counsel with respect to the cat claim the correct legal standard requires that i j to consider all evidence relevant to the possibility of future torture here is that i j discounted the bulk of the evidence and rely exclusively on a single sentence in the profile on asylum claims which states that unless the parent was a particularly prominent supporter of the government family members are not likely to suffer persecution faced on a cancellation should the i j a completely fail to consider how other factors such as mr de credible testimony regarding his political opinion and general country conditions would affect the likelihood of torture and come out as this court has held that such country conditions alone can establish a claim failed to address the length of mr denning sentence which was only meant six months as required under a matter of protest protest you that the i j a failed to address whether the circumstances of the crime indicate that he's a danger to the community community and that  considering the danger to the community factor well that factor pertains more to the actual circumstances of the crime that i do still has to look that might be one of the issues that the i j could take into account but that certainly d to reexamine whether he should have been convicted or not but even the statements in the police report that supported the conviction do not are not consistent with what the i j a stated as the facts of the crime so even if we ignore mr thanks testimony that he didn't do it and just look at the facts which he was convicted they do not match up to the fact that the i j a states and his decision so the i g clearly misrepresented the facts supporting this conviction and that's a failure to apply the factors furthermore m he didn't apply these very critical factors and that in itself should have been you know the basis of an appeal in addition you know it's supposed to you was well that well that there is prejudice your honor because like i said the i j fell to apply the correct legal standard his attorney could not have been sure that the board would agree the attorney's job is to resolve all ambiguity in favor of his client not to assume that the board will rule against his client i mean this is a case where show that you know he would clearly win on these claims we just have to show that there were possible grounds that his claim would have succeeded and not just in the past but i will claim that you felt there is clearly a viable claim here because for the reasons i just  harassment how do retroactive a fact when applied to conduct that occurred before the passage of that law in footnote thirty five of land graft the court specifically recognizes that quote unfair concerns of unfair surprise and upsetting expectations are because they don't need to show that they would not have committed the crime i mean that whole line of reasoning is told ok let me quote another source in that and and that may well be and may be absurd but that's not the reasoning that applies that reasoning is based on  international arguments were never made so if there was additional this isn't in this court and i don't know what exact arguments were made in that case but if that decision didn't cover all of the arguments that mr daniels is making are could make and then it would not it should not deter  with respect to the ineffective assistance of counsel claim in the petitioners brief they really led with this refugee theory and to me this was really interesting because i've never quite seen a case like this where an argument was made that coun ineffective because he didn't think of a theory of law and i did my best to research if i couldn't find a case that really dealt with this squarely and so that's why i wrote our brief by suggesting to you that when you when you measure this kind of ineffectiveness perhaps the standard ought to be well what guidance do counsel have if the standard is to be that counsel is ineffective because he didn't think of a theory that some other lawyer coming along there actually was a case because i wrote represented the alien because that's really i mean to me that the question here is really a far a phrase from a different context what did mr caudle you know and when did you know it and if he is if council is to be held in effect is or not making an argument that even if someone applies you want to i confess i wasn't familiar with that one certainly there was no board or judicial precedent which said that this theory holds up that if someone is admitted to the united states as a refugee you may not put him in removal proceedings until you terminate refugee status nobody had ever held that and now we are getting circuit court wants someone to have held that that's not the question  that's the question and frankly when i read when i researched this case i didn't know the answer i still don't know the house and contrary there that's right that's right so what's wrong with saying that's not something that should have been resolved well that in that the whole new standard for ineffective assistance of counsel claims and i urge you not to do it those of us who deal with these issues and certainly this court deals with them and my office deals with them effective assistance of counsel claims is assist cottage industry and immigration appeals if you have nothing else to play you play that card and sometimes certainly the claim is justified the charge is justified but not this time not on these theories and certainly not on the refugee theory are we now to say th counsel to be effective and the supreme court has instructed us the standard is objective reason wallace and you have to measure counsel's performance at the time he entered you have to put yourself in counsel shoes it doesn't matter what you might think of the refugee theory doesn't matter whether you like it whether you think it's reasonable whether you think it is a right result that's not the standard the standard is what was with counsel so only pillitteri is in his duty in his representation of his client in failing to make an argument that no judicial body at the judicial level of the administrative body had blessed and we are suggesting to you that ought to be the answer ought to be no with respect to two twelve c well we have here a situation where the where the that killed his two twelve's the chances that's consistent with the law of the circuit the theory that he mr denning is intitled to rely on the availability of su section two twelve c relief at the time he committed his crime it's it's so it's a that's a two level question your honor was not in our very first of all mr coughlan explained to the board that i made a judgment call he said i could see that the the immigration judge was really irritated by the fact that mr dunn continued to deny that he before your honor and in your conversation with my colleague the word prejudice well that's the second half of this question because if the board if the if the if the if mr coughlan had taken the issue up before the board convention against torture and the point we make in our brief is that his case for protection and withholding was so weak that there was no ultimate practical prejudice this it upon mr dying as a result of his lawyers fail that if you got a board decision reversing the immigration judge on the finding of whether his crime was particularly serious he was no longer barred from pursuing withholding of removal to vietnam and can't protection it's the form of relief that he's focusing on now not se one where the representation is just poor in which case we say there you have to demonstrate that there is some likelihood of success and the other is where the issue is just not raised at all it's just not there and which we say possible right  question you're saying there was no precious time but because of the particularly serious crime issue which was a barrier to life and but i'm going to project that it was just so u i think that i think that your analysis allows you to look at that because ultimately you do have to make a determination of whether the immigration judges or the i'm sorry the lawyers allegedly deficient performance visited a prejudice upon the petitioner and i think you can look at the full record after you got through that particular scenario not just a judgment call then i think you'd be right but there's no barrier here i mean it's just a question of going through the facts and the question is is the entitled to have somebody do that well is the question is was the the mr dunn got a good hearing the question is you know can the courts second guess and attorneys judgment call to the point of saying this was ineffective that if you had taken it up who knows the board might have gotten might have given you the prejudice and it's not just presence because a large didn't make the argument to the board the issue is given the particular way this finding by the immigration judge which was not taken to the board operates with respect to the kinds of relief that key what kind of relief was he seeking and here is withholding of removal and protection of the cat and our argument to you is that when you look at the evidence that he wanted to put on if he had gotten his chance the evidence is so weak that there's no reason for you to