and torture petitioner also oppose venizelos war with colombia several member of his of his family since the date that this case was last considered by an immigration judge have also fled the country estate of country where instability repression of free speech and prolonged detention a political opposition continue to this day you understand important issues in this case the first is whether petitioner made a false claim to united states this in ship barring him from adjustment of status united states we submit that petition or made no such statement that was equivalent to a false claim to united states citizenship the statement he did make indicating that he was from puerto rico at a border in two thousand which the government insists was equivalent to a false claim was also timely retracted this court also previously remained in this case the second question involves the immigration judge and in turn the  he made the statement at primary inspection and it's not until secondary inspection and the board says in its opinion that's too late he retracted timely and secondary  and he retracted it immediately and secretary his opinion the that was just in time and they seem to say that as a matter of law i think the president of this court and the board suggest that it's too late when there it's already been discovered and the immigration agents know or have discovered evidence but that was not the case in this case the documents from the border in this case indicate that he retracted it made it fairly he was from best well of before there was any such finding so th there's about a two hour gap between the time that he's referred from primary inspection to secondary inspection right so i would argue that it's not too late there was there is precedent saying that if the immigration agents have not ardea scenarios i believe is the case that if they have not covered or if somebody is admitting something before there is a discovery it can be considered to be a withdrawal of that statement or in turn a time they were you know and he says the opposite in his salary right that she had really no detailed conversations i think about that in there she doesn't she does not raise in that letter the possibility of a recantation defense get you if i were to prevail on both claims of ineffective assistance of counsel we could revisit the pleadings in this case you then you could ask to have a contested hearing where you could ask to withdraw that admission  it wouldn't be binding and you could then redraw it cracked and because they were ineffective then you go back down and what happens then if we had a contested hearing we would be able to prove i believe that he did not have intent to state that he was  united states citizen he did not have knowledge at the time he made the statement that puerto ricans are generally united states citizens and his testimony during the proceedings previously indicated that he did not have that  knowledge so we would be able to prove hopefully that the main part to his admitted this in this ability he is married to u s citizen and has been approved petition the main obstacle in his path to being admitted she had spaces a lawful permanent resident rather than mexico or some other spanish speaking country and somehow it seemed that if you're puerto rican you get him but that requires him to say i didn't i didn't know that getting in because you're puerto rican and getting in because you're a citizen that sounds a little improbable but he's going to make some version of that argument correct and i think you know i mean there's something in the record about this but recent events related to puerto rico prove that even a majority or a large percentage of the u population do not necessarily know that puerto ricans are u s citizens so we've been so i think it was young then as well and you know the gentleman might not know that puerto ricans being other latin americans in his view at the time perhaps with the amount of education that he had at the time i don't think it's unreasonable to assume he's not telling the truth about this so if you're in successful colombia when he was forcibly conscripted he resisted the conscription he resisted the activities he was subjected to treatment that under president rises to the level of past persecution although the immigration judge and the board found it was not the board said it was regrettable but found that a very not very helpful to you on you know force conscription i think that because he opposed to war if he was forced to engage in actions that he considered to be violate human decency which someone who is a conscientious objector to war would consider that killing other people in a war that they believe is unjust would violate human decency and i believe the press in that court would have this court would allow an exception for for force miller terry conscription on that but you also have it you also have an alternative basis for yes house could you clarify then you have a group claim will be a particular social group a group based on those who have deserted the army or right yeah i was not the attorney at the time most of that testimony went forward but there was a cl that was presented related to desert hers and i believe there is a distinction for former members of the military that have just heard it and that that would be a cognizable social group releases a plausible argument under the believe that under the precedent matter of m d that the immigration judges shift considered all evidence in the record before rendering a final decision as removal so wrapping up preserve some of my time so your honors the department of justice and department of homeland security have had multiple opportunities to examine these prior decisions related to the false claim issue and the asylum claim in each instance t h s the department of justice and their various subdivisions have failed to deliver justice and due process to petitioner in the meantime he continues to raise three united states citizen here that the individual said he was formed from puerto rico the reason why people say they're from puerto rico when they go to a port of an inspection is to try to gain entry as united states citizen you said to try to get intrigue at that point as the united states citizen used it that is a fact i think that's contested here well this issue is the i understand that but the issue is the agency found that he had falsely met misrepresent themselves as the united matter if he subjectively believed that being from puerto rico would get him into the united states but did not believe that that was a claim of u s citizenship i would say no it would not matter because why because he's not claiming in his own mind  claiming citizenship he's just claiming some other status that will get him in it's using words that and any individual on the border would interpret to be a claim of united states citizenship not any individual on the border because he's one individual on the border and my hypothetical says he doesn't see that as a claim of citizenship i'm referring to any of the individual being an immigration inspector there you go with that when we're talking about the world of people who come in and the world of people who may make such claims i i'm from puerto rico not what that an educated border spectrum i now understood and i don't we don't i want to repeat the question sure is this is really a question of law around a question of who knew what  know to assume i'm not concede understand that he believed that being from puerto rico would get him into the united states but he did not believe that that was a claim of u s citizenship now is that a claim of u citizenship within the meaning of the statute i fully understand your hypothetical and the assumption you want me to make and i would still say that that is a claim of u s citizenship that the agency that the agency appropriately determined that whether it was his mindset or not that he understood whether he what that means what does is not just words are going down statute and just say you do not have to be intending to claim u of puerto rico shows that he had knowledge that that he was saying something falsely not necessarily just saying and i'm from venezuela where he truly was from this i mean i  guy says ok the inspector says ok that those words ring a bell that means that this person is a u s citizenship but for whatever reason the inspector didn't believe that the person was truly from puerto rico so they take him to  secondary in secondary they start to go through his belongings at that point and i think way too late at that point the individual says no rahm actually for investment that's not what the record sounds the record says by the language no sir i just don't understand the distinction you're making a choice is ordinary english language if you say them that means at that point he doesn't if you say by them that means he's already done it ok and you're saying that r p say by that well that the report says my then ok well regardless so so so you're in you're in primary inspection and then you're sent to a secondary inspection so whether it was somewhere in between there before he actually gets to secondary inspection the normal person knows that hey i'm being investigated further because they're they're not letting me and yet they're bringing me to the second area so i'm totally on board with you up to that point the only thing i'm objecting to is your statement that when the agent starts to go through the luggage the materials on the trunk the personal effects at that point he says i'm venezuelan that's not what the re ok let me just putting that aside for just a moment but so the b i seems to say as i read their decision they say by the time the respondent failed primary inspection and was referred to secondary the opportunity to timely recant had passed i read that is them saying he had to have recanted that primary as a matter as a rule as a matter of law right in doing it at that secondary is just automatically too late that's one interpretation well you say it's just not timely right whatever happened if you read second if you're going to recant you have to do it a primary inspection so here here the agency is relying or we're relying on the nights or president recant is not available so we're talking about a slight difference in time you know your honour's point is well taken that it's not as if the inspector said hey this is your venezuelan passport you're not puerto rican and he says ok you're right on the puerto rican that you know those facts would be better for us but it it's practically the same thing the guy says he's from puerto rico is saying that falsely knowing he's from venezuela why is he saying he's from puerto rico he's saying it so we can go you know to the country this is interesting because it's you know remember the you got remanded back down to the i j in the second i j when you deal with  you're telling us that he said i'm from puerto rico that doesn't make him a citizen of the u s that's not a right i could be from there and that wouldn't tell you anything about citizenship where i can be from any place in the world i choose to come from that doesn't make me a citizen of the places i come from is it in this record that he said he was born there i follow your point your honor and i don't believe that's in the record you don't believe what is correct no i don't believe that it is in the record where he says he was born in puerto rico so all we have the is  then that he was from puerto rico but he was also from mexico he was from a lot of places that he been right well i don't see it that way because when i travel around the well don't know but where where we're asked to say that by saying i'm from puerto rico it's a representation that i'm a us citizen right  because we're at only b if he were born there that would mean anything right well he could have been born in california and whether he said he's from puerto rico he could have been born in california and and he could've said he was from puerto rico because you live the majority of his life in puerto rico but the point is what he was doing was he was trying to make a claim of us citizenship and the agency's determination that that's what he was about the consequences or at least not telling us that she's thinking seriously about the consequences of doing that yes it makes him eligible who does not disable him and make him ineligible for asylum and withholding and can i get that but i'm sorry to tell you that's a really weak claim and the only thing that really could matter to him is real circumstances probably going to be something like adjustment of status and that's what she gives away and then the second lawyer called standing on principle of principle totally eludes me but standing on principle refuses to make any argument whatsoever there are lots of arguments that could have been made that may well have been rejected but well but they might have been accepted know what kind of wanted through the arguments but we're doing them without any assistance from either of these two lawyers but one one could say that in any case that there are a lot of arguments that could have been made below that may have had some change in  situation but the reality is that it's so it's not fair to say well in this case there's ineffective assistance of counsel because these lawyers to come up with the same arguments that a panel of the ninth circuit is thinking of going right  now they're pretty straightforward arguments that they may or may not be winners but they just jump out at you but the point is there's no prejudice by the term his failure to make that argument because the agency independently determined that he made a false claim  interviewed and whatnot and you know fair enough but there's nothing in there critical in this case was his recantation and there's nothing in there that she thought about it ruled it out considered and that's didn't say that but that but that's one reason why somebody would consider the recantation to be to be critical so so but it is the government's position i realize my time is short so i just wan get into a few topics here we do think that there was a false claim by saying he's from puerto rico that was the only purpose of him saying that was to have to try to get into the united states because he knew that by doing so he was telling them he was a u s citizen that is the only reason why people people do that i think the court could take judicial notice of that you don't say you're from puerto rico when you're at the border because you're you have some ulterior motive the other th to try to get into united states as a citizen so i think the courts find that there is a false claim here with respect to the whether there was any persecute fusion in the past we would submit that the court a valid precedent that prior president that people who are conscripted into into the army and desert that these are not claims of persecution that win when you said that in my posting counts i kind of surprised me because when i read the board's opinion i thought that he was talking all about on account of his political opinion he was saying that he was a conscientious objector  and but he didn't say that when they when he went into the army he just said you know i don't want to do this i wish i wish and have to do this and the fact that he deserted i don't think is enough to show that he had a political pin so i don't think the record here again we would say that we don't believe that the evidence is such that it's more likely than not that he's he would be tortured upon his removal to venezuela you know what happened to him in the past is really quite outrageous with respect to being in the military yeah when they you know they put him in the the dungeon extremely hot completely dark very small box filled with human feces  s marine and he told me stories of things that he did at parris island that that made my head head spin as well but this is this is you know yes it's bad stuff that this guy went through but doesn't rise to the level of that's correct but we would submit that that was not previous torture that he endured it was rough treatment but not not torture and upon his return we don't believe that he would be reopen i'm just asking the question ok well with respect to recent changes of course he has the ability if you wanted to to file another motion to reopen with even know it it would be number barred but there k so so this may be perfect reason for him to maybe perfect reason for him to file another motion to reopen with the board but right now he has a motion to reopen on file but if that was filed in two thousand and eleven to the time in two thousand and eleven and it's the government's position that it was not an abuse of discretion for the agency to find that there were not material changes either with respect to country conditions or his personal personal   thank you thank you very much drives with respect to the motion trio open response councils discussed in fact we could not fully get consideration of that because the immigration judge on remand decided that she did not have jurisdiction she did comment in her written decision that she had looked at the evidence in the declaration that we had attached supplementing the asylum and related claims but she made clear that she had not given full consideration since she believes she did not have jurisdiction so this case in terms a any testimony related to asylum i believe has not really had the opportunity for anything to fully be considered in the record since two thousand and five and country conditions in venice well as we all know have seriously deteriorated further since two thousand and five in addition in regard to the false claim issue just rebutting quickly the intent does matter there is at least one  district court case which we cited in the opening brief us versus martinez bias where a foreign national made a claim that he was puerto rican a statement he was a puerto rican and the district court ruled that was not enough because it was kind of a a compound question back by the agent trying to get an admission that they understood that they were making false claim to citizenship we submit in this case that he did not understand that at the opposition to the war with colombia with his superiors he did say he resisted both the conscription and the activities and was punished for that and that he did make a link i believe with reports up to the point that we have country parts of the record bear that venezuela recently has not had a free pass press and he's come here he speaks english he has been able to read you know free press sources in both english and spanish and that was a lot he's developed further opinions and also affiliated with venice once in exile which is part of what we tried to submit which was not considered by the immigration judge on remand here so we respectfully request