whether the court will be compelled to reach a different conclusion it's not whether you'll find we're talking about whether the mistreatment rose to the level of past persecution is the first issue isn't correct and is that is that judged by the substantial evidence standard yes so does that make it a fact is that means a fact finding it's back to the legal conclusion i mean i'm concerned about what is the standard of review by the board of immigration judges finding on the immigration judge said that the mistreatment did rise to the level of as persecution but that the board in this particular case didn't back from hence the board bates its decision on the same exact facts that the immigration did it did we know what the board did i mean the immigration judge writes an opinion and the board has exactly one sentence on this which is assuming the respondents testimony is credible we find the mistreatment does not rise to the level of the immigration judge that look to the two incidents that happened in one thousand nine hundred two incident where he was beaten and the one thousand nine hundred three incidents and the board also pointed to case law and there's one of the cases that it cited i believe is joachim paris and that was the case in which this court held that the rape of a homosexual individual by a police officer and then a subsequent attention by a police officer didn't rise to the level of never enough to be passed persecution i mean if you didn't three times it's all based on the circumstances of the case it's an individual now so what circumstances in this case make these two beatings sufficient to constitute past persecution according to the board be that you know the judge getting up and not having his coffee that morning doesn't it's not a not a rational explanation i think you can derive from looking at the immigration judge you think we should do the dividing line between the beating sufficient to be persecution beatings insufficient a court house where somebody has been beaten and harassed is not persecution but then there's pan versus holder as i said in my prayer for the person was beaten three times over three years and the third beating he was in the hospital for two weeks i mean that's more extreme than the situation here i mean it's awful situation i mean clearly being being direct credits and getting to the point even if the court were to find it to find past persecution here and teach us rebut the presumption that the board found here with a chance fundamental change in circumstances we're looking at eighteen years ago there was a lot of analysis of that either there's a citation to exhibit three a which is the country conditions report or act as the country where in the country conditions report doesn't say that conditions are fundamentally changed so that there is no problem country conditions are for it says there are problems in some places not problems in other places things are looking up a little bit you know is that is that enough to explain why a country conditions have fundamentally changed but i mean it aired tonight it talks about the government respecting the six face which included catholicism and dissenters christian it also at a r two twenty one in two fifty two it talks about the government officially promotes racial and ethnic tolerance and that ethnic chinese played a major role in the economy and increasingly participated in politics and in two thousand and six assistantship law passed and  circuit that have address the situation of chinese christian applicants from indonesia and in some of those cases there has been mistreatment of the individual involved assertions that he was physically assaulted by a group of muslim it is church and the like and we have said that that does not constitute does not rise to the level of past persecution but the b i i doesn't analyze that case law just gives us one general citation to a case not involving  chinese christian applicants from indonesia don't we need a little bit of an explanation to say that it's looked at this past case law in making its determination its ideal when the board does do more of an out more of an analysis here but i think based on you know citing in the case law and that discusses what rises to the level of persecution as well as  that that was essentially waived by petitioner because it was never that the past persecution claim was bria fully briefed before the court so essentially it  that i defined it was enough it is correct or incorrect that the what the dissenting member said that the department did not challenge before the board the past persecution finding i believe they did i mean the primary challenge was credibility well often and primary and secondary challenges the question is was this even a secondary challenge the dissenting member says it was not raised by the department and i'm just asking you is that correct und record i believe it is cracked but it's a waiver waiver argument because everything's been fully addressed by the board now brief before the court now if it wasn't raised and the only issue before the before the it was probably joined was wasn't credible and then well they're saying even if it had been percy the alternative finding i guess they didn't get to the rise to the level of persecution when they filed the appeal they they focus on credibility  rebutting the presumption alternatively that conditions as twenty years later had sufficiently changed to or about the presumption of future versus thank