case comes down to what is the whether there was sufficient evidence to establish torture under the convention against torture in this particular case the events were i'd made a leap quite some time ago in guatemala  what what was occurring there was he had been essentially conscripted into the guatemalan army as a matter of punishment he had been confined in the cellar i think he called it a hole for one or two weeks solitary confinement court he doesn't really address the issue of credibility on this particular point he simply states that the evidence is not sufficient even if granting him credibility on the point so are you suggesting we give him credibility or not i'm suggesting that the court cannot find credibility lack of trying credibility on these points your honor and therefore without that particular finding that this peculiar point should be deemed as established well i'm wondering if you even exhausted credibility at the vi did you appeal credibility the p i well your honor i don't i think the v a does not really review credibility at least that's the immigration court your honor i understand  they would not have you but if you're going to fight a credibility determination or go to something about it he usually say something in the v i i we are i don't think that this matter bears upon credibility i'm not asking this court for review credibility so are you suggesting that we deem then your petitioner credible simply because nobody said anything about it i think that what you're suggesting well if that's not quite what i'm suggesting or wh has two opinions in the first opinion they talk on page seven which begins on page one ninety seven the record i don't see him not saying that he wasn't at these events and i'm talking about these confinements were not themselves incredible but they were not extensionally torture well he didn't address in the first opinion the second if he did it was not torture under the convention against torture i guess my worry about this is that i believe the i j a had found an adverse credibility determination and i guess i'm trying to figure out what i do with that because if there's adverse credibility credibility to it and so i guess my biggest problem right off the bat is the i gave found him not credible and i don't know if you are suggesting that could be i adopted the a said first credibility germination i'm willing to go at that but i didn't really see that in your briefs and so i'm trying to figure out what i should do well you know i go can over it i don't see where they were was a negative credibility  this particular point i see here on page one ninety eight the court says there is some disconnect but that doesn't he doesn't go out and say you're not telling the truth on this fair i don't see where the court and immigration court do not appear to doubt his statements about the situation that we are saying forms the basis of it really the application for relief under the convention against torture what was the time between the time that he was last mistreated and when he your honor i'm not quite sure when that was what it was that there were he was in the army for some time there was a he left the army or left quantum all in june of ninety one and this i believe occurred in the late eighty's so he was in the army for some time after th else let me ask you about the jurisdictional question that the government raises what's your response  administrative procedure for general ministry of law of a lot of significant exceptions however none of them apply here the person was convicted the petitioner was convicted of zero doubt about the conviction yes right yes there's honor by the real i d act which amended the section i remember the review provisions to allow this court to look into questions of law and the courts have incurred court's precedent allows that to extend to mix questions of and track which i submit to this poses for the court so you're really suggesting that this is a mix question of law in fact that we ought to think about what is the mix question of law in fact if he was really convicted of possession of cocaine which nobody seems to even argue about but the question you're on is whether or not the treatment he describes in guatemala amounts to torture under the convention against torture how do we get to that if we have a possession of cocaine and a conviction and you're not giving us any way to get jurisdiction other than mick's question of law in fact how do i even get to whether there was torture not he's seems to me that the guy gay said that he was uncredible because his testimony and now one instance was that all of this occurred during his first term of service and he wouldn't have gone back and yet in one set of other testimony he said it happened in this second term of service now the persecution that he says happens is substantial evidence going to the heart of the cla so given that the i j a feels like that makes him incredible how do i suggest that the i g a did not make a credibility finding well your honor if you look report i guess i don't see him making a specific finding that he's not credible on these points your honor i think you felt that he was not persuasive suggesting i could look at the i g a decision and he didn't make a finding on credibility that's what i'm suggesting here are morning your honour's may please the court and jonathan robins here on behalf of the respondent eric holder with respect to the credibility determination certainly in the board's decisions it doesn't address credibility it only addresses the burden of proof finding but on appeal to be i e they never challenge the adverse credibility findings now we know that this court says that when the board doesn't explicitly adopt an adverse credibility finding it's not upheld but if they don't challenge it the board really doesn't have a reason to address it so i'm not sure where the court falls in that particular instance but even regardless of any credibility findings even under the burden of proof then remain t the board to make a finding about its credibility well one that they never argued to the board in the first place it's really their burden to to make that argument to the appellate body after the immigration judge makes a finding but even regardless it's it really would be futile in this case because he didn't meet his burden of proof for stablish ing eligibility for relief or protection at all then you i suggest that they didn't exhaust the credibility finding and jurisdiction sure there's no question we like yours fictional because he had a prior controlled substance conviction that's the general rule however the b i a didn't even address the state it or the board didn't address this cour application correct your honor so wouldn't that suggest that we then do have jurisdiction to at least review what the board's done since they wouldn't even get into the i think it i think it's clear that the court does have jurisdiction to review the asylum withholding and cat claims here certainly the court has done this that's contrary to the argument you made in your briefs well the first is going to say again how do you get those the first brief was written of a long time ago i think in two thousand  still taking the position that there was no jurisdiction but since then i think it's the course been pretty clear about where it where it are well let's get to the credibility determination and if we're going to get to the m it's incredible because it's inconsistent or it's inconsistent with other evidence the mere labeling of the testimony as being naive because these petitions are said that he heard on television that the army was no longer persecuting people at the rate of three we go with that well you have to look at in the context of what the immigration judge was talking about we have two separate stories that he's given and then he decided to go back to the military and then only in his second stint with the military did he run into these problems without having to follow orders that he didn't want to follow and then there was this other claim that he made during testimony where  said he changed the story said no it was this also happened in the first with the military and there was this inconsistency so the immigration judge if you read the decision was talking about how his first claim made a lot more sense than his second claim said and he said in referring to why the second claim didn't make a whole lot of sense he says well if you supposedly went through all this persecution or torture in your first stint with the military you know you you all of a sudden thought that you would go back and things would be different and that's what he was referring to is naive i'm not sure if that's so much speculation is just saying that he's maybe was a poor choice of words but i think he was trying to indicate that this didn't make a whole lot of sense in terms  application it's pretty pretty clear inconsistency i mean that's usually where credibility falls apart when somebody makes a claim and then when there's some subjective questions in cross examination that it doesn't hold up going back to mr personal address it in its indecisions it's a little bit confusing because remember this went back down to the immigration judge to review cat and immigration judge revives the credibility issue and again in his second decision says i'm you know  again talking about credibility here this was not an issue of credibility but in his arguments to the board on the first time it went to the board what they argued was that it was translation problems and not actual credibility and that he had met his burden of proof so again the board in his decision no not at all you're are again the standard for determining whether or not somebody is eligible for protection under the regulations implementing the convention against torture you have to establish a clear probability i guess that's fifty one percent and the evidence  when he was at least as far as this claim goes when he was put in the hole as part of the military for refusing to follow orders he was let out after that and he stayed with the military for another year as the guatemalan military had wanted to persecute him on account of his political opinion they had an entire year to do so they didn't indicate that that's what they want to do we stayed with him for an extra year and if i get around past persecution how do i get around ramos vast quakers vs the ins which is certainly the same kind of circumstances where we had all that was enough for future person well i don't know what again this is this is this is with regard to cat which would be a clear probability of torture or about and in regard asylum well with regard to asylum again each case is different i don't know the specifics of the specific evidence that was presented in that case but i do know that the evidence that he submitted in support of his claim in this case was insufficient when you look again there's the situation where he was put in a hole with the military and he stayed and he stayed with the military for a year afterwards now and under the standards apparently there certainly in this particular matter proves the army is looking for well no i mean he's got evidence in the record that suggests that that is relative so yes they're still looking part well again at the time this evidence submitted was submitted it was still a while it was a it was a little bit of time after  was coming to his family in civilian clothing and and saying that they were looking for him but the immigration judge looked at that he said well the affidavits that you've submitted from your family don't really bear that out the way you  under the standard review it's not a question of whether or not you can go both ways on that evidence that the question is whether or not the only way the immigration judge could have come out is to say that yes you did establish it and based on the evidence here given the amount of time since he really i'm not trying to dodge this credibility issue on page one ninety seven the record the court seems to talk characterizes in one of two seconds seems to say well i'm not going to really make a finding there he says i don't know all again i don't know how