of immigration appeals ongoing misapplication of the law under the convention against torture missing on the letter there was tortured in this case he was also convicted in one nine hundred ninety eight under california penal code two to eighty eight although the actual record of conviction in this case is incomplete what is clear is that both the immigration judge and the board of immigration appeals determined that his conviction under california penal code two eighty eight rendered him an eligible for asylum withholding and notably deferral of removal under the convention against torture specifically because he would come he was convicted of a particularly serious crime the merits in the case were never actually reached four and was also reiterated by this court in edu versus holder that alone would have been sufficient grounds for remount as clear error having been committed by the immigration judge and the board of immigration a particularly since the merits of his deferral claim were never actually reached but now counsel that the board of immigration appeals did discuss whether he would whether he would use torture when he went back the board of immigration feels never actually reached the findings what the board of immigration bills did was it it's expressly adopted verbatim the letter that former counsel had submitted specifically that letter is contradicted by the transcript so it was undermined by the transcript as well as the declarations that were submitted before the immigration judge counsel i'm looking at the boards the decision of december sixteenth two thousand and eleven and they've they have mentioned the particularly serious crime but on page two they say even if we were to accept the arguments inserting the weight of the evidence we would still deny the motion i'm sorry that is referring to the p s c i'm sorry yeah no you're correct all right i see where you're going ok go ahead and so the board is acceptance of the attorneys analysis of the merits of the keys are incorrect for several reasons first the transcripts and the evidence itself undermined that determination particularly as he did explain which was supported by declaration submitted from his home country that his tactical choice and the reason he gave was because he thought it would be a frivolous argument and i think i'm pretty the bore you that's right yes your honor however the board's contention of strategy to abandon a viable and the most likely successor grounds for appeal is unacceptable counsel gained nothing by abandoning the strongest argument or going to showing do you have to make  in order to meet the prejudice prong another word if we assume that the attorney was deficient in making that argument you have to show prejudice of some kind right yes your honor what is that choice that you think is sufficient to you know to well to grant him when you hear first he would have won the remount of the immigration judge factual findings were never made in this case by the immigration judge the immigration judge basically reiterated the transcripts she never reached the credibility she never reached actual factual determinations the merits of the claim were never reached so he would have one on remains to at least have his claim for  that that in your view dictates his his victory and remain what do you point to that says he would have won the immigration judge he determined at the at the first level at the very first level the immigration judge determined that the conviction that a conviction for a particularly serious crime render somebody in eligible for deferral of removal that is the lie and by statute belied by the convention again i misunderstood you i thought you abandonment of that issue right but the it you know i've seen these cases for a long long time i can't ever remember a case i've seen in the immigration context and i've seen a lot of bad lawyer but i can't ever remember a case in the immigration contacts right seen as complete a letter from counsel explaining why what his strategy was and why he did not do it why isn't the be i entitled to take out of this word it was very very clear and was very articulate first and foremost like i said they actual transcripts as well as the the evidence that had been submitted below contradicts his analysis of the case it's not very strong counsel it really isn't there's something there but it's not it's not very it's not very strong there's nobody who's really looking for him that he can identify he doesn't know who these death squads are he doesn't he doesn't have any grounds for asylum in the sense that he's not being pursued religious grounds are political grounds he was young boy when he went to the guerrilla camps  and although he says that his is family says that somebody is looking for him has no idea who is looking for the evidence that he will be tortured if he goes back to el salvador's really pretty thin although this at this argument in all honesty should not be litigated here it should actually be that's except that lawyers get a chance to craft a strategy for their clients and they get to use your best judgment and they don't have to exhaust every conceivable argument and we have a very lengthy explanation from a lawyer saying i didn't think we had a chance on that argument i decided not to process his letter was not submitted under penalty of perjury so to have the board to give weight to that letter doesn't have to be some rule when the petitioner submitted a sworn declaration saying he never addresses with me he never talked to me about avandia mean this claim for deferral he never told me explain my options the attorney was under an affirmative obligation to discuss this strategy the board is not allowed to engage in fact finding at the appellate level so it would actually have to be reminded to the immigration judge but in evaluating what the prejudice might be and the board take a look at it of course i mean if the board if the board if the board were to say  no ruling on credibility so there's a lot missing from this but the whole reason that you need to get that you need to show you no effective assistance of counsel is to avoid all the time constraints and that if you're late you have to have the aggravated felony his case was actually not decided on crime of on the crime of violence prong for greed of felons because they had just come out because of time restraints i needed to make sure that it was  d statute did you raise a vagueness challenge before the agency i don't think so they on the motion to on the most interview consider it was not raise united states versus castro it did hold that to eighty eight was overbroad as well so there were there were cases that the attorney should've relied on he didn't bring it up so morning your honors and may please the court alexander lutes for the attorney general your honour's despite the complex procedural posture of this case the court is really called upon to decide only two issues the first is whether the board abused its discretion by denying  motion to reconsider that neither factual determination nor the legal standard applied in the board's previous decision that's the issue raised in the first petition for review here number twelve seven zero one three seven the second issue the court is called upon to decide is whether the board abused its discretion meaning it acted irrationally arbitrarily or contrary to law by denying mr landover his motion for reconsideration which is based on a claim for deferral of removal under the convention against torture that at bottom is meritless that's the issue raised in the second petition for review number thirteen dash seven three three seven one we would submit the court should deny both petitions for review your honors i'd like just briefly before i discuss jail letters that were filed just priority argument however i would like to reiterate that that issue was an exhausted the board specifically noted at page one sixty three of the administrative record in the second petition for review number thirteen seven three three once there's a footnote at the bottom of that page your honor in which the board notes that the petitioner mr land averred a never challenged on appeal whether his crime was an aggravated felony or whether it constituted a particular excuse me or as a particularly serious crime are silent purposes that issues there for an exhausted in the court lacks jurisdiction to consider at this stage i just wanted to clear that up since that was an issue that was addressed by question a few moments ago the turning to the two issues in the case that i identified a few definition is constitutional right yes your honor that was an aspect of the dim i decision however any void for vagueness argument is also exhausted separately from the question of whether mr lana verdi's conviction under change in the law that's possible in some cases your honor but not in this one to my addressed a different aspect of the aggravated felony definition adult with crimes of violence which is a criminal excuse me or is that portion of the immigration and nationality act imports a criminal statute that had recently been examined by the supreme court that put that portion of the aggravated felony definition and i in a section want to one is not at issue in this case because this aggravated felony was based on what because this aggravated felony a sexual abuse of a minor under one a one a forty three subsection as opposed to a crime of violence so the holding of the my is not implicated by this case and any issue particularly serious crime we would submit that the court need not and should not address that determination today because the board also based its denial of that motion on a separate valid procedural ground any challenge to which mr landover  you now from us i'm saying i repeat that it was improper because because it challenges me to factual nor legal determinations your honor which is what the idea requires a motion for reconsideration to do at eight u s c section twelve twenty nine c six see the i need states a motion to reconsider should specify the errors of law or fact in the previous order and should be supported by pertinent authority so it has to either say that the board in its previous decision misapprehended the facts or that law respectfully no your honor and i would direct the court's attention to mr landa verdi's motion to reconsider itself which i believe appears around page one thirty nine of the administrative record section in case there are two deaf seven three three seven one here the challenges that mr landover he raised to the board's previous decision he said that he asked the board to focus not on the age of the victim of mr landover his crime but on other aspects of mr land his conduct he requested that the board ignore that mr land of verdi's criminal conviction constitutes aggravated felony sexual abuse of a minor but cited no authority for the proposition that the board may not consider that fact and lastly he asked that the board consider that mr landover it could have received a harsher sentence than he did in fact receive the wording of those challenges and the challenges themselves clearly go to how the board way different factors it doesn't say that well that's one way to look at it but the other way to look at it i mean if you if you want to be charitable maybe you don't but is that you know it's saying by the board then go through the front desk you factors like it was supposed to there's a difference between challenging the board as having applied an incorrect standard and challenging how the board did apply the correct standard the friends what's the fact agree then that there's no factual issue raised by mr landor verdi's motion to reconsider but an issue can be a fact of law or of discretion discretion goes to how the board balances the  undisputed facts under the correct legal standing all of this is barely is all you know fairly interesting except that the board then spends the next four paragraphs discussing nothing on the merits so that it it says well but even if we were to consider this we would deny it and that seems to go to the that seems to go to the merits or maybe we should focus their well your honor we would submit that even though the board alternatively said even if this were a question of law or fact here's how we think it would shake out that is an alternative basis for its determination in the first basis which is this is a factual challenge it's not a legal challenge is a challenge to how we exercise their discretion that still stands in the board and not of use its discretion and in refusing to reconsider that  issue your honour's turning to the particular serious crime determination over which we would submit that the court need not reach and should not reach given the procedural failings of the motion and i might regret the fact that the petitioner has waived any challenge to the agencies to determine whether climate particularly serious the nature of the conviction the circumstances and underlying facts of the conviction the type of sentence imposed and most importantly whether the type and circumstance of the crime indicate the feeling will be a danger to the community and crime indicate that the response would be a danger to the community they cited verbatim the francesca factors and they followed that citation by that's all they did i mean they fired the factor but the didn't you know don't really apply well respectfully  tip respectfully no your honor we would disagree with that i think your honour's focusing on the petitioners claimed that the board looked only to the elements of the crime but in the petitioners brief what the petitioners plainly to do is to reduce the factual considerations that the immigration judge in the board actually did examine two different elements of the crime and then say therefore because all of these facts can be compared to an element of the crime the agency considered only the elements of the crime but in fact the agency went far beyond the bare elements the agency looked at the facts behind the crime how california law treats this crime how federal law treats this crime what the petitioner was sentenced to that goes far beyond the elements and the attempts to matt what do you think we should do your honor i would suggest that the court deny the petition for review in section in case number twelve seven zero one three seven just on the basis of the fact that the motion to reconsider didn't raise a factual or legal challenge and therefore  procedurally improper however if the court disagrees with that proposition the court's deny the petition for review on the basis that the agency here did exactly what it was supposed to do that identify the correct standard which is the first test of factors and that walk through them and apply the based on the facts of this particular crime and your eyes if i may i'd like to turn in my last couple of minutes here to the second petition for review which raises an ineffective assistance of counsel plan now your honour's your questioning of petitioners coun during her time focused on a key aspect of this case which is the fact that it contains a lengthy letter from former counsel explaining that his choice not to appeal the immigration judges treatment of the captive for all issue was a tactical choice not  it was a tactical choice because he believed that that was not a viable claim he wanted to focus his attention instead on the particularly serious crime determination this court in the supreme court has held that an attorney does not act in an effective looked over the transcripts of the previous proceedings and on that basis decided not to pursue the captive for alicia now your honour's the petitioner argues that that letter should be given a reduced weight because as asserts it it contradicts the petitioner's own affidavit but we would submit your honour's those two documents are really not in conflict for counsel's letter says this was a conscious strategic decision that was made in consultation with mr landover day nothing in the record testimony or documentary evidence and nothing that mr lennard he said gave any indication that there would be future torture and mr lindh averted says in his affidavit is my attorney told me he was going to appeal the decision because my crime that's consistent with counsel's letter he never explained to me on what basis he was appealing which contradicts mr landy verdi's own previous sentence but the fact that he didn't fully understand what former counsel was doing and the fact that former counsel decided to appeal  it it is still in effect of assistance of counsel there's no page on the number of pages that we can see me on or appeal to the board of immigration appeals nor is there a limit on the issues that we can bring to before the board of immigration  can take a look at an argument so even though i'm entitled to raise as many issues as i want sometimes it's better to ask the court to focus on two or three issues rather than giving them ten or twelve issues we see that all the time in our breaks lawyers will will decline to if they're appealing from a trial to to squabble over every ruling by the district judge it if they do it my advice to my students and to my clerks and to any lawyers that i get a chance to talk to is this is not effective to raise everything even if you don't have a it from your client telling us what the problem is it is far from clear that that is a meritorious cap quite the exactly because it is far from clear the  legally it is insufficient is night deferral of removal based on a conviction which this court has also upheld because the ineffective was clear on the face of the issue no competent attorney would have the amount of probation the probation was not a deprivation it could be construed as a provision of liberty but considering how the government is considering the crime but it was given six days jail because the facts of the case showed that he had had a relationship with a thirteen year old girl over a long period of time but he didn't force the relationship so i assume that's why they gave him such a short period of time in jail but we don't know about the relation of a relationship over a period of time all we know is that he did actually plead to a two eighty eight pre sentencing report was never substantiated with any extra evidence