good morning hours may please the court my name is morgan russell for the petitioner rajkumar before getting into the kind of media issue of the nexus as to asylum i wanted to just mention on his cat cla before i forget at the end the government has acknowledged that the agency below made no finding as to past torture and as this court has said repeatedly including more recently  in two thousand and fifteen that is the principal factor on which the agency should rely in making a cat determination so i think that at the very least this should go back to the agency for that i j to make a finding one way or another as to whether mr kumar suffered past torture as a starting point for a proper cat analysis are we talking about the romero issue or no talking about that's that says to withholding i'm talking about right now convention against torture the third claim was there evidence there was anything or somewhat rough treatment at the hands of police work well i think rough treatment is an understatement he was beat repeatedly well and attention to the point of the first one left him hospitalized for three days he's also been on the soles of the feet which is recognized torture method but again that because the agency didn't make a finding one way or another and that's the starting point for this analysis i think it should go back and forth in addition to the other errors sort of misrepresentations of the record as to the passage of time and lack of interest in him currently i think it should go back for a cat for those reasons well we're talking about fourteen years so we're not well know that it was only the year prior to the hearing that his wife reported that the police in december two thousand and thirteen had still come and still been threatening to kill him upon his return so when i just said that there was no indication that anyone was interested in torturing him that's that's simply not true just six months are the places that they would kill him if they if they found him back in india ok and going back to your very first statement did i understand you to say that the government agrees well they acknowledge in their brief that there is no finding on the issue of past torture which is a part of the torture analysis and which this court has called the principal factor in the starting point for that analysis as to the brass issue the second claim withholding the parties do agree that at the very least this case has to go back for a new analysis years after dean of the ashcraft this court held that evidence that an applicant had been persecuted quote as a result of the german cashmere police's mistaken belief that he was associated with a muslim terrorist group compelled the court to rule that he had suffered persecution on the basis of an imputed political opinion this rustler i'm having difficulty understanding if there's a difference between a terrorist and a political militant  political opinion in the know it was just the opposite if he was a criminal he was a criminal and just because the politics are changed that made no difference let me ask you associated with a terrorist group or any kind of political terrorist group he had been a soldier in the pre revolutionary government and there is no us no indication that no allegation even associated with the political terror group well i think we don't normally talk about terrorism as being committed by a legitimate government and it was for the legitimate government at the time and he was following orders i think those are things that would be considered work crimes rather than terrorism well the example the distinction though in  government why doesn't india have a perfectly legitimate interest in rooting out the kashmiri separatists well everything question really isn't isn't whether it's a the legitimacy of the investigation  specific lee referring to that do you know quote applies only to cases in which the applicant both one is the subject of a legitimate law enforcement investigation and two offers no direct or indirect evidence th subjected to harsh treatment because of a protected ground and saying also were repeatedly held that persecution due to the mistaken belief that an individual is a terrorist or associated with a terrorist group is persecution on account of an imputed political opinion  that holding is directly on point the agency below and the government here the only real distinction they can try to draw from seeing and also kumar which is directly on point from two thousand and six but the only thing they point to and saying is that there are the police used these words describing the applicant as quote a traitor and said he was quote working against the government by helping and identified kashmir a terrorist i think that's i think that's not right in a couple of different ways so first the single court repeatedly used sort of the characterization of mistaken belief the individual as a terrorist or associated with terrorist interchangeably with this for ulation of working against the government and i think that makes sense because they're one and the same thing here we have precisely the same allegations of treason and working against the government in slightly differently we don't have the to thirty four and to thirty six shows it is quote primarily committed to destroying india that its primary objective is the liberation of kashmir and the destruction of india so to accuse an indian citizen of aiding and joining a terror group committed to the destruction of india is very literally to accuse that person of being a traitor and of working against the government the substantive allegation is exactly the same as in seeing and the activities of which the applicant was accused hiding information about the terrorists association of the terrorists based on one relationship with a suspected terrorist or exactly the same  i really do think that this case is on all fours with singh and also with him are for those reasons i would also point the court to footnote seven and saying that seven sixty four a third at eleven sixty two no seven responding to the dissent in that case which i think is really the very same reasoning that the i j a gave here in the government pressures before this court that to the extent that dissent makes the extraordinary claim that the police could not have imputed a political opinion to sing because interrogated him for information about karr on the suspected terrorist such a claim is flatly at odds with our president the court and sided kumar as quote finding a nexus to impute a political opinion in a case in which the police told the petitioner that he quote would be killed if he did not disclose the and is a muslim terrorists trying to for your distinctions assume that if the police turn out to be mistaken that undermines the legitimacy of the investigation and turns what would seem to me behalf of the united states in this case substantial evidence from the record supports the agency's conclusion that position or did not show that the police targeted him into the two thousand and four beating he received by the police in india on account of an imputed political opinion the primary issue in this case is really the distinction between saying and the demure cases the court was discussing earlier the  most important distinction between this case and the same case is in the same court relied primarily on statements that he put the police made to sing during the  the incarceration of singh and what they relied on was the was saying stay the police's statements to saying that he was a traitor and that he was working against the government and those are the two thin that's the primary factor that the court relied on and saying and as well as the hugh case where they looked to what the police said and they consider that to be direct evidence of imputed political pain in this case you don't have that direct evidence which you have in this case is you have which is also different from saying you have a situation where the police not only don't refer to the petitioner as a traitor but instead they actually  him in their investigation to find the individual that the petitioner had as a tenant mr cleaver and that's an fact exactly what they said to him they said we're going to release you from incarceration now we we can we can agree that the tactics that were used by the police in india were important but that doesn't change the legitimacy of their investigation to find a terrorist and that's essentially what we can look to what the police did in this case which is different from saying is that they said they said to the petitioner we're going to release you in order to go find mr khaliq this individual that you had as a tenant in your in your home would you please tell us your view of the colleague the tenant of the petitioner we don't know what his political opinion where we do know that the police were seeking him because they believe he was a member of this terrorist group that's what the investigation was so we know he was a member of the the person that they believe him the tenant not mr not mr kumar but the tenant mr cleared that they believed that individual was a member of was a terrorist group we can agree with that there's no problem with that and that's what  to not only terrorist group a terrorist group with a political opinion i believe they were that group was intent on overthrowing the government of india that was the kashmiri the terrorist group did have political opinion you know is there any terrorist group you can identify that doesn't have a look that's absolutely our point your honor is that if if if the only distinction here is whether or not the the investigation against the tenant was a that's a geisha of a political opinion we don't really know that because we don't know exactly what mr cleves political opinion was we're just asking the question was any political opinion imputed to the petition in this case and based on just the actions of the police and the investigation we argue that that's not enough under the geneva case to say that that was in the any political opinion of mr cleaver was imputed to the petitioner in this case let's say that we were to conclude that sitting in dinner were absolute loggerheads with one another what is the most meaningful distinction you can point to and if you can what should we do about it if you're asking me or if if it's even an absolute conflict between the new n sync i think the primary issue is the question of what constitutes direct evidence first well is there the first question that you have to ask in the new is there a legitimate investigation and you can't get past whether there was political opinion that was imputed until you get to that question if there is a legitimate investigation here which petitioners counsel argues there's no legitimate investigation here and realized primarily on the argument that the sort of the tactics and the nature of the nasty geisha was not legitimate but that's not what we're looking at we're looking at do the police in this case have a legitimate investigative purpose for taking mr taking the petition in this case in the custody and looking into what his contacts were if more importantly if he can assist them in finding mr colleague the suspected terrorist that's with that to me is the simply said yeah it makes sense that if the romanian people were looking for individuals who had killed innocent civilians that they would conduct an investigation and i was swept into that although by mistake but that's actually no different than the case right here with with the petitioner if the certainly the the indian government has a legitimate purpose to seek out people that are tempting to overthrow the government and are attempting to commit acts of terrorism as this group had done only  we've designated as a terrorist organization yes yes i absolutely and we don't we don't dispute that the organization they believe mr cleaver was a member of which was the petitioners tenant we don't just feel that that individual was suspected of being a member of an actual terrorist organization and i think going back to the difference between the new and seeing the only the only information that's really different is that in the same case the court zeroed in on language that was spoken by the police which was this individual's a traitor this individual is against the government and you don't have the same exact statements in this case the only statement i'm sorry i'm something i should have different from what the board found which was first of all that this was a legitimate investigation that the police were conducting in india and to that there's no evidence that indicates that the police had interested in your response to mr russell's observations on the cap claim particularly the absence of a finding yes i'll just at this point the agency in this case when they made their catch terminations focus primarily on two factors one the passage of time from when these events occurred two to now the beatings that were in the incarceration of the petitioners case occurred in two thousand and four on two occasions before he left in departed to go to canada that's the first issue this is been a long time now it's true that the petitioner presented evidence that in two thousand and thirteen his one wife who still resides in india i believe has four children was approached by the police who were still seeking khaleesi and made threats to petition wife now it's true that the they did say we're looking for your husband supposedly and we're going to kill him if we find him but the court found that that was a tin you had enough from the the date that they consider this issue from two thousand and thirteen and you're still talking five years and in addition the board also the board and the immigration judge relied on the fact that petition in this case could also because he only was having there's no response to the argument that certainly that's one region of india and there's no indication whatsoever that petitioner couldn't relocate in a different region in which he would not face trouble from the police in this case i wrote a time to i think the first two to judge bears question about the standard of review so one thing is that i do think that even under the substantial evidence standard sort of looking at this is a factual issue and whether that evidence weaker here as to sort of more general allegations of association with a terrorist group in saying you know the government again says we don't have these kind of magic words traitor working against the government i still think that those are substantively the very same as the allegations here and in both those cases the court held that record compelled the conclusion that the nexus was established here that i also think there is a legal error not engage with those distinctions from d n a that this court drew instead sort of blue by saying you know i think incorrectly that the only kind of you have to have these magic words of traitor or working at the government  i think that's not right i think in response to what your honor mentioned that you know what we mean by terrorism all terrorist groups have a political opinion i think that that is sort of the background notion that informs the key distinction and saying that comes from kumar that mistaken belief of association with a terrorist group is an appeal to political opinion unlike other kinds of sort of nonpolitical the persecution arising the fact the police are with they can be approached to make to be a person or does a judge reviewing the case have to make his or her own determination as to whether the police actually were acting legitimately or not i think certainly seeing following tomorrow holds that the mistaken belief that someone's a terrorist is imputed political opinion i think that probably persecution that was you know i don't think i said this but it seems like perhaps persecution that was motivated by a correct belief that someone as a terrorist would also be on account of that terrorists political opinion that person would be barred from asylum because of their terrorist activity though under the terrorism bars to asylum they could maybe get cat protection if they would be tortured because of those things in their own country so ultimately the american court really gets drawn into trying to make judgments legitimacy of not only police but also the methods of the use to accomplish them i don't think you know i know that our opening brief talked about the genesee i think that's a bit of a red herring here i think you know the legitimacy of investigation is sort of a side the point under saying the question is was the motive because of the belief mistaken belief that the person was a terrorist and we had exactly that here and so i your point is that all terrorists are politicians well i think that was judge stone's this point my point is that at least here we know that this group was and i think that i think that that's sort of