let me say a welcome to judge susan bolton from the united states district court for the district of arizona who's kind enough to join us and assist on this panel so honored privilege to have you with us and we'll go ahead and according to the minutes mr locke today you're going to be speaking to the risk of torture aspect of the case i take it you're up st that is correct your honor ok you may good morning your honor as i may please the court as professor frankel just introduce my name is brian lott then and i'm joined by my partner and we miles and we represent mr nelson and this consolidated appeal concerning his underlying claim for relief under the convention against torture and subsequent motion to personal risk when he went out of his way to help a gay friend avoid a violent attack by jamaican gang now this case is about to be a cutting corners and it's up to return mr nelson to jamaica where he will likely be killed and so accordingly this court should grant mr nelson's petition for the following two reasons st they didn't see made significant errors with respect to it sometimes mr nelson's risk of future torture and then said can't they just see then fail to adequately assess whether jamaican authorities would acquiesce to that torture mentions i will primarily be i'm sorry judge you're going to speak about the st of those two things we've read your briefing so we're we're familiar with the facts maybe you could begin by first  the waiver issue is not a hard and fast rule rather we have the albertson factors which lays out the fat the considerations for when this court can still consider despite a waiver and separate and apart from that we have that here am factor should be applied and the agency had never really considered how that change in law would be appropriately considered however i will say that miss miles is slightly more prepared to address the particular serious crime issues rather than  perhaps myself will be but i am happy to continue to move forward unless you'd like to know let's let's assume for the sake of discussion then it's not way and perhaps you could  what how would we decide this with getting engaged in sort of an endless recursive loop your fear argument is if i understand it correctly that the government didn't really give him a chance to corroborate his story if they were going to say that he hadn't done enough they should have given him an opportunity to corroborate it nay didn't do that so they didn't play by the rules so it should go back  boyd the assertion then that every case where the government says well you haven't done enough and therefore you haven't met your burden of proof is a case where they broke the rules about corroboration and it's gotta go back in other words here they just said ok we hear you we got your letters we're going full weight we just don't think that's enough you haven't demonstrated enough so you're done and your argument is well they should give him a chance to corroborate well why couldn't that be said in every single case and therefore every case turned into one where they've got to go back because if they haven't done enough to have an entitlement to corroboration well it's that the agency here said we will give this full weight and not get enough rather what happened was that mr nelson had four letters from witnesses who were prepared to testify on his behalf in support of the conditions or its respect to the bad boys continued interest in harming him they submitted those letters and they were submitted without objection and without any indication to mr nelson as to whether or not the credibility of those statements would be challenged and that that that after the fact th e i j a pointed out that the witnesses were never cross examined and thus did not give the letters all that significant amount of weight had at the agency given mr nelson an opportunity he could have perhaps tried to attempt to  make accommodations to have those witnesses appear via telephone conference or something to that effect but what happened here was that the agency admitted the letters without any indication to mr nelson that it would be rejecting the veracity of the witnesses statements within them and that's the that's what i did right and there's no reason if you wait here so i understand your argument regarding corroboration and i think we have said that if there is going to be an dealt with an actual instance i j saying there was no cooperation right that's not what occurred here so did that did that happen did the i g somewhere in the record say listen i don't think this is equally applicable here because again mr nelson was on no notice that the relative weight and credibility of the letters would be disregarded and he could have made arrangements for the your engage in a  more exacting review of the witnesses who submitted those letters but that we're didn't you get right into my my earlier question the straw man which is when you say he had no notice that they would be questions that's that's what immigration judges do all the time they way they look at the evidence and they weigh it and they how how could he not have been on notice the evidence and he put in would be  separate and apart from that because i do see that my time is running a bit so i do want to at least briefly address the motion to reopen nuisance here as well because separate and apart from the agency's disregard of the letters there is then additional evidence that was  the letters is there a difference between accepting the letters with adam jackson and the contents of those letters and then determining that those letters are insufficient to establish mr torture as opposed to lack of cooperation i'm sorry your honor your audio cut out very briefly do you mind restating your question please yes they're a difference between accepting the letters as true but finding there are insufficient to establish risk of torture as opposed to finding a lack of corroboration i guess there theoretically could be but again it's ties back to the agency's reasoning and that's not what was done here because they just pointed out that the letters were or the letter writers were never cross exam and so it seems to me that they're really questioning the credibility of the testimony within it except in  letters but then disregarding the absolute truth of the testimony in there and so the agency could have actually righted mister mr nelson notice of that and then sort of made arrangements for th dueling wind of cases regarding the requirement of providing notice of cooperation is going to be an issue centered on the petitioners testimony not other evidence that was put it in other words if i'm going  of the record i have to let the petitioner know that so there can be successive opportunities to rebalance the weight and if so if that's right then again this does seem like it comes back to i jane doing what i just always do which is waiting the evidence that is brought in by the petitioner to support his or her claim and then making reasonable inferences and determinations based on that why why is this not right within that to agree on a again it ties back to the reasoning and that the i just never gave mr nelson the opportunity to demonstrate that the witnesses  and were providing these orders had the opportunity to provide credible testimony and doesn't he have that opportunity right out of the gate i mean it's his choice whether or not call witnesses his choice whether or not to arrange for telephone appearances just choice to decide how he's going to present his case and if he chooses to rest on a paper record is he really in a position to say that's unfair because i didn't know you might not believe everything that was said in this letter if i known five known you might question the veracity then my world would have been different i did done something different but is it the obligation of the agency or the court looking at the witnesses pavement to say you know what it's just possible i may not believe everything you say and it's on you to show up with the proof you've got a burden of proof that is correct your honor however a separate element of the idea is now that i think i disregarded in answering questions that with far as to do that but the i j a still rejected them without giving mr nelson notice or opportunity to cooperate and so that's part of the issue here as well it's not separate and apart from the fact that the agency disregarded all the way but they never actually gave him the opportunity to cooperate the fact that legal people in jamaica do in fact believe that he is right we will pass the time but you know it would give you just a moment here if there's something additional you feel you need to say with respect to the motion to reopen i think i'd just like to point out that the agency never properly addressed very in the st instance with respect to his mission to reopen when we look at the motion to reopen the agency had already admitted that there was a harmless error with respect to acquiesce and and that the reason it was arm was was because the  protect and so we see that they actually applied the er evidence to the wrong mary because they only considered its relevance to acquiescence and not there was torture and that was a significant error made by the be separate from all the other issues raised in the party thank you all right blind to the risk of torture that mr nelson faces and such acquiescence can be proven on two independent ground the st is that the jamaican government is willfully blind to gang violence here both the united states government and the agency have stated that the gang violence acquiescence was not properly considered and therefore remotely would be appropriate and so you can see you can just move past act as a greek or the things they blew that are sure so then the nd ground is that the jamaican government is willfully blind to anti gay violence the agency found that the jamaican government was not willfully blind to such violence however in doing so the agency improperly isolated statements and ignored the ultimate conclusion of the evidence on which it relied a more meaning or yield or you're arguing the weight you're arguing about how the weight we're arguing that they didn't they carry pick the evidence improperly and ignore the ultimate conclusion of the evidence itself yes ok so are we in a position to say we do we have the authority to say we don't like the way you wait evidence i believe you have the authority to say that you didn't properly analyze the evidence so you need to do it again so this court has already set standard s in the way that the government or sorry the agency way is the evidence so for example in dhobi of turning general the court looked at the anti buggery law which is also something that the agency looked at in mr nelson's claim so and oh the attorney general this court said that it doesn't matter if the law is not in force if the government still acquiescence to violence so it's just something that this court has weighed time and time again of the agency is not and that evidence needs to be analyzed properly to determine if cat should be granted so something again that the agency also looked at is that the agency identified a program that allows victims of anti gay violence to report it to the police and the agency relied on that program really heavily in deciding that the government does not acquiesce to anti gay torture however where the agency to look at the very next paragraph of the evidence that they relied on it would see that the evidence explicitly finds that the reporting program does not work to provide any protection to become some anti gay violence or sympathizers of the gay community and the on and so we're only dealing with the question of whether or not the felonies that she was convicted were particularly serious crimes and i think that's a briefing at least as it was a three part test you look at the elements alone and then we look at the nature and then we look at the such circumstances underlying them and your briefing says well they didn't look at the elements what what more do you think should be i had to do they clearly looked at the nature and the circumstances but they mentioned the elements they said they agreed with the i a e a that the elements were brought it could break within the a a particular serious crime so what more would we have to tell them to do so we believe that what happened was that like news i go which was also decided by this court the b i used the  steps of an am to correctly cite and i am but they jumped immediately to step two so here they relied on things like mr nelson's prison statement mr nelson and trial record in the detail of this crime detail of the crime that's all step two that's all the facts are from stances they almost all but ignore the elements of the crime and that is an error under the and i am standard set by the agency so i think that then that would still require remained for the agency to address in the st instance if the if man wasn't properly applied then it needs to go back down to the agency for it to more explicitly look at the elements because especially in situations like mr nelson where a marijuana offense is perhaps different from a more straightforward offense that has a more straightforward federal analog it is very important that the agency properly apply matter of an which here they did not based on two different reasons both because it's a per se particularly serious crime and aggravated felony privilege he was sentenced to five years in prison and also under that any analysis and noted that this is a drug trafficking crime which the attorney general explained in matter of y a l is presumptively particularly serious like there is no question is whether drug trafficking and would be a particularly serious crime a mass matter while there's you know elements that someone has to prove that it's a tiny amount and here they even secretly stated that we got past the withholding part and we're dead and we're dealing with the cat playing which seems to be where most of the firepower in the in the briefing is directed and it's where the motion to reopen is directed so let's focus on that for a minute and first off just to deal with the acquiescence and pretty quickly you did we read you right you conceded that the governor the they blew it as to the gang violence be so if we disagreed with you on whether or not the head of the prospect of future torture had been handled correctly it would have to go back for the acquiescence discussion right that's really st is the record compels the reversal of the risk of torture prom we would ask that you be mandated to the agency to look at the acquiescence question ok now you in talking about the prospect of future torture to be i a decision says look the fact that there was passed torture doesn't mean their skin to be future torture that that may be true but does that really handle the matter i mean this is a guy who got shot and there's no disagreement that it was motivated for one of the reasons for the reason he said it was and that these are very dangerous people doesn't show an adequate handling of the evidence to say where you got shot but that was then you know and that doesn't mean it's going to happen again part of part of the argument i think i'm hearing from the petitioner here is they just blew the evidence off they didn't you know they said it's not enough but they had nothing on the other side they had evidence that was accepted as credible by the asylum credible fear officer evidence is accepted as very very credible by the i j a they had the letters that said they're still looking for him the shot of before they still want to kill and they have evidence that the guy knows these people from his childhood so it's not like he's some stranger to him this is an old bite from the neighborhood you're not going to forget him all that's in front of them and they just say they got shot so what seven years ago it's not going to happen again i mean under those circumstances what's wrong with the petitioner sergeant that they should have told us if that was enough holy smokes i want that's not inappropriate that's not a fair handling of the evidence what's wrong with that pitch  and then on the other hand saying yeah but they weren't cross examined and here's why you know that and they look like they're all written by the same person the signatures are kind of suspect and we don't believe this and how one might be forgiven for looking at that and saying you said you gave four way but you didn't give it full weight if you really thought that this needed something more you were under obligation to drop delight to tell us that we needed something more you couldn't just was speculated i mean the letters were but they also told late how so how can you say i'm giving if you tell me that you're saying they're still looking for him they still want to get him and then say indian in the next breath yeah but we don't believe that that's just speculation giving full weight to what the french read that that people were looking for them that agency pointed out there's no they didn't state that there were any threat they didn't state how how they knew anything most of the st four letter medicine two thousand and sixteen i'm talking about were even more veg i just talked about how was it make it was violent and they thought that their are there more specific more details on the four previous ones where so i think in the with regard to the st set which is it was very vague no specific threat by making credibility judgments that would ordinarily be couched in the language of corroboration but just not uttering the words corroboration i i take it that that's the point petitioners point here is they didn't so that's the that's the argument i want you to respond to as it is it and maybe it may be have may be that you've given them the best and fullest answer you can that's ok but i understand them to be saying and they really did make a corroboration kind of decision they just didn't want to comply with top to lie so they didn't say the words is is that is that  the only specific evidence bryza letters and they just they were so bag about you know their friend being hurt if he comes back a genuine concerns are just not the kind of evidence that shows the clear probability that this person would be would be tortured if he came back the agency also noted it had been seven years since it happened he stayed five months in the country including a two week vacation while he was there and so  he didn't adequately consider the record the reasonable fear officer found that rumors are spreading the mr nelson and they didn't address out and then i'm paraphrasing it does not address the officer separate finding that the bad boys have warned that mr nelson should not return to jamaica you know this is not this is not letters coming from friends in jamaica this is there are there are assertion of what the reasonable fear it's based on his evidence the standard that they are applying is it's like a reasonable it's basically the asylum is there like a well founded fear and sweep put them in withholding only so it's a lower standard than we're looking at  here i understand all that i'm not i apologize because i'm not making myself clear i'm not asking about asylum i'm asking you to respond to their assertion that even if you did didn't like our letters and you didn't think that was enough you didn't even engage with other stuff on the record you know his testimony matters it's part of the record and the asylum officer heard him and said i believe you he told them they were there they want me if i go back they're going to try to kill me baker still looking for me in this island  believe it and so did the i g a the i just said very very credible so if you believe that the testimony of the petitioner how can you then say yeah but you just agency considered his testimony as part of it his fear of going back he has sent them back the threat and that part of the agency's testimony he was in two thousand and eleven that this happened and he's very credible they don't think that he's making but it's not he doesn't have a clear culpability a future torture based on the total record including as testimony including his friend fears for him including the time that he spent there and i'm happy to answer any other questions and if you're honest have any now who can you talk about the motion to reopen you know part of part of the dynamic here d is what the so let's assume we agree with the premise that there wasn't an opto why trigger here but you still have the petitioners coming back and saying well ok i understand what you're identifying is the facts based on the way you described here's more weight because to the very issue and the agency never looked at that why wasn't that a problem why is that why wasn't that a separate issue that we need to address i believe  asked to write letters for him our more specific in those letters but the agency found that it just didn't change the outcome of their earlier decision and although i and petitioners argue that they didn't address the rest of torture but as we argued in our brief i think there's nothing in the board decision to show that gays and i went also to the rest of torture particularly because the statement for this but the game the failure to grapple with the game violence issue  the failure to consider that at all doesn't that but by just by just focusing t the motion to reopen actually fail to adequately address the arguments put before the before the board and require every man granting the p s four we being gay appropriately either because they didn't actually address the central point they have which is not whether the man's gayer not whether in fact rumors are circulating to that effect there's an anti gay violence on the indicate an adequate job by the b i a in addressing the the overall motion including the credible fear of future perth excuse me future torture and therefore if the motion to reopen should be reconsidered they should think about it in analyzing correctly reversal of that then we would we want object to sending it back to the acquiescence question but for the motion to reopen i believe there is an aft language that the court can meaningfully review the quite denial of the motion tree open based on the risk of torture prong honor just a few brief points firstly with respect to the underlying appeal regardless of cooperation there are still plenty of other issues is that warrants granting mr nelson satish and as you pointed out there's significant testimony  the record that the immigration judge never referenced or never even considered namely his own credible testimony that the bad boys gang has communicated to others since two thousand and sixteen that he should not return to jamaica now the government  that the agency did consider it but we have really no indication of that and to answer the question we have we embraced the attorney general which provided let's deal with the standard of you mr law you have to demonstrate that the record opposite conclusion on the facts how how do you get past that there is high bar where respectfully you don't like you don't like how they weighed the evidence and you made a substantial but how do you get past hell's an opposite conclusion or respect your honor and that is not necessarily the appropriate standard because under substantial evidence review the agency has an obligation to consider all relevant evidence and cannot ignore relevant evidence that contradicts its own findings so as you pointed out that's true that's true but we've also said pretty directly the fact that they don't talk about evidence doesn't mean they didn't consider it that's correct your honor but the attorney general which tells us that to be a must indicate or excuse me that the b s a has a duty to explicitly consider evidence that material bears on the claim and it does not meet its duty when it does not address statements contrary to its conclusion it must indicate that it considered such evidence and explain and if it rejects it explain why and here we have no reason to understand why the agency rejected mr nelson's own credible testimony that the bad boys gang has condemned communicated to others that he should not return to jamaica and that evidence directly refutes its own consideration that simply the passage of time here demonstrates that the bad boys gang is no longer a student and because we see five years at least after the bad boys gang had shot and that they are still talking about him and circulating rumors now separate and apart from that i do also want to just briefly remind the court that the particular serious crime issue is only a part of withholding and not deferred removal under cat which has claims our president it here and then lastly with respect to the motion to reopen  we have pointed out and our those are opening brief on the motion to reopen and our reply brief that the standard that the agency applied that it must likely change the outcome is the inappropriate standard here because the only relevant considerations are whether  stay for the underlined substantive form of relief is relevant and whether the new evidence was material that change in the late the change in the outcome of the case is only relevant when the ultimate form of relief is discretionary such as asylum but that's not the case here because