only if he can show that he was harmed at least in part on account of his political opinion or imputed political opinion on that question i just see that this court decision in kumar v gonzalez two thousand and six decision is controlling in that case you had somebody who was another indian national who was arrested and tortured in the court found that the evidence compiled the conclusion that was at least in part on account of political opinion for three reasons first the court noticed pointed out that he had been interrogated regarding the whereabouts of a suspected terrorist in a muslim separatists secondly he was asked to disclose the identities of muslim terrorists and reveal information about their planned activities and the third factor was that he himself had been suspected of terrorist activities all of those factors are present in this case and that's even not considering his written statement i just want to walk through that first off the are tortured saying they demanded to know the whereabouts of a suspected militant lollie and his two associates who they claimed had an association with the militants second although saying insistent that insisted that he didn't know either of lollies associates his interrogators insisted that he did suggesting that they believe that he was somehow associated with the group that the police was trying to locate they kucing of lying and trying to hide the fact that lolli visits in the present tense visits him saying you're not telling the truth is it's you but the clincher here i think is is the reference to the bomb blast because as in kumar they suggested that singh himself was involved in terrorist activities the interrogators noted that there had been a bomb blast in july under and then they turned to saying during the interrogation as they were presumably torturing him they said tell us about that the clear implication of that is that he was either involved or in the bombing or he was associated with people who were involved in the bombing so there is a political opinion or is that law enforcement gone gone awry well under kumar your honor it's a it's both it's a question there's certainly there's a legitimate investigation at issue but you know as this point is this court pointed out and saying even in the content even in the context of a legitimate investigation there can be persecution on account of this was the case where the two of them had known each other since childhood ye rorts together right so to four hundred so remains a question would you concede that if the police are conducting an investigation and for to find a fugitive it would be logical to go to people who happens to also be and wanted terrorists if that were the only evidence in the record yeah but in this case again i think the facts of this case they're indistinguishable from kumar and kumar answers your question directly your honor it says you know even in the context of an investigation where they're trying to locate people who are suspected of terrorist activities and they arrest somebody who is an associate of that person when they imply or they they torture somebody suggesting that that person himself is involved or associated with these militants that's on account of political opinion and given the holding in kumar that's a pre rock real id act case the facts are indistinguishable irrespective of whether you look at his written statements in the affidavit that he supplied which i think only confirm the point that i'm making here you have to find that kumar is controlling and this is at least in part persecution on account of political opinion because that's the time of the next motive exactly right and it's a so we don't have to show that this was essential a motive nothing like that we just have to show that he was persecuted at least in part because of a suspicion that he was associated with these so if you're not rich if during the interrogation the police ask the question are you a sympathize stands for that kumar and maldonado cruz expressly hold that if you're tortured because of an association or this suspected association with separatists anti government separatists that is a classic example of imputed political opinion and in both of those time that the police look for a wanted person in the interrogate someone asking for the whereabouts of that person i thought you said earlier that wouldn't be enough no what i'm saying is if they suspect that this you're leaving out the torture your honor i mean if they're simply looking for somebody and they don't they question that person no building hanging people out either no i understand and in such a case this and this man he has the burden of only establishing that he was harmed at least in part because of an imputed political opinion maldonado cruz and kumar both expressly hold that if you're tortured because of a suspected association with terrorists that as at least in part on account of political opinion if we're going to follow precedent you need to grant this petition on that point and that cat claim i guess the threshold question on the cat claim is which decision are we reviewing because the board reviews the likelihood that somebody is going to be tortured under their own precedent they review that to know but in this case they didn't adopt the immigration judge's decision they didn't incorporate by reference any part of the i j s decision and in fact they didn't even cite to it the immigration judge had a lengthy discussion about in the cat context about why this person  he failed to meet his burden of proof showing that he could not safely relocate the board didn't adopt any part of that but that the immigration judge also rejected or discounted singh's testimony that he the police had been looking for him as recently as two thousand and eight i g discounted that is hearsay the board didn't do that and it's done over review it accepted that testimony but found that it was undermined by other evidence in the record what would we do with the the board it certainly doesn't show that a sikh prime minister isn't going to go after somebody who's accused of associating with terrorists makes less sense to me but the question is whether or not he's likely to be tortured in the future and the board cited the political change that i just mentioned changing attitudes toward the sikh religion in the success of the sikh counterinsurgency campaigns  restoring peace to the region are those sure they will start looking for him because he's a sikh your honor and all that analysis you mark we part me but i'm not the catholic exactly the police are looking for him because he's a sikh they're looking for him because he's suspected of associating with terrorists and i don't care whether you have a sikh prime minister they're going to continue to seek out people who are associated with sikh terrorists that the board when they looked at this for example they said conditions have changed dramatically since the eighty's and ninety's well how does that advance their position if they accept that the police were looking for this guy in two thousand and eight yeah conditions changed in one thousand nine hundred ninety s well they were looking for him in two thousand and eight but we have we gone been from imputed political opinion to carrying out terrorist activity or me what have we have we gone further than imputed political opinion into the you're now the suspected terrorist no i'm saying that he's clearly wanted by the police as of two thousand and eight the police are trying to track this man down so when the board says that conditions have changed for sikhs first off they're not looking for him simply because he's a sikh they're looking for him because he's associated with terrorists the mere fact that conditions may have changed generally for sikhs that doesn't do much for this particular apple to host somebody was a sympathizer with a cause that has now been for the sake of a better term eradicated it no longer exists why would the police be interested a sympathizer for a cause that is no longer active well because it's not completely eradicated your honor and the important thing here is that there's an unsolved bombing in july and there of course they're going to want to solve that bombing and he's a you think he's they would view him regardless of being sick or whatever else to syria with news there were a wall well that's part of it but the bigger issue is the bombing in july under what i asked him the use of just he was a bomber i'm suggesting that there are questions certainly implied that he had inside knowledge about that you don't just pull somebody out d they also accused him of being involved with or helping the militants you depend on the written statement to know i think the written statement supports our position but the government just completely ignores the evidence on page eight forty four because what he said exactly as they first name lollie and then he says and then they said there was a bomb blast in july under tell us about that the pla implication of that the insinuation is that he has inside knowledge about this bombing we can't read the the mind of the police officers but the mere fact that generally the situation has changed for sikhs since the ninety's that doesn't help somebody who the police believe is either implicated in a bombing or is associated with the people involved in that bombing especially given the contradicted evidence that the police were continuing to look for this guy in two thousand and eight so the changes that the board points to in the eighty's and ninety's that doesn't undermine this guy's claim that he's in danger today thank you mr joe thank you suggests in a passing statement made his asylum application there in the written statement that by itself does not satisfy the burden of proof but when you look at the record as of the record as a whole it's simply not the case especially in light of the explicit testimony before the ra judge now of course i'm aware this is not an adverse credibility case and that a court deems the applicants testimony is true in the absence of such a finding but that being said it would be impossible to deem all of these allegations as true because they are also different there are so many different narratives in traitor and a working against the government now casing explicitly testified to that before the immigration court doesn't the doesn't the petition here say essentially the same thing is his generation and the declaration but like an adverse credibility case where there's an consistencies so we have this declaration on one hand and it says certain things it's in the society not cation which you change thirteen times including i mean iraq you know how many siblings you had all these different things and then we distinguishable because in this case there was no explicit testimony he never said this on direct examination he said four times you know why are they looking for you because they wanted to find his lolli guy on our cross examination they asked him straight out they said are the police still interested in you yes why because they want to find law is there any other reason no it's not because you're secret legend no he said that on on on direct examination four times and on cross examination he never said he could decide at any point during the immigration proceedings so again we have this we have this written statement and then we have this testimony but again that written statement is not reliable because there are so many different narratives and if i can give you an example of that the i j a noted that in his written statement he said that his first attention last of eight days and his second detention lasted ten days now when he's testifying they asked him under examination how long did your first attention last he said a month and a half compared to the eight days so i mean if we're deeming incredible how do we distinguishable because there was explicit testimony in the record where the police said you're a traitor and you were operating against the government that didn't happen here i think this case and saying they also said that the new case which the agency relied on it applies coughing for asylum or with the removal because the police in this case had a legitimate law enforcement purpose in detaining him again as your honor noted they were looking for this plot this this lolli guy and you know who are they what do they support the militants into being involved with them suppose he had testified to that it wasn't just in his declaration suppose he had said that then what would be the situation i think again the agency would have to decide in the first instance but i guess i think that would i think that would probably qualify under the casing case so i think i think that would be different i think the outcome might be different but again i can't speak on behalf of the immigration judges i can only defend what they what they said well i think your point that they have to kind of weigh the declaration against the testimony but they didn't have the benefit of casing at the time to do that when they were doing their waiting correct but i do think that casing it distinguishable because then maybe they can distinguish a good maybe they would not want to distinguish it and why shouldn't we say to the agency you didn't have casing now you do go back  deem whatever he said and that written declaration is as true and accurate it is as part of the record it's part of the record but again it we have these differing narratives and i mean just in the we have to look at the inter record that way evaluate the credibility i guess i'm not following your argument it is in the record it is in the record absolutely ok by the reason we shouldn't take into consideration of what it is in the record and i'm not saying the court should take into consideration but i'm saying that the agency is the fact finder in this case and they looked at they looked at the record they looked the entire record the immigration judges i did dress the written statement absolutely and in doing so they did whole included the written statement than casing would apply and the we have no b i a ruling on the record as a whole they have not opine does to the written statement critical to his case either well you know i've been a little bit confounded why you would say sum up and say the record as a whole having i mean he again they said here i don't think that excludes the fact that i don't see that statement excludes the fact they didn't consider his written statement because again they reversed that i just credibility term nation they and they cited that written statement they knew was in there but again  again i think this is i think this is the way to the evidence in issue and does the evidence compel a conclusion that's contrary to the agencies and again i mean we have these different narratives and we have his direct testimony and you can take it from unsound application that was that was filed in two again i think the case that's most directly on point here it's not casing casing is a post real idea case the burden of proof is different it's a higher burden we're not claiming that we even meet that burden we could if we consider the evidence in the affidavit we don't need to go there the case that's directly on point is kumar's pre law id act and if the facts are almost exactly like the facts in this case and the court found compelling evidence that it's at least to get that the torture was at least in part on account of political you know that i from our opinion and our opinion the clear implication is that they suspected him of at least having knowledge of what was going on and change the fact that we ask a hypothetical suppose instead of investigating a bombing they're investigating a bank robbery with a change with a change the result under our affidavit real quick because what the government's asking you to do is decide in the first instance why the affidavit should not be given any weight neither the i j a nor the board of immigration appeals gave any explanation as to why they're not considering the statement set forth in that affidavit and it was marked as an exhibit