consider not evidence when considering it that i think in this case it's hard to really know what the standard of acquiescence is across the two different decisions it i think also in this case the my colleague talked about incorporating the two decisions i think that's difficult in this case where for example well well the to be specific the i j a said that she's incorporating relevant parts of the previous decision doesn't specifically tell us what those relevant parts are and again in this case we have a situation where in effect the i j a states are standard or make a explanation of the standard in the second decision and then we're supposed to kind of fly it retroactively to the first decision so it kind of doesn't fit that way so we agree with you know something or i don't think so i think if it goes again your honor i think it may go to may fall into the harmless error issue i mean and i think it is the bench mentioned this is not a case where there nothing presented we have a lot of strong evidence that talks about what happened to mr rodriguez areas and we also have knowledge that there is a real chance that he will be harmed if returned and he has serious full years of  r so i think in terms of a harmless error issue it's not a harmless error that is a significant here with a real impact to mr rodriguez this case and your i don't think it's a matter of magical words either i think very specifically said what she was going to do in her second decision and she said she's limiting her review to the issue of torture by vigilante groups she titled the subheading torture by vigilante groups and then that's really what she talked about throughout that section so i think it's clear what what the i j a was doing in that in the case i mean it's not really a matter of magical words all right thank you very much thank you