good morning your honour's roman kesselman for the petitioner and made please the court i do want to reserve as much time as i have left i'm not intending to use the whole ten minutes from my presentation  decision by the board and affirmed the decision by they made gratian judge in the case where the main form of relief was protection under the convention against torture and unfortunately both the immigration judge and the board spend very little time in their decisions addressing all the issues under the convention against torture and counsel it did seem like the one thing that the immigration judge did do was say that there was no evidence that mr donny faced had faced any threats of torture or would face any threats of torture when he returned why is that honor the board and the judge both made a predictive finding that creating that hypothetical link between the petitioner and what is likely to happen to him in in  the country of persecution and in doing so they relied on their way kerry case that specifically declined to extend the relief under the convention against torture to a person who proclaimed to be a chinese christian and offered on the evidence of general government abuse and torture of detainees but without specifically stating that chinese christians are the group of people likely to face torture this is a fundamentally different case here we have a person who is in dispute indisputable sought by the police in his native country they went as far as sharing a what's blue interpol notice to find him to cause him problems there are search warrants his parents are saying they're still seeking information about him and promising to detain him upon arrival now is any of that amount to torture  that in itself of course not your honor but just like the judge stated that arrest in itself is not torture and we agree with that the missing factual finding in this case is what happens to those who are arrested and detained on allegations of committing some crime and mind you the allegation here is really amounts to the teeth out then but the police for some reason then we explain what that reason is went to great  to a great deal of trouble to find this person so what happens when the person is detained is what's missing from both the immigration judge's decision and and the board's u makes that that were compelled to find a different result well simply because of the standard of the clear error in the in the findings of facts or actually missing findings of facts they report the evidence clearly states that the very people that we're talking about that particular petitioner is a sop to both to torture if he's detained because the report stays then it in the country of a few one million people there are hundreds of reports of police torture and more half of them coming from the criminal police that's that's the very institution that issued this case and the report also states that their actual number of reports of torture is is under re w the actual number of cases under reported most likely because of what is happening in the country with corruption and ineffective judiciary and we agree with you agency didn't properly consider the full  record does harmless error review apply in this context if we if we say yes there was an error but we look at the evidence ourselves and think still is not going to get you there could we could we say that it was a harmless error well if you if you don't believe the united states department of state report then you could call it a harmless error i just think it's not a harmless error this is why i'm asking a legal point does harmless error of you apply in this context the board seems to state so your hon report itself then you can say that yes it does apply however i think we're going with the notion that when when the us department of state reports says these people are susceptible to torture the courts have to give it some deference and not north addressing those specific facts in the findings is a reversible error i don't see how else to torture on his return and you are you are saying that the b i would have to term and that the at finding was clearly erroneous is is that what you're arguing the a should have said that was clearly erroneous in light of the country report that you're on to be i had two options they could have stated that that was a clear error or they could have a man did the case for additional factual findings that if there were missing from the judge's decision because he simply stopped it saying well here you know in the worst case he will be detained and prosecuted for the crime that he is alleged to have committed however that shouldn't be the end of the analysis that shouldn't be the end of the factual findings in this case when we're submitted hundreds of pages of evidence that police in fact torture routinely people on the the circumstances and so the determination that the it that the i interpreted was supported by substantial evidence in light of the record as a whole and you don't think that he actually did that i don't believe so and i'm reading their decision that specific to actually indicate that they're relying on the way kerry case to basically compare and contrast this case and they're saying this is very similar to the way kerry case where somebody just made some evidence of torture in the country without linking himself specifically to that torture to the possibility of torture whereas in this case the very allegation is this is the people these other people who get tortured in that good morning your honour's counsel me please the court my name is rob styles or i'm here on behalf of the attorney general iran is on a dive right into the convention against torture issue st the country conditions reports contrary to my brother counsels suggestion didn't say these people these particular police officers were torturers it's said that torture occurs in custodial circumstances and that's what judge walsh below was looking for right because we know from the chari that it's not enough to have a country report that says we have to have a reason to believe that this particular applicant could face a likelihood of torture so judge bosco's ok well your parents were in their custody and they said that they believe that the police officers told the parents that we will take appropriate measures if your son returns and then they said we believe that the officers were referring to criminal charges in torture that itself is an equivocal statement we believe the police were talking about torture when they said appropriate measures that stretch so the immigration judge then goes what did these particular police officers do to the parents did they torture the parents because that would be evidence that they're likely to torture petitioner right past torture demonstrates a likelihood of future torture and they didn't they didn't torture the parents that parents that they had never been physically harmed and turn and say ok this conclusion of the immigration judge is clearly erroneous because it supported he testified the parents were tortured even though the police had them in their clutches isn't it true that there's there's nothing in the record to tell us that the immigration judge analysis i think he was more more interested in what was going to happen with these particular police officers because that was petitioners particular claim that these people these officers in particular were going to hurt him so is that so i want to make sure i understand your position are you saying that an alien has to have proof that a particular government actor has a reputation for being for torturing others as opposed to a body of the government generally so in this case it's law enforcement that they'd have to say officer smith or whatever he tortures people some reason some reason to believe that he in particular faces a likely to torture not just a country reports says it's a possibility what makes it so that's what that's what up here right it comes to court he says look i come from moldova there's a study of torture in light of that's not enough right i have to  reason to believe that he had particular faces the likelihood one way he could do that and the way he did in this case was to say these particular police officers have taken an interest in me and that's what the immigration judge then looks into the as an alice and says well what did these police officers do so i think the one thing that gives me i don't even know if pass the right word but it's interesting that the b i so the i g doesn't specifically mention the country reports in the b i a sort of papers over it and does mention it if they i j decision is correct and defensible and the b i a says ok we agree that you were defensible but there's another reason why you you know you were also right i mean isn't the b i a limited to looking at the reasons that the i j discussed the board cannot engage in fact finding but i don't believe they did hear right in that in that the mentioning facts that the i j didn't specifically rely on i know we have a question about whether they may have implicitly relied upon it but that's not error in and of itself  the board exceeded clear errors in here so but if the board had said well you know the i j a had it mostly right but but did the country reports make this even further clear would that have been mentioning i don't see a fact finding here from the board because again they they're explicit in particular when they drill down what is supporting the basis or decision to go right back to the immigration judges conclusions that the respondents parents were never physically harmed and that the evidence does not reveal the situation w escalate and i might add for our purposes here under substantial evidence review it wasn't just the parents that these particular police officers had in their clutches it was petitioners coconspirator to mikhail wrote the letter and he said that he encountered these police officers in august t  teen where they demanded money from him they tried to extort him just like they did the police and he refused to pay and he wasn't harmed and their police ran into him again in december th when according to the files letter and he wasn't harmed so when we want to talk about what is likely to occur with these police officers we just don't have the evidence here that escalates it above a mere possibility well so under your theory under the government's theory here what good is a government is is it is the government report because if the plane if the asylum seeker has to bring in and that he himself was specifically facing well obviously a government country report isn't ever going to provide that information right well i think mccarthy get get this tell us that gets you part of the way that right if we know that there's a  propensity or a possibility of torture and torture in this custody in this country and that like it comes forward and says oh yeah they threaten to torture me they tortured all my friends they tortured my parents you know these particular officers have been going around they're like well known torturers that would say ok well obviously they c you part way there what if the country report said i don't know if any of these would ever see this but you know we've done an analysis and it looks like sixty percent of all prisoners that are detained are criminal defendants that are detained or tortured was thinking about that on the way over here are very similar hypo and i think that would be very strong evidence going to whether it's more not more likely than not that a person would be tortured in custody if you could show that this country routinely tortures sixty percent that sounds like it but that's not what the country that's why the minister needed to bring particular evidence that he has a problem and he just doesn't he's got this attenuated stick from the parents they believe appropriate action threatened by the police officers includes criminal prosecution and torture the basis of that belief scared so when we see that that word torture and i think the board noted that in a footnote and i think we put it our brief was simply you know you can't show up to court and say look i could be tortured i could be beaten i don't know what that means you have to show me that your beating is going to be sufficiently severe that it constitutes torture that when you say torture they threaten to torture me we mean torture under the act which one of the regulations scuse me but we need something from the i j a to tell us why the country report is not compelling in this case or specifically looking at what was going to happen what petitioners that would happen to him but he's not simply saying there's a possibility i could be an incarcerated and then i could be tortured he's saying these particular police officers are coming after me to torture me but there wasn't evidence for that right that's what the i'd that's why i was looking at was saying hey look your parents weren't tortured they were in their clutches and they were tortured you need more more information to give us a reason to believe that you more likely than not will be tortured with respect to the  well st of all what happened to parents is not necessarily outcome determinative of what happens to this particular petition or these and not just a few police officers  the report says that the police as a whole operates in that manner and certainly when ever you are detained and the judge specifically on the knowledge that this might happen to  he may be detained and the report specifically says that police routinely used torture to extract confessions cooperation and as a punishment and therefore that in itself is enough to cause fear of torture and to conclude that more likely than not that's what might happen the judge acknowledged that he is likely to be detained that's a very possible outcome well the logical conclusion is what you should expect is what their us department of state reports as will happen to you it's not the parents who had a search warrant issued against them it's not the friends who had the search warrant issued against them or an interpol notice for that matter it's this particular person by the department of police of a country and that's a very serious  fact that a lot of times is not even present in case but it's indisputable there they've been looking for him and there's hundreds of pages of evidence that they routinely torture people in argument thank you think of science for the argument the case if any versus bar is submitted and we're adjourned for this