saltus disability established his membership in a particular social group whether he will suffer disproportionate punishment on account of his disability support decision also miscategorized the routine grief and torture in syrian pres thought he testified that the reason he didn't get the exemption for military service because he was a member of a well connected or well financed family or something like that am i wrong i he did testify to that a in the philippines that because there was a motive there was a protect there was a motive on account of a protected ground that that was sufficient to establish the nexus but the next this is very clear in this case because they are knowingly penalizing him for his disability they are knowingly putting him in a position where he cannot perform and then torturing him because of it so it is a social group that you're wanting to qualify disabled person are disqualified from military service disabled persons generally and alternatively disabled persons who are unable to complete military service because of their disability which is the case here the situation in mr saltus case is akin to the military telling a quadriplegic to repel down a five hundred foot wall and then throwing him in jail and imprisoning him because he can't do it there it's not that he refused service because he didn't want to complete serv it is because he is unable to complete service the syrian military was aware of this they ignored his medical documentation they ignored the obvious appearance of his disease and the fact that he didn't even meet the height and weight requirements for service mr salty suffers from glass bones disease his bones do not form properly and are so fragile that they break during the course of everyday activity under the american disabilities act this country has recognized that failure to take into account someone's apply to serious however the rationale when you're looking to defining a nexus and seeing if this persecution is on account of his disability is relevant well no we have a pretty strong line of cases which there with respect to military conscription we don't recognize any persecution when that's that's been sort of excluded from our policies of the host country and unless there's some other ground there we generally tended to exclude military service that we know you have your honor but there have been exceptions and one of the exceptions and the exception that applies here is when this when the punishment is disproportionate on a protected ground mr salty will suffer more punishment than the average recruit or the average prisoner for that matter when he's jailed for failing to serve in the military he is in a far more vulnerable position and the military and the government are aware of that but if that seems to be a different argument i don't know if you're leading now into the cat crime but if somebody avoids military s and then they're put into prison or given whatever sanction the country gives them we generally don't provide relief and i thought your tax plan was that if he because he has not been in military service during this period he put in jail and that people in jail are tortured is that correct or is there something specific that ties their your to go into military service to the torture support that that he will be tortured upon return to syria it once imprisoned once in prison seem to be much question that if he returns and they discover that he's there then he's going to be in prison for refusing military service my torture once in prison would be because of who ears it is only necessary to show that it is on account of discrimination of any kind of punishment of any kind and this court has recognized that in new reverses go please the court i am edward wiggers and i represent the respondent in this matter the immigration judge properly concluded that the evidence did not establish petitioners eligibility for withholding of removal based on his being disabled and he was unable to perform on military duties or that he was eligible for protection under the convention against torture based on his likelihood of being tortured for not having completed his mandatory military service record does not compel a country result in this court must deny to fishing for review is there a nexus requirement that he would be tortured if returned correct yes you're on the basis what's the evidence on there what we have is the general evidence basically in the reports summit edition or submitted before the immigration the state department reports to me primarily the state department report your honor whatever reports petitioner also submitted reports from amnesty international human rights watch however the state department report is the primary one now what we also have in the record on the cat plane is the response from the syrian government to petitioners cousins request for an exit visa using petitioners name which simply states that in a they will not grant an exit visa because petitioner has not yet completed his military service and i'm going to refer to that again when addressing my thought that everybody agrees that for failure to be in the military he would be imprisoned isn't that essentially what the immigration judge said the immigration said it's very likely that if basically if the as someone who has avoided military service he would be jailed right it does not appear from that document your honor that the syrian government necessarily views him as someone who's evaded military service at this point but titian are still well within the age of in that for individuals who are conscripted into military service plus according to the record the ordinary time period for military service after completion of college but after petitioner completed college and attained his degree in accounting he went to the united arab emirates the record also indicates that individuals who are abroad in an arab country are exempt from military service in syria upon payment of the fee petition or left from the united arab emirates to come to the united states he has not yet been back into syria to serve his military service so i would submit the record does not establish or even or much less compel that syria would view petitioner as someone who has evaded service compared to the examples we have of an individual who is outside of syria for fifty years before returning or other similar circumstances where it was clear that the individual had the syrian government was aware the individual had no intention of  and let's go back to what we're trying to piece together here the i j a says it's likely that he would be imprisoned by going back to syria correct yes your honor ok and looking steadily at the cat claim and i didn't make this statement there's no evidence to indicate the government has intentionally created or maintain an environment of punishment for those who violate the conscription line doesn't that sort of beg the question if he's likely to be imprisoned then the question is if you the state department report reveals that while that torture is a likelihood in prisons it says it may occur in prisons it says it's more specifics more it's more likely to occur in the detention centers operated by the security services there has been no evidence one way or the other on how petitioner might be detained or jailed when he returns to syria assuming that he is detained or jailed in light of the fact that syria's apparently views him based on the evidence he submitted as someone who simply has yet to complete his service so based on the evidence of the likelihood of where he go where he might go there simply is none your honor on the record does not compel the conclusion that he would go to a facility where it is more you arguing with us i'm not taking i'm not saying the immigration judge was way out of line in saying that it's likely who it is the u s what you've just told us based on honor i submit that there is a it is that if there is a likelihood he would be detained i would submit that in light of the documentation petitioner submitted to the immigration judge that it remains a likelihood and not a certainty and that you need a certain you need at least more likely than not your honor that would depend on more likely than not is a way far lower than a certainty as it yes your honor and i would submit that a likelihood is below more likely than not and petitioner has a likely has a we get into these like appellate standards of review and sometimes district judges use sure he can't for the standard of review and if there's an ambiguity and we're not sure then we'll send it back if we were to accept your position that likelihood doesn't mean more likely not or that we don't know what it means then why wouldn't we send it back well your honor under the substantial evidence standard the record most compelling conclusion contrary to the idea is finding the i g did not enter a finding that it was more likely than not that he would be jailed let alone torture he said there was a likelihood yes your honor but not that it was more likely than not well he was basing this i assume on the two thousand and one state department report is that correct yes your honor now we understand that there are subsequent reports including one quite recently which suggests that the probability of torture is even greater o overstating it or not i'm not i'm not aware of it your honor however under the immigration nationally nationality act this court is limited to the record that was before they were gratian judge in the board and those reports are not in that record so we are we are limited by what was considered and that's the two thousand and one state department report did the i j a say there's a likelihood he will be in prison but it's not more likely than not that he will be you know he did answer is no isn't the answer is no describe or quantify what he meant by likelihood you know your honor and i see when i read that i thought what the i j a was saying was ok it's likely he will be in prison different turned what i can't find is that because he's pretty imprisoned he will be tortured and quite frankly counsel i thought that's what your argument should have focused on but you seem to want to argue with the i j a finding about  honor i was attempting and i apologize if i gave that impression i was attempting to illustrate how the record does not even compel the result that it's more likely than not he would go to prison it certainly does not compel the result that it's more likely than not he would be tortured and looking at the withholding claim there has been no evidence submitted showing that petitioner with that petition would be unable to perform all military service or that petitioner would be required to perform in ordinary military duties there's been no evidence showing that there has been that a full medical evaluation reveals that petitioner is completely unable to perform any duties in the military or that there are services such as these duties as an accountant that petitioner is able to perform that he would be able to perform and based on that shortcoming the record does not compel the conclusion that petition than in a decision that that establishes what the court that the court is saying it's more likely than not the courts that he doesn't even have a doubt what establishes the probability is the message was the documentation that was submitted and it was not just the department of state report immediately for failure to submit to serve their compulsory military service there was a very famous case moher r r who became a canadian citizen and had not been in syria for many many years decades was returned to syria and was tortured for failure to complete his military service and that is well documented in the record so there's no issue that there's no question that he will be what's the best connection to maharaj in this case to the extent that there is something that would focus on lister salty specifically what is it that you argue there that he would be treated no differently than this other person who indeed was torture the fact that there are many people who are returned to syria and are jailed for failure to complete military service i believe that is well documented in the record and that he he applied a waiver three times he didn't just leave syria without ever applying he came to the military's attention three times and each time he presented medical documentation and he his disease was obvious his point bones did not form correctly he has the body of a fourteen year old boy and he's a grown man so he clearly came to their attention this isn't the case of someone who just fled before they were eligible for military service so he is definitely in their records and the fact that his cousin did