torture at the hands of m s thirteen rejecting that evidence because pres was not actually tortured pres credibly testified below on page one hundred eighty nine of the record that m s thirteen said he would be killed if he did not join their game but in responding to evidence that pres fled m s thirteen repeatedly after he was threatened for refusing to join the i j just said and this is on page one hundred nineteen of the record and its decision has not been tortured in the past by m thirteen on each occasion that he was recruited or threatened by gang members he was fortunately able to evade them or run away there's one of the incidents you focus on is when his friend is shot and killed  and what i was looking for was some reason to think that the shooter was an m s thirteen person can't do we have any idea other than just guesswork about that no your honor that particular incident is not one of the incidents that we say involved imus thirteen so there were three incidents of what happened to him and under us are different getting correct by the eighteenth street gang or barrio eighteen and so he has had multiple run ins with gangs the point that we were making there was sort of indicates what would happen with m s thirteen is the way that gangs interact with people who cross them in honduras and the relative impunity that they have when they do so and the facts in this case when they relate to imus thirteen particularly show that mr  risk from m s thirteen for refusing to join the gang again he was threatened that he would be killed if he did not join but what the i g said in response to sensually boiled down to well you were not actually harmed in the end because you were able to evade them or run away and  kind of a weird question i hesitate to ask but we're proceeding exclusively under the convention against torture we're proceeding exclusively for deferral of removal for reasons we don't need to go into but i want to know whether it would violate the convention against torture to send somebody back to a country where that person was going to be killed and close to torture one eight a for roman three specifically say that when you're threatened with being killed that's the worst kind of mental damage that you might suffer because it's a threat of imminent harm to yourself and that kind of mental anguish is enough under and so if you take it out of the game context for a second and imagine that you have a government entity threatening to kill you it readily is understandable why that would still be considered torture under cat and given that the government has conceded that we're not debating the acquiescence prong here the rule that they're defending here would apply just as much the government after says it went to this game so in this case threatened with being killed would qualify as a threat that you're going to be tortured under cat and it is something that pres obviously had to evade it can't be the law as the government defended to the b i a and as a defense in its  here that by running away you've undermined your case that you know your brief gave me the impression that he really should be able to you know stand in the middle of the town square and shout out you know i resisted emma's thirteen or something i understand that you shouldn't have to live in hiding we've made that very clear that that's not an acceptable thing but how about just living without mentioning m s thirteen one way or the other i don't know why you even have to say nothing about it you know that goes to the relocation pronk about what he might be able to do a few moves off farm under us and what he could talk about one easily could have saved said the same thing in philosophy as by now i guess which is the case involving whether or not you would share openly or h i b status you might also not want to go into the middle of the town square and announce that i made hiv positive particularly in a country that will associate that with homosexuality and harm you in response but the court said it's an aspect of your life if someone is questioning you about it you should be able to answer that question honestly and therefore you shouldn't have to risk harm it's the same here if not certainly with the hiv though i can imagine somebody would be saying why are you going to the clinic every tuesday or you know what and of course you should be able to answer this strikes me as a little more subtle he doesn't have any well of course he never joins who doesn't have the tattoos or anything like that no because he never joined that's why he had to flee on this thirteen ultimately and so the relocation prong ultimately isn't enough in this particular cat case to affirm the judgment standing alone it's sort of like in sentencing a that if you goes back now to a different part of hunters that but let's say the gang organization let's get away from these individual people in the gang but that the gang organization would devote resources to tracking him down and following up on their you know we'll tell him about punishing him for not joining the gang jurist once that one there's no question the idea is skeptical about the relocation product but ultimately neural versus gonzales explains that the passports are prong is the most important part of the analysis and under cat even when there are some questions about relocation it's rarely enough the court held that you can say someone likely to be tortured can simply relocate in a cat case so at a mi the earlier efforts to get him well but what happened in hunter is putting to one side the shooting with one side you're saying that that's attempted torture right it's wrong and that's a factual question some level if we were to agree with you that that was attempted torture that would be one thing if we were to say no i mean it's actually too many steps removed from committing torture in the past where would you be so that's the kind of fact factual determination we think the i j a n b a have to make and then the parties can return to the score and debate the merits of that fact finding under clear air and for substantial evidence there is no such fact finding on this record because it's page one nineteen in the i g is opinion and then record three in the v a s opinion they simply look at this evidence and say yes you said you were threatened and you were acquitted but each time you were able to get away and so their ruling was none of this kind of evidence can come in and our argument is simply it should be evaluated in exactly the way that you have just described and make these factual findings based on the threat that was made to him what happened to him in the record the reports he introduced to page three sixty two and the kind of evidence of what happens to other people when they were sustained so they're a very very anxious case that we cite from the tenth circuit lays out in detail what happens to someone who resists joining us thirteen and then nevertheless doesn't manage to run away in response to a very similar case what i mean to mr for as the very very unjust was kidnapped in a car her face was smashed with a bottle and she was raped three years correct so the argument is that m s thirteen there are seven thousand gang members in a country of eight million so it's a significantly smaller area that we're talking about in m s thirteen is one of the two most powerful with the eighteenth street gang of good morning may please the court my name is craig nall and i'm here on behalf of the attorney general the court to deny this petition further view because mr press has failed to show that the record evidence compels the necessary finding for its claim that it is more likely than not the m thirteen gang members would torture him upon return to honduras now can you clarify is it the government's position that nothing that actual torture in the past will do or does the government leave open the possibility there was no physical contact or or it it all gets weighed differently and in this case what we have is three incidents involving his encounters we have this first encounter with a given two weeks to respond to the recruit offer that the second incident where they demand that he join their gang he i don't think find him in the different part of town in a different part of town  hasn't quit school yet at that point that you know after that he did after that and then a thousand but those both current and two thousand and three and then he remains a daily for five more years with no more gets area without ever making any contact with them and it's unclear if anything would have happened so these are the facts at hand on this case and taking those facts at hand the immigration judge and the board differently and you also have to take in the other factors here and a key factor is the fact that there is no evidence of an active threat of harm against mr prez personally this court has repeatedly helped that in situations where there's evidence of dangerous conditions in the in a country like the high levels of gang violence and hunter s but without any company particularly his threat to the petitioner that petitioner cannot show that it's more likely than not that he would be tortured and on review that generalized evidence is certainly not enough to show that the record compels that finding and then will i confess i didn't quite understand your question to chief judge woods initial question ok but whether this evidence of attempts to torture somebody can count towards proof that they were mean at risk of torture they way they would count towards their risk ccomplish that or go after they were left on fulfilled similar to this case and end it on our orlanda every honest the immigration judge found that there was no past torture and in addition with the other factors  that petitioner failed to show a likelihood of future torture and that's very similar to what we have here and then here we don't have any physical contact or harm between the petitioner and its tormentors so the government never follows up on the it we're operating in a factual vacuum it seems to me you know we see these cases with some regularity somebody doesn't want to go back to a particular country and they assert one thing or another in these cases torture sometimes in the more common asylum cases they assert persecution and sometimes immigration judges don't think that's going to happen in the board says it's not going to happen and the petition for  denied and but we never know actually what happens to these people do we know we do not so we're just hoping we're right right and the agent says it's a big risk to play with people's lives it is and that is the agency's job and it's and trusted to the immigration judges who in their professional capacity here these cases they keep themselves abreast of the current country conditions in the countries that they see a lot of claims just seems too bad that they don't ever get the feedback that might be very helpful to them right to that job and i think they need to make a decision based on the evidence for them and what we have in this up the country sixty according to one report in the record sixty percent of them their members are in san pedro sula which is in the north northwest part of the country where dan lee and where mr prez lived was in the southern part of the country we also thirteen while yes there may have been a threat threats made adam in two thousand and three they made note attempts to follow through on those stats for another five years and so it is reasonable based on those elements but it is pretty localized and and so the immigration judge is finding here is supported by substantial evidence about the relocation issue and that's what we wanted finding what do we make of the story of the immigration judges referenced relocation in start the question is how attentive should we treat the immigration judge as having been on this issue which seems rather critical it would be ill probably a lot easier to hide in mexico refuted the entire record of the country conditions report mr presence testimony about this issue and found that he could safely relocate the border than reviewed that evidence on a other person that was shot was shot by a different game yes and i soon these again people shoot each other right and it must be i don't know how many games there are they regionalized for certain games dominate one area yes is that from the regular how much is in the record on this but it seems to me this is a really bad place to live yes and there's a lot of shooting going on in the end and you know there are threatened this country so would use one hundred in honduras is that just the gang infected country that has more than a mess thirteen all of them are each of them dangerous it is it that there are high levels of gang violence the are different gangs with them as thirteen in the eighteenth street gang being the main ones they are concentrations levels vary and but in the end what that is is conditions of dangerous conditions in honduras without the particularly particularize threat to mr press he cannot meet the high burden of showing it's more likely than not that he would be the government essentially admits in its response that this case would be different if mr press had been physically tortured in the past in a setting up a dichotomy between torture that he was able to evade and torture that was successfully implemented by imus thirteen but unfortunately although he says there out that you can't have a sweeping ruling that says evaded torture evidence is simply not as important because it didn't result in actual torture evidence that's wrong as a matter of law no good to the fact finding in this particular case evaluate the very kinds of things that the parties have talked about in their briefs how specific the threat had been to him at the time what happens to other people in this country when they resist m s thirteen in the record there are reports that specifically say king resistors get killed by imus thirteen and so do that kind of response to what seems to be one of the government's major points which is that he goes five years between two thousand and three and two thousand and eight when he moves the united states without apparent trouble with him is thirteen so against her so it's not that they have to be hunting someone down to be willing to torture them when they come across that person ok thank you very much and except in this case by point in from the court as i recall and so we thank you very much for your assistance to your client into the court thank you and thanks as well to the government we will take this case under