good morning your honour's my name is james todd bennett and i'm appearing on behalf of the a pardon me the petitioner dennis hunter off and i'd like to reserve two minutes a bottle please watch the clock thank you first issue i'd like to address would be actually the convention against torture claim and the decision on that substantial evidence doesn't support this particular decision by the board of immigration appeals as we all know the elements he has to prove his acquiescence by a public official that's not an issue here that appears to be more or less conce by and that standard we apply is more likely than not he'd be subject to torture if he was returned in the future to the ukraine the major problem here is when we look at the factors and the  board member nation appeals analysis of those factors the st factor is country conditions and basically the board of immigration appeals admits there is an extensive record just as the immigration judge does but they don't really engage with it it is something that he can relocate on in other words he comes back to the if he comes back to the ukraine time has atten he's not been contacted by any member of the gang except for there was an anecdotal report that one of his friends was asked about his whereabouts so he has to show that was more probable than not that he problem with that particular position is that he is now in the united states has been for the past nine plus years has not been contacted by the samoa organization at all during that point and there has been some inquiries about him as the court notes in the ukraine but no actual you know where are you what are you doing that kind of inquiry and that my must note as the court knows that's a double hearsay statement by someone who went however the attenuation of the claim is not the issue when you look at the totality of the circumstances of this case you have a situation where he is subject he he is intimately aware of what this organization is doing so he was a he was a wealthy businessman and so they wanted his money and to get his help with their scheme this is i understand that that was that is and that his his testimony he was a wealthy businessman and he was paying protection money they wanted his money that is true but he's also being integrated into their scheme or they're trying to integrate him into it so they were trying to get him and to to help him and he ultimately refused and came to the united states exactly is everything not do you know is there any evidence that if he came back and say he wasn't a business and or he wasn't in their area that they would persecute him in some way or torture him in some way well i think under the test we have to tell of the of the facts and all of the issues no one factor under the convention against torture for this claim would be dispositive i think that's clear circle under all the nado so when we look at this totality of the circumstances we need to also look at the past deemed credible and she was raped and i take your point but but there's the it seems to me to follow up on judge occurred is questions are so two problems like from my perspective one is on account of it seems to be the nexus for purposes of the worth holding claim is that they were whatever he endured it was because they wanted to shake him down for money basically if i can say that colloquially and then that the nd problem for the cat claim is the intimately aware of what they're doing so forgive me but are you now talking about i'm going to get out of your way but are you talking about the cat claim or the withholding claim can't claim that's ok that's so for cat you don't have to sell on the ok go ahead right  in terms of the cat claim he's intimately aware of what they're doing he can testify as to what they're doing in fact even well what they did you mean i'm sorry what they did ten years ago when you when you say what they're doing that's just a crude as other question is there any more recent information are you just speaking now about what he knew at the time not a not on this record or so he has to show particularized risk that's what our case law says he has to  particular risk to him that should he go back ten years later to any area in the ukraine that this gang for whatever is in will come after him and and you indicated at other and the anecdotal reports that they were looking for him there is no evidence supporting that is essentially relocation argument which doesn't know it it's part in part because he can go to other places in the ukraine but it's in part that there's no evidence and when he comes back ten years later the gang will still be looking for him or wealth particularly if he doesn't have any at that time i guess if he has  maybe there's some games where we'll look for him understand your honor however again i think this case has to be looked at the totality of the circumstances these people have a standing operation or  your problem that there's been determination by the trial court and an appellate body and under our law we can't touch that and  compelled to find differently it isn't just this isn't the st time this claim has been made and so that's a pretty heavy burden to say at this level from the appellate level that we feel compelled to go a different direction than the board and the they hear an officer how how do you argue that they were compelled to that's a pretty heavy burden but that's what you have to show to get re y yes sure and but again we have to look no one factor in nice this cat claim is dispositive and when you weigh all of the factors involved i think ultimately you've got something that is not supported by substantial evidence i'd really like to just touch on one other issue before my time's about secondly on this case needs to be reminded on both the asylum claim and they can't claim for different reasons but the reason it needs to be re mantid is because you know i am making its decision deciding he's credible on appeal without any are basically credible and deciding that  he is not only credible but also has an asylum claim that changes the whole picture of this case that requires every man because they can't make the no go findings on review they admit they can't they've got to stand up to regulations that apply to them and yet they sit here and make some determinations which essentially compel a motion to erie man for hearing on both the asylum claim and the convention against torture you have just a few  good morning john williams on behalf of the government could i could i interrupted the very beginning just to make sure we get this covered we have before us it seems to me here an issue of st impression i'd like to get your view on it the circuit said cos the united states from my research have said that that the board does not need to do so that is doesn't have to have a new issue raised  but we in this circuit have not made that determination so i'd like to have your view because if i'm correct on this and you can you can tell me where i'm wrong that we will have to make a determination in this case as to whether or not the board's policy that they've used here and elsewhere and i'm not being critical of it that you cannot raise a new issue on appeal that has to go back to the hearing officer your honor believe you're speaking directly to the social groups that were proposed by the petitioner and is the government's contention that that those formulations of the  social groups have to be delineated before the immigration judge and cannot then be reformulated on appeal to to the board and we've cited as that have been espousing not only in the other circuits but in the recent case of of the board that came out and matter of it's a matter of  and to back up as to that as to that that issue the immigration judge in this case asked what the social groups were and they were very clearly defined before the immigration judge and that is that they were ukrainian businessmen and witness victims to crimes on and those two groups were not proposed and the asylum application so there were no social groups initially proposed in the asylum application you had those two social groups that were proposed during the immigration judges hearing and then in the notice of appeal the petitioner then gave an elongated new social group proposal which was ukrainian businesses targeted for and subject to extortion who thereafter refused to cooperate thereby becoming the equivalent of a whistleblower in the eyes of the persecutor we believe that the petitioner has not challenged that that reformulation in his opening brief so there any statutory or regulatory basis for this appellate waiver rule i know the regulation that's as that the i a e a can't find x but that's not quite the same as and you couldn't well we're looking into the the board's interpretation and holdings in the past that that that the issue was waived because it wasn't delineated before the immigration stablished in this particular area where one has tried to reformulate social groups that that they're not going to because other law there there's other cases that talk about so in other words i guess i'm really trying to add don't take up all your time but is the rule that you are that the b i a has adopted here a rule that it need not consider a new formulation or that it may not yes so this the petitioner has actually waived the challenge to the reformulation but i understand that the court has not this this circuit has not as as a judge wallace as mentioned has not determined swear early on that issue i research indicates that every other circuit that has determined has gone the same direction the way the board suggests yes has there been any change in that any other circuits that have gone the other direction not to the government's knowledge i think that's up in this case it is there in the showing of nexus that this was this harm assuming that it rises to the level of persecution for the sake of a hypothetical is there any showing that this was on account of anything other than a profit driven criminal motive no no there this is so that would leave the that would leave the cat cla right that's right is your position on the cat claim what is it that it's not like that to occur in the future well that's that's part of it i mean the petitioner felt to me is a burden of proving that he is likely  states in two thousand and four so it would be almost fifteen years there's he's no longer a businessman upon his arrival in the united states he is no longer practiced as a businessman there's no requirement that the petitioner re to his business activities upon his return to the ukraine there's no evidence that the petitioner will be targeted for torture upon his return and and the petitioners brief he makes no argument and cites no record of evidence compelling the conclusion that he is likely to be tortured by or with the acquiescence of the ukrainian government this case while the facts  are are sympathetic and unfortunate in the end and the petitioner was it boils down to him being a victim of general violence for which this this position that he necessarily failed to meet the higher standard for withholding and as we just presented did not meet the has not compelled the conclusion that he would face torture in this matter the petition if there's no further questions and when i thank you you yes or honors in my nine hundred seconds st of all i would note that the oil is waive the political opinion grounds because they didn't raise it in their brief so that issue as far as persecution on the basis of political opinion that has not been answered number two real quick he works as a contractor now and that's clear on the record secondly on remand this issue can be resolved because of the failure of the board to follow its own regulations