immigration judge we cannot sustain our burden substantial evidence however the underlying problem in this case is that the immigration judge in his findings of fact ignored crucial evidence and his analysis and those in the initial question of whether likely more than likely be tortured he failed to address the substantial issues that should have been addressed namely had in fact were in fact right or disappeared their defacto with respect to this appearance her sister in law disappeared for a approximate period of three weeks and there was a nephew that was killed now the crux of clean for relief of the convention against torture is the fact that she was threatened with death initially as a result of her speaking out her sister in law fled and subsequent to her fleeing her home town to another town with an all solve she was once again threatened with death now in the immigration judge the citizen the immigration judge characterizes the fact that miss carr went to the police they laughed in her face subs and they laughed in her face because she didn't have enough proof however a reading of her testimony very clearly shows on that page one hundred of the ministry of record she describes the first instance of being threatened her first approach to the police where she was told you don't have enough proof that if those were the only facts then the immigration judges finally could possibly sustain however the additional fact that she was threatened a second time she attempted to provide the police with evidence and at that point they laughed in her face and they gave her a subsequent reason at that point well maybe it's just that yours your church son's or her teenage gang members and they refused to help her so if tortious action by the public officials as opposed to what it appears as though our president actually only requires that they were aware of the tortious action and that they breached a duty to intervene that seemed to be pivotal because if you accept the formal it's a much more difficult burden to me than the latter so which one we laboring under here in terms of evaluating how the i j look your client had to demonstrate that the public officials willfully accepted and consciously approved of the tortious gunda no your honor and that that is part of the crux of the legal error committed by the immigration judge in this case now berger and her son whether that constitute torture was simply short circuited the immigration just simply states there is no there isn't any evidence of torture that's a quote from his decision he doesn't and he does not threat of that as torture the court did remand for a consideration of some of the factors that need to be considered in the quantum of the threat of death so for example was there an actual attempt made on the life of the petitioner was was there any credibility to the threat of death was there any possibility that it could happen to paris session score in the seventh circuit actually discusses whether or not there was there were these findings this point is that there is a lack of analysis to actually review there for example if the immigration judge or the b i a had actually set forth why these threats of torture are excuse me threats of death  not amount to torture it would be a completely different discussion we would actually be discussing the merits whether what actually would constitute torture or not in this case we didn't even reach that point the immigration just didn't reach up point and for some reason to immigration judge did not in any way discuss or his findings of fact that there were threats of death to both her and her son and this is in fact a crucial fact with respect to the analysis of whether it's more likely than not that she  tortured in the future because the future likelihood is not that she will receive additional that threats the future likely the question becomes is she likely to be killed is is her son likely to be killed that that's what the immigration judge ultimately surely being grappling with now in our brief we fully set out our position that it was clearly erroneous and immigration should be reversed but in fact this case is most likely right for a reason to consider these issues especially in light of the fact that her son was threatened at the age of fifteen and she had a nephew that was seventeen years of age that  what essentially has been done in this case is the both immigration judge and the board of appeals have basically used the country conditions as a necessary and sufficient condition to deny the case without taking into account the actual experiences of the petition so the immigration judge takes picks and chooses several positive factors and the evidence the government has been attempting to fight gangs the government has been pouring some money into the security services and says well that outweighs the negative corruption issues that outweighs whatever ineffectiveness the police might have that outweighs all the other aspects of the country conditions that were submitted into evidence not the positive ones and by doing so we believe it is an abuse of discretion you cannot take a case the actual facts of the case which morning your honour's may please the court alexander loose for the respondent your honour's of before the agency this compares burden was to show a clear probability that in the future she would not just be tortured but would be tortured with the acquiescence of salvadoran public official and before this court the question is whether this record would compel a finding contrary to that reached by the agency at the beginning of posing counsel's presentation he conceded that based on the findings that the immigration judge actually rendered is not  able to meet that substantial evidence burden and therefore he identifies what he claims to be errors by the immigration judge and feeling to consider certain facts or in failing to provide willful blindness versus willful acceptance standards of is the to jump right into those points your honour's we see in the immigration judges opinion immigration judge actually noted a number of the facts well i think all the facts that opposing counsel just addressed it page let's see if i can put it up immigration judge identified the threats that miss complera face that's at pages fifty two to fifty three the immigration judge said when asked how she knew the gang members attacked her sister in law she said some guys from the eighteen threatened her and her son because they realized the respondent had been looking for her sister in law they discuss the immigration judge discusses those threats discusses in the next page at fifty three she testified that her nephew luis fernando cruz from era was attacked and killed by gang members when he was seventeen years old immigration judge goes through that whole page and on to the next page fifty four with factual analysis and then pages sixty one and sixty two puts it all back together and identifies the responded to not present evidence that she was tortured in the past or will not be tortured or will analysis there by the i j as to why it is so that this is not sufficient well your honor i'm just going to turn back to the standard of law here because what the immigration judge's decision does is it lays out the facts and lays out the law and  why we are and i would respectfully disagree because i think the conclusion that the immigration judge reached flows naturally from the facts and the law the immigration or something why wasn't it sufficient where did the judge say why what the why those fa sufficient to meet our burden here well your honor and pain shifty seven fifty eight this is where the immigration judge i know it's unfortunate he says is that all you have to say unfortunate but not sufficient no your honor i think the immigration judge's decision requires putting together the facts the law and that application so i definitely the immigration judge isn't just backing this by saying it's what i would do you say to show notices torture is defined in part as the infliction of severe pain or suffering by a public official or at the instigation of a public official with the consent or acquiescence of a public official that's the lol that's the law correct your honor the board has specify that only extreme forms of cruel inhuman treatment rice the level of torture citing the matter of cheney and that page sixty one immigration judge sense that same opinion again matter of genes is the threats and harassment the respondent suffered while unfortunate do not rise to the level of torture for purposes of protection under the cat that it until it was because it's because it's old his phrase say so unfortunate but it doesn't rise as a conclusion it does not tell you why he is ruling while your honor first of all i guess i'd make two points in response to your question number one the immigration judge doesn't have to set forth an exit jesus doesn't have to dive deeply into each claim that the applicant makes they just have to set forth a basis for the decision sufficient for us to understand what they thought and heard and didn't merely react we're looking for a basis in the decision that can be reviewed on it he said i just find her credible yes your honor i believe so but credible testimony does not necessarily meet the burden of proof for cat protection so what we have here your honor is just threats threats that  alone or torture i think it is possible for the person has to actually be tortured or baten in some way can't be that hard sister in law disappeared that her nephew had been murdered and now they're saying we're going to do the same to you you're let out actually i think you cut an arm off or something and then in the scales no your honor no but you would need something else besides the type of threat that we see in this case what well as an example and this is just a hypothetical but some evidence indicating that the threat is actually going to be carried out differently well your honor that happened years before while mr brewer was in the united states and it was completely unrelated to the facts  the basis for cat application so respectfully would suggest that that's not the type of conduct that we'd be looking for here if the gang head well you know you're honest for example this is a lie a case provides the type of facts that might suggest that threats indicate include torture because in that case the applicant was threatened with death but the attacker actually fired a gun at him and said you're lucky i only have one bullet so i'm not saying incident in the past can't create a presumption shift the burden on the government the question for cat is always is it more than fifty percent likely in the future that the applicant is going to be tortured with the consent or acquiescence of a public official and in this case even if the court were to find that the record compels a conclusion that the threat she experienced in the past constituted torture she still hasn't shown that the record compels the conclusion that a public official will acquiesce in the future that's what the board focused on  received a written threat and it's not clear that she brought that to the police or why she wouldn't have done that but the police definitely did say and i'm quoting her testimony now the police i talked to told me that if i didn't have any type of proof that i had been persecuted by them that i had to bring them some kind of proof they could not just like that another point i would make your honor set the record isn't clear doesn't compel the conclusion that she went to the police on two occasions the immigration judge doesn't make any finding on that one you just talked about everything she said the police told any found her credible experiences with police but the questions she was asked in the answers she gave don't make it clear that it was two separate occasions because the first time she talks about it she said she went to the police while she was in anguish which suggests she meant during the three weeks in march of twenty fourteen that her sister in law had disappeared and then in the second instance of her testimony on page one hundred four she's asked did you go to the police and she says yes and they say well when did that occur and she says it was in march i believe march fourth so it doesn't indicate that those are two separate incidents when they occurred so clearly in time i'm not saying that the record clearly shows it was just one i'm saying the records not clear and it doesn't tell reversal the immigration judges findings just on this basis as the immigration judge had to take this testimony that the police said they couldn't act without proof that they laughed in her face and that they said yes me if i had sons and said maybe my children were gang members when they are not to go back home that was it that's all the testimony we get from her that doesn't show a past act of acquiescence and it doesn't compel a finding of future acquiescence especially in light of the evidence in the record because the totality of this evidence contains these two pages of testimony and it contains voluminous evidence not just that the salvadoran government is trying to stop the gangs or has a policy we're not arguing here that abstract policy trumps experience we're talking about a government tha is actually tangibly trying to curb gang violence and so if the question is does this record compel a conclusion that in the future is more than fifty percent likely that a government official will acquiesce to her torture we've got look at what the government is telling the police to do this is the government that replaced manu drove the heavy hand policy in two thousand and three with a super monitor a policy in two thousand and four they implemented a truce that substantially drop deaths due to gang violence and most what are what are we to do with what your honor as the immigration judge said that certainly troubling but that's not a backhanded comment that's an attempt to weigh her personal experiences against the totality of the evidence your i point out that the record excuse me the regulation defining acquiescence says that it requires a public official prior to the activity constituting torture to have unfairness of such activity and thereafter breach his or her legal but as judge facto pointed out it need only be a public official those who oppose this she go to the local police she doesn't go to prime minister or the president's budget or even to the governing body for she goes to the local police they say wow why would you go look to see if there's agree i'm sure us can hear you say the police let me why's that why would you laugh if someone tells you i found a grave and i've been threatened by this game for telling you this goes this grave it's probably somebody they put the but they laughed and do nothing while your honor i understand that point and i'm certainly not trying to downplay miss concerns experience but in said and a failure or a breach of a duty to do something response being simply to laugh in her face let me focus on the second half of that clause awareness of activity constituting torture and skipper goes and speaks to the police and all she can say to them she can talk about what happened to her nephew years ago for a different reason she can talk about the disappearance of her sister in law will never get a direct threat from this game before she did your honor so the police both are they threaten to kill both she and her son that's right your honor and then on more than once but and that's not torture no your honor on other grounds told they're going to kill her son your honor on this record when the police heard that she had been threatened there had been no action to carry out those threats with respect to her she's never been harmed brands are going to have to shoot at her i'm not saying they have to shoot at her i'm just saying that the record isn't protection if someone shoots at you or if someone's been raped i'm just saying that in this new event let's put this in any of the court below had just explained itself your honor certainly the immigration judge could have said more but i respectfully would suggest that this isn't the type of can look past the board's decision to see what the immigration judge found to see the basis of the board's holding but do you see the pattern this would say for cases like this it would be essentially gratian judge could meet that by simply say every one of these things happen that's unfortunate that's not enough in the case drop the way it goes it's going to give us some reason as to why there's not sufficient you have to see of our regulation clearly says that it is conclusion that that past incident was torture with acquiescence and again the question is whether the record compels the conclusion that that's going to happen in the future and since ms could bear has left all salvatore the government has continued to trying new things a two billion dollars security plan the immigration judges entitle to weigh her own testimony against the evidence of record and make an assessment as to whether or not she's shown up better than fifty percent chance of future torture with acquiescence and mr barrett can't meet her burden to show that respondent did not present evidence that she was tortured in the past where torture in the future the threats and harassment she suffered do not rise to the level of torture for purposes of protection that so he's saying that these past incidents aren't sufficient to rise to the level of torture and what i'm saying today is even if the court disagrees with that under the highly deferential substantial evidence standard it's still not dispositive because that alone doesn't mean a burden of proof for the agency let alone for the government and your honors i have one minute left and i want to just turn very briefly to the willful acceptance versus willful blindness issue because i know that through some of the court's attention during opposing counsels presentation the case where this court first addressed that was lopez soto but that case got settled while it was pending on bought review so it's no longer good precedent so the first published presidential case where the court addressed it was a balance well in that case the court said that willful blindness and willful exceptions are both ways of acquiescing to torture that's consistent with the senate's understanding of the cat of the court tonight a petition for review thank you would counsel says that it has to be get is something more so i want you to concede something when you don't bring that to us and say that less than stated you don't appeal to us but then you appeal but more of it of the however when you read the b i decision did focuses almost exclusively i believe almost ninety percent of his opinion in addressing to the nile the tool into forty one claim and ignores the very important fact relief under the cat and that's sort of ignorance ignoring the third type of relief which is cat more likely than not standard but does not require the issue of motivation the analysis of did the immigration just properly consider in his fact finding those issue of the problem is though there is if you can prove a ca you don't have enough to show standard for persecution because of the motivation question your honor withholding an asylum necessarily requires there to prove the motive the nexus between the action taken against the individual so there are situations for example where a persecutor would harm or torture an individual and be found eligible on the on the convention against torture but not under or to a weight or to forty one because the motivation has no fifty three there is one paragraph the states according to the respondent she went to the police but they left on her face and there is no discussion in these findings of fact as to the breakdown of the threats additionally counsel contends that it is unclear  page one hundred one hundred four whether there are two separate instances however page one hundred four clearly says what was there any other occasions after march twenty fourth that you were threatened and then she discusses the second so i just want to clarify that because i do believe it goes to your question of it is a harmless error because there's just there's no there there there isn't there there and the underlying problem is that these facts while the government continues to sustain that they are part of the session they're not that they're part of the record and her testimony page one fifth of the record also has a written declaration where she states what occurred that she was threatened with murder and the immigration judge just doesn't address taken our president say that this kid or is a factual question why doesn't meet that standard that is correct your honor that i think that would be a more appropriate course because to answer the larger question on that with a set of facts that have not been