in this case involves a denial from the car on statutory grounds for having assisted or otherwise participate in the persecution of any person on account of one of the five  grounds the immigration judge and the board confirm found the persecutor bar was triggered when the and it found when the judge found that mr and how had arrested gorilla's handed them over to a superior officer who then gauged importer in the course of interrogation and that mr and how was aware of the torture she further found that the officer did this while conducting intelligence type interrogation that these people were guerrillas and in that basis the persecution was done on account of political opinion she also found that mr unhealed did not care but this by preponderance of the evidence my concern here in like the first focus on the issue of scienter and the judge found that the that mr on hell was aware of what would be for the guerrillas when he hand them over to his superior officer but i think that that that the office that the judge overstated and mischaracterized the record because there is nothing in the record that states when it was that mr unhealed came to be aware of what of what would happen to the grill is when he handed them over and so i there judge there was no issue as to timing or anything like that so in order for him to be culpable who had the burden on that for the initial triggering i would say that the it was not there it was a government that had he had to show that he had knowledge in order for the bar to be triggered and and this  said the the judge overstated mischaracterized record there was nothing there about the timing so what do you mean by that was that i understood that with regard to the statement that he whether he believed that people were being you know while while this was going on i thought as we set that i mean if i'm referring to page five fifty of the record here and which state in the back and forth in the sworn statement who says did you threaten the gorillas no and then how with the sublieutenant obtain information asking questions of the sub lieutenant ever threaten us the threat to kill or torture with the alleged grill is ever killed or tortured they were tortured their hands were get mutilated etc and then how did you know that's what happened they learned it from the sublieutenant he talked about it the problem here is that there's no sense of the timing was it was it was it after he had stopped he had he is this something he'd learned about later so this is the thing that concerns me is that for the judge then say based on this that he knew about it at the time that he was be intellectually honest here they're going it's that's one of the challenges here but i'm but but i'm doing this i'm assuming i'm doing this based on the sworn in the sworn statements that that is the testimony that he gave to the two asylum officers and so you know we're didn't really talk about all that somewhat the only thing that he did that he did confirm during his direct exam is that he was a soldier he was in this particular battalion there is a discussion about what it was and for two years and that you know he was you know he was forced when he would he would he would be uncommon when he was forced to and after that the court is correct i mean he pretty much disavowed all that but but basically i'm doing this based on the sworn statements which is what the judge found was credible with a sworn statement so it's based on this that i find that you know this whole thing about the enter it was is particularly troubling and like i said overstated mischaracterized the record on the part of the judge so in that present he didn't he didn't he wasn't involved in any of the harming of the people and you know he i mean he was a pretty far he was pretty distant from that i'm sorry about the people and brought them there yes he yes he did and yeah he found the people and brought them there but the question is what he knew and when he knew it ok you had  of it seemed that the the judge but that the mere fact that that by simply arresting a gorilla so to convert it on his conduct into one of political intent and i don't think direction so but it is it really has to do with you know you know his and his intent at the i mean if we're looking at it in a case like which the finding of persecution requires some degree of intent on the part of the persecuted recruit to produce the harm well someone like from that he has to have an excess i'm sorry that's different from he has to have the mindset and rather than torture persecution under the statute i gather it is because it went beyond sort of the ordinary war our wat torture that seems to me to be the you know the key question i e you know if you treat your enemies in a war streamlined badly i mean it's against  person prosecutorial ends and so then they look at the cases look at well how is the person treated and the person was treated beyond that then there was no valid mean there's everybody who are as mention in because mohan no in all that in cases like that when you're going into combat i mean there's always going to be the real risks that of harms that combatants  have you know i mean we have i mean we have like the torture in the cat cases i mean you don't even have to show political pain you just have to show torture so even if it wasn't on account of anything that's not even a requirement and yet someone can meet something under the the convention against torture so you know it's not it's not clear on that in addition to the fact that you know i mean mr unhealed didn't really come into this as as an idiot a log and he i mean as he himself said even in the sworn statements and we're not making an issue of the directs but he said that he was forcibly conscripted and and then when they asked him like well you know whether or not he favored something to the effect of whether or not he favored guerrillas of the government he said you know sometimes government sometimes guerrillas this is not and and he also said that if i if i disobeyed i'd be punished for it so this is this is a guy who was he didn't really necessarily have the intent to overcome a particular characteristic of the guerrillas that he was handing over and anyway i and he takes of this person and he is their tortured is that persecution on account of political opinion not by him but in general it is your honor and so it was with the geneva convention or of the seventeen this is not a normal and i cited that for your honor in the twenty this is not a normal military operation clearly you capture people you bring them into the m r i the military intelligence they interrogate them but they are not allowed to but it's torture on account of political opinion no i don't think so but what we have is we agree it was torture someone's cutting the handle that i don't have to do any dispute about that i understand then the question becomes is that on account of a political a fair act as i'm asking you and in this case especially that was weight of the petitioner in his brief i'm sorry in his brief to the board never brought this up soley because the organ will is not because they've committed a crime and that would be maybe the cruise aim type not cruise had the kumar case excuse me on it but solely because the guerrillas that is on account of their political opinion now would be miranda alvarado at nine thirty the only reason to go after these people was their political opinion that they were guerrillas  war against the government and they were trying to get right to stop the people who are waging this war yes but the reason the guerrillas were waging the war was purely political opinion they want to overthrow the government at any rate and judge davis you alluded to this in your first question to mr davis this is a case of burdens of proof and we believe that there's a little confusion here as to what the burden is the regulation twelve forty point eight d state that if the evidence indicates that the person that a board to excuse me on a board to relief then the petitioner has the burden to prove by a preponderance of the evidence that it does not exist when we talk about the sworn statements and the timing of the sworn statements when we talk about was this based on the grill is political opinion that burden is on the petitioner the evidence through those two sworn statements indicated one that he only mr davis said well there's no indications to the timeframe but that was never the government's burden once those two sworn statements came in and once he had notice of them he had the burden of showing i didn't have the which my opponent has his side the first serving cast in nato this not the seventh and second circuit and gal they have addressed that issue we as a prison guard cases where we say that's not sufficient some of the time right but in in the prison guard cases there's a slight difference because some of them as in kumar he's in a slightly different position he was a  to say someone like that we would prison guard and sometimes torture approach there or in some sick prisons in the in prisons torture occurred but that's not that what we have here we have here is something much more similar torturing them that's the nexus that's the personal involvement and that materials materially supporting the the persecution that's the situation we have here now because we take a step back had mr on hell contested his two sworn statements and actually said i did make those statements but you've misconstrued them i never had that knowledge that would be a different issue then it's up to the i j a to determine if it's credible or not but he never said that he actually denied ever making statements and it various points he said well i committed these acts because i was under duress that was in his brief to the board he was all over the place and he r j did not believe him once we have that adverse credibility finding that just has to be supported by substantial evidence flipping around the record would have to compel the conclusion of the i j a erred when he made that adverse credibility finding we don't have that kind of evidence in this case the burden was on  petitioner at all times to prove he was eligible for the relief that he was requesting and he did not meet that burden i have a lot of time left but i believe that we've covered everything and i don't know that i need to bel only other point i would me is that the only issue here before the court is the is than the current belief petitioner categorically waived his cat claim his asylum claim and his withholding claim so those are not before the board whatsoever subject to your questions as to my argument or the government grief i would conclude by saying that this court should affirm the board of immigration appeals decision thank you very much there what about the representation of this that this kind of interesting issue was actually ranged from so what about the representation that the interesting issue when i think is the interesting issue wasn't actually of race before the border really before us wealthy i mean you've been arguing that he didn't have the sea enter but are you also arguing that the whoever did the torture was not torturing them i countered political client himself mr on hell had this purpose or intent that's what i understand you to be arguing right but but what i want to know is assuming that he didn't need to and i don't think he did need to because the question is what was the torture based on not was not was not what was in his mind was the torture based on political opinion well that that is actually a very not clear in the record i  was however and this is what i responded to in my response to the twenty eight j letter i said that basically the board adopted the i g s reasoning on the issue and on at the administrative record of page five it says in that paragraph the board states that the record indicates that the persecutor bar applies that the burden shifted to the petition to show by the proponents of the evidence that it does not the board then stated that unhealthiest failed to show that the grill as he turned over to a superior were able to avoid torture based on that the board stated that it agreed with the judge that the petitioner did not meet the burden of overcoming the persecutor bar and then cites to a page in the judge's decision which was thirty six to thirty eight or administrate of record one hundred eighty seven eighty nine and those pages specifically talk about the on account of so and that's why so i cited kwang versus holder you know for that where for the proposition that the policy concerns behind the exhaustion are satisfied when the b i expressly adopts the i j a as a decision on that point so that's credibility but again we're doing this based on you know what's in the sworn statements because those are the that is what the judge found to be credible and then when other things with regard to the burden the burden is is on the government to make the i mean i cited to in my reply matter of a g g and then the sixth circuit the excuse you have the six show that the nexus between the person's action and the and the persecution and and the whole issue of saying enter on page four fifty eight in that area  supporting these governments and you know people like on hell were grunts and were ground soldiers and so now you know twenty five thirty years later we're going after the crime so i think that that's a little bit of a i don't know