rebuttal i'd like to get to three points today time permitting the first being the denial of relief under the convention against torture in this case the immigration judge found that mr calderon cannot qualify for relief under a cat because he quote fears general country conditions in crime not particular to him the b i took this a step further and said that what he actually fears is not just general country conditions but cultural adjustment and indiscriminate violence in mexico now mr calderon was actually asked this question at trial he was asked do you think if you didn't have tattoos and didn't have a history of involvement with gangs you would be targeted  persecuted in mexico now based on the findings of the immigration judge in the border we would expect his answer to be yes i fear cultural adjustment in general country conditions but that wasn't his answer he said no it would be different because i live like a normal person now the i g found mr called him he got arrested by the police not because of tattoos but because he possessed marijuana and refused to say the source so he got into trouble for things entirely separate from what he's claiming is the source of this problem i'm not sure how your answer leads to the result you want well in this particular case i'm referring to first of all i don't think that subject of fear is even the right legal test for relief under the convention against torture me torture there and the board found that what he suffered didn't even rise to a level of persecution so how is that what he suffered could possibly amount to torture well i disagree that with the board that he wasn't persecuted and with the finding that torture tell me what he suffered that amounts to torture under our cases well i think that under the law claims must be considered in the aggregate of the risk of torture from all the different potential sources and so the fact that he was violating mexico's criminal law by carrying marijuana and refused to tell the police the source that can't be a factor because that's not something he's doing based on lawful conduct so whatever happened i think resolving from that can't be part of your your accumulated package well i think if even if you possess  marijuana and the police asked him where he got it and he got put in jail because of it i don't think that being then beaten until he confessed is justified response on the part of of law enforcement  even if we find that he wasn't tortured there's plenty of evidence on the record that this does happen in mexico and in fact the immigration judge found that the strategies employed by the mexican government may not be the most effectual but they do not suggest the government acquiesces and the torture of its own citizens and not only do we know that the mexican government acquiesces to torture we know that they actively participate in it and they do so with impunity to get to that conclusion we don't have to go quote mining through the record we can actually turn to the judges own decision which starts with block quotes from the state department human rights country condition reports and in her own decision she's she's quotes the state department saying that significant human rights related problems include police and military involvement in serious abuses including torture arbitrary arrests in detention and confessions coerced through torture remain problems in mexico so it's unclear to me how the immigration judge after citing these passages and in that same report it says that not only is there torture in mexico but torture varies by region there's different flavors of mexican torture well there may be generalized problems there i think the i take knowledge that but what evidence shows that it's more likely that he would be toward well i think that you know setting aside his own personal experience  need to focus on his own personal experience because that was that light on the likelihood that he himself would be tortured well mr calder own testified that he was beaten approximately six times by rival gangs he did try to report it to the police the police did nothing that's a form of acquiescence i believe he was stopped in the street now there's some disagreement with the immigration judge over who was stopped and why he said that the federal police were stopping people and asking for d s the judge said that mr calderon testified that everyone was being stopped and asked for i d s that wasn't exactly the testimony we can't get into the hearts and minds of those police who stopped him but it's important in mexico according to the state department there's a travel advisory in the in the record that states that u s citizens traveling in mexico need to keep a low profile well how is somebody like mr calderon supposed to keep a low profile in a country where there's federal police who arbitrarily arrest people there's stop points that are operated by non government actors including cartels and gangs and it was he arbitrarily arrested i would argue that he listening in violation of the law while he was at least arbitrarily stopped asked for an idea and then so there was at least some suggestion that everybody who was stopped so it's not he was singled out because he's a member of the particular social group that he alleges causes problem right well again i think there's some disagreement maybe the records unclear about how many records being unclear isn't enough for you is that you have to establish that th conclusions were not supported by substantial evidence yes i think that what we can also show is that the agency failed to consider any of the evidence if the judge makes a finding that not only does mexico not commit torture they don't even acquiesce to it there's no evidence of that that's just simply not supported by the evidence let me let me let's let's go back to the subject of what he suffered and give you the easier standard persecution because torture requires a whole lot more persecution you've argued the government is cited i think it's the hoxha case for an up or down saying that in the way that albanians would recognize but and so you sought to distinguish that case but didn't distinguish the  case at all with regard to the issue of whether persecution the what would happen to petitioner there rose above a persecution you distinguish the case on an entirely separate basis so why isn't the hoxha case relevant to us and justification for the conclusion that what the petitioner in that case suffered and what your client suffered did not rise to the level of persecution in that case what you had was a series of threats that were unfulfilled a single beating unrelated to those threats and i think importantly the petitioner in that case had a similarly situated family member who continued to live in that country how was that relevant that's the distinction you offer in your brief that seems to me entirely irrelevant to the question of whether the harm suffered amounted to torture or mattered to persecution that's another reason for saying that there was not a well founded fear but we're focused here on whether what was offered amounted to past persecution i think if you want to look at what amounts to persecution you've got to look at the cumulative effects of the harms whether or not the the the harm was ongoing over a period of time  the extent of the harm and in that case you have again a single beating and a series of unfulfilled threats in this case mr called around testify that he was constantly fleeing from rival gangs beat up at least six times living in hiding kicked out of his family's home he didn't have even family to turn to and some of these harms are are lesser harms they don't on their own or rise to the persecution but when considered in their totality i think that they do want to save a little bit of time yeah i'll save a little bit of time thank you good morning your honors may please the court timothy hayes and behalf of the attorney general this case involves a former gang member who has been removed from the united states three times in august one thousand nine hundred five december one thousand nine hundred five and february two thousand after his two thousand and remove all he entered the us unlawfully and when caught expressed a reasonable fear of returning to mexico after passing the interview he sought withholding of remove all contending that he feared harm at the hands of the mexican police and the zetas cartel conclusion on either finding the course or deny the petition i want to focus first on the particular social group which was there were a few formulations positive before the agency former gang members persons are perceived to be active gang members and those who have refused recruitment efforts by drug cartels in mexico neither of these groups they to see held work in eyes well based on the evidence in this record and for two particular reasons one was a lack of social distinction there is little evidence of the groups proposed  considered distinct within mexican society the other reason offered was particularities and that's particularly with former gang members the group doesn't have to scream boundaries it could be any it's really hard to identify who is a former gang member well you have the tattoo element it's really easy to see who's got that kind of had to use that have been cited by petitioners the source of his distress yes but your honor the distinction between former and active gang member the court held was the tattoos were insufficient for particularly purposes in addition to the social group the court just discussed it these sumption that the past harm was did not rise to the level of persecution it was correct this record does not compel that conclusion the i believe it's the hundred eight so by this it a cartel's petitioner when we discussed that case distinguished it by noting that hox apparently focused on one episode or one beating and in this case he cites multiple beatings over a period of time you're right your element is tension no i think it's a distinction without a difference your honor because you have to look at everything cumulatively and cumulatively that one beating it or that one incident hocks it was more severe than all the incidents combined in this particular case your socks are shot at no your honor so the addition didn't suffer injury result of being shot at because the shots missed him but the the potential even the potentially lethal force would seem to be different than hawks you're right your honor i think that it's not directed to actual harm it's directed to scare you so there are some distinctions that can be made and i don't think on this record that the agency was incorrect in saying that it didn't rise to the level turning to the protection against  protection under the convention against torture application there are two main points of the interest you made in this case and they both have been touched on by my colleague the first was that there was no indication of past torture and now past torture isn't required to win a cat claim but this court has said it's one of the most significant factors in determining whether there is a clear probability facing future torture and none of the incidents that  faced rose to the level of torture i understand that he said in his testimony that the police beat him on a sidewalk before they arrested him for the marijuana incident but those beatings weren't severe enough where he even said he needed medical attention the testimony about what happened in the actual incarceration it was my understanding that testimony is a was in the guards doing anything it was other gang members sort of trying to prey on him and he said that he endured some beatings  prison when he was detained for three weeks but even that is a little bit suspect because at page one of two of the record he said that he could have reported the beans to the guards and they might have done something to prevent it he was afraid to do so because he fear th consequences from the guards would be worse than the beatings that he endured of the hands of the rival gang members but he did acknowledge that the amount of done something so there is evidence that not every single individual or government per person now in mexico is corrupt or unwilling to prevent torture the other thing i would like to know for the court is in his declaration at page two eighty back in the ninety's before he was deported the second time he was in immigration detention detention center in arizona and he claimed that former gang members beat him in detention there as well i don't know if that's true or not but it's also on the record the other issue with a convention against torture was acquiescence and i think this was the crux of the agency's decision that he cannot show acquiescence based on generalized country conditions and they cite the delgado ortiz case for that proposition now of course i think everyone recognizes that there are corrupt officials and protection against our protection under the convention against torture applicants have succeeded and certain mexico cases where they have been able to point to an individual risk of torture clear probability that a mexican government official would acquiesce to that torture but mr calderon does not have that in this record his personal belief is insufficient evidence and the document or documentary evidence of generalized corruption is into fishing and much just briefly i wanted to mention before that in this case there actually wasn't a finding of lack of particularities the board says in their decision that they agree with the judge that there's a lack of particularly in social distinction but if you look at the immigration judge's decision she rests the whole of her denial of withholding on the lack of social distinction it makes no actual finding as to particularities and so i don't think that the board can infer or can incorporate  found to be a credible witness and reasonable inferences from factual testimony are allowed he said he was shot at it's not the respondents position now to say that maybe he was just being scared or they were shooting into the air that's beyond the scope of the record in the refined also said that everyone recognizes there are corrupt officials in mexico but again that's not what's recognized the judge didn't even recognize that basic fact and so i think that this case has to be reversed to remanded because the the record was not fully considered when the judge says that well their methods are ineffectual but they're not acquiescing to torture that's totally the opposite of what the record suggests all right thank you very much counsel for the argument both sides matter submitted for a decision