can you hear me i can and can you hear me yes we can hear you perceive i think you're going st tell me if you're not of course i believe i am per primarily on the cackling hens at least three men don't count as necessary for three related but alternative reasons one like a substantial evidence to trial ation of an agency regulation and three closely related to that reason john contends the regulatory regulation is clear generally remain and would be appropriate if this court has any substantial doubt as to whether or not the agency violated this regulation this would be a separate and independent basis for the court to remount rather than the record in this case features not one but two medical experts whose testimony was not at the margins of the legal standard for torture protection but rather pariah potentially that's positive set of opinions that would satisfy the legal standard on its face addressing and explaining why and indeed even whether she believed the minimal evidence that she did right here was somehow more persuasive then and capable of outweighing be far more extensively corroborated and potentially dispositive expert  case to counter the idea that there were not institutions that would provide a safe environment for someone like mr jobs i was it was unclear to me whether that whether the i j a was referring to multiple mental health institutions that are now available since they have taken a more serious approach toward treatment of mentally ill can you help me understand what the countering evidence is sure the lies pretty heavily on a three page document that was provided that discusses the chain free initiative that started a couple years ago in in somalia and she relies on that heavily to make the conclusion that these efforts have essentially fixed the problem in somalia and in addition to that there are she attributes certain efforts that are being done in somalia to the government as helping address the issue however those efforts are actually coming from international sources so not only does she miss attribute the efforts to fix the problem but she also accords a significant amount of evidence to this three page  document to find that there weren't additional hospitals that were changed for a what is the record on the availability of chain free institutions for someone if someone like mr  placed there they are very very few i believe the only one that is chain free at this time however it's a private facility and it would be highly unlikely that m shows the majority of them are not seeing three and even those that imply attempts to be chain creep the because of those stigma in the country it's incredibly difficult to actually control whether or not the very yeah i believe i believe even though he has those sick centers only one of them is fully chain pre and i do remember from the record that tell me again the name i heard the versus mar but what's the unclear in that i g s treatment of the evidence was really unclear so it was the be a sorry the it circuit was unable to really determine whether or not  violation actually occurred and the case was remounted through the i j a to properly and clearly apply the standards for review and is that what you're requesting here in this case is  on the connection against torture arguments because that's where she's gone but obviously if you have questions about the other arguments i'd be glad to aggressive as well for the most i do want you to leave just a little bit of time to talk to me about the mental health records issue but go ahead talk about talk about her issues for it's better for continuity ok the as i see it there are there are three arguments that are out there with respect to the convention against torture and they  there is actually two different kinds of aggregation that are required here and the government doesn't dispute there are the st kind of aggregation is between different sources of torture and in this case you have essentially two different sources broadly alleged one is the concept of what happens in a mental health school versus what else you do now let me point out here this is an example of a case where those two are mutually exclusive as far as i can tell there is no allegation that can torture people in mental health facilities and there's no no allegation that there will be torture as a result of mental health by al shabaab so those two are distinct and those there's some case law out there other circuits that say you need to add those two things together it doesn't apply here and that's why that didn't happen here the other aggregation rule is that any particular situation you need to consider the total value of all circumstances that lead to a loop of torture and you have a variety of those kinds of situations being tossed out of here with the primary ones that use that is aggressed in the evidence here and the one that is dealt with in the most detail and perhaps is and honestly it's directly argued back to shore as the form of torture is changed so the question is did the average immigration judge address draw all those things together and address them as individually and as a whole and the removal as a protection from torture as well ok so let's look at the experts let's examine that claim that immigration judge failed to contend with the the actual testimony of the experts absolutely simply wrong st of all the immigration judge explicitly dealt with both experts in your decision and the immigration and the word of immigration appeals mentions both in the interest in the station as well but the more important point here is the detail that they got into now recall that experts are not dispositive experts don't define torture experts don't there's a lot of things experts don't do and it didn't happen in this case but what you do have here is a lot of facts being provided by the experts excellent facts and you have a couple of opinions being provided by the experts with respect to a likelihood of cheney if mission was placed in a medical facility and what kind of you were to be institutionalized that did not require chaining there were several things about that occurred the idea that a fight in the record that undercut the that the claim of the likelihood of chang and those things were st of all the likelihood at all that this person would be placed into of into of the civility in any case both of the declarations of both of the experts state that the way for cross examination said the normal way that people get into medical facilities is their families put them there and this there he had no evidence and no information and no recollection of any situation in which the government had ever play somebody in a facility and that only left this question of whether a good samaritan would do with and that severely undercuts these assumptions that the the that the experts made about the likelihood that he would be placed in the image that in a in a facility at all and therefore the likelihood of change now with respect to the next step and each of these steps has to be greater than fifty percent and as an aggregate it has to be greater than fifty percent based on the standards that are set by the by the work on the next step the cited and the nd is that the government is now actively engaged in two aspects and this reflects on a question you asked earlier one that is increasing medical facilities in general but the nd is increasing the quality of mental health nationally and the immigration judge referred to both of those things but both of those things simply undercut the  the record that that could qualify as the kind of suffering for torture it was just the ruling was more weather the likelihood of that happening to this particular person given all of the information that you just described that there wasn't a lot torture and if you know of them none of those locations actually mention the definition of torture none of them mention severe pain or suffering none of them mention any of those things so the fact is there isn't any evidence in the record that cheney is torture but the immigration judge didn't really focus on that instead the immigration judge focused on four points and these are the four points that define torture this is what the definition of torture is all about the immigration judge says there is no evidence on the record to suggest that the government intentionally tortures as a form of punishment the four points there are being the torture point that is what amounts to severe pain and suffering the intentionally point that is it has to be intentional inflicted in order to be torture that has to be done it is a form of punishment that's the rd point and the th is that the government either has to do it itself or acquiesce to it in the certain sense that they know what and how obligation to do something about it and don't do anything about it and there is literally no evidence on the record and that's what the immigration judge essentially combined all of those things all of those questions what's going to happen you know is mr drummond being good and good going to be placed the experts testimony even up to date the immigration judge and the government quited up the evidence that they were relying on was in fact outdated does that mean that there isn't more likely than not if if the person gets placed in a government in a facility now that they will for some period of time whether it's going to be prolonged in what for what period prolonged there isn't any evidence the record but i think the immigration judge believe that the problem that the immigration judge found was a complete absence of proof about the likelihood that that will result in something and mounting to torture the likelihood that the government we're in that whoever is doing it intially it looked at mr mclaughlin your time's running out i do want to ask you about an issue raised not in the so it set the at the bottom of page three of the b i a decision the board says we recognize that the respondents argument to take into account history of mental health then they put a footnote claiming that their rule that aliens mental health is not considered like it's a flat rule in the ceci particularly serious crime a then they say we'll assume it's relevant and they go ahead and talk about it on the next page so it's did they considered or not  about that then they said but look the immigration judge specifically said just sure hasn't identified any reason why his mental condition would impact the seriousness of this crime in this case and that in doing can they conclude this point by saying considering all relevant information on mt page four including the mental health upon de novo review we could we conclude response crime was a particularly serious one and they do that they let me take a moment here to point out just to talk about the board's decision in g s where they said that mental health is not shouldn't be further litigated in the immigration court without that issue has been dealt with by the court but by the criminal court the th circuit objected to that disagreed with that for a couple of different reasons in a couple of different ways that are simply wrong but let me explain what the board is trying to say there in a criminal case no mental health comes into play as a as an element as negating various elements involving intent that's considered in the criminal case and therefore that is the nature of the offense that the immigration judge is required to consider the elements of this crime did not require specific  and therefore that's the nature of this offense it's also considered in a criminal case as a matter of mitigation on sensing assuming it's raised in this case wasn't raised because petitioner simply said these events never took place so it never came up in that context but it's already been dealt with in the criminal courts in every rational reasonable relevant context and there's no reason to revisit that in the in the in the immigration courts particularly that are equipped to deal with you know ok you're sticking up for the rule and not the also apply to the citation to n a m and what they say on the next page including they day novo review including the mental health yes board's findings with respect to its review of the particular serious crime determination including mental health is also correct the immigration judge found that petitioner had raised no issue presented no thank you and i first i would like to address some of the points us to the torture there is extensive evidence as to highly specific factual predictions by both experts as to the  will face and so i up one of them said it would be an eighty percent chance that he'd be institutionalized and an eighty to ninety percent chance that he would be changed in the other so there be a seventy five percent chance of him being record those multiple reports that you referred to yes that's not a thank you go ahead yard  health considerations should be taken into account when looking at whether a crime is a particularly serious crime castle let me interrupt you because the position here today that we have a different position this week a different case but we won't go there  the position in this case is that there's an alternative finding that we did consider it and that's pages three over to four of the decision how do you respond that well your honor the immigration just didn't actually make a finding on whether any on that point so the board's alternative announced on that can't stand on its own and what about that the board says they know we're reviewing they can do it are they right or wrong i believe they're incorrect on that point the immigration judge is the only fact either in this chain and i get your general point but now they are some kind of legal conclusion why is it not a legal conclusion i'm sorry a legal conclusion that they have a right right right there their sentence considering all the reliable information including the response mental health history upon our de novo review have the authority to make that finding only the immigration judge to make the finding on that eight hundred and eighteen circuit law tells that that that is a finding and not a conclusion i believe that whether or not there is sufficient evidence or not submitted sufficient evidence to demonstrate did the i j a say not sufficient evidence the i didn't attempt to perform a predicate fact finding on that point because it she categorically excluded mental health from the analysis you don't know where it is and the it's got to be about page eleven or somewhere in there they