this isn't your problem to get over the hurdle that she didn't show any resistance to what was going on and she knew what was going on it was her car she gave the car to him  broken and second sense of the facts were somewhat disputed because her version of events were actually stated to the officer in the testimony and not exactly as the officer surmised actually thirteen which i  whether she had capacity to if it was her belief or her knowledge of trying to further the plan so one sense it's a little bit out of the ranges in one sense i guess if that's the question is whether she was committing aliens why would i have to say kno canes so if it's her car and daniels driving it but she now knows for a niece was in the car with phony documentation doesn't she have the power to tell danielle i don't i don't want you driving my car as part of a smuggling attempt well and she says it doesn't she doesn't seem to me to fit presidents that are don't like all missions qualifying as an actor but here because of the fact that it's her niece and she drove down there i'm having trouble understanding i have a little trouble with that concept if the state legal standard against which the fact finding is suppose to take place is established after the hearing  we putting ourselves in a position of rationalizing a result when in fact the appropriate step would be to go back to the immigration judge say here's the standard now make a determination whether or not this person made an affirmative act in support of this and whether if he had the intent to do it the problem i'm having in this particular cases i jerry did not make any adverse credibility finding so we have to look at her testimony and her testimony certainly creates to me a factual question of what whether she had the intent and there's a factual question of counsel pointed out as to where this plan to smuggle the niece across the know that you would be culpable as an ally of the smuggler yes yes but at that time the perception of the rule was that if you were there and were even if you were just passing that was enough that's not what the rule is and i don't think the i car to daniel with the intent to facilitate smuggling or give her testimony he was going to be the driver back and as the cars moving along post launch they decided they drivers there because she thinking it makes no difference if we did i would agree that doesn't mean it would be a crime but if it doesn't make a difference i would why does it not make a difference if in fact she legitimately turned over the car to daniel the driver under a prearranged understanding that she didn't want to drive both ways because of a long and exhausting drive and in that sense to she turned over the car so then and i have a question whether the government would accept a certain procedure just a preliminary only i think there are problems with this case if we if we are firm when the i g didn't have the proper legal standard before him for the reasons that judge fisher noted but to me it also seems that there's a big problem in the case if we take her statements as true in the absence of an adverse credibility finding when  a couldn't have understood the potential significance of what she was saying under the can now the current standard so i want to ask what the government  use if we were to read and so that the i j a could consider the ninth circuit subsequent presidents but do it on an open that's affected a case by the way the analysis to the case went but generally we don't remain in cases all cases involving an issue every time a new published president comes down there needs to be some reason to doubt that the result would have been the same and in this case i don't think we will find to be in the immigration judges analysis a statement that well she was in the car and knew of the plan  of it is something we wouldn't go along with in the appropriate case because we wouldn't want the smuggling cases to be remitted unless the court really disagreed with our position and i understand that  appreciate your comments on just that and a lot of these press finance you know one might argue that there's like a nice and nice legal issue as presented it whether if she loans the car for an innocent purpose originally and then they convert it to an illicit purpose when she's there and she a while and then she omits to object if that's how sufficient affirmative act and a sort of sufficient showing of intent to satisfy the standard and that whole difficult issue might be might not be reached if the i j a is made clear