initially on page fifteen of its brief in footnote four but again on page twenty four of its brief and footnote five where the government concedes that neither the immigration judge nor the board of immigration appeals made any explicit adverse credibility finding in this case as a result of that concession the court as a matter of law has to accept everything that mr singh testified to is true the law and that is clear and persecution or has a well founded fear now i'd like to focus on the well founded fear question because it seems to me like that's the easier question here this is the only analysis from the agency on this point is at sixty page sixty six of the administrative records where the immigration judge suggested that there is no reason to believe in this case that this particular individual is still wanted by the indian authorities and as a result she says there's no objective basis for his belief that he would be persecuted if he's returned now if we're accepting his testimony as true that analysis must simply be rejected because mr singh testified before the immigration judge and again the government concedes that we have to accept this testimony is true on page one hundred eighteen he was asked about you know whether he had been communicating with his mother back home and he says yes my mother tells me that the police are continuing to come looking for me and then i'm page one ninety three and there's an affidavit from his neighbors affidavit they say and the police is still inquiring from our neighbors about armor interesting and money paul saying now the immigration judges entire analysis with regard to well founded fear is simply that at this point we don't have any reason to believe that the police retain an interest in this particular person but excepting mr singh's testimony is true which we must in view of the government's concession that there's no adverse credibility finding in this case we must accept as true that in point of fact the police are continuing to look for the invite really true he's not testifying to that he's he's relating other people have told him that of course but i'm not sure that we're bound to accept as true everything that he reports as somebody else told him that's your  parliament understands that there are difficulties in defending right so could you speak specifically to what you think should happen from here if in fact we would decide to grant the petition for review on what terms or than what right i mean the way the government phrased it and it framed it in its brief is that the issues before the court would be simply does the evidence compel a conclusion that this individual suffered past persecution to the evidence compel the conclusion that he has a well founded fear if you're going to address the both of those points in the government asked you to address both of those points in his response brief to this court you have to rule in our favor on that because obviously this is a man who was arrested and tortured on three separate occasions on that last occasion he was suspended upside down and pummeled while suspended upside down for and accused of attempting to author an article accusing the police of human rights abuses that's a classic case of persecution on account of political opinion the past persecution question is easily resolved i'd be happy if we stopped at that point and sent it back to the board to resolve the question of whether the government can rebut the regulatory presumption that would arise upon a showing of past persecution that this individual then faces future harm but the government has framed the issue in its brief in those terms that issue seems to be before the court and it's an issue that could be easily resolved in our favor so that's what i would ask the court to do i understand the government's predicament believe me you know we were talking before our argument here they've basically given away the case by making that concession but the way they framed the remaining issues in their brief is to say that the issue of past persecution and well founded fear are before the court and if those issues are before the court at least the issue with regard to past persecution it's a very straightforward simple one it's because this case presents a classic instance of persecution on account of political pain so what's left of the only remaining issue before the court your honor there's an issue of waiver you know i can say that the issue of cat relief i don't think was adequately raised at the board of immigration appeals with respect to withholding or removal i don't think that that was waived because at the board of immigration appeals the issue of past persecution was clearly raised and if mr singh demonstrates past persecution then there's a presumption that will arise that he's also entitled to withholding of removal and again that's an issue that could be addressed by the board on remit and but i do think the court is in a position to address the issue of past persecution and the government invited it to do so in its response brief to the court words there foreign and or an adverse credibility determination the failure to really marshal very much in support of that would seem to have difficulty surviving in the face of this course precedent so it's  brief the actual merits and i know i understand that but it goes to the question of what do we send it back for i mean we in essence i understand why you're trying to send it back to have that issue revisited but it appears that the the i j a said what he wanted to say on that issue and i'm not living with this issue for a long time and a lot of cases and there are some things and some are cases for just that but there are many more suggestions that talk about a second bite of the apple whatever my feelings about the dissonance within one circuit case law the question becomes if it's going to be remanded in spring parents going to be remanded exactly what issues are open and where at what point is the agency supposed to start again you're arguing i take it that the agency goes back to square one and has the opportunity to revisit the petitioners credibility past persecution and so forth down the road petitioner himself has basically said look the he agency had a shot at those issues has made its finding with regard to credibility sort of has made its finding with regard to past persecution and indeed may have made its finding with regard to well founded fear and so that's the point that the inquiry should pick up why is it we should go farther back in time well further back in but that's really what what leads me back to the question i asked earlier insert the magic words and then look at what the i j a cites to support an adverse credibility determination and it seems to me what he cites falls pretty woefully short as a comparison what with what our court requires to sustain such a determination and so so so speak to the substance of what he cites and what is the cite to support the determination well here enough there to sustain it and does wonders for your  willing to defend the adverse credibility thermistor that has been made in this case the immigration judge noted some feel here as it is this is why i'm not sure it fits the pattern you're trying to suggest which is those cases that that maybe the judge didn't use the magic words with gave every ind was to find this this this petition are not credible as we don't accept assessed a money can't prove his case so we send it back to make sure we know what he's talking about there in this case we know what he's talking about doesn't use the magic words but not on the z not use the magic words he didn't give us sufficient grounds to say that that determination can be sustained by substantial evidence and i understand your situation you pick up the hand you've been dealt and the argument has invent made but you've read the file and you probably hardly good i'm not asking for a confession but you've got a pretty good sense that gee the i j a really didn't marshal what he needs here so that's why i'm sitting here saying ok where does this case go i can't help the feeling we're past that station a said what he wanted to say on adverse credibility determination that really doesn't pass muster so if that's the case don't we have to go to the next stage assuming that you believe credibility is no longer an issue in this case and that the agency missed the boat on that the does that have to go to whether or stage the brief itself concedes we must is there really a serious argument that what he testified to doesn't mean i'm you may not believe it i may not believe it but what he testified to certainly seems to pass the test for past persecution doesn't says is true because he's deemed credible if you take what he says is true is there a serious argument even made that that doesn't qualify as past persecution regardless of whether you take it through this court isn't permitted to make a determination in the first instance under case back to the agency to make that determination and persistence well the immigration judge did address well founded fear in this particular case that discrimination does not hold because you can't get the well founded fear that first attorney past persecution and if you determine immigration judges paper and the signs off on it i have to say i've read maybe thousands of immigration judge decisions by now and i had a heart i got to the end that kind of what's the point of this we don't have an expressed statement with regard to credibility although it's clear that that it's through gritted teeth that that the immigration judge is listening to him reciting what he said because he doesn't believe it and so the only way i can make sense out of it is say implicitly what you say is true you can't prove past persecution and you can't prove a well founded fear now past persecution is clearly at issue in the case because of what he testified to the meetings and so forth and for the i j a to say nothing about it i have difficulty understanding how you get the position to be taken the agency never reached the issue yet had to reach the issue there's no other way to address the case that's being put in front of it it wouldn't have to reach the issue that is then what does it say about it is this person credible the real question for the agency is this person qualified for asylum as a result of either having suffered past persecution and getting the benefit of the presumption or without past persecution having a well founded fear now in almost every case including this one if the petitioner isn't credible the petitioner can't possibly carry his burden but theoretically it's possible and the credibility is a is a way station isn't it may be a check point you have to go through it's not the ultimate determination and i j couldn't say you're not credible he's dismissed there's a missing step well in this case i think they had to get to the step and the step has to be past persecution even if he doesn't say it and it has to be no well founded fear which he does actually say and so we come back to the same question and i don't want to debate this too much but i'm having difficulty understanding why it is the agency should be allowed to revisit the questions it's already chosen did not reach the merits of whether or not he's actually whether or not the harm experienced rose to level of persecution nor did he need to because the evidence in this case he was found to be incredible and that what you just deny is the case there's no real reason to go any further and it seems to be a burden of proof analysis in this case in addition just seem to find that he didn't meet the burden of proof for asylum so that's the reason why the immigration judge has to reach whether or not he gets i wish pass persecution on account of the harm  he experienced thank you very much in its effort in his effort to make sense of the immigration judge decision counsel twice suggested that the immigration judge had found mr singh not credible obviously that's entirely inconsistent with its own concession to the court if there is no explicit adverse credibility finding in this case the judge's analysis on past persecution it's on page sixty six which makes a specific finding where he did not establish past persecution it's up at the top of that page in view of the government's concession the only way to make sense of that is that notwithstanding credible testimony of the immigration judge found that mr singh had failed to meet his burden of proof that issue is before the court the government told us before the court when they filed their brief in opposition to this appeal if that issue was before the court mr sting's testimony is true and he was arrested three times he was beaten into unconsciousness and as i said earlier in the third arrest he was suspended from the ceiling upside down with his ankles tied while he was beaten w send this case back to the board of immigration appeals simply to exercise discretion on the asylum claim or for the board to engage in some analysis after as to whether or not the government has rebutted the presumptions of future persecution that arise and upon a fin