which is david stuart st the attorney general of evidence and the key information about the treatment of homosexuals and in jamaica as in terms of background information the society the police the government and court the immigration judge utterly failed to consider that evidence and the board of immigration peels on its own made an independent weighing of that affidavit against other evidence that was in the record both our legal and constitutional errors this case is a very unusual case of this type of a convention against torture claim we have in the record the fact  there are there are many parts i mean if the professor it's hard to hard to credit the judge's assertion that when and when the expert says that the police that the police are guided buggery laws and the laws of the charged and are willing to turn a blind eye to attacks on homosexuals and that it's more likely than not that david stewart would be killed i mean this is these these are these are directly the main issue in this case that the the judge supposedly considered but i think the court can see through that th consideration and look to the substance that consideration means actually addressing some of the evidence which is did not at all happen here except at the b i a level in the st instance but what about the following discussion by the  spends a lot of ink talking about at least what he found meaningful factually quote respondent argues the government's acceptance of homophobia and continued picture of a society that is largely homophobic it does not show that the government can sense or is willfully blind to the murder or torture of members of the l g bt community and in fact respondents own evidence this a question of he had a bunch of evidence he credited some and discredited others and you're just not happy what he highlighted well i mean i didn't have to as a matter of the law to single out each piece of evidence and comment about each be steady right that's let's black letter law you don't have to comment about every every evidence so what did later do that was so wrong as to amount to fatal error in this fact finding process well not allowing the telephonic or video testimony of our main evidence which is the witness who can put all of this other evidence into context if you have it doesn't have to allow the audio tape testimony as the affidavit testimony well if it as in this case does prevent the again from making the case mr duncan mr stewart himself was on the video he wasn't even in the court and there's no record at all it can't be supposed that having the expert who is in massachusetts and could not ask you want about one of your legal issues you complain that the f b i a engaged in fact finding but course in this case the facts it found were the same as the that i j found so it can't really be a case of impermissible fact finding in that sense i mean those cases all have to do with the b i a finding facts differently from the i j don't they  not eroni us that it it was consistent with facts that it observed but that's not the same as finding different facts from the i j a is  yes or what is it that suggests that the i j was required to the video in supposed to reading the declaration summary this how does that amounts to a violation of the liberty interest we had made two motions we had made clear to the i j a how important her testimony was by two motions to file request either telephonic or video evidence her affidavit itself says i'm prepared to testify in detail about the risk mr stewart faces in court i will can see that it would be wiser to have the video and hear the testimony live rather than take it in written form but that isn't the thrust of my question the question is whether or not this is error on the part of the  for not allowing the video an immigration judge may conduct hearings not shout but may conduct hearings through a video conference to the same extent as he or she may conduct hearings in person so the c f r says and we've said there's certainly no constitutionally protected liberty interest in receiving the testimony in that form as opposed to in some other form see if you refuse to consider it at all i think you'd be dead right but i don't see where the error is to be found in simply refusing to take the video and what am i missing there well it is tied to the fact that i did not any articulable way consider that no no no you've moved to another ground we already started with that then you said you just did a crummy job with the evidence but the point you were making just a moment ago a procedural argument that it was an error not to receive the video not to receive the evidence in that form and i'm simply asking you what is there that suggests that job now well in addition in this case and i want the court to you know realize that this procedure in lumpkin george's at some distance from attorneys and experts and others and that they you know for a full and fair hearing which the law regulation and due process require would i think in a case like this and under the facts of mr stewart's case require that the judge allow  video testimony on the relevant key point of the risk of of torture or being killed in jamaica and especially in a case where his partner was killed a month after the  partner was police officer brother died where where it's it's not like it's theirs and there's no issue here it's not like it's overwhelmingly true that mr stewart is safe there is a real issue and  given that she i agree with you that there's a real issue but what you've got to show me is that what the i jay did in the fact finding was so wrong went beyond the goalposts and that's what i'm having trouble with i'm standing here i understand you to say basically two things one procedurally it was a violation not to allow the testimony in by video but i see nothing that required him to allow it in that way and to  even having considered what came in in written form it was obviously error to reach the factual decision that he did i you to say sort of both of those things but what i want to know is whether there was any real difference between was there anything substantively different that he would have recounted that he didn't otherwise recount in the in the physical form in the written form yes because the way ing and the social connections of what  is an expert i mean it's a ghost of the question is what does expertise even mean in a case like this and what is the value and importance of an expert opinion and the connection between you know connecting the dots so of course we can't complain if they just connect dots in a way that i don't like but the expert has to have i think i and i think it's important for courts to know that experts are important to connect the dots in a  social context when different inferences can be drawn can be drawn and some of that that the expert could talk about the concerns that the judge has about read of course this wouldn't be the st time that an expert's testimony was presented in a court of law not live but in the written form received it evaluated in written form right but in this case they they didn't discuss any any conclusion or any statement or any fact or any assertion by the expert they only said it was in the record close the case for that for the petitioner for the applicant and will only look at evidence of the government's evidence that shows that there is not such a risk that the escort could have given cogent reasons why these these what happened to mr stewart's partner would likely happen to him which is what the expert concluded and and in a and torture case what happens to your loved ones or your partners is normally very probative evidence and even despite that the judge read the immigration judge did not go beyond it please the court matthew george for the attorney general here the immigration judge's decision not to allow the experts video testimony was well within her discretion both statutory and regulatory reasons support that the immigration judge is allowed to conduct proceedings however she sees most fit as would any factfinder as would any district judge determine how proceedings should be the due process clause does not require a particular form of testimony or simply requires the opportunity to be heard and that happened here when the immigration judge accepted and considered the experts written report affidavit she didn't i don't remember that or she said she considered all evidence even if it she didn't specifically discussed ok and then she said she does not cite the affidavit is true studies pointing out right specifically that's correct or as the board pointed out she did not explicitly expressly discuss the affidavit and i didn't know what she meant when you said she twice said she considered quote the report well on page record other people appeared by video or in person how to how is it going i believe his mother testified i believe she was in person but i'm not ok i'm not sure i know i think it was a contingent of people that came down know i think that the i j said she had trouble with telephonic testimony and i can understand that because i don't like that myself when i can't see the person but she had used videotape for at least the applicant yes you are not because it was a detention facility i believe there were some issues with i'm going to taint and your honor is correct about how the request went st there was a request for telephonic testimony the immigration judge said she doesn't like telephonic testimony because it's difficult to determine who was actually on the phone right then there was a motion for the video testimony and it said little more than well the expert would like to supplement the declaration without saying what other what else would be in the i hear i don't know what was going through the immigration judges head i don't know if i said a common practice that wound the rule is pracon torrie it says may or may means they don't as a matter of course not my experience are to be on the record in asking that question but it's sort of perplexed me because it's not the st time i've seen circumstance where the deal was available and i refused to use it it's not my experience i think it's all across the board in cases that i've seen i  don't know that there's a general rule i mean i know this immigration judge sits in a detention facility so i don't know if that plays into her thinking in terms of what witnesses to take and i don't know what i'm just talking about an expert in particularly g en the central of the of an expert about the nature of the conditions and you know in a foreign land i think i think it's all across the board your honor would thank you very various judges may may think i know i believe i've seen cases that i've worked on where i'm a gracious judges have accepted telephonic testimony so i know that that sometimes does happen it's probably just comes down to individual judges in terms of what each judge wants to take and consider but regardless there's no there's  obligation to take video testimony certainly where the immigration judge here accepted the written declaration and then sort of going beyond that even if that were somehow it due process violation which is not or discretionary violation which is  petitioners never said what evidence would the expert even have provided that was not in the written report so what difference would it even make to have that expert testify i know they're my opponent tried to come up with some reasons in his presentation but that's never been presented either in the record or even in his brief of what the expert even would add to the discussion and in a meaningful way of sort of directly from the expert other than counsel making representations about it  turning to the the board's decision in terms of the immigration judges actual consideration of the expert's report as i mentioned the the immigration judge listed it said if she's considered it even if she doesn't explicitly address it immigration judge then goes on to address a significant amount of the evidence citing nine particular examples from various not just one singular report in the record from various reports in the record looking at a variety of things citing nine different examples of what the police in jamaica are doing while also acknowledging that sort of nine examples of positive things acknowledging negative things considering and weighing all of that together to reach  conclusion that's reason consideration of the cat claim in this case and that's all she's required to do when she's done that she doesn't need to explicitly address each particular piece of evidence or  particular claim and that's that's what the court has said over and over in cases such as june in time and talking about the notion of reason consideration and so when the board takes a look at it and says yes the immigration judge didn't explicitly or expressly discuss it however looking at the entirety of the record all of the evidence it's not going to make a difference to send it back to have the immigration judge explicitly consider it and specially because she gave it reason consideration because of all this other evidence in the record it's not necessary for her to send it back the board isn't making factual findings it isn't overruling the immigration judge it isn't saying the experts decoration is says he's going to be tortured says he's not going to be tortured or making an explicit finding and saying looking at this record as a whole copious amount of evidence that the immigration judge cited and terms of supporting her decision they're making the call that it's not going to make a difference it's not a good use of judicial resources to send this back to have the immigration judge explicitly consider the experts declaration and that that's all because she gave it reason consideration because the board has looked at it a nd time all of that comports with what the court says is necessary for two to occur and it doesn't violate due process and any sense either what the immigration judge did or her decision not to explicitly or expressly consider that report then as sort of a final matter the the final problem of any if even if there was some due process violation we get to the prejudice that petitioner marched demonstrates he's failed to do that either in terms of the immigration decision not to allow the video testimony or in terms of the immigration judge his decision not to express fully or explicitly consider the report i saw a hint of something that might in benefited from some further explication and that was something in the affidavit that said under the new political situation things weren't they weren't making as many efforts to protect homosexuals as they were before and but my question to you is was there any request to explicate the current political condition since two thousand and sixteen i mean that's what i'm might like to have heard about but if the council doesn't tell me that's what they want to do i i don't think any request is made in that particular fashion i know there are there are several statements from public officials add more on that ok no your honor thank you nothing that targeted that petitioners ever made or ever said that look at this particular piece of the report that's what we want to consider anything of that nature archaeologist in this should very generic more i guess getting to what we wanted the video testimony but we never say what the video testimony is going to add right it's not already in the record and it's a report that the immigration judge said she considered and under the presumption of regularity petitioners never should anything to suggest that the immigration judge didn't consider it even though she didn't expressly or explicitly discuss it because that decision to allow the video testimony was well within the immigration judge's discretion that was not a violation the immigration judge gave reason consideration to the claim so her decision not to express lee or explicitly discuss the report is not a violation and even if somehow any of that was a violation petitioners fail to show any prejudice from it therefore the court should dismiss this petition on the criminal alien bar grounds and that's there any questions the cat claim it's a life or death decision for the individual concerned is an extreme importance and the fine difference is whether you're forty nine percent likely or fifty one percent likely to suffer torture or be killed so it's it's a case where any any relevant information is of crucial crucial importance in this case and you know i'd hope the court can clarify  ether when in what circumstances that discretion should should be properly exercised you have have to have except you know testimony from electronic means you know this this i mean the court has asked about the problem that you had as we have already said the failure to receive relief that is purely discretionary may nature does not amount to e the argument is a difficult one to accept unless the judge had refused to consider the evidence in any form but that's not what you have here well discretion of the cat is not discretionary the relief  concerns and i have to say that you know this is this i j denies asylum ninety seven percent of the time and and i tell electronic expert testimony one hundred percent of the time there is there is no way you can go to this court in ever get the testimony you want from from from any unless an expert can actually be present in person and this is just not a fair proceeding your honour's this is not this is this is not an opportunity the for people to have a fair proceeding and present evidence that they want to present it must must be hearing was conducted in d c i take it in georgia and where was the expert located