that these drugs alone constitute persecution so we with some of the board heard and holding otherwise on that point and then further and terms of the main issue that  to grapple with the effectiveness of the protection that the bulk of the government supposedly provided to its polio vaccination as it did not really evaluate the substantial evidence in the record that talked you there because the last thing you said before turning away from the facts is that you said routinely that the taliban routinely carried out these threats and it seems like what we have is a record which is even if i agree with you that record compels the conclusion that he suffered past persecution it's not the case that the taliban was always successful in murdering these people isn't that why this standard matters in other words when we talk about completely helpless it seems like the facts in this case are such that the standard here in this case may really matter and i just want to say that for both lawyers so you can help me out and that's a problem that's really troubling me the court finds that the record that the standard has been high to be was to the met that yes the box any government in this case would be completely helpless to protect this particular petitioner as somebody who was targeted misunderstanding you was that as in the case of magical there can be a situation where the government is not unable in every circumstance to do anything so  at how that applies to this in particular whether they can effectively protect him or whether they are able to protect him with the fact that they've made in some circumstances generally the able bar action doesn't mean they can directly protect him is my understanding you correctly yes yes i mean and it is important that lee look at the country conditions what we're saying is that this record really compels the conclusion that there is at least a ten percent chance of peter that at the very least it's not a presumption of such based on the level of harm in the past but the other good shows that they've taken the that there acquiescing in the violence what do you say about that you can see that they're not that they don't acquiesce in torture or or do you think that under the record we had that we could say that they matter of a b please do you think are you taking the position that there is a change in standard that it matters that it doesn't matter what your position please your honor we would say that it that it does it does not matter on this record and we can take the case forget the record for a minute destructive standard i'm not talking about your case i'm talking about the question of law and maybe you're not but maybe that's not something you want to gauge in but you've taken the position of these terms are synonymous and i'm trying to figure out that where that would leave the th circuit case indo just to be really clear entered if we had granted the motion to remain for the agency to consider the evidence of past persecution clearing the attacks on mr list father and brother and threads and that he felt move to another part of the country and i believe the requested language was for that agency to consider whether the government was able to protect him but that gave you the relief that your claim once your honor we would request that the rebound really should be very very limited in this case because that is it was that this was the only issue you know in terms of the government's ability or inability to or any willingness to protect him there should not be an open ended remember for the government to be able to dispense future persecution or internal vael haitian or anything further than that i think th and if they had if they were incorrect and we were to say there's not substantial evidence to support that and they need to consider this other evidence and then they determined that there is past persecution then there would be a presumption of future persecution that the government would protection constitutes a government the box any government and also whether the i believe the other issue in the motion the other issue  was the real thing that the most important thing is that the board even asked zooming that there are yes persecution the board needs to use the burning ship dating mechanism required by the council some of the cases in your prius i don't agree with you on this point i don't want to take up all of your time but some of the places where you your brief cites to two instances where we've used the term is it's used in a different context and so you know whether it's become judge wallace used it cali for example and we go through that i don't want to take a whole lot of your time i'm sure you're familiar with those cases but in terms of using it in this context is right i really don't see it ok st of all  those your twenty eight day letter says doe held that sense an able or willing as a requirement is in the end just junk disjunctive the government doesn't have to conduct that's not what don't help at all that doesn't use the word disjunctive it didn't go into that at all as you  this isn't what you meant but it is literally what it says here in your and your twenty eight day letter to happen indo as you know is is that the b a a decided that he hadn't shown that the government had sponsored or  court seemed to be sane he seemed to be saying something other than just unable or unwilling that that will be just fine because we're not we don't have to go any further than that we don't have just to prove anything he's in we just have to say that stand circuits law so that's why i really struggle having two standards out there if you take it as a hypothetical that or just take it as a given for the sake of the question that i think that standard is a different standard and it's a tougher one to meet them what what is the correct pa said that he hadn't known that these security guards that he reported it to were government actors i'm that i think that she pointed out that there was evidence that those   polio vaccinators security for that then when they gave him the vaccine he said oh that they didn't go with me so that the immigration does well why didn't you ask for them to go with you because that big government how think your brief indicates are going to if you're going to argue for it seems to me that that creates a problem when we want to remain and say here's the standard in the th circuit apply that and go back and figure this out well and that is that we don't have to do this twice inconsistent with our case law i'm not here to tell you that i think would make a difference i'm just saying but i don't want to remap it twice that i want to wind up reminding this type are is our it is our goal as a court to get things resolved and so i am concerned about this piecemeal i am vision is going to be a piece person the board needs to apply the presumption of a reasonable fair a future persecution and it's been eight years now so at this point we're presumption comes into play and the government  if they choose to do something choose to dispute his request they would have to show change conditions and in any event it we tell them and while you're considering whether the pakistani government is unable or unwilling to cannot use that terminology and it sounds like you're saying that you would not agree to that i mean i i i don't want to i don't want to cut off something that is beyond me here and i'm going to make tonight's target different from the other circuits and i don't i don't think that's necessary but if you are determined to to say that it think the all agree on that so i think art doesn't sound like we do agree and have you indicated earlier that you don't think it is a heightened standard could you please clarify do you think this is the heightened standard your honor the way that it i fight here was certainly a heightened standard i guess i'm talking about the application i'm talking about the legal standard counsel please so what is it what is your position on this i just i really feel like you've given me a couple different answers i'm trying to get  different terminology you know condone versus enable i mean certainly condoned something a little bit different and little bit higher so it's very easy for a writer to apply it in a heightened manner i would submit that that