board didn't decide that clearly and it hasn't decided that issue clearly or hasn't decided the issue at all in any of its published opinions and i don't think a single ambiguous sentence in a park area on decision thing for that issue ok but in order to get i guess it goes without saying i would agree with you but but you've got to get to the legal issue i mean you've got to get to a problem first so my question is if you were defining it how would you define or other person in an official capacity well i define it as i defined it in my bri their areas of afghanistan with impunity and that's why they are among twenty two putting that together with with the concept of relocation the fact that somebody happens to control some territory and and indeed there may be american cities where it could be fairly argue d that our own version of warlords control given blocks of the city does that mean the whole country is out of bounds and sending somebody back to that country where they can relocate in a different part in this case of afghanistan means we should recognize the my client their enemies and they'd rather fight to then you know anybody else so i did it but the board didn't decided on internal relocation rant about the war didn't use your definition either and that's why i'm not central government figures so i mean here we're talking about the definition of torture under the convention against torture but the major limitation on tat really has always been fifty one percent you have to aspects of foreign policy too because i mean the united states recognizes government i mean that's what it's in the business of doing courts down the executive branch  does and here's what they recognize the central government of afghanistan is the government now it may be that it doesn't have affective control over the entire country but nevertheless that's the recognized  government in the somalia case where the theory comes from there was no central government so then it makes some practical sense to say ok here's an area of land that has no recognized government so therefore who's in practical control i have a lot of problem you're standing how your theory can square with the executive branch is right to not to be philosophical about this but unfortunately we live in a world where recognized governments did not really have governmental practical governmental control on what's going on in a particular country and you know look at the middle east i mean we're in the middle of an area that we recognize the government and the government we recognize suffering that you have to be afraid of that you have to be face has to be severe enough to be considered torture and the board attempted to narrow that definition acquiescence in that are best of the it's sad that you had to be convention against torture because you could just pay lip service to it as long as you do anything adverse to torture and the torrijos torture like general dostum who's been called the just of stalin of by the regulations it's not supported by the convention against torture it's something that this board probably did decided just to get rid of this claim and you or living a matter we can't control prime in the inner city so the fact that criminal offenses take place can't be what's intended but by the opposite extreme something that's plainly a futile gesture where everybody knows that instance for example that the government is not in a position to to patrol the whole nation and there are parts of the nation which are actively under the control of somebody else and the government may make an occasional gesture but nobody's seriously of the police that's going to change things very much i mean we've got a spectrum here we've got i don't think the regulations require the impossible i don't think this regulation requires a cause like governmental office of war against john wood or something to a ring in his of his or her legal responsibility to intervene these are a legal responsibility to intervene where you have no control in what is the torso that legal responsibility is of the proper process for the united states courts to say with a legal responsibility as to the cause like government to do what it knows they cannot do if there is no responsibility then the regulations an empty letter and i don't think you mean that that there's not a responsibility there may well be a legal responsibility to do something but extent that there is a breach of that responsibility doesn't mean that you say that you have to be affected because you can't be effective doesn't mean there's a breach of creatures implies that you could do something about it and you failed to do something about it where you have no relies on you i know well horses say well relies on some of it and not disprove portion of it but i have a little trouble work found if it's something that's a factual determination of subject to further  if he may have been a farmer shafting on his analogy but he was kicked out of office by a revolution and he still wants this rose later on but that doesn't make him a party or representative of the of the new government course thems the quote is a government actor because his position as a regional official in a powerful i the central government that's not the same thing as saying to the board this is page thirty three it's under this person is nothing other than an unlawful warlord a person who does cannot by definition exercise any governmental authority in an official capacity or any other way that i think the general principle  official involvement in general dorson decisions and actions now that's enough particularly for an agency such as the b i a which is overwhelming you know thousands and thousands of cases that the board had to not follow here and did not report to follow here that's very important because then we stand s p stands for a bunch of legal propositions and to say that the board is error simply by signing it for a different proposition that the court never clearly said that the guys i government has done something and whether or not sufficient i know has a factual determination not before the court that's enough and i should be annoyed and i don't think it's fair to say that the board none of those that you can be fairly read into the board's opinion it's just not there with the boards is that there was no control and that as a legal point the board's entitle to do and that's a separate issue in a separate section of s c has to do with with the allusion i made before as to whether gen dostum has a current position with the government in fact somebody in my office has tracked that information that he does now we're reviewing the administrative records but if in fact his position has changed in a way that seems to me critical with regard to what the b i a determent as an understanding of fact what would be the procedure to follow this course trista actually limited to the record you may not go beyond the record i was to suggest you are that looking circumstance i mean it's a fluid world situations change out what can i petition or do if in fact something has happened which changes the calculus there are procedures in place for a petition to ask for reopening and there are deadlines for doing that and there are some there some months of you know finality is associated with these proceedings that have to be followed i do not know whether or not this petition is in position to ask for reopening that is  haven't looked into that question and i would hesitate to talk pine on that certainly in the appropriate case to the extent that facts come up and it's not there otherwise the time gardy petition i could always ask the board so we open to consider new facts intervene to percent prevent torture one hundred percent of the time and then i guess that's kind of the floodgates argument the definition requires the government to intervene to prevent but to actually receive capital leave you have to show that the probability of torture is fifty one percent and if the government intervenes to prevent most of the time and if it functions like most developed countries you're never go acceptance the board and not our best to be aired by you know requiring waffle acceptance by the defined willful acceptance as being powerless to stop the torture and that's basically what it is required here by saying that the government must be able to reasonably control the torturer so it's all it's all in the same thing and quickly to the jurisdictional issue and i know that the court may not be interested in out but