it please the court my name is elizabeth has brought and i represent arthur morello who is the petitioner here and was the respondent below and this morning i'd like to address two main points the st is that the board of immigration appeals and the immigration judge erroneous lee applied an intentional government acquiescence to torture standard despite this court's holding and that's all that required is mere willful blindness and nd that new york st degree manslaughter is not a federal crime of violence because it can be accomplished by omission and therefore does not have as an element to the use attempted use or threatened use of physical force now as to acquiescence the b i a suggestion that the i j a use the correct legal standard is incorrect and should be vacated let me ask about that because on page seven of the i g s opinion is the senate's respondent fears tortured by criminals acting in a private capacity he therefore needs to establish that officials will know o figuring out what this opinion says it's correct your honor that the court didn't cite to and mention the phrase acquiescence in willful blindness but it's clear from the remainder of the opinion that the court did not apply that standard you can look to the record in ninety four where the immigration judge after the fact inserted into the transcript of the oral decision of the word intentionally twice writing there's no evidence of record that b intentionally has a modest capacity to combat criminal elements operating in that country or intentionally has a modest ability to process that that was in the context of his p r decision which dealt with prison conditions and some requirement of intentionality so that was in the context of mentioned acquiescence and cited to cosign which is the willful blindness case so how can we conclude from this record that the i j a misunderstood the standard when its sole prevalent in the opinion well it was a made one one reference to a lack of intentionality doesn't mean that the court didn't understand that willful blindness was also a possible this court in pierre properly distinct wished acquiescence from intentional government conduct and ultimately f the immigration judge would be irrelevant whether there was evidence of record about these topics unless the immigration judge understood that police had to act with intent and in fact the deliberate insertion of the word intentionally twice shows that the immigration judge relied on it else there wouldn't have been reason to insert it after the fact into the transcript of the oral opinion that pierre about and help me understand the argument wasn't here about an argument that the conditions in confinement were so horrible that they constituted torture and those were conditions created by the government itself right correct so in that context you're looking to see you're distinguishing between circumstances in which the government the conditions in confinement are horrible just because the government lacks resources to make them better and circumstances in which the government is created those conditions right that's correct that's why when i look at page eight to nine in the opinion that the portion you're relying on and it's an important question of trying to understand it but it begins by saying it is in this case somewhat it can to what the nd circuit dealt with in pierre and i read that to suggest  he's saying i under this is not appear because we're here we're talking about not the government itself acting but rd parties and government acquiescence but still let me make the point that there's no evidence here as in pierre that the governments in capacities in dealing with the conduct of rd parties are intention was intentional so i disagree l t atlee pierre was about whether poor prison conditions in haiti  conditions run by the government were intended specifically to be torture or is here mr argument is not that he will be tortured by the government but that he'll be tortured by rd parties and so to the extent that there's a specific intent requirement it goes the i j a was confused about this that's correct your honor what about the government's argument that because the b i a clearly understood the standard and is de novo review it would be a harmless error this is in fact not harmless gangs and these pieces of evidence did not they were not mentioned in the immigration judges opinion they were not mentioned by the b s a and talk about that the disappearance of the problem was completely speculative right wasn't it and in the opinion i thought potential criminal acts that would be perpetrated against him by a name criminal act or engaged in criminal activity or private accept revenge this shows that the i g knew that petitioners claim had nothing to do with the government being the torture in this case where the government inflicting prison conditions or prison conditions on petitioner there's nothing in the record to show as judge livingston said on page eighty nine of the record that i j cites the correct standard for cat  on page ninety one dollars the correct standard is stated again and the immigration judge is looking at it broadly in the context this is an oral decision where the immigration judge is making findings immediately after hearing has occurred and so that's why the decision might might flow maybe not as well as if somebody had an opportunity to draft it but again the overall that torture appear language is not dispositive because i agree with you in the sense that it might seem confusing and that's why i was saying looking at it again as an oral decision where it's being read we're given on the spot but when you look at the entire decision look at the i g summary of the facts where he knew he outlined the facts stating that it was fair of retaliation from a rival gangs affair of reprisal by individuals who petitioner had maybe harmed in the past and then going to correct to reiterate the correct  standard and and looking at that with again the overall denial being on requisite the acquiescence factor shows that the immigration judge understood what the claim was and and the analogy was made that this is not here this is not a case where the government is the torture this is not a state actor issue it's really or he's saying this pierre is like you know this is not here and again just to make another point t  and again if i may just to go to petitioners point about the aggravated felony crime of violence  because i was i wanted to make sure i understood this you say we don't have to address whether the new york manslaughter conviction is a crime of violence that is not the government's position that's  because one mr morial was found removable based on his fire i'm farms offense and this is something he did not raised to the border could test was not raised before this court and had the briefs so his remove ability has been established so he's a criminal alien because he's a criminal alien the court needs only to look at any colorable questions of law or constitutional claims this and then this aggravated felony crime of violence issue petitioner in their reply distinction that petitioner made in their reply brief that removal for withholding of removal as opposed to catholic deferral is slightly different and that is the distinction really without a difference because is a different standard what your response is that your honor i agree with you that there is a difference in how cat withholding as opposed to cat deferral might be terminated but my my point i guess the government's position is that is a distinction really without a difference because even if they're pursuing cat withholding they still have to show before the i j and before the board that it's more likely are not that she that petition would be tortured if we moved and that takes us back to the same place so just a few main argue endo it's the the argument is he a petitioner is trying to move forward on the cat withholding even if it goes back and i'm not saying it should or suggesting it should the analysis would still be the same whether or not you've shown torture to believe and the immigration judge and the board found looking at the merits of that that he hasn't shown acquiescence so at the end of the day it's really a distinction without a difference because the petitioners in the i'd like to address two main points that the government brings up st as to acquiescence the very fact that the immigration judge gave an oral opinion that did not include the words intentionally and then after the fact went and added it in goes to our argument that the immigration judge relied on intentional government acquiescence which is not the standard and the be i am a firm to that error which removal in that he overstayed his visa this court noted in gamez that the firearm offense for which he was convicted is not a federal crime of violence and further we raised the firearm arguments before the immigration judge you can see this in the record at one hundred and seventy nine through one hundred and eighty four no your honor the arguments were not withdrawn but rather they were few tile before the board in light of at the time existing supreme court precedent or excuse me existing statutory law which was overturned by the supreme court were declared invalid only four days after the b i a opinion was issued in this case  sessions against a my so in the sense that the has no authority to rule on constitutional questions of law and ultimately the agency was bound by at the time section