ignoring substantial evidence compelling the conclusion that jack is at risk of future tort torture and therefore eligible for at least deferral of removal under the convention against torture if not withholding of removal under the cat i'd like to begin by speaking about conspiracy to o waiver and the fact that the federal generic definition has already been decided being the two main points your honor and allow me to explain st the we fully briefed the federal generic definition of conspiracy and not only did the government properly identified of this court reviews questions of law the no go on page one hundred and twenty one of its answering brief but also states that this court itself applies the categorical approach when determining the federal generic definition considering the fact that this court order explicitly addresses the generic federal definition as quoted and does not cabinet so lead to sentencing in contravention to what the government has argued before this court specifically states under federal law a defendant cannot be convicted of conspiracy if the only alleged coconspirator is a federal agent or informant in addition i see that the government also cited a host thank you m v bar which does not apply because the generic from the government's request that we remain now the government is not not arguing that is waived on the other hand even if it's a pure question of law we really don't have much briefing on this question i mean the the best reason i've got is in the government's twenty year jail letter exceeds the generic definition that's the case if it expressively defines a crime up more broadly then the federal generic definition which yes but the question of what is the generic definition and i'm not i'm not sure i know honor i would identify that brown versus united states does explicitly state that the federal generic definition of conspiracy is bilateral as compared to the washington conspiracy statute when i was comparing the two and it cites back to given that being the case that there is one at least one and two that have been cited before this court state cases in arizona that explicitly state that arizona statute or the arizona conspiracy statute a by its unilateral conspiracy therefore under the framework that this court considers for whether the statute of conspiracy is overbroad in arizona compared to the federal statute at least to the issue i would submit that there's enough evidence and argument on the record for this court to decide that as the do no issue of law or call for supplemental briefing if i think it appropriate however this case has already been fully briefed considering the  additional plain language argument that has been submitted and support of my case law concerning the fact that a person who is part of a conspiracy need not be party to the underlying agreement and so even if a party to the agreement and it has a bilateral or unilateral either of those i think eleven was at least brief but but neither of them as far as i can tell was presented to the board and we only have jurisdiction to consider convincing evidence the fact that it was removable as charged and here the court did do or the immigration judge did do a full analysis of aggravated felony and to what extent thirteen dasht th and five applies the court just did not look at or did not include conspiracy thirteen dothan three despite the fact that evidence was in the record for its consideration regarding conspiracy as to his charging documents and the b i a looked at b i j's opinion and look i had an opportunity to pass on the issue furthermore this court considers the exhaustion doctrine liberally especially where the prisoner is or where the petitioner is pro issue which they did here they looked at the high j's opinion and said that it was proper for the reasons that and legal precedent that it relied on and also identified the basis for his challenge to be ira as required by randy holder wherein he stated that the i j a erred in finding him removable and properly identified that it is the burden of v h s to establish by clear and convincing evidence that respondent is removable as charged i j well whether or not it is enough to put them on notice it appears that they didn't consider everything because they looked at the fact that the i j u legal president and his argument and specifically stated the fact that the i i was barely a page long and so to that end i think that that factors then to considering whether or not jock exhausted his administrative remedies as he did here and i'd like to also speak very briefly about his eligibility for relief under the cap but as i see that i have about five minutes i'd like to reserve the remainder of that honor by the so to do is to address the cap of this point or did you want to assume th t i will say but i think your honor well you know i'd prefer that we do this in the ordinary way meaning you're supposed to go st with the argument and so the government can respond you don't get fined if you get that st time round in the rebuttal so if you could at least briefly address your counterargument so the government knows when supposed to respond absolutely i think you honor the fact that he's eligible for the funder the cat because he met his burden to establish likelihood of future torture this is the substantial evidence standard for factual findings such that if any reasonable due to cater would be compelled to conclude to the contrary that in ministry of findings of fact are not conclusive here they refuse to credit the fact that the shot was tortured statute is a categorical march to the generic definition of conspiracy set forth by this court in garcia same tanner and because of stand to evidence supports the agency's determination that just there was not eligible for protection under the convention against torture now as to the issue that was raised by this court's order recently with regard to whether a bilateral agreement is required for the generic definition of conspiracy under the immigration nationality act  the government has asked to review it on that issue now isn't it no matter we do argue that it was not exhausted and it was waived in the opening brief but to the extent that this court feels that it that issue needs to be reached in this case in order to correctly decide the aggravated felony issue we would ask to remain and because it's well established that the board of immigration appeal in deference as to its determination or interpretation and in big here is turn in the immigration and nationality act and the term conspiracy is clearly ended us given all the discussion we're having about what it means up this court's generic definition and it controls the issues that were raised in the brace but we took that order that the court said please be prepared to discuss this issue as meaning that the court found it necessary to consider this  and so now they're clarifying that that was really only a conditional motion and no i think it would be beneficial to remain in this case if the unilateral issue i concerning to the court that issue needs to be decided by the board in the st instance and that does go to the exhaustion issue because it was not raised i mean we argued our answering brief that nothing about the conspiracy being though as you undoubtedly know the exhaustion in front of the board for a pro se petitioner is treated differently from exhaustion when represented by a lawyer and sometimes works out very badly for people and they agreed to the do with the i j a right that's right and this court does construe more liberally where someone is pro se and that's why while we raise the exhaustion issue we also went ahead and strawman for the moment that it's sufficiently in front of us that we should remain on i've sat agree with you that we need to remain on in the sense that while we all know deference to the board's dream addition of arizona law opening break but as to the unilateral there's no dispute arizona it criminalizes unilateral conspiracies that what is unclear and big us is whether the judge federal generic definition in the immigration nationality act it covers as you're right on conspiracies and brad is definitely not controlling as to that issue i want to make that clear brow that was the sentencing guidelines case that was looking at whether something code and the majority of states which the right people go to the majority of states require it over act but encompass unilateral agreements now i guess in canada didn't specifically address the unilateral issue because canada well it doesn't address your lateral convictions it's going with the majority of states in the model penal code so under that logic unilateral conviction or conspiracies would come in but it's just it's in big us and the board should yes please ok the border rights with respect to cad there is no indication and i'm just reading from the last paragraph of the board's decision on the interested in him at this time well there is an indication i mean the father ray specifically testified that he worried all back he would be identified as the son of the minister and that he may well be killed so the big guy is wrong when he says there's no indication does that mean that they're just not they're just ignoring that piece of evidence respectfully i would disagree because the father testified as to his opinion but he did not provide any factual evidence behind that and well well wait a minute if this were someone whose who were an expert in the country or knew the country would we would treat that as evidence here's a man who is refugee from the country he's been back several times to that country and he says this is what happens that's all like evidence to me he said that that's what he thinks would happen to his son but what he also said was that he has been backed local times and no one has threatened or expressed any interest in him or his son also on the board no no he says i'm safe because i am an american citizen is that i was not an american citizen and he would not be sa convincing evidence we regard this as speculation they say there is no indication which lead what they say that which leads me to think that they did the do not pay any attention to it and i think they need to evaluate that question i can see why you might interpret it that way but i don't think that's fair to the board i think that what they're saying is that in fifteen years you know there is no evidence that anyone has threatens the sun and they point out that he has it there in the sentence before that be what led to the country conditions reports which which the press presented a lot of evidence that you know even apart from the issue of his father and his relationship to him the returning people who are being returned after having sought believe that some people yeah don't this is only administrative record page sixty the immigration judge says addresses those reports about failed asylum seekers who return but it looks like the article yes some of them are detained but most of them are detained and they grind are they there is a bribe is requested so i'm not saying that's right i'm not saying that's good but that's not torture that's writing and then it also the articles claimant shows that he would be subject to church or by the government of a country but the evidence establishes that he might be able to avoid by paying a bribe to an official that he is not entitled to count relief because it because can or by paying bribes i think that goes to the more likely than not standard so it doesn't you can't say i would be more likely than not except that if i pay five dollars i see what you're saying that you shouldn't have to pay a bribe to avoid torture but it's not clear from the country conditions evidence that that's the scenario instead it doesn't say what it actually i was thinking of and i i guess i'm asking  means but certainly means less than all but i'd like to go back to the previous paragraph in the pages real opinion it's the last sentence in that previous paragraph where the i i think in this case the dad was able to testify as to his experience but he did not have any basis for making a conclusion as to eligibility for cat what's not his job zero foot view brown is approaching the definition of conspiracy from the exact same framework that we're doing so here where and you're using the categorical d approach to look at what the federal generic definition as and and forty eight dollars and brown it's typically states that unfair under federal law a defendant cannot be convicted of conspiracy if the only alleged coconspirator is a federal agent or informant that's a very broad statement of fact as it relates to a federal generic definition of conspiracy moreover i understand judge fletcher that you indicated that it would be nice to have the i j a and be a i ben however that's not necessary here specifically under experience that this court has with the know both of you it would make the most sense to keep purview over in this case particularly given the fact that the conspiracy statutes have been fully briefed to this point additionally as to the cat i understand that the government and the i j a focused on the fact that some people are able to a bribe their way out however i'd like to focus in on the fact that tortured means that public officials are acquiescing to it scheme and if you have public officials who are stopping failed asylum seekers at the airport and requiring that they bribe their way out bad as a as a matter of law means that the officials are acquiescing in the scheme of torture which makes it an