forms of immigration relief the convention against torture withholding of removal under the i n a mistake created danger dot first hernandez is eligible for relief under cat because he has shown that it is more likely than not that he would be tortured by his father or his father's associates with the acquiescence of public officials agency findings on cat are reviewed for substantial evidence while the b i a n i j are not required to discuss every piece of it and their rulings they must consider all evidence relevant to the possibility of future torture this is especially so when the a petition or appears pro se because they often lack the legal knowledge necessary to navigate through the morass of immigration law where there is any indication that the  j did not consider all the evidence before it general statements that all the evidence was considered will not suffice and the decision is reversible this is especially true when the agency fails to consider highly probative and potentially dispositive evidence we identify three sources of such information st the b i a neglected hernandez's credible testimony that he fears that his father or his associates will murder him for exposing their criminal drug gun and human trafficking operation why do you think that the agency ignored that or disregarded it rather than just thinking ok he might think that but he doesn't really have a basis to think it that he you know he may genuinely be scared but that doesn't mean there really is a risk to him well we believe that holistically between hernandez's credible testimony the testimony of dr david shirk and the country conditions reports that ties together all the logical languages that are necessary to have the inf that he's more likely to be tortured not specifically hernandez was found to be credible and on numerous occasions he's he's been able to show that he has reason to fear for his life one of his fits so his in his credible testimony is that she reported his father but if his father doesn't know that he reported them then that there's a link that's missing in the chain so why do we have to assume that just because he's credible that means he's really at risk certainly so he's a the number of different ways that his father's father's associates would have found out the st is that his father has ice agents who are working for him and he believes that they would have found out about his report to the i g he also believes that his father is connected to the venice thirteen gang and when he was in prison one of the prison guards was working with the us thirteen and he believes that the information could have gotten out that way additionally you know he's written letters to the mexican government seeking protection federally and he believes that information could have gotten out that way and one of those letters was actually published in this fashion language newspaper as well so taken together this all began to use the his father's cartel connections with their wide influence would have found out about his denouncement or his status as an informant but the agency seems to have thought otherwise and how can we say the agency is definitely wrong in that regard so when we take look at the risk of torture we're looking at the aggregate risks so we have to take together the risk that each of those various sources of disclosure that i identified would put put together the risk that they would g didn't consider all of the evidence yes that's true but when you look at the i just decision testified i mean he goes through and then he he says none the less doesn't rise to the level of more likely than not that he will experience torture if do our position is that any reasonable fact finder would be able to find that but it would also be legal where if you overlook certain pieces of evidence the i j a and their decision only very very briefly touched on the fact that  hernandez's father had mexican police officers who were in his employ and we think that's a critical fact because it shows that these that when he's rich if he's removed to that country that they would be able to torture him there with the acquiesce but i mean there are other sources of evidence that we feel that they haven't touched on as much you know i think believe the doctor shirks testimony in the discussion of dr shirks testimony they find him credible they discussed his general findings about the country conditions but dr sharp was actually able to specify that he believed that hernandez's life would be and in danger because he would be considered to be a snitch just because the i g didn't you know go into depth in the decision doesn't mean the i g didn't essence of what he heard absolutely and i think ultimately it goes back to the standard of when there's any indication that they didn't consider all the evidence before it i think the one piece of evidence that's missing that the vi actually talks being dismantled historically cartels he'll have deal st with the fact that he went back to mexico and was not tortured yes so all these disclosures happened after the after he was already back his and that was vick and so in that sense he wouldn't have been targeted while he was in mexico because he had not yet become an informant because he had not yet disclose this information to the newspaper i didn't really see discussion of this newspaper article as a main point in your brief is that now something you're trying to make more of an issue of yes and you know and it i thought i did believe it's because there was some confusion about whether or not the document had been entered but i mean again referring to the standard if there's any evidence especially potentially just positive evidence that could be that could be in the record then we would have to go back and take another look i think as a legal staff once the article presented to the agency yes it was it's in the record on page so i believe those he just doesn't list them he does the news reports so i do believe that the news reports he's referring to hernandez of course emitted lots and lots of information just because he he felt that he needed to provide the background that his uncle was potentially the leader of this cartel and the violence but if you want to take a look at what the v i i has written about it you can find that on page five of the board decision so and in that instance the they wrote that the applicant is not met his heavy burden to establish the motion was granted the new evidence would likely change the result in this case and they said that this would be cumulative of information that's already been presented it was in the motion to reconsider that as i understood it this article wasn't really presented and tell a motion to reconsider it did i misunderstand that so it was presented as an ex parte before the judge on december th and that was before the decision was actually handed out and why is that be are you talking about it as part of the motion to reconsider so because it was already in the record i believe so essentially this article shows that there is a much wider disclosure i say than just to the agents and just to the l a p d and then that that should lead us to the inference that his father and his father's associates would be able to find him and know that what he did and so this is interesting so i think i read to be i am saying this article was st presented in a motion to reconsider but you're saying the motion to reconsider was pointing out that this was already in the record but hadn't been considered enough yes so  that happened in multiple motions to reconsider afterwards he's mentioned i believe in all of his motions to reconsider this particular article and i think it's because it it identifies the problem that you folks are discussing which is how would they know and how would they know it why why does that be i say then if the motion were granted the new evidence wouldn't change the result like it seems like there treat treating this article as new evidence it's unclear exactly why they're treating it as new evidence because it was submitted before the decision was handed out hernandez made a few arguments as to why the evidence should be admitted and this was after the close of testimony so it's unclear why but this information is very  the issue of how would disclosure of taken place and so where in your brief did you argue that i didn't see any argument that the b i a treated this as a motion to reconsider that really it wasn't or anything about the article as a basis for relief in your brief yes it's not it's not in our brief your honor i'm not going to say that it is but we do believe that is very critical information especially in light of this issue of whether or not i was disclosed to the cartel but i mean again the cartels have a very large influential have a wide reach and information like this that's out in the public wouldn't necessarily they would it would come in front of them and when you save some time you want to say five minutes  to make the conclusions that petitioners advocating for these fail to meet that standard with the evidence that he points to in his brief and to date argument over all his claim is  speculative st he was never harmed in mexico during the many times that he was there he's provided no evidence that would compel a conclusion that his father of the cartel or anyone is aware of these reports that he's made the letters that he's written the articles that he's published mr george is consul correct the letter published in the newspaper was published after mr and then has been in mexico i am not certain of the date or honor of in terms of the timing of everything i can i can't speak to that directly i know that letter to the editor is in the records and i believe it does have a date on it so we could we could look at it i just i don't have that information in front of me what is your understanding about whether that article was in the original evidence before the i j a or submitted later i believe in terms of that timing i believe it came after the immigration judge decision and so it that is what the board is referring to in its decision when it's talking about the motions for a manned and it being simply cumulative of the other evidence and the record or st the immigration judge not having jurisdiction to to consider it so that that's how we are interpret ing that language so you don't know whether that be i was correct that it hadn't i mean to treat it as new rather than as evidence it was already before the from what i can tell from the record it was submitted after the immigration judge's decision so it would be new it would be akin to a motion to reopen and so it would have to meet the material not previously available type of standard i don't know that's  same standard because because it would make sense to have a motion to reopen at that stage i think it's around as pointing out and so it becomes a motion to remain but the same principles would apply in terms of not previously available  material and so on and we got regardless of any of that standard the letter is simply cumulative of the other information that petitioner the letters that he sent to the mexican officials but the article would be public so i think if the article that's the issue  the article i thought was really published publicly is has more basis to think the father would know about it then these reports that there isn't really any reason to think there were public well that's i mean has the same evidentiary failure of what evidence do we have that the father has any knowledge of that letter there are many human article right are excused actually to the article yes your honor the one in the paper in the newspaper there i'm sure there are many newspapers in mexico where the evidence that the father cartel members or anyone has seen this particular newspaper that has circulation in the relevant areas so if i publish something in the washington post that doesn't mean your honor has seen it as someone who lives in california seen it be they we can now consider a petition or a snitch or an informant see that they would seek him out on that basis and see that they would they would be able to apprehend him he that they would harm him and then  that would rise to the level of torture that's that's the entire speculative nature of this claim that the board is getting into with regard to its decision and all of these the evidence has that same evidence here failure of not compelling the conclusions that petitioner wants to draw even petitioner today said the petitioner believes these things are going to happen that doesn't mean that the agency is compelled to accept his belief of what may happen there's a lot of generic and general evidence of i wrote these letters i wrote this article a my father has these connections to these random ice agents but where's the connection that makes us all compelled to find that conclusion that all of the links in that chain that there's the where ness that there's now going to be the targeting that there's going to be harm that is going to rise to the level of torture even looking at dr shirks testimony he said the petitioner might be considered a snitch he didn't even say that he would be considered a snitch so naive and that compels a conclusion that the father of the cartel or whoever else would consider him a snatch it's simply an opinion and the agency isn't compelled to accept that opinion when the expert himself isn't even using strong because correctness really significant that would be the standard that would apply the standard of review would be abuse of discretion because it would have the same standard of review as a motion to reopen but he's never made that argument he's never even really addressed the newspaper article at all in his brief ok and so it too to that effect he's waived that argument by and by not presenting  peers own brief it regularly recognizes the speculative nature of his claim he uses such language is when all the evidence is properly weighed he gets cat protection he says it's on it's unclear how readily information is available to fall into the wrong hands he says if it becomes public knowledge that hernandez shared information about cartel related illicit activities hernandez's life would be at risk even his own brief recognizes the speculative nature of his claim and that while it's certainly possible to draw the conclusions that he wants this record doesn't compel the agency to draw those  conclusions turning to the particular serious crime issue he's failed to exhaust that issue to the board even if he did exhaust that issue the immigration judge at least to the extent that his argument is a legal one and not a factual want to bellary weighing the factors for particular serious crime the immigration judge listed the correct factors and then applied them to the facts and circumstances of this case and conducted a case by case in co braise this issue and we deem it waived and so there is some support least under this court's case law that that that would be exhausted we certainly say that much like a sort of affirming without opinion that that mere statement doesn't exhaust the issue he still needed to raise that issue to the board and he concedes in his brief that he did not raise that issue to the board other than his most recent twenty a j where he tries to change his position on that but even but even if did he did exhaustive the immigration judge correctly applied the particular series crime tests here and to the extent that his argument is about the weighting of those the factors and what should come into play in all that that would be an issue that the court would not have jurisdiction because it would be a factual issue and not a legal issue that would survive the criminal aliens are turning to the say created danger claim  to the extent it applies it's our it's our position that the protection analysis covers it entirely in the courts and even reach it and to the extent any sort of exhaustion doctrine would apply to it we would we would advocate that that should apply as well but to the extent not neither of those apply this case doesn't reach the level of morgan much less the level of weigh the level of treatment here is nowhere near the shocking the conscience level that occurred and weighing and in morgan where the court said the doctrine did not apply there was no reprehensible conduct or deliberate indifference by the government that is much more akin to the case here where as far as i can tell from the record petitioner requested the the contact with the t h s agents and provided that information this was an ongoing criminal prosecution where the government requested h presence or requested his testimony put him in a worse situation than he would have been in he's in no different position and so at best morgan is more can and should apply and the court should not apply the state created danger doctrine here thank you your honors i just want to emphasize the point that hernandez here is a vulnerable informant he has he has chosen to not follow his father's path of criminality and instead chosen to adhere to a law abiding life and try to undo some of the damage that he's done by publicly denouncing him to send them back now would run contrary to you know what we what we believe about justice but moving back to the  blindness here there there are police officers and the employee of his father who would be willfully blind to the murder of him or even murder him themselves possibly hernandez believes that one of the police officers who was working for his father ordered a hit on his friend and business partner so that just goes to show that the police in tijuana i lease and beyond cannot necessarily be trusted and this is corroborated by the country  which state that there is widespread violence are we compelled to find them as against the b a is the termination of the page three of the there is insufficient evidence on the record to establish the public officials or persons officers working for him dr shirks testimony discussed in depth the local issues with local government and corruption and the local police forces in particular there are many points raised to that effect and i see my time's running your arguments this morn