he was implicitly faulted for lacking the detail sworn declaration of an expert whose credentials and basis of knowledge went on rebutted by the government below the poor chap who defamation opines that there is a high probability and repeatedly that it was i j judgement in talking about the expert reports saying it's a good expert opinion and so on right when considering it it's just that in the final decision there i j doesn't specifically mention it but will require the i j a to specifically mention every piece of evidence in the record this court's cases require the i j a to express the explain why material competent evidence at the heart of the case does not satisfy the bird and the report do something other then mr odors own argument about how he might be subject to additional abuse well it corroborates and explains why it is not simply implausible speculation if there were cases where the basis of the cat flame was past persecution obviously then a noncitizens own testimony would be much more important because it would have to be extremely detailed to describe what actually happened you know what the i g said about that it can clean that if the asp report had been addressed in the decision this court under its own cases would be able adequately to review mr o it was claimed claimed that he would be making that substantial evidence did not support the look at the expert report and you think that if we look at the expert report that the expert report establishes that i just decision is not supported by substantial evidence so do you think the expert report would require any reasonable decision maker to find the opposite of what the i did here yes i do particularly because it is presumptively credible because it was not rebutted below the government had the opportunity to cross examine the sexpert mr or just counsel for the available for testimony it declined to do so so i don't believe that the on ambiguously requires the agency to consider the elements of the crop of conviction only at the st step of its analysis but the i j a did not do that here or did that and stead both agency levels considered specific circumstances of this offense such as the amount of loss of the victims that are not elements of the offense that is exactly the error that the rd circuit addressed lose even even considering the same one of the same criminal  position seems to be is this right that at the st step is was to look at the elements and it has to be a serious crime like occurring against personals or something serious like burnt in this wouldn't qualify categorically is that your position yes it has to fall into a recognised category of pretty vocal no we have all of these precedents of the word after being in am case and it's held by circuit courts finding as particularly serious circuit came along twelve years later and said and grant her prodigious idea about the threshold determination no it is my position that you cannot always tell from the face of it and if the government cites whether those respondents were the same position they might have been convicted of those financial crimes you're referred to as particularly serious crimes per se that is sentenced to more than five years in prison is just enough so i think you're making a more fundamental point about  is even if he was not usually term correctly if in fact crimes other than crimes against persons still qualify as serious crimes why is that statement a reversal if in fact we can look at the analysis and determine that it still falls properly within the category of particularly serious crimes because we've contended that those categories have been created by the board of presidential decisions and then there are very few child pornography offenses are won illicit that it might be that these other financial crimes were and knew many crimes because they reached above five years but you don't dispute that somebody commits a particularly serious crime even if it's not a crime against address such an out of the affidavit and expert affidavit when announcing a conclusion regarding the likelihood of torture you have the exact same circumstances here i don't believe that persuasively distinguished thank you you have some time for a bottle  martin your honor may have seized the court eric anderson representing the attorney general mr over joe is admitted to the united states in october two thousand and ten and less than a year later was arrested on a conspiracy to commit wire f offense for which he could have faced twenty years in prison and he was subsequently convicted sentenced to thirty seven months and ordered to pay restitution of more than ninety two thousand dollars his removal bill any other overstaying a visa and for protection under the convention against torture or cat i will skip straight to it all i am going to court doesn't have any questions about the discretionary to some denial of asylum both the immigration judges and board acknowledged and in fact quoted the steps provided in matter of n a a m human gratian judge did say this is a crime against persons and  that i'm aware of ever suggest that one wire fraud identity theft but you taking someone's identity from that person obviously would qualify as under under this sort of an element analysis is a crime against person point i think is well taken which is it still could be concluded that wire fraud is such such a particularly serious offense but face to face at least it's a discretionary decision that is based upon a charging document which tracks the elements of the offense it was not tied up with the details of what happened in this particular case it just described the the central elements of conspiracy to commit wire fraud and be the identity theft defense and  person which i know is a non technical willing to talk about it or is a mistake but then you list the actual elements of the current and the elements of the crime are consistent with other elements that have been considered to be particularly serious adequately considered the expert report there are other couple of a couple of other d issues here as well i mean what is sending it back and letting the agency do a proper job on this case well you're i don't buy it i don't think there he gave right so we know that the immigration judge to move it was aware of the report and the report itself is also speculative right it says you know there's no policy of this it doesn't happen to everybody but there's this tendency and required so if this report actually we're back and before the i j a with the i j a have to alter his argument at all in light of the arguments presented in the reports isn't it the same idea that it's to if we were to do an analysis as to whether the report makes a difference so st of all it seems like the i g didn't consider the report because he talks about it in the record but even if we were to assume that he didn't look at it we were truly announces to say  to torture each piece of evidence right so what takes this from the realm of evidence that he doesn't have to address in particular to the realm of evidence that's so important that he must isn't it this question as to whether it would make a difference whether it means  a and he'd probably taken into account the decision he otherwise made would have lacked substantial evidence isn't that really what we should conclude if we were prepared to reverse the decision for lack of mention in the expert report yes it is but also it was the government's obligation if it wanted you to rely on these insufficiencies of the affidavit to bring them up below and for them to be presented at that time it's not this court you are reviewing the decision and the reason base is that who believed that nigerian authorities would be aware of the crime of the british you he also litigated prisoner cases as an attorney he could have questioned whether his basis of knowledge was still adequately contemporary but they did so it's competent presumed competent material evidence it's important that an immigration judge express to consider it before mr auto is potentially removed so we ask that you remember with instructions to remand to the immigration judge who has the fact finding