immigration judges denial of mr oxygen's request for deferral of removal under the convention against torture and the second decision was the board's denial of mr oxygen's motion to reopen now there are two separate and independent grounds for the court to find that the b i a committed legal error in both decisions first in the dismissal of the appeal the board held mister to the incorrect legal standard announced in the two thousand and two decision of the board of immigration appeals in re j e which was largely based on the board's narrow and reasonable interpretation of a specific inten i'm sorry are unreasonable unreasonable why don't we deferred you're on every other court that have this for just about every other word i'm not sure if that's i think it is fair to say that most circuit courts have deferred why should yes your honor there are a few reasons first of all congressional intent in implementing the convention against torture is unambiguous congress enacted the far out of the foreign affairs reform restructuring act to implement article three of the convention against torture and in the far the congress directed agencies to promulgated regulations to implement the obligations of the united states under article three of the cat subject to any reservations or understanding's contained in the senate resolution about a vacation of the convention the senate or the congress did not give to the board of immigration appeals discretion on how to define specific intent and for a congress to hold the agencies but the department of justice torture pain and suffering was specifically intended as opposed to pain and suffering that was and if we can ascertain congressional intent legislative intent by looking at the r history as well as the wording of the cat as well as the implementing regulations in the fara in ratifying the convention against torture the senate foreign relations committee was concerned about acts resulting in unintended or unanticipated consequences and resolved that concern by incorporating a specific intent requirement the senate committee on foreign relations wrote in its report concerning ratification of the cat in one thousand nine hundred because the civic intent is required an act that results in unanticipated and unintended severity of pain and suffering is not for purposes invention and that it was incorporated into the regulations that state in order to constitute torture an act must be specifically intended to inflict severe or mental pain and suffering an act that results in unanticipated or unintended severe to pain and suffering is not torture mr oxygen agrees that there is a specific intent requirement in the definition of torture mr oxygen contends that in the context of deferral of removal under cat specific intent is satisfied when the prospective torturer takes an action either desiring that his action caused severe mental or physical pain or suffering or knowing that the natural and probable consequences of that action is to cause severe mental or physical pain or suffering and this interpretation of specific intent is consistent with the supreme court precedent including us vs us ships in company tyson vs an arizona and the fourth circuit case of us versus these when we can also look to the plain like language of the regulations and the cat both the terms intent and purpose are used to the definition of torture and that's in article one of the cat and eight c f r section eight point one eight zero the definition of torture as incorporated into u s law by the regulations state any act by which severe pain and suffering whether physical or mental is intentionally inflicted on a person for prescribed purpose bribe purpose such as one construction require that we endeavor to give different meanings to those different terms here of the different terms our intent and purpose is holding that in order to hold that created and deliberately maintain to these conditions is a purpose argument and when the definition of torture requires intent specific  intent also the interpretation of specific intent is one that does not lie within the bia is authority or expertise it's a criminal term of art that this who're and other courts are just as well or perhaps well better suited for those reasons your honor we hold that urge the court to hold that in the context of deferral of removal specific intent can be satisfied when the torturer takes an action knowing that the natural probable consequences of that action are knowing that the substantial certainty of that action is to cause severe mental or physical pain or suffering now the second error and on the part of the board both in the dismissal of the appeal and in denial of the motion to reopen that the board committed legal error by ignoring unre legally significant evidence in dismissing oxygen mr oxygen appeal and in denying his motion to reopen and this is an error of law in the context of domestic law implementing the convention ashcroft that where the immigration judge failed to follow the regulations by considering all evidence related to the possibility of future torture this court reverse judge and the board failed to provide a reasoned explanation as to why the facts of mr oxygen's case did not qualify him for belief and on that ground alone this court should be man to the board the board also ignored unrebutted legally significant evidence there were four state department reports in the record the state department report from two thousand as well as to state department reports from two thousand and eleven to two thousand and thirteen and that neither the immigration nor the board even mentioned the state department reports in their opinions and those reports provided evidence that the deplorable conditions are not just what the board said they were  and i think that there's more evidence that these conditions are not just a result of the fact that haiti is a extremely poor country for example the two thousand and thirteen reports from the state department if you look to page one eighty of the record the most serious impediments to human rights included deficient judicial system and chronic corruption in all branches of government basic human rights problems included overcrowded and poor sanitation in prisons and prolonged prison detention and if you look to pay just one ninety one to one ninety three there's a lot of detail about judicial corruption probe long pretrial detention and denial of a fair  trial for example there were over ten thousand prison and mandates and authorities held approximately seventy three percent in pretrial detention as of july two thousand and thirteen authorities had yet to try an estimated ninety one percent of  appearances inmates on ph two zero zero seven of the record the state department states that there were frequent reports of corruption in the haitian police department for example affluent prisoners at times obtained favorable conditions of detention so these there's evidence in the state department report that the i j a and the b i ignored that haiti's deplorable prison conditions are largely the result of judicial and police corruption rather than just the severe economic problems the board also failed to consider evidence in the motion to reopen and the board does have jurisdiction to review questions of law  in the motion to reopen mr oxygen claimed he would be singled out by prison officials upon his detention in haiti because of his mental illness and mr oxygen submitted evidence that after the merits hearing he was diagnosed with post traumatic stress disorder and depression and also in april two thousand and fourteen he was placed under suicide watch in immigration detention the board denied the motion to reopen and one paragraph in that paragraph demonstrates that the board failed to consider all of the evidence for example the board stated he claims he will suffer harm as he if he is returned to his native country he do to his mental condition the evidence before us shows that people and haiti with mental disabilities may face social stigma and lack of resources the one paragraph decision denying the motion to reopen open does not even mention the detention of criminal deportees upon  their arrival to haiti the denial of the motion to reopen does not mention any state department report them denial of the motion to reopen does not demonstrate that the board considered  mr oxygen's mental illness and light his diagnosis also of tuberculosis it did not consider evidence in the record that people in haiti attribute mental illness to supernatural causes and believe that mental illness is contagious and that the other submission on page three twenty four of the record that mentally ill deportees are often mistreated and are at it an i ncreased risk of police brutality and did not have a supply of medicine and we urge the court to reverse the board on its denial of motion to reopen because the board made it legal error in failing to consider all evidence before the board going back your honor to your honor's to the question about the circuit courts their eighth circuit and the ninth circuit i think have i'm sorry here no your honor no so that when they're judging if they're judging a wholly different record right yes  a note six that states nothing in this opinion prevents the agency from driving the entrance should the agency choose to do so that a particular course of action is taken with specific intent to inflict severe pain and stablished specific intent to inflict severe pain or suffering because the immigration judge said that in re je dictates this well if you can read it all the time board's determination but they're best friends has either been not explicit or is buried the eighth circuit finds its name have to get to the issue of deference because of a plain reading of the regulations or to the board's finding the third circuit found even greater amount of deference was due then is typically given to be a because it was not simply the board interpretating regulation on its own but it was actually doing so at the behest of the president who had the understanding with the cat to the senate to deference at the very least hour that this very least yes chevron may be appropriate the third is given chevron that we've been one from the eleventh have given chevron this day isn't in bank decision yes what and how often is that board me two decisions control the second decision tom that's contrary to the earlier decision and inconsistent would not control because we have a at whether that was the way this was how did it work but it was the board we have fifteen judges when we were just saying number one number fifteen judges you got fifteen board members and they went in bank here for this case kind of evidence from then i understand you said it was expert testimony but what would the expert have to say another word gay person is that what is that with that what was the just the underlying thing fact that made this person  so i mean if you have specific evidence of i'm an expert or other evidence like that that shows that someone is has a evidence if you have evidence from the authorities themselves stating things on the record and things of that nature i mean it's the district judge will instruct the jury that if somebody had knowledge that something will happen that that's deficient shows pacific intent and i think that's the gist of their argument here why doesn't that same argument apply the courts that have looked at the issue have all found that foreseeability is not a sufficient not sufficient needs to be and then standard that even in the third circuit i believe it was pierre found that even with something was practically certain to occur that it was still not sufficient that it's you she'll still had to show specific intent why is that sort of a matter of law you know which is we're thinking of this is why should it be enough to get to jail or crime but not enough to get relief and i thi actor so i think that you know even though some courts have addressed specific intent with a knowledge requirement the courts have looked at it in the context of cats i have found that foreseeability willful blindness things of that nature are insufficient destro the actual specific intent they've had they've shown that it actually has to be an intent on the part of the prospective torture to actually engage in an act that will result in severe pain and so on that be the jailer down  to yes and the evidence that we have in the record here is simply that it's not an attack that this system is not being created in mantic maintained in a way to inflict pain and suffering on people for that intent it's simply it's overcrowding it's lack of resources the most recent state department report the few thousand and thirteen report actually shows that conditions have been if not getting better there is no attempt being made to make them better there is a section in there about  improvements remodelling of prisons building new prisons providing you know better hygiene tools and things of that nature on the one sort of couldn't be a got to actually address that issue and whether or not you know attempts by the authorities in that case it dealt with a mental hospital in the conditions for mental limits and i found evidence that the government had given human rights organizations pre x says it was taking steps to improve was evidence of a desire to improve conditions and any claim that there was actually a specific intent to harm any of the other i think that's kind of the situation that's from the latest that report in haiti as well conditions of deplorable but it's not because that they're actually doing that to torture anyone and they're actually trying to if not in a very rapid pace it would seem to make those conditions  better turning to the motion to reopen the motion reopen suffers from the same jurisdictional issues as those the merits appealed namely that because this is a criminal case only questions of law constitutional claims are properly before the court and the petitioners claim is not a and i think it's important that the board's under no obligation to give more robust treatment to an issue than they would actually does themselves and the motion to reopen was based on the recent mental health diagnosis on that issue was first broached in d m america we targeted due to his mental illness but he only supports that with the two thousand and twelve human rights report which says that people with mental illness are marginalized neglected and abused in society that doesn't actually go to the specific issue in this case of whether it relates to in the united states and he has mental illness and the mental illness diagnosis was not discovered until after the not hearing which was why the evidence was not before the board in the original appeal in the motion to reopen mr oxygen's attorneys submitted medical records that mr ogden had diagnosed with depression p t s d and that he had been placed on suicide watch and the question presented in the motion to reopen is a question of law we're not asking that the court we weigh the evidence but that the court hold that the cia did not properly consider the evidence and to not properly consider to not consider all of decision we all the time are affirming cases in which that hasn't happened that's correct your honor i think what what's the deficiency here that raises the matter of wall  the failure to consider evidence mr oxygen's mental illness in light of every other all of the other evidence in the record the agency did not even mention the fact or the allegation the claim that mr oxygen would be placed in deplorable prison conditions upon his arrival to haiti and so it's an it was an error of law not to consider mr or discuss every basis for its decision that's correct your honor but i think that the way that the word this decision is worded in one paragraph dismissing the new eviden a mistake and then stop the heart of the court does not address the heart of mr oxygen's claim that because of his mental illness he will be subjected to even more harsh treatment  prisons because of the way that the court can't analyze the questions of seven straight ahead that it did not consider the heart of his claim and that is a violation of u s law implementing the convention