Legal Case Summary

We'll call it torching versus attorney general of the United States.organist Rogganist We meet with a continuous and Ray Pherenachy, my colleague, Stacy Schweizer, on behalf of Petitio Valnetorshin. And you have already reserved for minutes from the bottle. Yes, I'm the court. So you're technically. There are two issues in front of this court today. One, whether the BIA abuses discretion in denying Mr. Torshin's emotional reopen in order to seek a claim under the United Nations Convention against Torture or Cat, and two, whether Mr. Torshin was denied a form for hearing and find the immigration judge. We believe this court should find the firm in front of both of these issues. With respect to the BIA's abusive discretion in denying Mr. Torshin's emotional reopen, we believe their opinion was arbitrary, irrational, contrary to all. First, Mr. Torshin did contribute to the BIA's opinion established from a fixed eligibility. He did this through the production of objective evidence showing a reasonable likelihood that he could succeed on a calculate if given the opportunity to do so. That's based on the execution that he witnessed by the agents. Correct. And there was no credibility, adverse credibility finding by the IJ or the BIA. Correct, Your Honor. In fact, he did, and I think with the BIA where it's sort of the fall as in the BIA's analysis, is that they said that he only alleged the torture by corrupt individuals. As you explain in this KGB incident, he actually did show the link between government officials and the act of torture in that he was driven to a KGB facility. He was transported in the KGB car with his bodyguard. They were taken to a remote area where they were forced to witness the brutal killing of another man and then threatened that same fate. So your position is that the potential for or probability of future torture is based on that single event that occurred in Belarus prior to his obviously coming to this country

. No, I would submit that that event rose the level of torture. I understand that. And the definition of torture begins by simply enact, so that you're single act. That is the enactment. But what it is is an historical event so that any fact finder is required to extrapolate from historical events to determine some whatever measure of probability more likely than not. Is that what's applicable here? I forgot. The prospect is of future torture. Well, I think Mr. Torchin established that for the probability of future torture in his submissions an explanation of press camera, which is the threatened, directed torture when he is removed to Belarus and will be detained that he will be at the direction of the prison officials subject to severe torture and repeated breaking by these violent events. But there isn't anything in the record to suggest that those prison officials, who remember they might be, are the same people who were involved with the act of execution that he was forced to witness, is that? No, but the KGB officials that did force him to observe that act have the ability to instruct these prison officials to... Is that in the record? Not that exact link, but I believe that the prison officials do constitute government actors or at least create that nexus to the possibility of future torture. Should he be removed and detained in Belarus? Well, all I have to do is a ripple possibility that he's going to be... But that this could be repeated if he doesn't do whatever the KGB officers tell him to do. If I'm a face of case. Correct. He just has to prove a reasonable likelihood that he could, given the opportunity, he could give the opportunity to present all his evidence and all his evidence is not in the record because he didn't even have the opportunity to present evidence under this cat claim. It was not available to him. And what the record demonstrates is facts based on asylum and with the legal leave. Well, this has nothing to do with the asylum claim or any claim for asylum, just torture

. That means exactly. It's a separate decision claim. And there's not... And it has to be a claim that he's not... That this is a fairy tale that he's been found in effect found credible. He has been found credible by the J... But not making it average credibility find. Exactly. And the I.J. actually never... You know, like we said, there was no adverse credibility. It's not that they didn't even find persecution or torture. It was the I.J

. said, there just isn't a link to that protected grant. He couldn't make that link that based on his protected his... His membership in a protected class or his political opinion. There was no link there. Well, in the cat claim, he doesn't have to make a link between the torture and any political or protected grounds. Correct. But he just has to establish a reasonable likelihood that he could succeed on a cat claim or that he could prove more likely than not that he would be tortured upon a number of brain-movers or builders. Has he proved that by the shore of this one, that the true, drastic incident that occurred to him? Is that sufficient for a prime face case, you think? Well, I think that could be sufficient and that... And that will happen if he goes back, you know? Yes, I think that isn't enough. But I think he also, in addition to this past incident and torture and the likelihood that he would be tortured as in the press cameras upon his arrival. But I think he also proved it through or there's at least enough evidence to bear in him that opportunity to bring cat in the country conditions. Through the State Department, Country Reports, three on the Steiner and Astro Reports, that torture still to this day is very prevalent in the prison systems and that there is a likelihood that he would be tortured if said back. Well, Mr. Fernanchi, one omission in the record that concerns me is that torture is not simply the act itself as has been described here historically, but what it requires is a prolonged period of mental pain or suffering, correct? There's nothing in this record to even demonstrate is there that what Mr. Torchin experienced after the event that he testified to here and that it apparently is determined to have occurred because there is no adverse credibility, that that resulted in a mental pain or suffering over a prolonged period of time, is there? There's certainly no expert testimony, but I don't even remember any testimony from him that it had that kind of effect on him. Well, I would respectfully disagree and say that he did suffer a prolonged mental suffering and that there is evidence of this in the record and that after he was... What is it? That's really a mask

. He did suffer the effects of a heart attack in the days after... It was immediately after. Was that from home? That was from lunch because it was days after, as I believe some is an application for asylum and in all his briefs in the record, I would say he suffered this over numerous days, was unable to leave the house. This all happened July 21st of 1996 and he was here in the States August 3rd, 1996. So fearful, he had suffered so much in those two weeks, he didn't stay without incident for months or years. He came immediately and fled because it was so... The torture was so severe and the threat was so likely. Well, let me explain. Why can't it be tortured just to be subjected to the thought if it's credible? If you don't shape up or give money or you know, or rise, why is it tortured? You can be shot dead. It's torture because it was mental suffering. Why is that sufficient? Just to say, you're not going to be strung out for weeks or constantly head or something. It's torture to know that you're going to be shot dead. You're not going to be extended for a long period of time. That is sufficient and he was, that rise, it's a little bit of mental inflection of pain or suffering, did rise a little torture because it was the result of imminent death. When it turned to the asylum application or times running out, I speak only for myself, of course I don't think this was the best try case that the IJ ever tried in my view. But didn't everything get its opportunity to be heard even though it may not have been exactly what would be called a very clean trial? I think there were numerous portions or Mr. Torsche's affirmative case that was not, he was not allowed to bring in there for it was not incorporated or becoming part of the record. The IJ said he read the Gaffa David and he asked him after everything that has been said, do you have anything else to add? Well, first of all, he didn't explain the hearing at the outset. He didn't explain the hearing

. He didn't explain it at all, he didn't say. Will you please point to one failure to explain a procedural right or any other provision of statute or regulation that was not covered here by the IJ? Like the right counsel, the existence of organizations that can provide counsel, what provision of statute or regulation can you point to that this IJ failed to adhere to? He did not offer Mr. Torsche the ability to designate an alternative country of removal. That would be 1253A. Well, that's only raised on appeal. That was not raised below. That was not raised on BIA. You waved that. One of the weird words that I think he did identify that in his appeal saying that there were procedural due process. There were violations in that constitute a violation of process. Yeah, but he never raised that he was not given the opportunity to designate the country of removal. If you don't raise specific issues on appeal, we don't, we got a history of not hearing anything that you didn't bring before the BIA. I would argue that most circumstances, however, this was a proposed state petitioner and he did certain points. That certain points just but I think he did not say to that affectable exact words. He did say that there were procedural defects in this motion to the BIA though in the motion reopen. What he did address that issue of not being afforded to designate an alternative country of removal. I see my time is up. You know, the big problem I had with this is I'm not too happy with the way I was trying. I got to acknowledge that is that there's nothing that you put forward that if given the opportunity, the other evidence that he would have. If the judge would have given him a good lecture as to what the law was and if he gave more time, there's nothing in the briefs that indicates which we only see all the time. If I had known, if they didn't do this to me, I would have had this evidence and I would have that evidence. He didn't put forth any evidence that he would have used before the IJ. I think he did and I think he says that have you been able to put on his own case and his own from the testimony

. He would have clarified issues one being like he mentions in his appeal or to the IJ that he would have clarified the issue of the blinding lights and being able to write down the license plate of the car that ran him off the road where the IJ makes a point in his opinion of saying we. We can't reconcile this. How did this happen if he's blind and he writes this down? We just, they're just for not sure. He says, well, if I've been able to put in testimony, I could have told him that I wrote down the license plate after the event had taken place. There was things he could have proven but most importantly, he could have had he understood which we saw the music failing for him to understand what it was he needed to prove. He could have put in that evidence showing the link between persecution based on his protected membership and a group. He was unable due to the procedural defects in the original IJ here and to put in such evidence. Thank you. We'll hear you call a gun or button and at this time we'll hear from his boss. May I please agree to boss. I'll be here in the Attorney General. I want to start with just a basic background information that relates to the due process claim and they all address the cat claim if it's okay with the court. Mr. Torch, you followed the sound of an application with the immigration and nationalization service. During that time period, he was represented by council. His killing was for political, he allegedly was persecuted on account of political opinion that being that he'd been asked to play roofs and he refused to do so. And he asked any claimed persecution on account of membership in a particular social group and that was his sexual orientation. That claim was denied by the asylum officer and it was referred to immigration judge as the court of nose. After several days of hearings, the immigration judge denied his request for asylum. Finding that really what Mr. Torch and was complaining about was that he was a successful businessman and people were trying to get money from him. Let's stop at that several days of hearing because without challenging my colleague, Judge Collins characterization is not exactly a clean trial. This seemed to me to be one of the more indulgent IJs I've seen in terms of the scheduling of hearings

. There were several continuances and there were continuances granted to allow for the development of the record in this case with their not. That's correct right. Mr. Torch and first appeared before immigration judge in July of 1998. At that point, he was advised about his right to council and being a list of free services. He appeared again in October 1998 and at that point elected to go forward without council. He did not have a copy of his background material so the immigration judge copied and it's the court and the court and the court and the court of the record of voluminous application. And then it's in Mr. Torch and he would be prepared to go forward with his asylum application. They had a hearing before the immigration officer and I disagree the immigration judge did explain to Mr. Torch and the process through which he would be able to present his claim. And there's no, it's not evident from the record that Mr. Torch and any misunderstanding of what the process was going to be. As the court noted toward the end of the first full hearing date, Mr. Torch and advised immigration judge that he had expected to have a witness present in his, in support of his claim and that witness was not present. So the immigration judge continued the hearing to allow Mr. Torch and an opportunity to present that witness. And at the conclusion of at least the hearing portion of the proceedings, he asked Mr. Torch and whether there's anything else he wished to add and Mr. Torch and did. So secret to that Mr. Torch and provided yet another volume of documents that related to, well that related to more his political opinion claims. This is as the court has noted an immigration judge that really gave Mr

. Torch and amputate to present his claim. And there's no, and there's anything that's, well Mr. Torch and claim boils down to that. He was, he was very well educated, a successful business man who ran a foul of individuals who wanted to get money from him and he refused to give him money and that was the source of his problems. On appeal, Mr. Torch and was represented by council and we only issued regarding due process that was raised. And we disagree that it's sufficient for any, any educated body for somebody to argue there's due process violations and that to be sufficient. No, Mr. Torch and his appeal, where he was represented by council, party to one alleged era. And that was his contention that there was a translation era that led him to misunderstand what his burden of proof was. The board considered that when he considered his appeal and it's set down the immigration judge compliant with the regulatory requirements that are set for the 8 CFR, 1240.10 and 0.11. And significantly those regulations, to stay identified when an immigration judge is obligated to inform the, an alien of what the standard, what the burden of proof for his side of the band is. And it does that when the asylum application is first presented to the immigration judge and there's a reason for that. Once, I hear Mr. Torch and claim was first presented to an asylum officer and at that point he was represented by council. So the asylum claim before an immigration judge is really second by it at the asylum apple. And at that point his burden, he has been informed of his burden of proof by the asylum officer in this case by his council. So there's no regulatory requirement for the immigration judge to again reiterate what his burden of proof was. And anyway, that was the only issue that Mr. Torch raised in his appeal of the immigration judge's denial of his asylum claim. The board found that the immigration judge had complied with all the regulatory requirements and from the found that Mr

. Torch had not established persecution that would warrant asylum and or withholding a removal. Mr. Torch and from there appealed to the court. That's the March 2002 decision of the different BIA. And right, and Mr. Torch and appealed that decision to the district court through a bit of hey this quorum and significantly again the only due process issue that was raised here before this court it began this alleged error and translation. So the remainder of our position is the remainder of Mr. Torch's claim have not been exhausted. His due process claims, I mean just and I can't have not been properly exhausted. He did raise his motion to reopen an additional due process claim, but at that point, emotional reopen is supposed to be an opportunity to present new facts. Our arguments that we're not, our facts that we're not previously available or obtainable and obviously the content of the immigration proceeding is not a new fact. It's not something that was previously unobtainable and that's not an appropriate, not appropriate avenue for contested, emotionally reopen is not the appropriate avenue for contesting that. So opposition is that the remainder of Mr. Torch's claims, due process claims have not been properly exhausted. Having said that though, Mr. Torch did receive a meaningful opportunity to present his claim, which is the other due process claim that he argued for the reasons that I described earlier. The other issue that he raised in his motion to reopen was. Let me answer you on the assignment claim. Could we have here a dual motive situation that he was found to be credible and he claims, I mean it's sort of his evidence that they harassed him because he was a successful businessman wanted to shake him down. But there's also his claim that they were doing it because he was a homosexual or his political group. So why can't we look at this as like an employment law that there's a dual motive here and they're doing this to him not only for purposes because they could get money from him but also because he's a homosexual. Sure and I can also sort of within the context of the cat claim because the cat claim is based on his experiences in Belarus and the extortion, the efforts of an extortion. Mr

. Torch was not, first of all, Mr. Torch said he did not actively participate in a not position party. If you look at the abundant background material that Mr. Torch and provide, that really is where the Belarus government is involved. They are not particularly tolerant of political opposition groups. But Mr. Torch and was not a member of an opposition group. He represented to the immigration judge with his political opinion was different than the government but that he didn't find a party that meshed with his ideas and so he never joined the political party. The efforts of extortion were not, there's no testimony, there's no record evidence that the efforts of extortion were meant to stop him from believing his political opinion or from joining any political opposition group. The efforts of extortion are, and Mr. Torch and candidly admitted were because he was a successful businessman and he wanted to get money from him. You can look at it either way, you can look at it they were doing it due to because he was a homosexual or because he was a successful businessman or they didn't like his political stripe. It's all a thing in the record, that's why I say you have a dual motive situation here where a reasonable fact finder could say well they did it to him because he was a homosexual and had a girlfriend. We can disagree that the records supports anything other than they wanted to get money from him. But even if there were some evidence in this record that the court could read that way, the standard that would have been had Mr. Torch and challenges asylum and it is the standard for the Georgia claim is that it compels this court to find that there was another motive for the extortion efforts beyond getting money from him. The only time that his sexual orientation comes into play is as a method of getting money from him. That is they threaten to disclose or out him out an effort to get him to ultimately pay the roofs. And Mr. Torch uses the term roof which is we believe significant because the whole purpose of this is to get money from him. So it is in their interest for Mr. Torch and to remain a successful businessman in order to get money from him. But if the court looks at the as I said the volume is background materials, the discussion, the material that relates to political opinion, again deals with people who are active participants in a political opposition group and or have participated in mass demonstrations. Mr. Torch and doesn't fit into either of those categories. Let me grant you that but that doesn't help you with the cat claim. Let me ask you a series of questions in the cat claim and I'm going to ask you to assume that if the cat claim had been litigated, there was substantial evidence under our very differential standard of review. Mr. Torch, let's assume that there was substantial evidence in the record for the IJ and or the BIA to find that this did not rise to the level of Torch. So let's assume that. But what happened here was the BIA explained to us why it denied the motion re-open because he did not make out a prime of phase a case under the cat. And we need to take under chattery, right? We need to take the BIA at its word. And I've got some issues with some of the things the BIA said. For example, the BIA noted that Torch and only alleged quote a fear of corrupt individuals and the conditions of confinement, including the treatment he could potentially receive from fellow inmates. Now if that's true, he loses. But I'm not sure that's true because isn't it a fact that in the record he didn't merely alleged a fear of corrupt individuals but rather he alleged a fear of the government, namely in the form of the KGB? Well, if I could back up for a second, yes, that Mr. Torch and did alleged it was KGB officials that threatened him at the very end in 1996. That does not translate into government action. And the reason for that is, and then the several recent cases that deal with the list of lawyers and sort of make this distinction more apparent. And that is that these are corrupt individuals. But there's a difference between just random criminals or, I mean, this is the arm of the government running the prisons in Belarus. And these are just his allegations. We're not talking about him winning. We're just talking about him getting a chance to press this claim. I think the case would be different. If the record that Mr

. Mr. Torch and doesn't fit into either of those categories. Let me grant you that but that doesn't help you with the cat claim. Let me ask you a series of questions in the cat claim and I'm going to ask you to assume that if the cat claim had been litigated, there was substantial evidence under our very differential standard of review. Mr. Torch, let's assume that there was substantial evidence in the record for the IJ and or the BIA to find that this did not rise to the level of Torch. So let's assume that. But what happened here was the BIA explained to us why it denied the motion re-open because he did not make out a prime of phase a case under the cat. And we need to take under chattery, right? We need to take the BIA at its word. And I've got some issues with some of the things the BIA said. For example, the BIA noted that Torch and only alleged quote a fear of corrupt individuals and the conditions of confinement, including the treatment he could potentially receive from fellow inmates. Now if that's true, he loses. But I'm not sure that's true because isn't it a fact that in the record he didn't merely alleged a fear of corrupt individuals but rather he alleged a fear of the government, namely in the form of the KGB? Well, if I could back up for a second, yes, that Mr. Torch and did alleged it was KGB officials that threatened him at the very end in 1996. That does not translate into government action. And the reason for that is, and then the several recent cases that deal with the list of lawyers and sort of make this distinction more apparent. And that is that these are corrupt individuals. But there's a difference between just random criminals or, I mean, this is the arm of the government running the prisons in Belarus. And these are just his allegations. We're not talking about him winning. We're just talking about him getting a chance to press this claim. I think the case would be different. If the record that Mr. Torch and supply, and I'll finish that thought, the record that Mr. Torch and supply showed that the type of political corruption was so prevalent that the government either wasn't active for a specific end or could have acquiesced into it. But there's nothing in the documentation that Mr. Torch and submitted that shows that political corruption. Well, he doesn't need to show that in the documentation. He needs, as I understand it, he's come forward and I may be wrong in this and help me if I am. He has said, if I'm shipped back to Belarus, these guys are going to throw me in a prison. And he's not arguing about poor prison conditions like we've seen in our goose or the Haiti cases. He's arguing that when he gets shipped back, other inmates under the control of the government will rape him. Why has he not articulated a fear of torture upon being returned to that situation? Well, Mr. Torch and supply comes up in the context of the motion to reopen. So he had to show that there and council secretary currently are reasonable likelihood that he would be able to show that it is more likely than not that he would be tortured. In Concord, it looks at the case in Zubin at there. There was a past experience and then there was background material that supported the show that this was so prevalent that it was sufficient to get past that more likely than not. But that's not what the BIA said. The BIA said is said he's merely challenging conditions of confinement. What I'm suggesting is that he challenged much more than his conditions of confinement. He made specific allegations that he would be raped by the government when he returned to prison. How do you square? I guess what I'm asking is I'm not asking you to tell me whether that's true or credible. I'm asking you, how do you square his allegation with the way the BIA characterized his allegations? With regard to the conditions of confinement, I think what the, and I see my time is almost up, but the conditions of confinement, Mr. Torch and alleged, is that these K-2B agents were going to be able to get prison official, somebody in prison, to rape him and various other things. But the underlying evidence, aside from this blanket statement, did not put it, there's nothing for the board to say, okay, this happens often enough that this really is something that we need to have and then I hear it out. I'm with you on that

. Torch and supply, and I'll finish that thought, the record that Mr. Torch and supply showed that the type of political corruption was so prevalent that the government either wasn't active for a specific end or could have acquiesced into it. But there's nothing in the documentation that Mr. Torch and submitted that shows that political corruption. Well, he doesn't need to show that in the documentation. He needs, as I understand it, he's come forward and I may be wrong in this and help me if I am. He has said, if I'm shipped back to Belarus, these guys are going to throw me in a prison. And he's not arguing about poor prison conditions like we've seen in our goose or the Haiti cases. He's arguing that when he gets shipped back, other inmates under the control of the government will rape him. Why has he not articulated a fear of torture upon being returned to that situation? Well, Mr. Torch and supply comes up in the context of the motion to reopen. So he had to show that there and council secretary currently are reasonable likelihood that he would be able to show that it is more likely than not that he would be tortured. In Concord, it looks at the case in Zubin at there. There was a past experience and then there was background material that supported the show that this was so prevalent that it was sufficient to get past that more likely than not. But that's not what the BIA said. The BIA said is said he's merely challenging conditions of confinement. What I'm suggesting is that he challenged much more than his conditions of confinement. He made specific allegations that he would be raped by the government when he returned to prison. How do you square? I guess what I'm asking is I'm not asking you to tell me whether that's true or credible. I'm asking you, how do you square his allegation with the way the BIA characterized his allegations? With regard to the conditions of confinement, I think what the, and I see my time is almost up, but the conditions of confinement, Mr. Torch and alleged, is that these K-2B agents were going to be able to get prison official, somebody in prison, to rape him and various other things. But the underlying evidence, aside from this blanket statement, did not put it, there's nothing for the board to say, okay, this happens often enough that this really is something that we need to have and then I hear it out. I'm with you on that. The BIA could have said on these facts, we find incredible, but on these facts we don't find that there is a reasonable probability of a likelihood of torture, but instead of saying that, the BIA said he's challenging conditions of confinement. So, aren't we sort of, I guess what I've asked is, it seems like a technicality, but didn't the BIA botch this the way we need to take the BIA, and it's worth, it seems to me that they mischaracterized the record when they said that all he did was claim mistreatment by corrupt individuals and conditions of confinement. The way the Mr. Torch and Raid, if it's not true, we know that Mr. Torch and largely argued in the fact of assistance of counsel, and that the board, first and foremost, addressed that, that it would not have been effective assistance of counsel because Mr. Torch and Raid wouldn't have been prejudiced by that because he didn't articulate a viable cat claim and then describes that it would prevent the court. Raid says Mr. Torch's cat claim and then it says, in the final sentence, reading his motion to reopen broadly because he is opposed to say, we're against, we also, we find that he is not articulated or private face-to-case eligibility for cat protection. So I think my answer in the long way is that the point has to read the board's decision, not just in the context of which the cat came was presented, but the entirely of its language, and the thought process of it to now offers, where it starts the effective assistance of counsel, and it says, okay, even if you're alleging that cat claim, be on the effective assistance of counsel, we find that you don't, you're not, you haven't provided us enough with common-facial evidence for you to go forward and you open the process. But the proceedings, the pursuant cat claim. Why is it a private face-to-case that it's believable? He's not adversely credible. That the government agents threaten him with execution and they actually killed someone in his presence to make that a known fact. And there's nothing to the contrary and he's found credible. And that they threaten that if they don't adhere to his, to the agents desires, he's going to serve the same fate. Why would that be a prime of face-to-case of cat? It would be a classical example of cat if it's uncontested. Well, kind of different than asylum withholding. Even if Mr. Torchin had shown that that incident amounts to torture, past torture is not. It does not give rise to the presumption that you get. Right, it doesn't create a presumption of likelihood of future torture. Why not? Why not? It's the way the regulations, the regulations that were prepared. Which means that without presumption he has to show more. He can't simply rely on the person

. The BIA could have said on these facts, we find incredible, but on these facts we don't find that there is a reasonable probability of a likelihood of torture, but instead of saying that, the BIA said he's challenging conditions of confinement. So, aren't we sort of, I guess what I've asked is, it seems like a technicality, but didn't the BIA botch this the way we need to take the BIA, and it's worth, it seems to me that they mischaracterized the record when they said that all he did was claim mistreatment by corrupt individuals and conditions of confinement. The way the Mr. Torch and Raid, if it's not true, we know that Mr. Torch and largely argued in the fact of assistance of counsel, and that the board, first and foremost, addressed that, that it would not have been effective assistance of counsel because Mr. Torch and Raid wouldn't have been prejudiced by that because he didn't articulate a viable cat claim and then describes that it would prevent the court. Raid says Mr. Torch's cat claim and then it says, in the final sentence, reading his motion to reopen broadly because he is opposed to say, we're against, we also, we find that he is not articulated or private face-to-case eligibility for cat protection. So I think my answer in the long way is that the point has to read the board's decision, not just in the context of which the cat came was presented, but the entirely of its language, and the thought process of it to now offers, where it starts the effective assistance of counsel, and it says, okay, even if you're alleging that cat claim, be on the effective assistance of counsel, we find that you don't, you're not, you haven't provided us enough with common-facial evidence for you to go forward and you open the process. But the proceedings, the pursuant cat claim. Why is it a private face-to-case that it's believable? He's not adversely credible. That the government agents threaten him with execution and they actually killed someone in his presence to make that a known fact. And there's nothing to the contrary and he's found credible. And that they threaten that if they don't adhere to his, to the agents desires, he's going to serve the same fate. Why would that be a prime of face-to-case of cat? It would be a classical example of cat if it's uncontested. Well, kind of different than asylum withholding. Even if Mr. Torchin had shown that that incident amounts to torture, past torture is not. It does not give rise to the presumption that you get. Right, it doesn't create a presumption of likelihood of future torture. Why not? Why not? It's the way the regulations, the regulations that were prepared. Which means that without presumption he has to show more. He can't simply rely on the person. But why does it have that here? He is demonstrated and he's found to be credible that he threatened if he doesn't adhere to certain cause of conduct, which is illegal, that he will be executed just like I'll show you here. Well, I'm going to kill this guy right over here. Well, again, even if that arose to past torture, he has to show a perspective that there's a likelihood. And the way the court have looked at that, the way the board has looked at that, is to look at the background materials, the country report, as it didn't zoom it up, where it showed that rape was prevalent. And that is what allowed the court to say, okay, there is a likelihood of a likelihood. It's perspective. That type of information and not President of Mr. Torchin's claim. But it's happened in the past. He's found credible that they did this in the past and his presence in a threatening way to him. And this is not future. This has happened in the past and could it be assumed that it's going to happen to him if he's returned? And it's uncontested. We can't just assume Mr. Torchin had to show that there is a reasonable problem, but a medical likelihood that it was more likely that it was made by the court. That's some way. I mean, the point of Judge Collins' question, even in the absence of a presumption, you've still got evidence that a fact finder needs to consider, and from which you might derive some predictive value as to something that might happen into the future, right? I mean, that's consistent with your position, that what has to be done is show in the future what would likely occur. Right. And the board certainly considers past torture. It doesn't, it doesn't, any of itself is not sufficient to show a likelihood of future torture. And again, the record here doesn't. The only thing I have on that is that this happened in the past. It's credible. They threatened in the past with certain, with this, with being killed

. But why does it have that here? He is demonstrated and he's found to be credible that he threatened if he doesn't adhere to certain cause of conduct, which is illegal, that he will be executed just like I'll show you here. Well, I'm going to kill this guy right over here. Well, again, even if that arose to past torture, he has to show a perspective that there's a likelihood. And the way the court have looked at that, the way the board has looked at that, is to look at the background materials, the country report, as it didn't zoom it up, where it showed that rape was prevalent. And that is what allowed the court to say, okay, there is a likelihood of a likelihood. It's perspective. That type of information and not President of Mr. Torchin's claim. But it's happened in the past. He's found credible that they did this in the past and his presence in a threatening way to him. And this is not future. This has happened in the past and could it be assumed that it's going to happen to him if he's returned? And it's uncontested. We can't just assume Mr. Torchin had to show that there is a reasonable problem, but a medical likelihood that it was more likely that it was made by the court. That's some way. I mean, the point of Judge Collins' question, even in the absence of a presumption, you've still got evidence that a fact finder needs to consider, and from which you might derive some predictive value as to something that might happen into the future, right? I mean, that's consistent with your position, that what has to be done is show in the future what would likely occur. Right. And the board certainly considers past torture. It doesn't, it doesn't, any of itself is not sufficient to show a likelihood of future torture. And again, the record here doesn't. The only thing I have on that is that this happened in the past. It's credible. They threatened in the past with certain, with this, with being killed. And you say that's not a prime of the case sufficient to at least go to a hearing, that if they return me, it will be happy to be again. No, that's not possible. If anything that's evidence of past torture, he has to show perspective. Again, Mr. Torchin, for example. Well, if it happened, if it's happened in the past, there's a presumption it will happen in the future. No, it's not. It's worth having a different data style in my withholding. That's not creating a presumption. Well, why can't it be, if there's nothing to the contrary, why does he have to prove that it's definitely going to happen if they return me? Well, I have to say that I don't know if there was nothing to the contrary. Again, Mr. Torchin provided a live documentation. One of which was from the organization. Council isn't the point that it remains his burden, as opposed to an asylum claim, for example, where you do get the benefit of the presumption. The practical effect of a presumption is it shifts the burden of going forward with evidence. That's not what would exist here in the CAD claim. So, Mr. Torchin continues to have to carry the ball in terms of being able to show that prompt. What else does he need to show? He's got the contrary reports where torture is a definite possibility if it's returned. Well, you know, we would disagree with that. If the court looks at that, but any different amount of documentation, there is documentation that deals with his homosexual orientation. And there is ample evidence that there is discrimination. But that doesn't amount to torture

. And you say that's not a prime of the case sufficient to at least go to a hearing, that if they return me, it will be happy to be again. No, that's not possible. If anything that's evidence of past torture, he has to show perspective. Again, Mr. Torchin, for example. Well, if it happened, if it's happened in the past, there's a presumption it will happen in the future. No, it's not. It's worth having a different data style in my withholding. That's not creating a presumption. Well, why can't it be, if there's nothing to the contrary, why does he have to prove that it's definitely going to happen if they return me? Well, I have to say that I don't know if there was nothing to the contrary. Again, Mr. Torchin provided a live documentation. One of which was from the organization. Council isn't the point that it remains his burden, as opposed to an asylum claim, for example, where you do get the benefit of the presumption. The practical effect of a presumption is it shifts the burden of going forward with evidence. That's not what would exist here in the CAD claim. So, Mr. Torchin continues to have to carry the ball in terms of being able to show that prompt. What else does he need to show? He's got the contrary reports where torture is a definite possibility if it's returned. Well, you know, we would disagree with that. If the court looks at that, but any different amount of documentation, there is documentation that deals with his homosexual orientation. And there is ample evidence that there is discrimination. But that doesn't amount to torture. There is a section that deals with the treatment of business entrepreneurs. And it's a close to poverty and there's serious bureaucracy that businessmen have to go through. But that doesn't amount to torture. And you get it earlier, the government is not particularly fond of political opponents. But Mr. Torchin doesn't feel to that category either. And I guess when we back up in a second and say this courtedly actually also dealt with death threats. And this was in the context of past persecution. It says for past persecution it has to be highly imminent and menacing in nature in order to constitute persecution. Torture, of course, is well above that. It has to be an extreme form of cool and inhumane treatment. So I think Mr. Torchin fails in both regards. One in which he didn't alleged conduct that was sufficiently severe. And the background material that he's looking at. Look at being worse than being that and not going to blow your head off. The court has generally found that death threats did not even necessarily rise in level persecution. No, no, we're not getting any persecution here. We're getting a cat. Didn't we hold the rape constitutes torture or can cause torture? You didn't do that. And there there was ample background material that showed that it was prevalent. And it happened to her. But that's my point

. There is a section that deals with the treatment of business entrepreneurs. And it's a close to poverty and there's serious bureaucracy that businessmen have to go through. But that doesn't amount to torture. And you get it earlier, the government is not particularly fond of political opponents. But Mr. Torchin doesn't feel to that category either. And I guess when we back up in a second and say this courtedly actually also dealt with death threats. And this was in the context of past persecution. It says for past persecution it has to be highly imminent and menacing in nature in order to constitute persecution. Torture, of course, is well above that. It has to be an extreme form of cool and inhumane treatment. So I think Mr. Torchin fails in both regards. One in which he didn't alleged conduct that was sufficiently severe. And the background material that he's looking at. Look at being worse than being that and not going to blow your head off. The court has generally found that death threats did not even necessarily rise in level persecution. No, no, we're not getting any persecution here. We're getting a cat. Didn't we hold the rape constitutes torture or can cause torture? You didn't do that. And there there was ample background material that showed that it was prevalent. And it happened to her. But that's my point. It doesn't this gentleman deserve a hearing so that he can try to prove that. All we're saying is all I'm suggesting here is that he have an opportunity to say that under the Zubei, or what we call Zubina, I can win my case. And the reason I'm entitled to reopen is because I'm not merely challenging my conditions of confinement like an Auguste challenge. I'm making very specific allegations about what is likely to happen to me if I am returned to Belarus. Give me that opportunity to prove up that case. Mr. Torchins had claimed came up in the context of emotion development, which are just the same. And it was his burden to present evidence sufficient for the board to find that it was worthwhile to go forward. And if the board had said your evidence is insufficient, you lose. I'm with you. But the board didn't say that. The board said you merely are challenging conditions of confinement. And I'm looking at this record saying, wait a minute, he didn't challenge conditions of confinement. And again, we believe that the court has to read the board's sufficient, both in the context of which it was presented, and the telling of its analysis, which also involves, it also has an effective assistance of council claim, which is how he initially raised his cap claim. Okay. So for those reasons and reasons we step up and are being acquiesced the court sustained the decisions of the board. Thank you. Thank you. Roboto, Ms. Schweitzer. Thank you, Your Honours. Ms. Mosque just indicated that in general motions to reopen are disfavored

. It doesn't this gentleman deserve a hearing so that he can try to prove that. All we're saying is all I'm suggesting here is that he have an opportunity to say that under the Zubei, or what we call Zubina, I can win my case. And the reason I'm entitled to reopen is because I'm not merely challenging my conditions of confinement like an Auguste challenge. I'm making very specific allegations about what is likely to happen to me if I am returned to Belarus. Give me that opportunity to prove up that case. Mr. Torchins had claimed came up in the context of emotion development, which are just the same. And it was his burden to present evidence sufficient for the board to find that it was worthwhile to go forward. And if the board had said your evidence is insufficient, you lose. I'm with you. But the board didn't say that. The board said you merely are challenging conditions of confinement. And I'm looking at this record saying, wait a minute, he didn't challenge conditions of confinement. And again, we believe that the court has to read the board's sufficient, both in the context of which it was presented, and the telling of its analysis, which also involves, it also has an effective assistance of council claim, which is how he initially raised his cap claim. Okay. So for those reasons and reasons we step up and are being acquiesced the court sustained the decisions of the board. Thank you. Thank you. Roboto, Ms. Schweitzer. Thank you, Your Honours. Ms. Mosque just indicated that in general motions to reopen are disfavored. And we're mindful of the fact that in an immigration context, courts do not want to give immigrants, you know, and the second serve forth by the act will to prove their claims. But that's not what's happening here. Mr. Torch and his motion to reopen was about getting a first real bite at the apple, about getting a chance to add a bit of a full hearing to show that the past torture he had alleged and the future torture that he feared made it more likely than not that he would be tortured upon his return to the bonus. So that's really what it's about is that she did show enough. Yes, there's no presumption based on the past torture, but it's certainly relevant. And as Judge Cowan said, it's a very severe death threat. And unlike cases where there's just a threat, this was medicine. This was severe because it happened imminently after the brutal grotesque death of an unknown man. So it was not just cornering someone in a hallway and saying, we're going to kill you. It was, you know, look at what we do to people. And this is what we're going to do to you. We believe that that makes it more than just a death threat and it rises to the level of torture. So, of course, you know, they make clear they weren't threatening him directly. They said they were going to hurt his loved ones or people close. Right. And under the regulations, I believe that torture is, you know, a prolonged mental stress or pain at the imminent death of another with the bodyguard qualifying as the other. And this is just... I may be asking you to prove a negative and I apologize if I am, but you're..

. And we're mindful of the fact that in an immigration context, courts do not want to give immigrants, you know, and the second serve forth by the act will to prove their claims. But that's not what's happening here. Mr. Torch and his motion to reopen was about getting a first real bite at the apple, about getting a chance to add a bit of a full hearing to show that the past torture he had alleged and the future torture that he feared made it more likely than not that he would be tortured upon his return to the bonus. So that's really what it's about is that she did show enough. Yes, there's no presumption based on the past torture, but it's certainly relevant. And as Judge Cowan said, it's a very severe death threat. And unlike cases where there's just a threat, this was medicine. This was severe because it happened imminently after the brutal grotesque death of an unknown man. So it was not just cornering someone in a hallway and saying, we're going to kill you. It was, you know, look at what we do to people. And this is what we're going to do to you. We believe that that makes it more than just a death threat and it rises to the level of torture. So, of course, you know, they make clear they weren't threatening him directly. They said they were going to hurt his loved ones or people close. Right. And under the regulations, I believe that torture is, you know, a prolonged mental stress or pain at the imminent death of another with the bodyguard qualifying as the other. And this is just... I may be asking you to prove a negative and I apologize if I am, but you're... Opposing Council is suggesting that I'm taking these quotations that I've given her about the BIA's analysis with respect to conditions of confinement and corrupt individuals and not reading them holistically. Can you address that? Can you explain or prove that that is in fact the sole basis of the BIA's decision or is that something that we have... You can only suggest inferentially. Right. I think that the latter is true, is that we have nothing more to go on. There was really, you know, very little insight into what had been considered, you know, there was no mention of you alleged this past torture, this incident in the woods. And this doesn't even rise to the level of torture, essentially, you know, to shooting down the best evidence. We really have no indication as to what was considered. And the only pronouncements we do have don't seem to square with the record. We would agree with you that it's not just conditions of confinement as with the cases of Haiti that there's a specific direction, this use of press camera, direct government involvement, you know, repeated rape and abuse which surely rise to the level of torture. There's just no indication that, you know, that that was even considered, you know, not to shoot down. And if the agency had made an adverse credibility determination, or the agency took all this bundle of facts and said, in my view, it doesn't rise to the level of torture, you would have to climb that mountain of showing substantial evidence. But as I understand you, Hargan, you're not saying that here you're saying that it was an abuse of discretion from the BIA to mischaracterize the record in the fashion that it did. Right. Both with respect to the point about no corrupt individuals and the point about just mere conditions of confinement, that neither squares with the record. And, you know, with little else to go on, I mean, that's all that there is. You know, we don't get any other insight into what was going on just these mischaracterizations. We have nothing further. Thank you. Thank you very much. We thank Council for their very awful arguments in this matter

. And we also know the nature of representation often was a torsion for which we thank Council. That concludes the arguments for this morning. I have to reappear this afternoon and I'll ask the clerk to close quick. All right. This question will be recessed on the work