is case number fifteen in levon thirty nine a straw to martinez versus lynch from honduras who's fled his home country because the police tortured and threatened his family with that they charge they burned him with car batteries they've turned him upside down and beat him strata has shown before two judges and before him that his sons were in the police department and that they could easily find him additionally in twenty fourteen mr stroud received a letter from a land compass you know who was involved in the original invasion in one thousand nine hundred four who stated that  rights reports you know that this is still going on in this in honduras that it is may have been twenty years since these events have occurred but since in two thousand and nine ninety individuals were involved in land visions have been killed in merely listed and i understand your argument yes but they identified them discuss them reached a conclusion different from yours i guess my question is what you're getting at but i have trouble seeing how we have jurisdiction over the review of that determination and if we do we would not have jurisdiction over any other application of a multi factor t strategy not use an affirmative defense because there was never a truck there was never a jury trial this was clearly a plea bargain he was only charged with one a capital of the three that thrown against him he only spent but you know here we have regulations that implement the cat that provide no presumption of future torture if the  even if the applicant has been tortured in the past i mean of course his past torture is relevant but the evidence appears to be undisputed that once he actually relocated in the country he did not face torture or ongoing threats and it would seem that many of the other peasants that were involved in that particular uprising remain on the land and are cultivating it without incident so you know given the absence of fresh evidence of  danger and the evidence that even immediately after the incident he was able to remain safe i really relocating elsewhere the b b i e s determination that he failed to demonstrate a clear probability of torture seems to be supported by substantial evidence yes your honor it does seem that way however as noted when he returned in two thousand and seven  when he was deported the first time he went he couldn't even get out of the airport for it before he was taken by police who beat him and extorted him for money and that as noted was not directly connected to his land invasion  they had threatened to release a file on him and with a billion martinez still on the land and his two sons in the police department they could have found him they could have relocated and what ev have maybe they were trying to tell us earlier and i just didn't get it but but evidence that he was still at risk and threatened after he relocated there is and i thought he was kind of basically on the run in till he left the country yes he was on the run there is evidence that he states in this testimony that a car with him to windows was following him was that after he relocated that was that was after he that one of his friends was abducted by police and tortured because they wanted to notify him to find him yes you're right thank you i see that i'm out of time your honour's there are any further questions but i will give you all the challenges to the particularly serious crime determination and second whether the record compels reversal of the board's denial of his request for a cat deferral and that issue there's a so there's an a subsidiary argument that the government makes according to restriction but i will get to that when i address that issue turning to that particularly serious crime issue our position of course is that the court lacks jurisdiction to review that because it is a matter that is that is interested solely to the discretion of the board of immigration appeals and therefore it is not reviewable by the court and the course jurist on jurisprudence supports that view and i'm i'm citing for this proposition ali which we also cite in our brief where the court stated that determination regarding whether a crime is particularly serious is something that goes to the agency's discretion and not to the not something that the court refused because the statute and the regulations and trust that the terminations so that ruling into question and i and i submit that that argument is misdirected we're not relying on two forty two a to be roman at two as the jurisdictional preclusion in this case what we're arguing is that two forty two eight to see the criminal alien bar which restricts the court's your view to questions of law and constitutional issues that's the bar that operates to restrict the court's jurisdiction over the discretionary trauma nation regarding whether mr str atus crime is a particular least excuse me particularly serious crime but addressing the the legal claim that they've advanced to the board has somehow misapplied the regulation should and there the actual the specific arguments that it raised go to a disagreement with the board's weighing of the factors in this case there was no testimony or evidence that was ignored what the board did was consider all of the cases me all of the factors and say that the nature of the conviction the type of the sentence imposed and the circumstances an underlying factor facts of the conviction all lead to the conclusion that this was a particularly serious crime and it's and its decision at administrative record pages excuse me one because the got the second circuit's approach is consistent with the language the plain language of the statute itself which says that and the scheme that congress put into place when it enacted the illegal immigration reform act of one nine hundred ninety six the real i d act of two thousand and five as well as the foreign affairs regulation and reform act which implements the convention against torture when those given the whole statutory scheme with those all those different statutes are put into play the second circuit's decision harmonizes and kind of explains why those why the the government's reading a statute to deprive the court of jurisdiction the two forty two a t c so and the reason the court did that i believe is because it expressed a concern that the lack of judicial review is problematic but the second consistent with with egypt to show review concerned that the court expressed and the reason is under two forty two a the court's jurisdiction exists only insofar as there is a final order of  removal to forty two a four says that any read review of any cat related claim is within the exclusive jurisdiction of the court of appeals and so to forty to eighty four provides  means by which a judicial review of a cat claim can be obtained in the court of appeals however that subsection is also subject to the limitations of two forty two eight two see which says that the court expand jurisdiction beyond it to forty to eighty c and d and ten provide already for all criminal elements all it says is this is the means by which you can get captive for older view but the scope of that review is is not a is not part of a final order of removal then under two forty two a the court would like jurisdiction over the over the entire claim it has to dismiss for lack of jurisdiction because the future torture and he was mistreated granted he was mistreated he got past torture yes his nemesis is still there yes still has police connections there's evidence that he was still actively looking for m asylum application as well as the letters in two thousand and six and two thousand and fourteen and where it looks like the only way he avoided torture when he was in honduras was by relocating him then leaving leaving the country in addition we have the country conditions reports which are perfectly consistent with petitioners claims so given all that we you're in an unusual position in this case usually your your office is telling us to defer to credibility findings and factual findings of immigration judges and we try to do for the end what we're asking the court to do is to defer to the board's final correction of the facts isn't the question of whether factual findings are clearly erroneous itself a question  are and without all the time well that we're asking the court to but again does it does that in the context of review of a district court decision is this any different this is a slightly different manner because the the board here is not an article three court under the court supervision it is a co equal branch of the government and so it's an executive agency and with equal authority and fact trusted by the cut by congress with the authority over immigration issues and such to the extent that a co equal branch of applies to clearly erroneous standard that's correct so whether it is apply that correctly would seem to me to be a question of law yes but at the same time we would ask whether the court whether the board applied the correct standard is a supports the board's corrected findings so as you understand it the standard is whether substantial evidence supports the board's finding of clear error in the immigration judges factual findings yes that's a somersault i'm not sure i can manage oh but in this case your honor perhaps you don't need to reach it because there is no dispute but the shows themselves don't dispute the board's conclusion which the terminations at the immigration judge and that  there was no but that he has been able to relocate in the future and so given that he was able to relocate in the future i mean i was able to be lucky to avoid torture and again in this case no let's see if you can do it thank you your honor just want to address a couple things that the government discussed or clear up some misunderstandings or unclear points from the previous council who spoke one was we talked about the issue of i believe it was a question you asked where you were asking about the peasants that still live on the land and what do we make of the fact that as of this time they're still on the left well their record reflects the fact that the record being the letter that the strada receive from his father as well as the conversation that mr estrada overheard when he was being tortured reflects that mr martinez held a straw personally and this is reflected not only in the conversation that he overheard where martinez was talking about were sees along with mr mark strada were held for a much shorter length of time they were treated much less harshly than he was and they were released weeks before mr est was able to be released from torture so this disparate treatment really reflects the fact that he has been targeted as the leader of this comps movement and that's why these peasants they have strength numbers they're still living on this land where's he was kicked out of his home when he was n it is correct that the immigration judge found as a fact in two thousand and fourteen not only the petitioner but also his colleagues had in fact been subjected to torture back at the time of original yes it was yes it was torture now one of the things that the government talked about was this particularly serious crime terminations and talking about how producing so i must say you can go back to west virginia and feel very proud of the way you've conducted yourself the briefs and the way you've argue and of course miss right you can go back to the department of justice and you have served your client well as well this case will be taken