a judge kessler the i j a also addressed this issue in her opinion she actually wrote a very good analysis of the split in the circuits indicating that in fact this court had adopted the willful blindness standard and in her nowhere to be found in the written opinion from the i j a my understanding from having done a few appeals to the v a is that they would not have considered a close to shore claim directly from the i j a to the board  so that's why we did not raise the constitutional claim of the v a the v a made a footnote in its opinion indicating that i had not raised the removal of the ground which is correct i couldn't because when i moved to amend the still be saved assuming the robbery conviction is is taken away by the maya he would be eligible for cancellation removal on the farm of yours but haven't we recently concluded that the maryland crime of armed robbery the only issue would remain would be the cat denial which we believe merit to remain based on the may please the court i am sarah byrom appearing on behalf of the united states attorney general this court to dismiss the petition for review although petitioners concerns of potential harm in all silva are sympathetic his intentional criminal actions me that this court can only review legal questions or constitutional claims praising his petition for review but here he challenges only the denial of his deferral of removal under the convention against torture and more specifically the agenc raise a legal question that we could review could you state that i'm here you can be sorry the b i a fail to conducted a novo review on the i j s holding the petitioner failed to show that was more likely than not he would be tortured in el salvador and the question of the or review we have held before is a legal question and that we can review even in this context under this court's precedent in time for the the agency's determination about whether a government would acquiesce  petitioners torture is an a more of your ball factual that i understand the outcome is not something we can review but whether they be i applied the correct standard or review you don't think that's a legal question over which we have jurisdiction but here if that was the only stand with the question is yes to the question whether the board applies the crack legal standard is a reviewable legal determination but in this in this case that's not what we have here here  agency articulated all of the correct legal standards and even if i agree with you on that i'm just trying to figure out what you want us to do i thought you thought we should dismiss this case for want of jurisdiction but now you're saying we do have jurisdiction over at least some part of it and i assume then you want us to dismiss on the merits it's our position that this court should dismiss this petition for review because between only challenge and he is raising which is the determination that the salvadoran government wouldn't acquiesce in his torture that's an unreliable factual determination aren't you just said that section b raises a legal question over which we have jurisdiction you don't think about his claim that the right i'm reading it to you t deny this petition for review because he saw the challenge is i understand how he has that word in his brief but at bottom what he really is or take you living is a challenge to the agency's factual determination with respect to whether or not the government would acquiesce that is in an reviewable factual determination under seal mukasey which is the case that the petitioner does not even  criminal the criminal alien the criminal ilian bar which we have placed here as well as his to for application for which he argues simply that the evidence there was insufficient evidence the evidence does not show that issue in the case so it's worth spending i know you when one's arguing one always wants to get to one's next argument because the court doesn't understand anything but just bear with me on this ok so i thought that you agreed and i thought it was really not contested that we reviewed to novo an application of the government acquiesce standard to the facts now i know you don't agree i'm sorry but that case deals with our review of the board not the board not the the the internal agency review it's quite true because congress doesn't want to ask getting involved they've made that perfectly clear with this right so we can't do anything yet we're what we're talking about and i thought we were talking about here is what the review was internally  agency yes that's not our review that's us determining whether the agency has used the correct standard in this case the agency defuse the crime no but i still want to know of the agency's determination as unreviewable by this court because it's a factual determination now the agency i'm review applied the correct standards and they weighed the evidence including the poor just just error and you think that is correct no you don't think i thought you said you said both so i thought you recognize that's not correct so for the poor that is a legal determination that they would review to know be that could be an error because the board should be reviewing that as a legal issue to novo factual findings clear air my apologies for the confusion initially i thought that we were talking about the review of this court yeah it's confusing but i think we all agree that the review of this court of what of the b i a standard a review is something over which we have the court has jurisdiction over the legal questions to the extent that he would raise one but yes but here we argue that he just challenges that factual determination we  standard or review incorrectly and that is you know what they should have reversed basically i get that but i sort of think here they have broken out a separate question as to standard of review and i  just was the board are looking at page three of the record where the board says the respond and has not established clear error in the i j a is factual finding that the salvadorian government would not acquiesce in his  chair and then a quote science for the proposition that whether the government acquiesces is a factual finding do you think all of that is correct or may mean is it possible that there's a bit of an issue here because the science the only goes to the  i mean it it seems to me that perhaps the board is weighing in under its appropriate standard for you review but i'm not clear on so could you address  standards for a convention claim and then they applied the evidence they weighed the evidence to to find that that the evidence that he brought in it it was his burden to show with what the country commission report which was the only evidence that he that that evidence simply wasn't sufficient to show that he specifically would be tortured by or with the consent of the salvadorian government and so lengthy discussion and then simply weighed the evidence and that evidence for the agency and that sort of country condition report which is all that was proffered to find that but he didn't show that specific ok what seem to have a bit of a blurring between the actual finding clearer and the legal determination of clear for the legal determination and a no vote excuse so now when you say it's a genuinely want your input on this because i know you see more of these cases and i do so my concern was that maybe what the board was doing was saying was applying turks and this one to by your op or bifurcated review standard to the sort of what we think of  is it more likely or not the torture that the infliction of severe pain or suffering will happen that on that they apply church and then when it came to wrong to acquiescence they only apply clear air review which just yes is not crazy it's not a nutty reading of science mind i think it's incorrect because that goes to our jurisdiction and not a review but it's plausible to me that the be i might be making that mistake that it applies the bifurcated thing to problem one and then it only applies clear air rebute a problem to is that what's going on here i can't exactly so speak for the board but it seems that that may have been the case i mean  the you know they do they do stand for the proposition that it's that it unreadable factual determination men when we get to turks and unreviewable by us yes then we get to turks and bade the court does sort of apply that delineated with the two prongs very turks and to say what does this mean for what we've already said in there is a little bit of disconnect and and you know to be to be forthcoming other as you probably are aware other circuits do apply that more bifurcated applies legal determinations novel yes with with respect to judge harris's question right it was in turkestan turkson discusses the question of torture and whether or not  where they review the agency's factual findings as to whether what exactly the petitioner might suffer in terms of the harm and then that is a factual finding with respect to what the agency found as to the petitioner may suffer in the future then the court said the second part of that analysis is the legal question of whether or not that harm falls is the harm that the mistreatment what what the petitioner may suffer in the future and agencies findings as to whether as to what harm the applicant may suffer that beholds right is that for jurisdictional purposes yet we don't have the ability to review it but that is not the same as the standard view that the b i a r t v yes i have if i understood likely to do if that's what will happen when the police show up or not all of that would be reviewed for clear error but then whether what the government will or won't do rises to the level of acquiescence willful blindness all of that that would then there is a legal whether or not the b i a did it here is a legal issue but whether or not if the yes and if the court finds that the agency did not perform the analysis correctly then of should be adopting or are we should be for ruling consistently with the decision of the third circuit in twenty seventeen when they break down th explain that there was a split in the circuits and and she cited that in the in the opinion in contrast this to single board member didn't and only substitutes his or her