i hope to discuss three issues today the st relates to mr fry his conviction for manufacturing methamphetamine the nd relates to his conviction for possessing a controlled substance for sale the rd issue is somewhat independent which is whether or not he was entitled to relief under the convention against torture so when it comes before you get to those because they're all marriage issues can you tell me how you deal with the exhaustion issue under eleven th nine sixty eight that's a big deal from my perspective how do you deal with that i understand your honor and i do recognize that if you look at the statement in mr pryor how it's brief before the b i in isolation that would make my job very difficult today but it's interesting as to what happened afterwards because the b i eighty seven a little bit of yours me you're being recorded for posterity and you want your mother to be able to hear you indeed i do your own head so if she's listening i'll say that what happened is that the b i a cited matter of bourbon and that is shorthand shorthand way of saying that it considered all of the issues considered by the immigration judge which includes the methamphetamine clean and so as an on bank panel of know because respondent has not contested these determinations on appeal these issues are waived so doesn't that negate the inference that they are adopting what the idea is that they're there saying we're not going to consider it because it's waived my response would be two fold your honor so st i would say that i think that the eyes in some sense trying to have it both ways saying that we considered everything and also that we didn't but i would also add that there isn't underlying change in law and that's due to two cases disco wrangle was decided after our brief was submitted or mr perhaps brief was submitted to the d i m a and then this court's decision in luke rodriguez really indicated that the window is still open here and there is an unresolved aside the fact that it's unpublished look a rodriguez rejected a claim similar to this one so that it doesn't seem to me to be a change in the law of what has correct i think that really what it did was reaffirm that the theory articulate over breath of california's manufacturing statute really does indicate that there is an unresolved question here that was not clear at the time that mr fry hot broke his and submitted his b i a brief now i'm happy to address the merits of this case but i think that this court the manufacturing claim but i think that this court does understand the theory articulated in verdugo wrangle which is that california criminalizes a broader swath of conduct than it federal counterparts does if the court has no questions on this issue again i would just say and i think my colleague articulated as well that i don't find baby just solve your problem and  because the statute that you're dealing with whether it's a categorical matches so on may not have been adequately raised and is an exhausted me that's it's a really serious problem for your client you don't have to say anything more about it but if could do any more to help rehabilitate that aspect it would be helpful to me your honor i guess that the only additional thing i could say is that this is a purely legal issue that this court would decide without reference to or deference to the agenc proceeding and so i think that the unit with respect as my colleague just indicated the b a specifically said he didn't talk about this so we're not going to get into it in effect it's not exhausted understand your honor and we have to refer to that that's where this whole thing comes from right i do understand and so i think at this point i will take your honour's invitation to no longer say anything more about this because at this point even if i'm wrong turn to the many errors that the b i committed when it took this analysis that we raised several in our brief i'd like to really focus on three today the st is that the b i approvingly side of the immigration judges declaration that there are no excuse me that there is no denoted circumstance of violence or torture against christian converts and that's flatly incorrect as the government admits on page thirteen of its brief christian converts are subject to honor killings and under parata verses sessions killings are torture is it your position that regardless of the general condition in the country and the fact that the government is generally opposed to the honor killings you're talking about if there are honor killings that's enough to weigh in front in favor of your client yes your honor for the same reasons articulated by this co versus holder and i think that to give a very precise answer is that yes private killings honor killings by private individuals can constitute torture if there is government acquiescence does that mean i don't mean to try to be patrolled like that but even in our country here today there are young women who have been killed for honor killings i've seen no evidence that the government cooperates with that but does that mean that someone if there were such a treaty applying to our country and i think there is that they could get cap relief in say france because of honor killings in the united states i think that the answer is no and what distinguishes the country of jordan from our country among other things is that conversion from the islamic faith to the christian faith is in many circumstances deemed a crime that can be punished for two years and i think that would draw the critical  it not so if you had and again i'm no expert on this but my understanding is that in certain parts of our country where there's a substantial group of people who believe in follow shari'a law that there have  conversion where people have been killed for their conversion perhaps i'm mistaken but let's just say i argue and say that has happened based on what you're saying with the you know it is states which is that unlike the united states there's evidence here that the jordanian government routinely practices torture and the department of state says own report in this case which can be founded a r eight  states that converts to the christian faith are routinely interrogated and that interrogation jordanian police forces routinely use torture so i think that draws of fairly stark distinction between the united states system and the jordanian system but then doesn't that does that argument i mean is the evidence of torture in jordanian interrogations specific to interrogations involving you know conversions or is it just that's just the general police practice i'm afraid that it is the general police press so if someone were you know if the claim were you know i'm not i'm likely to be investigated by the jordanian police for something i mean nothing to do with religion or politics but you know ordinary criminal conduct it would anyone facing a jordanian police investigation have a viable cap claim i think the answer is no and that would be a much more difficult case to argue your honor but here we have a circumstance where mr froggatt has been subjected to repeated death threats so we're not relying solely on background country evidence we've got to death threats one from an unnamed member of isis and then an excuse me a more specific one from members identified members of his family and i think that's the nd error that the b i committed here by disregarding this evidence and the government seems to argue in its brief that whoever made the threat from isis should have done so on signed letterhead but unfortunately this court has said in an ideal or a cota that terrorists who make these sorts of threats cannot be expected to follow such arbitrary evidentiary rules all so point out that the government seems to ask this court to disregard the earlier threat that the agency the earlier threat that he testified about in his in the st stage of his immigration proceedings but let me st know that that is contrary to  sixteen c three which says that the agency must consider all probable than evidence and i will point out that the government the agency deemed that testimony credible so there is really no basis for the agency  disregard it simply because it happened earlier along with about how it is the i mean that there is no evidence that the jordanian government is supportive of or even acquiescing in the activities of isis is there so so how does an isis threat  help you get to have that connection to the government that you know well there's not just simply the isis there though i do believe that our brief puts forward evidence that it's an increasing problem but i would really highlight the honor killing from the family and this is the exact situation that this court dealt with in serai versus holder of course that case is unpublished and it's merely persuasive but what it did say is that the got jordanian government even though it prosecutes honor killings that would be cold comfort for those who are actually murdered and that what's the relevant question is whether the government doesn't have to prevent these sorts of killings and for the same reasons that this court relied upon  should conclude that there is insufficient evidence that the jordanian government doesn't nuff to prevent these as the u n h c r report states there are honor killings and that the government has a quote permissive attitude towards those and i think that by disregarding this evidence the b i a committed air i guess i guess what i struggle with is that if it was isis that's one thing and my colleagues address that a little bit but with respect to the family are you saying that under our case law that if a family member threatens in this case mr fry hot with death because you converted to christianity that the jordanian government in order to avoid the stigma of not being sufficiently active would have to seek out the family member and prosecute them is that your position i think that  i think that the evidence does show here that there is a purpose of attitude and yes that is that i mean i think that what it means is what it meant in serratia and also what it meant in parata versus sessions where the b i committed the same error by defining acquiesce nce to narrowly what case would you rely upon that you think is close to being on all fours with this one on this cat issue is possible i think that the cirrhotic case is the most persuasive i understand that it's hans for the united states attorney general i want to start off by clarifying the government's position with regard to petitioners manufacturing conviction the government views the petitioner having failed to exhaust the the board is permitted in even a matter of bourbon no cite to say where adopting vi j's decision in whole except for this particular part as expressly stated the board did that here so the i believe the board found that petitioner failed to exhaust and therefore waived before the board that manufacturing is an illicit trafficking crime however the board also found that the manufacturing conviction is a drug trafficking crime in the st instance which was permitted to do because that is a legal issue and we believe therefore that that issue is properly before the court and petitioners challenge is before the court in that respect so so i'd like to address that california statute to its federal analog and here the federal analog is twenty one u s c eight hundred and forty one and the question is ok if the you compare the elements you line up the elements and see if they match between the california statute in the federal starting with the st element it's undisputed that the president acts in california are the same as the prohibited acts in the federal statute going to the nd step  but we also it's also disputed that the california manufacturing statute is overbroad and divisible and that the shepherd documents in this case establish that methamphetamine is the underlying drug and we and it's undisputed that methamphetamine is federally controlled so that nd step is matt and that brings us to the rd step which is whether the sign turner element between the california manufacturing statute and the federal statute match and the government argues that a signed term requirement but if it did there would be a match between the california drug statute and i in a provision because both federal and california law require that the defendant have knowledge of the illicit nature of the in the respective jurisdiction and that rd element is really about the culpability of the defendant the scienter it's not about matching up the knowledge to specific drug on the schedule that's just not over the government believe  correct correct and because manufacturing is an aggravated felony and petitioner received a five year sentence for that conviction it's also a person a particularly serious crime and therefore the agency properly terminated petitioners prior withholding grant properly found him removable as well as in eligible for asylum in withholding for a particularly serious crime unless you to address the possession for sale of a controlled substance conviction as an aggravated felony i will turn to kat then your honour's the government or you set the record evidence does not compel reversal but the record evidence does not compel the finding that petitioner stablished a clear probability of future torture by or with the consent or acquiescence of the jordanian authorities i want to start off by noting that the only piece of reason is that petitioner was in one thousand nine hundred and ninety nine provide an opportunity to testify support of his withholding of removal application and in that proceeding he testified about a threat from this cousin that proceeding he was granted withholding twenty years later the government reopened proceedings because he committed to serious drug trafficking crimes and in those reopened proceedings he was provided an opportunity to submit a new asylum application provide as much testimony as he wanted and he was specifically prompted at least i counted eleven times to disk what why he fears returning to jordan and at no point in his asylum application or his testimony where he was repeatedly prompted by both the government and immigration judge did essentially these were reopened brand new proceedings where he was provided ample opportunity to present his case in so what we're left with is a single e mail threat which was four years ago petition has not heard any heard from isis or gotten any other threats there's also no evidence that anyone in jordan is interested in his whereabouts or are interested in harming him upon his return and i'll note that this court in rodriguez durand affirmed a cat denial and a case where the petitioner received two very credible threats from the st threat was from a leader of a group of assassins who was associated with  petitioner and threatened to kill him if he didn't participate in the drug trafficking scheme several days later that same leader and several members of the group of assassins approach petitioner again this time they were armed and they threatened to kill him if he didn't participate in the drug scheme and this court found that that was insufficient those two threats along with the country condition reports in mexico were insufficient to it to compel the finding that there was a clear probability of future torture  there was no evidence that anyone was interested limb ain't interested him in the petitioner several years later so that's similar to our case and i'll turn to the the remaining evidence in the record which is objective evidence regarding sort of  the conditions for christians and christian converts in terms of this the state treatments of those individual petitioners petitioner fears essentially interrogations in surveillance by the state of course those that conduct long fortunate isn't sufficient to rise to the level of torture he also fears consequences by the sharia courts but the department of state report indicates that the consequences are civil in nature there's family law consequences inheritance rights prop consequences and those certainly don't rise to the level of torture and finally there is some evidence that there are criminal prosecutions where individuals who convert from islam to christianity are prosecuted under anti blasphemy laws however that is that single piece of evidence it's one article is insufficient to compel reversal or petitioner fail to establish it's more likely than not that each link in his hypothetical chain of events will happen were we to asians were only when it's not illegal and our law treatment that comes from the board's decision and je and prosecution alone wouldn't be sufficient petitioner would need to show that one there's more likely than not chance that he will be prosecuted under that law we don't have evidence that how frequently blasphemy laws are used to prosecute individuals who convert so he hasn't established that link he also would need to show that on prosecuted he would be subject to a trauma of imprisonment again we don't know what you know what types of sentences these and individuals receive and then three he would have to show that it's more likely than not that the jordanian government would torture him once imprisoned and petitioners characterization of the record evidence is there being pervasive torture in jordan is simply not the case the department of state report indicates that there were a little over three hundred widespread torture that would compel reversal and finally turning to the to the private harm position or has an established a particular lies risked private individuals will harm him to the level of torture or that the jordanian government want to acquiesce the country reports show that there's a good relationship between the jordanian government and  christians the jordanian government allows nine christians to serve in the parliament there is a love unrecognized christian churches there's evidence that christians have equal access to he's going to be persecuted on the basis of apostasy having converted from islam to christianity and he did you have to have evidence of that i mean the with toleration of christianity extends to people who have converted to  nervy i would argue that the evidence the country report evidence regarding the treatment of christians doesn't make a distinction between born christians and converts it just says christians and so that  evidence is certainly relevant to how jordan would respond to an honor killing for example the only evidence that there is evidence that the jordanian government has quote permissive attitudes towards private harm of individuals who convert but that evidence alone is insufficient to compel reversal in light of the other evidence of the positive treatment of christians in jo excluding what the evidence that really was at the heart of my client's claim which was his the fact that he's been subject to multiple death threats now it sounds like the government today is arguing that the st death threat was so distant that maybe it doesn't deserve a lot of weight but that's very different from what the agency actually did and so if this court i believe that my client deserves to have this considered even if this court thinks that you know the distance in time weighs against it that goes to the weight and it should be involved and so i would ask for a remained on this issue i would also add that at eight or five hundred and twenty four and in my client's brief before the b i a he did mention the death threats from his family at and twenty four he says that he will be harmed by his family and the d i m a brief also states with precision that he was threatened by his cousins that he would be killed for his apostasy let me just respond to t other sites that the government provided i think that the rodriguez case i believe i may be confused as to whether it's rodriguez duran or duran rodriguez but in that case it really did emphasize how there was no interest between an old death threat and the years that had passed since this case is much more like perata where twenty four years had passed between the death threats and subsequent events and it did make the fact that his fear of torture was still alive and well and here what i'm referring to is the more recent threat by a member of isis rd the government says that it was four years ago yes your honor but it was much closer to g actually made this decision the final point i see that my time is actually good thank you your honor my final point is that the government sites that there are only perhaps instances of torture number only in the hundreds and serratia versus holder the government said that there were only somewhere around sixteen honor killings but that that in self was substantial evidence and so i would say that when we've got scores hundreds of instances of torture there is substantial evidence here especially warranting the remained when the immigration said that there were no instances of violence that's been said that amounted to torture and so i think at the very wanted all right thank you rob thank you kendall thank you both for your argument the case just argued is submitted