intervening ninth circuit case strada for the particular reason that although we did not make that or make the argument that he had no aggravated felony that issue was raised with the board of immigration appeals in january of two thousand and six when we filed the opening brief case one in one turkey it was very negative against any argument that my client's california penal code section two sixty one point five three convictions were not aggravated felonies as the court is aware at that time that there are precedents indicating that the court was not would not look to the fact that the federal criminal crime statute reason or cases that explain it's not so much that there was a change in the law it would be different if but if congress simply passed a new law and has another type of relief that wasn't available it's in the fore but this was simply the ninth circuit changed its interpretation of the aggravated felony definition that has been around and that was interpreted incorrectly by the board of immigration appears there and the second exception typically is when there's no prejudice and i've usually we would offer to provide a supplemental briefing schedule that pleases the court but you are correct that that the ninth circuit appeal and also a separate motion to reopen with before with respect to the thirty six individuals that they were tortured or were seems to receive some other amounts for you know we did not we were not able to get that evidence your honor ok so i guess what you're asking us to do today is one  consider a straw to perhaps remand of the board if we deem it and to i think we understand your argument on the convention against torture and unless you have something to add to that we take of course we start with a presumption of past persecution  good morning your honor please the court i'm kind of i'm working on behalf of the respondent the u s attorney general i'd like to begin with addressing the petitioners twenty eight day letter it's well settled in this court that arguments that are not raised in the opening brief are deemed way and i would say this last minute addressing of the movability is inappropriate at this time if the court however feels that it needs to address the in footnote twelve that it is not addressing the statute at issue in this case the subsection the which is where the actor is aged twenty one or about and the victim is under age sixteen so only welcome to file such a motion i would urge this court that if you do find you need to address at the present moment the a put the billy of the stata as the no the that you would consider remanding to the board that would seem an appropriate action as there's been petitioner was actually ordered removed based on two different grounds not only his sexual abuse of a minor convictions but also he was ordered removed based on two crimes involving moral turpitude which he hasn't challenged below and and isn't presently challenging that would be a hurdle he would have to get over in order to be found not removable i would say only that at this point if the court was going to go forward as to the merits of the sole issue he raised in his opening brief before the court is whether or not he's entitled to withholding of removal and protection under the convention against torture he does raise an issue that under withholding of removal there was no explicit finding regarding past persecution and that's correct the i j a wasn't explicit in finding that the petitioner had suffered past persecution but it's the government's position that even if he had done so it's clear that the evidence in the record but that's past persecution presumption that might apply because there's been a fundamental change of past persecution presumption applies i think that's kind of where we start in this case and seems to me that's the case then revolves around change country conditions their best argument is look everybody is sent back to cambodia has been mediately imprison honey responded that well imprisonment doesn't equal persecution or torture the country report says that the thirty six members who were repatriated to cambodia were detained for up to several weeks that report doesn't say that they were physically harmed or mentally harmed and anyway so it doesn't establish the fact that they were detained doesn't establish that they were either persecuted or tortured it's a rather high bar and an extreme concept in detention alone doesn't establish either persecution or torture no it doesn't doesn't rule it out either i mean it's one of those things for immediate release raises a red flag  subsequent sentences following the observation that these people were detained which said that they were all released and that their rights were subsequently respected and that they were in fact  apparently their efforts to reintegrate into cambodian society were well recognized or not interfered with so given those two different statements they were detained but they were all released i think the immigration judge reasonably found that the standard for torture must be more likely than not and it wasn't more likely than not it was maybe somewhat likely and as to torture the records simply didn't show that anyone was it might be that the government thought that karma rouge people were returning and wanted to investigate and make sure they work on the rouge and when they found they were and they let it go work but there's nothing in the record about that now i'm unaware of anything in the record about that certainly you you would think in the case of the petitioner who was a refugee and his parents were apparently mistreated by the commers that the government  would hold no grudge against him and in fact probably would look upon him favorably that his parents oppose the same group that the current government imposes to the records contain the memorandum of understanding between cambodian united states honor if i could first address the motion to reopen issue as you as you know normally there is a time bar issue whenever a motion to reopen this buyout ninety days beyond ninety days after the the only exception to that is when there is a substantial change in the law and it's a very great area great great issue the last time that i'm aware of that would be a actually has published decisions on allowing that was such a widespread change that the v i x have to late late motions my point one reason why we've hesitate to file motion to reopen at this point is that i suspect that the government will  of aggravated found were i would say we're not challenging the removal based on some of his convictions and but i also point out that there is a nice circuit case that indicated that two t percent or higher but the question is if there's past torture and past persecution we believe that the burden shifts to the government and is not enough if there is a silence on the issue of whether these thirty six out of thirty six people were detained if it's violen