call the next case which is so brian the attorney general number zero eight forty six twenty six mr morley mr in this case immigration judge walter girling made a very space made a series of very specific findings they are i believe it page eighty on in the record in the also page fourteen in slightly larger print in my reply brief it looks like he made a seven findings with some of them broken down into support yes  judge i think that addresses the social group question and i was talking about the convention as torture i'm happy to address the shell script question and but i don't think we need to show that for convention torture for conventional torture we simply need to show and judge darling found that we had shown that he would be you know that the series of events was more likely than not to happen at each of them at each stage and forms of the backdrop but i think what i would what i do to your judge is i look at two things one i look at the last finding of fact that judge girling made not rebutted or found to be clearly  in which he says the response certain exposure to arrest and detention will likely result in the intentional infliction of severe pain or suffering at the hands of police prison guards or fellow prisoners without prison authority interference due to a total lack of proper just earlier is that normally there would not be any intentional infliction of pain but when this person who's going to be on the streets is told to do something doesn't do it as he did not do it think what we're talking about here is the intentional infliction of pain or the threat of the intentional flexion of papers and the regulations provide that the imminent threat of death regulations also provide for that and i think what we're talking about here is that this is the more likely the not result of somebody who is so mentally ill once in custody the police are going to use undue force and actually twitter because the this is a death there's record evidence of use of torture by this poorly trained police force they will inflict pain because he's being confrontational because he's not obeying what they're saying and there's also some evidence from and i think the specific intent in pierre is the intent to inflict pain the separate goal or purpose is for a particular rise purpose so in this case what we have is a deliberate and specific intent as found by judged early the two or inferentially found by a judge only to control the person who continues to act out and that they will do so by empty police it's the government no i we have to show the intent of some governmental authority and that would include the police that we do not have to show that there is some generalized acquiesce to show that it's the central government that is engaging in torture an arm of the government such as the police and engaging in this kind of conduct is certainly within the ambit of the convention against torture particularly where we have such well documented evidence of the lack of proper supervision the poor training of the police that in that sense judge we can look to the government's role in creating the circumstances that allow these police officers to continuing gaijin this conduct and the evidence also shows the record of the country conditions that there are you know that the police engage i do you do so now certainly i think the cap'n case supports our view i think this capping case is is exactly the problem that face this courting kaplan faces this court in this case kaplan says that you that the b i a in this case minimally review the facts i pointed out in my reply brief they cherry picked a couple of facts out of context and i put in my reply brief the entire context of the words they looked to some comment to the effect that he would not be if he's not taking it is not is not always violent not always confrontational and in fact it's clear that there was a funny made that he's normally not yet but he is but he but he continually and has a history in this country which has availability of medication with the police do not routine gauge and torture certainly any engagement torture is not he has found by preponderance of the evidence and not the high burden of proof that the be i a term required here and i don't know where they derive that that term from i don't know where a  in two thousand and eight did as they said they were going to apply that noble review standard and they should have applied a clearly erroneous standard with respect to the findings of fact the most  i would hope your honour's would say i think that probably gets very mad i think that i mean i think your honor gets i would hope that your audience would say that this is an instance where the the i j a findings  fact and the wrong standard was replied with respect to those particular findings of fact they get the first bite at the apple yes josh i get the first bite of the apple i'll take a in the sense that at least gives me another chance to argue and perhaps use the persuasive authority of this according kaplan as well as some other indications from this court that it is not satisfied with the manner in which the b i a seems to continually avoid crediting i j findings of fact and perhaps they will do the right thing and honor judged erling facts he's on the ground he sees it although i think it because when we look at this in cap and it's it's easy to understand why because it was subsequent i think two thousand and two or prior to two thousand and two they could review everything yes specific reason but they said in to me that if they had not changed their clear mind in two thousand and eight from the two thousand and six decision you might be right but they said we're going to we're going to put in place a did  here and in light of kaplan which obviously came after that i understand why would we not remain and at the very least you wouldn't remain here for the simple reason that there is no evidence as the board found of specific intent to torture that evidence of specific intent the specially an element of a cabinet what was left out even there was the the the very important tale is that there's no evidence a specific intent to basically yes they don't have a specific intent to torture but if a person doesn't abide by orders or requests of the police and he has he will unlikely be capable of a bang or understanding orders and directives from authorities and that's what they left out that person is likely to suffer torture at the hands of the place or the intentional infliction of pain at the hands of the place that's not enough under pierre and the reason that's not enough is that the police will look at that individual not for his mental illness but he's a put disciplinary problem pierre is it gets into a really difficult political situation you can't say to haiti or this court said you can't say to haiti that you have to change the quality of your prisons we understand that the prisons are in very bad shape but that depends on how one allocates resources within a government structure yes and that those who go back to those prisons are not going to be given the care that they needed in this particular person's case he likely would die and but there was in pierre that wasn't so much that there was the intentional infliction of pain it was that we don't have the ability to tell another country to change its prison system yes your honor and i think francois maybe comes more to the point occasionally electric shock which anybody would acknowledge is torture but the last word we have is the bank you're here and that certainly are the the terrible prison conditions are not something that necessarily is the intentional infliction of pain and for us to we we're not going to cross that line to say that that sum in effect that you have to reallocate resources in order not to have these terrible prison conditions but here what you've got is that if a person is a street person and if the person has a tendency as this person has not to obey directions that as this person he found would do specially when he's not on his medication or even sometimes if he is on his medication that the police will have the intentional infliction of pain now the question is is that that's a finding of fact is that clearly erroneous we don't know what the board would necessarily decide because they applied it in no post standard as to those specific i'll e the fundamental issue here and the reason it remained is not necessary is the specific intent issue which is illegal finding a specific intent to torture is an element the fact that mr bryan is likely to end up in prison because of his mental health condition puts him in the broad category of pierre which is what was going to prison automatic makes you think that specific that x has a specific intent to torture when a happens a person not a biding by orders that that's not a finding of fact i'm not quite sure i understand it can you read what i words the finding was that sobriety certain exposure to arrest and detention will likely result in the intentional infliction of severe pain or suffering at the hands of the police prison guards or fellow prisoners without prison authority interference when due to a total lack of proper daily medications he will he unlikely will be he will unlikely be capable of obeying or understanding orders and directives from authorities that is the finding that finding puts in the same shoes is most other prisoners in guyana particularly those who fail to obey orders for any reason now there seems to be some lack of clarity in the record as to whether this person with his psychotic condition doesn't have the ability to understand and ultimately to consider whether to obey or not to a bad i mean least if past is prologue this person is psychotic his mother did testify that he is paranoid schizophrenic which is  directions will likely lead to prison guards a poorly trained prison system to single him out for additional discipline now what that additional discipline maybe we don't know but the fact is that there's nothing to distinguish mr shu brian as somebody who again following this fairly lengthy series of events that you know as somebody who will not abide by every direction he's given from another prisoner who for whatever reason because he doesn't choose to do so a it was a dissent yes and what we've got now is that the following findings that he's profoundly mentally ill and on a strict regimen of a daily regimen of medications that even while medicated it's difficult for him to carry on even a minimally coherent conversation that while he is normally not violent he has a conviction for assault and that happened while he was medicated that he has no relatives residing  mental health care system agana is woefully inadequate and that large segments of the mentally ill population have little or no access to appropriate medical care or housing that the expert witness of pine that his eventual arrest by the police is almost certain and that was  finding that would be almost certain and then i would read to the last one that his certain exposure to arrest will cause him not to obey commands and therefore result in the intentional infliction of pain now maybe that's considered weak but again your honor i don't don't believe it's necessary here and let me try different tack if i may perhaps ok this this may be a little more success find out the ninth circuit has a published and you apologize a i found in the course of preparing for oral argument it's you will that the mental health facilities in mexico were horrendous not dissimilar to the prison conditions of mr subprime would face upon his return to guyana now the ninth circuit in that case said not enough again it was a specific intent case and the ninth circuit collected cases and so far clear it would say not enough yes and here this is this is where during then go goes another step and says that this person isn't capable of responding to orders and because of that he there will be the intentional infliction of pain by police prison guard to sutter it's not so much to deal with what the conditions as the fact that it doesn't make any difference whether he's in prison or not this person's in world of hurt if he goes back to guyana and that was a finding it is a finding but the failure to find that there is the inadequate discipline situation they'd have the discipline to not mete out this punishment the marriage may be on remand that needs to be looked at but we don't know what the training is i don't think there's any evidence in one way or the other about adequate or inadequate training  of the prison guards i think that may be a good tack sure but it would seem to be at this point there's nothing in the record that i know of that relates to that petitioners where they were it would be your honor it precisely  the petition does have the burden to prove that it's more likely than not to prove that he will be tortured specific intent and specific intent but let me be clear it comes from the language of the cat itself use of the term intentionally  inflicted the torture must be intentionally inflicted that's from the language of the convention against torture itself the i believe it was the d o j at the time it may have been the h s no matter the regulation then reads that to mean specific intent and that legal element is missing here and that legal element is what permits this court to not remain the case and tonight in the petition as it now stan if you send this person back do you have what makes you think that there won't be the intentional infliction of pain on him in light of this finding what makes you think i clearly erroneous it's not so much that it's clearly erroneous judge the board again you know nobody's fault in the board here in light of the regulations and the subsequent issuance of kaplan there is nothing in this record as the board didn't know there was no evidence of specific intent to torture this individual and for that reason for that reason it need not go back to the board the the finding is that what will occur it will like certain exposure to a threat arrest or occur and detention will occur and that will likely result in the intentional infliction of severe pain or suffering at the hands of the police prison guards so that's a finding that is a finding but we need to know the reason for the specific intent element that sounds like an argument on remand doesn't it could b three it's actually because of which is somewhat interesting to me in some way in our fellow be that as it may they have to he has to be subject to persecution because of his mental persecution of inherently motivated by one of the five protected grounds there's an intent there it's not so much that you're walking down the street and you know persecution however you may define it under the law you experience persecution and it has to be for one of the five protected grounds in the v a proper we found that there wasn't enough evidence to get that far to say that assuming for the sake of discussion mental illness is a group that is a group he didn't meet his evidence or burden and for that reason the board was correct so was the proper standard applied by the da yes it was ok with respect to withholding removal claim certainly certainly as we've covered the cat claim could have been catholic and that's true but such a person would have a very difficult time meeting his or her burden of proof in this case were that the mechanism by which we're able to establish that it is more likely than not mr sobriety tortured is because he will be singled out because of his mental illness this is not we don't need to put in a pickle social group if it turned out that every prisoner is in guyana if we had evidence that every prisoner no matter what happens is tortured and abused as a routine practice then that would establish a catholic here it's the mental illness the form forms th trigger and then his disobedience forms the the the abuse and the beating and the torture that will be inflicted more likely than not be inflicted upon him so that's that coun makes a strong argument out the law about the lack of specific intent specific intent in this case in the catches is derived from the criminal law every day in this courthouse and in courthouses across the country treason judges find people guilty having established specific contempt making that factual finding that specific intent was found how do they do that they do it by inferring from the facts and circumstances of the case was there sufficient evidence to demonstrate a specific intent judged did nothing different in that regard other than he didn't have to meet it by proof beyond a reasonable doubt he just had to say by preponderance of the evidence that these guards were poorly trained and the expert testimony was that they are poorly trained would that they would not likely that  r bryan's lack of cooperation if you know the to cooperate on the lack of sensitivity to any kind of mental health issues would likely result in the abuse that would be further him that is inferring from the record different than what a judge or jury does in any specific intent case so i submit to you that there is evidence of specific intent in this case and it's