be here to attend the hearings today mr s and on you specifically requested that i thank the court in this panel for pardon for providing the opportunity to have oral arguments today and in this case was here before the ninth circuit before and i think the case has been well briefed this time and thoroughly examined all the issues i certainly don't have time to get all the issues in my short time here but i'd like to emphasize three points the first point relates to the  decided cases the salaam case and he did made a case this court saw circumstances where other young political activists in nigeria were beaten and tortured under circumstances very similar to mr as assume we agree with for argument purposes of you've suffered past persecution what is the room of the other you are seeking to what extent the change country conditions still play any grant relief under the convention against torture if there's a finding of past persecution which i believe there was going to raise the presumption of future persecution which the government has not rebutted in this case and in fact in the cases that i mention no past persecution so therefore put the burden on you to rebut the country conditions for i think that what the i j did was incorrect i'm assuming it was incorrect then basically we these limited to what's in this record this court has acknowledged the the circular problem that would occur in the event that this court were remanding and we were going back down and looking at a new change country conditions would be sort of a she would never end i think in reimers question about about whether this should be remanded so they can address the issue the government already has that opportunity and we already have evidence in this record that this court and the victim a case in immigration judge applying the wrong burden of proof and the government failing he still here so he hasn't been prejudiced but i think you have your honor with all due respect he he's unable to get citizenship here he's not able to get a work permit he's effectively been living that point but i also believe that any prejudice that exists for the country conditions issue should be laid in mistrust in the news favor and we shouldn't be telling lies for the government's failure to submit different evidence and for the immigration standard as applied and he can make a case in the slum case yeah they weren't exactly the same years of country reports but you're talking about the same timeframe you're talking about this court in those cases looking at those reports and saying look the conditions have to change in nigeria so proof even though he didn't make an individualized determination we're supposed to now saying was he can it was a reasonable fact finder compelled to find otherwise i think it's right you're under a much tougher deal for you it's a much tougher road to ho something that that i believe falls under what is the department of justice and what we should do in the overall sense of what is justice so at that point i looked at this case took it to the director of the office of immigration integration requested re put on the applicant if the country condition reports have substantial indications in it that there is still persecution going on there  limits the law is intrusted to the immigration courts to handle this case there's only very carved out very limited exceptions and you covered on the big case the government actually states that the dissent in the is one determination i believe this is my understanding that if the record comes to us in a finding that there was no pair past persecution which is the finding and if there is no a finding of adverse credibility we can find that that determination is not by substantial evidence and determine therefore but there is past persecution then the question is what happens next and you're suggesting that because of the error in the brief he doesn't even go back with the presumption that it's persecution the i j a does it all over again i don't understand that well there's another point that that is that needs were brought up even though the brief itself is bad and one of the points that was made in the brief  whether or not it is substantial and that's the group that's what kind of decision we make and if we disagree we say that since there's no adverse credibility finding and the evidence of record supports for as persecution hasn't had the opportunity in the first instance to look at it and then the question is well in this case they've looked at it but either under the wrong burden of proof or would because they weren't looking at the application or whatever that's the thorny issue in this case as to whether that clear is that there was an error in the siding that there was no past persecution which then caused the i j a to skew the burden of proof that he applied to a well founded fear of future persecution which he though you would prefer a broader one correct but your honor first i think it's important to point out that this court through the appellate commissioner previously denied the government's request for a motion to remain and in the prior appeal as soon as this court appointed me as counsel the government promptly moved t secondly this court is found by the lea opinion a three judge panel decision is binding on this court unless it's overruled by decision or by the u s supreme court and under lee in the other cases i mean i mentioned this court is not applied the wrong standard there's he also did not need an individualized determination so we can't say up or down on it but i think we have to do that right and i wouldn't agree your honor i don't i'm not i wouldn't agree because the i j a attempted to make an likely than not that the government of nigeria would notice or be concerned with the return of the respondents and the i g did make some it minutely feeble findings but the last said look nigeria is not going to be concerned when their political activist who they tortured comes back so there was that application and it's improper in an indefensible case on the government's part for them to get a second bite at the apple and i would only request that if this court does remain and that it limits re manned to a very specific issue and that we don't get in credibility assessments we don't get into past persecution and that the only issue would be whether or not the government has provided the presumption of future persecution through country conditions otherwise i think that the board of immigration appeals in the i j a that have carte blanche to do with the