to mr martinez based on his credible testimony that he had been attacked in mexico by two mexican police officers the court further found that country condition evidence supported that he would be at risk for future torture after the case was granted the government appealed and the board sustained the government's appeal finding that the police officers were rogue police officers so they engage in improper fact finding i find that they were ro police officers they can see that they were police officers but they also state that because they were rogue they were not acting with acquiescence because they were felt they were acting without the scope of their authority therefore taking the case out of ambit of the protection of the convention against torture we appealed to the ninth circuit this court granted an unopposed motion to remount in that unopposed motion to remain there were two orders one for the board to apply clearly erroneous standard of review to the immigration judges factual findings that means that we have to implicitly find that the judge's findings should be upheld unless they were clearly erroneous unless you can you know come up come up with a different decision so i said we submit that the that this court found that the judge's findings of my client's credible testimony should be upheld unless they were clearly are going yes to the court also  back to the immigration judge in that remount order they say that the judge should determine whether the petitioners test credible testimony alone supports a finding that the two men who attacked were police officers so again the board finds that they were police officers when we go on remount back to the judge there wasn't any additional testimony regarding the events that we realigned on for protection of the convention against torture we did submit additional testimony by an expert witness a professor from the university of san diego victor clarke who testified regarding the significant  abuse in mexico testified regarding the police officers conduct in mexico typical conduct and generally supported the you respond petitioners testimony that the two men were police officers the immigration judge then arrives i don't obfuscate finding suddenly and inexplicably the judge finds that the two men may not be police officers were probably just criminals because the country conditions evidence show that there are deplorable conditions in mexico also because on some occasions the petitioner was robbed or most likely thieves that was an error  contend that this court did not invite the immigration judge nor the board of immigration appeals to revisit the facts of this court remounted for the court to apply a clear for the board to apply are clearly erroneous  and it reminded for for a country condition evidence to be reevaluated in light of new case law the board didn't do that every man's and then the judge makes opposite finding so we are  and again because the board has to do has to follow the law they have to follow what this court ordered if we don't then we're going to encourage immigration judges and the b i to just and and the the which is mightiness is expert testimony testified in his favor and all the other evidence was in his favor for why the immigration judge came out the other way that there isn't anything extortion robberies that the country conditions evidence supported that the two men may have been just fevers and not police officers he doesn't explain why he departed from his testimony from an expert witness who corroborates largely corroborates the petitioner's testimony the judge comes at an opposite finding that was wrong and it's wrong because when when this does the petitioners credible testimony alone support the finding that they were police officers the judge does not thoroughly explain why all of a sudden the evidence doesn't compel that conclusion instead the judge points to country condition evidence to say that it really could have been one or the other professor clarke testified police officers wear plain clothes that is with the petitioner testified to the first time and he ratified it during the reminded hearing there is nothing in the record that would support the judge's decision to come  an opposite finding and that is troubling because again we do not believe that when the case was reminded that it was an invitation to relive again the facts it was simply to apply the proper standards of review which were not done reimagined and quite frankly because it doesn't necessarily involve the torture on appeal the board doesn't either because once they find that there were public officials in there was no acquiescence and they don't get into evaluating the torture likelihood of torture than not that he will be tortured in mexico first the record does not compel the conclusion that mr martinez this three brief encounters with the two men in mexicali amounted to torture torture is an extreme form of cruel or unusual inhuman treatment causing severe pain or suffering and does not include lesser forms of cruel inhuman or degrading treatment here mr martinez acknowledged that he was not physically harmed during any of the three incidents and there's discretion to do that i don't think it's arbitrary your honor i think here the board on remand specifically invited them a gratian judge to reconsider all of the evidence look at all of the evidence again consider crimes smells like the b i i said we don't like your result look at all the same evidence again and come out the other way well again your honor the immigration judge invite i mean the board invited immigration judge to reconsider all of the evidence with immigration judge did and in a thorough written opinion immigration judge after reviewing all of that  can only reverse the factual clear that's correct your honor in the border void saying well we don't find it clearer but we'd like you to do it over you see if you can reach a different result what that's not technically what happen and on remand to the board the board said ok now that we have this case and additional evidence we want to send it all back down to the immigration judge for consideration of all of the evidence and when the immigration judge considered all of that evidence the immigration judge reached a different conclusion the second back to the i j a to explain what has turned into oranges well here on ultimately this court is reviewing whether or not the record compels the conclusion that it's more likely than not that mr martinez will be tortured in mexico and here the record simply doesn't totality of that evidence putting aside this waffling or change in terms of whether or not these individuals were police officers the record doesn't compel the conclusion that it's more likely than not even if that's the fact even if these were in fact police officers that it's more separates from bipolar disorder and just disorder and is attempted to commit suicide three times i don't understand how you could represent what you did in this brief based on this record well there's no evidence that the bipolar to come back because that's only way he could be protected mr martinez testified that he contacted an a t f agent brian breaks twice after the second and third encounters and that he also contacted another a t f agent agent kwan after the third encounter but there's no he gets in the final thing that i find troubling about this case is the fact that this is someone who actually worked as a confidential informant for our country for many years and helped to prosecute over a dozen criminal defendants and yet and he's deemed credible that he's facing torture in mexico and our government is not doing anything to help him well actually here you are mr martinez initially fled to mexico because he was afraid he didn't want to initial removal proceedings he was eventually removed to mexico for another he was actually removed to mexico in two thousand and thirteen where he remained on harm for seven months which someone diminishes his claim that it's more likely than not that he would be tortured there