made please the court laurence rosenberg for mr ray s present an argument will be law student brandon beutel who is a student at the west virginia university college of law  minutes for a bottle you may mario ray is was removed from the united states because the government forged documents that deprived him of relief in light of the government's misconduct the western district of pennsylvania invalidated the prior order of removal the government now  removes mr ray as for a nd time on grounds that were expressed plea precluded by the district court's findings to rectify this injustice the court should vacate the removal order and allow mr ray is to return to the united states the court should do so for three reasons st the district court concluded that the particularly serious crime bar was in applicable as a matter of law which precluded the i j and the b a a from finding out ther district court's particularly serious crime finding and applied the particularly serious crime bar instead reasoning that the finding was necessary and essential was not necessary and essential to the district court issue preclusion applies concerning the government's st claim that the former and latter litigations did not resolve identical issues the record speaks for itself the earlier district court decision and subsequent  both resolved to the issue of whether the particularly serious crime bar applies for a trooper collusion purposes an issue is identical if it involves applying the same law to the same facts the i am a contains a the decision would have to be made regarding the seriousness of the crime but your honor the western district of pennsylvania determined that as a matter of law that a particularly serious crime bar not apply because at that time mr ray as well would have received a removal hearing but for the government's misconduct mr right is would have been subject to case law such as a lack of which held that a particularly serious crime conviction would only hold if there were an aggravated felony and because there was no aggravated felony here or as a matter of law mr was not subject to the particularly serious crime bar after the district court made this determination that the i a e a thereafter determined that the particularly serious crime bard did apply and thus rendered mr wright as ineligible for asylum and was holding  tribunals reach their respective conclusions while citing the same statutory provisions and considering the same facts therefore the district court decision and subsequent b i a decision resolved the identical issue and the former should control the latter concerning the government nd contention that the district court did not actually litigate and decide the particularly serious crime issue the record equally clear particularly serious crime issue was actually litigated and decided because it was contested by both parties and the district court issued a final judgment on the merits for issue preclude this judge trench i was just taking a i was just checking a that the reasonable likely standard wasn't quite in the western district of pennsylvania however the one thousand three hundred and twenty six the affirmative defense elements there must be proven by a preponderance of the evidence and under in removal proceedings rather the alien has the burden of proving by a preponderance of the evidence that a particularly serious crime bar does not apply that eight c f r and the standard of proof was identical and in both of these decisions so really it is the same standard but the larger point here is just that as a matter of law in two thousand and eleven a lack of precludes any possibility of finding that mr right is had been convicted of a particularly serious crime because mr wright has had not been convicted of an aggravated felony under a lack of a particularly serious crime can only exist where there is an aggravated felony so as a matter of wall mr right is could not have been subject overturned the lack of was decided after the i j and b i e decisions at issue here and the change in law exception shouldn't be applied to allow the government to benefit from the agree just due process violation that took place here namely the the forging of documents and even if the court were to find that that the bail decision has some relevance here the court the court can plainly see that in two thousand and eleven lyster a is would not have been subject to this particularly serious crime bar and applying the law as  if it was contested by the parties and submitted for a determination by the court to or both parties did exactly that and the western district of pennsylvania decided the issue by way of a final judgment on the merit in fact in later hyde amendment proceedings the government the government also maintain the same position that the issues warrant actually litigated and decided and the district court there called the government flying of argument entirely disingenuous and said that the affirmative defense issues had been central and driven the party's argument from indictment to dismissal the government now resists two additional arguments as to why the ass croft this court made clear that an issue is necessary and essential where its resolution is required to reach a case of holding here or resolving the issue was necessary and essential because it was a prerequisite for the district court's conclusion that mr wright is would have been eligible to seek asylum in withholding in two thousand and eleven if the particularly serious kronborg applied mr wright is would not have been eligible for any an tunc withholding of removal to remedy the due process violations that mr ray is has entered in the immigration context nump pro tunc relief provides a present remedy as if it were granted in the past he or the government that mr ayers was unfairly deprived of an immigration hearing in two thousand and eleven the district court found that the lapse in time in changes in law are all a result of the government's misconduct your honor i see that my time is expired mad briefly conclude very brief in some the district courts particularly serious crime finding found genovese kelly representing the united states your honour's the government acknowledges that mr ranson two thousand and eleven removal violated due process and the facts surrounding t before the current court currently mr ray is arguing for a shoe to cotton but the district court specifically said that in so ruling against the government in the criminal proceeding that the these proceedings before the district court were wholly separate not only would the district court not have the jurisdiction to rule on the remove ability issue directly but the question is whether the applicant is showing a likelihood of future persecution or torture what's important is that they not be subjective to persecution or torture upon their removal and of course things can change can change on the ground in the home countries of of affleck him but the relief is really all about what is going to happen in the future and so so what makes this so problematic later big the question of someone who might have said or want to study in the country in two thousand and eleven and would still be here but for improprieties on the part of the government like to refer to matter as the immigration court would have in that case but the reality is that that would have been implied and immigration proceedings  secondly it is hard to litigate the hypotheticals and to determine well when you know when is the is the best time to apply for asylum i mean here he was permitted to durant's was permitted to apply for years later during those four years living in the united states he also had a child that form the potential basis of another application for relief and it also isn't clear that had he applied in two thousand and nine he would have had a better case considering he was closer in proximity to his stabbing persecution and torture and although many of them may also seek other benefits such as being in the united states with family or having a job in the united states and they and they might think they're missing out on those opportunities if they're asked if they're citing that location is  what the immigration courts are really looking at and what congress is telling them exclusively to look at in this form of relief is the prospect of future odds of persecution and torture and although it could be disappointing to lose out on the other benefits of being in the united states that's what's really critical here for or chevron all of his relatives granted that tongil hooley on the circumstances  el salvador that that this client was also it was it was a family category wasn't it and want those individuals granted those types of are still being and kate it's not clear that they will receive relief there was another individual who may have had something conclude in march but it's not clear if that was  their proceedings may have been terminated in march whether there was any branch of relief i don't know yet so that's not clear but but also what is clear from the record is that those family members were much closer to the harm that mr  was living in the united states at the time that they were facing most of their trouble and so it wouldn't necessarily mean that he's eligible even if one or more of them in their own right become eligible instance here there's no evidence and mysterious doesn't point to any textual evidence from the district court's decision showing that the district court approach that as a predicate issue the district court opined at one point that because  crime and even if there were that evidence or that determination in the district court's decision it is true that congress authorized the attorney general exclusively to make that determination in the  completely separate question from who is the person that congress says must make that decision in the st instance and in both asylum and with the whole thing of removal congress clearly predicate determination of the law that would still not be the identical issue that's been resolved in this case but immigration course the question is which does the what crime does the attorney general decide and has commanded that we even see the site in the st instance the immigration court do not have the authority from congress to determine what was in the jurisdiction of the district court's opinion or to be interrupting the district court the they don't have exclusive authority to interpret the district court's decision and so for that reason chancery doesn't limit the courts here and doesn't limit the government's argument here in this particular cont also as a final matter the government would like to just point out there's still an outstanding motions to supplement the record or rather i believe it was styled of the motions to take judicial notice pretty soon before the government's response time and just for an example for future litigants also and for judicial officials say in this court the government would urge that that mot and the cap standard is very high it's not enough to be afraid it's not enough to have a reasonable basis for your fear there must be a probability of torture with the acquiescence of the foreign government and here which is somewhat unusual and a cat claim there is to six years in prison and then named of the doctor was sentenced to thirty years and they gang members who tried to recruit mr rath have either died or were teams later and so here in the most unusual way we see the here in several instances there are back and forth between counsel in the court concerning the possibility of collateral estoppel effect and what more generally the effects the court should find that mr ray is qualifies for relief under the convention against torture because mr ray is was found to be a credible witness whose testimony was internally consistent and consistent with documents in the record credible testimony standing alone can sustain the burden of proof are kept protection and mr a is this testimony illustrates that m s thirteen gang members terrorized with the government's acquiescence because as he explained key getting help from the police would only have hastened his death and the rd circuit recently addressed the salvadoran government's acquiescence to m s thirteen  attorney general just decided two weeks ago and there the rd circuit observed that neither death nor even the arrest of m s thirteen gang members was a sufficient basis for concluding that there was no likelihood of torture which is exactly the government's position here likewise in a lot most of the holder the nd circuit held that the act of making arrests milita constitutes a reversible error which is precisely what the courtroom finds here thank you ok thank you counsel all of you and i'd like to thank mr rosenberg for