to focus my argument today with respect to the denial of his motion to remand based on ineffective assistance of counsel because that's where the due process violation in this case is the most egregious the petitioner filed by his motion to remand before the board on the basis of ineffective assistance of counsel and appended to his motion a sworn declaration in which she averred that his prior counsel had mis advised to mess to his eligibility for relief his prior counsel informed him that he was not eligible for asylum due to the one year bar failed to discuss withholding of removal under eight u s c twelve thirty one b three with him entirely and told him that its sole application for relief was under the convention against torture this was a clear me the petitioner further ever that he relied on this advice and waiving his out locations has other applications for leave before the immigration judge and what's important here and this is perhaps the single most important finding by the immigration judge with respect to the waiver is that he found in this is at the bottom of page one eighty six in the records he found that the waiver was based on the advice of counsel at the bottom of twenty six the board of immigration appeals here disregarded the immigration judge as finding that the waiver had been based on the advice of legal counsel did not accord appropriate weight to the petitioner sworn declaration stating that he had been mislead vies by his counsel and relied on this to his detriment and in fact failed to apply the proper legal analysis what and if with respect to an ineffective assistance of prejudice with regard to either asylum or withholding over and over all your honor and the immigration judge found correctly that he had not been tortured during those eight years but the immigration judges finding that he had remain and harmed for those eight years is clearly not supported by substantial evidence and it's not supported by this court case like either the british i'd like you to assume for the sake of my question but it is supportive and that he was not harmed or threatened respect if we were to if we were to conclude that there was not a plausible case would she be entitled to no he would not but here the record compels a contrary conclusion that in because i find that he was not in fact in danger during that period and would be harmed if he returned really at the end of already found that well i think it's important to look at what sorry the immigration judge in this case never had an opportunity to make a finding about whether or not there had been past persecution because that's not an issue with respect to the client the claim i don't want to go through but the question is what would that have made the ultimate difference and  i think your your answer is it could have because it would have entailed a burden which that was prior finding might have been different yet another was his prior finding that there was in fact no injury could have been other premature injury after that could have been different said they so what you're saying yes and in fact in this case the facts show that the petitioner had in fact experienced past persecution that he hadn't been unharmed in those eight years his family had been threatened with death his father had been murdered when he was thirteen years old and that should be a consideration taken into account by the immigration judge in assessing past persecution and this court found a family is forcibly displaced from their home under threat of harm and this is the nashik the ashcroft that also constitute past persecution and all of those things occurred during that those eight years and which he was and what i'm all ok but once you establish  if that's what i was saying before her oh that's a so while the the d h it could come in and try to demonstrate that because he was there for eight years after all this  or the reasonableness of internal relocation to avoid future persecution under all circumstances and the government in this case only submitted two thousand one country conditions report which if anything support a finding that there had not been a fundamental change in circumstances and the internal relocation would not have been reasonable in this case and all the all that requires so you're going in assumption that there was past persecution the immigration judge in this case never reached that issue because it wasn't before him the immigration judge did not have to make a finding about whether there had been past persecution because that's not a requirement for a convention against torture relief so the question there was whether or not there was  a record the record is what the record that's that's correct that the immigration judge is finding that he was unharmed for eight years is in the record but no finding with respect to pas persecution and as i stated we believe that the finding that there had not been harm was not supported by substantial evidence i'd like to remain reserve my remaining time for about all thank you thank you good morning honors might leave the court michael hyson behalf of the respondent the attorney general the united states courts and tonight especially for review for two main reasons first substantial evidence supports the agency's decision to deny petitioners application for protection under the convention against torture claim as the court is consistently correctly observing this case is about prejudice is whether or not there is any reason to send let me just clarify that so in that if you're saying the case is about prejudice then are you a greeing that by telling him that he didn't have a withholding claim when in fact a family as a social group had already been established and when that was pretty much what he was claiming is meaningful to send this case back to the agency under the facts or as as judge graber said the record is what it is the record here does not establish a viable withholding of removal claim and whether or not counsel is ineffective how does it not so viable claim given that we have a situation here where there are plenty of facts that would support a presumption in favor of the petitioner than that would have ice the onus on the government to rebut that well several circumstances you not to this substantial amount of time what we have here is the murder of his father was twenty years ago and then you have eight years subsequent to that where he's living in guatemala unharmed maybe facing threats that are against his family but just speaking only for myself and the the second alternative holding is it really about the thing that we're talking about either it's about whether the waiver was well and terry knowing and intelligent the raver of the other forms of relief so help us that we can have the discussion we're having i know i started it but  reviewing its unknowable in any event and the question of prejudice is whether or not this record is stablished is that the alien suffered prejudice as a result of counsel's allegedly ineffective assistance i would like to back back into that however and to argue that position was actually injured in that case but the father was targeted because of his military service there was never a specific threat against that petitioner and judge bremer was actually on the panel in that case the court held that the alien was not the intended victim  with the police and they had connections to these individuals based on military service there's nothing specific i thought there was some evidence first of all that other other part of the arresting teen if i'm mistaken about that and his family was also killed as i recall if that's the case i have misread the record then but ultimately the question here is whether or not counsel believed that his client had a a social group because no they didn't find the guy afterwards well that's actually technically incorrect i believe tensioners submitted to this court with a motion to hold this case in the ban some information regarding a motion to reopen that's pending before the board on this point providing a letter from prior coun difference does it make it was before the board opinion i thought that this affidavit from or from the lawyer that she hadn't been able to get to right reach prior lawyer facility to trouble regarding was not a question it's likely under the circumstances that the board will deny the motion reopen perhaps again procedurally because of that delay there's no real explanation for the five year delay but in that from prior counsel to the board in a timely manner they the board was only just recently given that that document but ultimately it sets forth the counsel did discuss this matter with his client and chose to pursue what he believed to be the best option it was a strategic decision to pursue convention against torture protection instead of withholding what's a strategic decision to not do something i mean it's one thing to say like to address just a couple of points made by coco and our by opposing counsel first of all the position of the government apparently the no harm was experienced by the rest of the family here that the threats  directed only to the petitioners father and brother however the petitioner testified and his testimony was all deemed credible to pages forty and forty one in the record that the threats kept happening to date and that they involved threats to his grandmother if she didn't inform the army about the whereabouts of the family and furthermore the british the petitioner and his brother submitted sworn declarations and at two twenty seven in the record the petitioners declaration states that the that would certainly have been a question for the immigration judge to weigh but the immigration judge once again didn't have an opportunity to consider that and whether or not the government had rebuttal presumption to future prosecution because that claim just wasn't before him at the time with the case of looked any different in terms of presentation had this been had this gone forward as a way removal case yes i believe it would have because the immigration judge would have been required to evaluate the government's evidence in this case a two thousand one country conditions report to determine whether that that evidence supported a finding of a fundamental change in circumstances or the reasonableness of internal release relocation under all circumstances and with respect to relocation it requires an analysis of the petitioners age of his family ties in guatemala of his employment prospects throughout the country it's not just a question about whether or not he was able to go to school as a minor in one particular town in guatemala and i also think it's important to keep in mind here that his father was murdered and ten which is the north eastern guatemala the family was threatened into he thought they which is in southwestern guatemala and he relocated to my own house which is a town kind of in central guatemala and in all three places there was an army presence and with respect to his family and they and mon haas the army came looking for the family can i just clarify one thing  i thought or perhaps i am mis remembering that if given although there is a presumption if there is a past persecution you say that the only two things the government could prove would be a fundamental change in country conditions or a in the end the ability to relocate but i thought that was it could up could attempt to overcome the presumption without proving either a fundamental change in country conditions or the ability to relocate is that right that's correct however the immigration judge never reached that issue here no i understand i just what you just kept saying other what i understood to be otherwise i'm just trying to clarify what it is that we're trying to see in the persecution in the prejudice that are ok