representing mr gao home in this case and i'd like to start by clarifying issues that i think have become a little bit muddled in this case to to make clear what it is and why it is tim is asking this court to overturn the decision of the b i a and to find that he is entitled to d before all under the convention against torture under caprica there are two issues that i think have been confused the st is what under what circumstances is it fair to say that a prosecution can be seen as persecution and the nd issue is if that is shown then what evidence is there in the record that which says it will lead a court to determine that that the the likelihood of torture based on the government's already pursuing  unfounded case would occur because this is a cat case no hope you don't have to decide whether or not mr gao them is guilty or innocent of the murder that he was charged with in nepal in two thousand what you do have to do is decide whether the process that resulted in the supreme court decision in two thousand and  is fair and is objective and is something that anybody in a civilized society with think but the reasonable method of proceeding i think i'd like to refer the court to mr ms driver can i ask you a quick question i just will have left and i've got my bearings you started off by saying this is fundamentally a cat case i guess i had in my mind that we had sort of the usual succession of arguments here asylum withholding and then tat is sort of a back up but it sounds like you're you're sort of writing the cat argument primarily that's exactly right judge because i think i think that's the clearest way to get to the path of his being granted some kind of relief i think if we were talking about asylum or withholding we would have to get into issues of his credibility was he you know heard in the past all of that that isn't actually necessary in a cat case so that's why i think it makes sense to to really litigate was made with regard to whether he committed the crime or not right yes a no no but for the for the purposes of this i'll just say that the the government's position is that a court cannot look into what what were the circumstances of the conviction or what surrounded it and i think that's just wrong there's i'd like to refer the court to a case that is legitimate based on the fact that the government salvatore found the asylum seeker guilty of murder and and the part of the way that is challenging whether or not it is likely that he will be persecuted is by asking the court to look at the proceedings to look at the actual case and make a decision about whether or not that case is something that as judge posner says is totally in comprehensible factually and legally and he says good analogy is to make a determination whether or not the legal proceedings could be characterized as proceedings in a kangaroo court that would make a kangaroo blush and i think in this case yes these proceedings if you look at them who clearly fit into that mold and i'll come back to that in one second i would just want to say that what we're what mr gowda is asked is using the question of the court proceedings to establish is that there is no reasonable basis on which any court could come to the conclusion that the procedures that he went through or that his case went through in nepal are are are just are comprehensible are based on any kind of evidence and that is really to show that he will be persecuted because he has newsome i just want to make sure that i'm connecting dots here i don't think i understand yet i think you know you've talked about i understand the whole bit about the underlying conviction but somehow to make a cat playing you've got to get to a you know  undertaken a course of action which is to use the legal system to persecute mr gowda that's step number one and that's look at the case and make your own determination based on the what is presented in the case whether or not that case constitutes a proper prosecution or persecution step two is if you decide that it is persecution which i think you will when you look at the record then the nd question is if there are evidence in the record that shows that the that the government of nepal has been in as is is a government that can be absolutist had ducting so many human rights violations that it is fair to make the presumption that he is more likely than not to be tortured if he sent back to nepal based on the human rights record of the government and specifically in this case on the question of looking at murders that took place during the civil war from two thousand think that it might be fair based on the evidence that torture might occur but we have to conclude that the b i a was to you know to paraphrase like really wrong in concluding the contrary right that that's right and i think that thanks thankfully because it has for all i go be able to look at the facts of the case i want to give you some examples and i just fall i mean there's and there's nothing in the at this conviction and make a determination did he or did he not murder the person that he's accused of murdering but that's not what what we are asking because it's a cat case in a cat case even if he had murdered the person he would be entitled to cat in this country if we can show that it's more likely than not that he will be tortured and i think it exists case if you found through the records i think it will become absolutely clear that the decision that was made by then the polish supreme court in two thousand and nine to overturn the decision of the appeals court and the district court that found mr got him not guilty  was a decision that that just makes no sense so just a quick question i know that your time's expired but i want to make sure that we have all the cards on the table before your opponent gets up to talk so is what you're saying in response to judge martin that basically sort of this whole like whether you can look behind the conviction or whatever like forget about it this is a cat case and whether you can or can't do or don't what you fundamentally got to look to is whether he is more likely than not to be tortured when returned and that we can sort of just i pass the whole issue about the look behind it's not that you can bypass it it's that you're when you look at the case in all of the all of the  subject shows you can look at the case it's that when you're looking at the case the determination that you're making is whether the conclusion the publish supreme court is is based on actual evidence is fair is reliable or whether that decision makes clear that he will be persecuted because the decision in an object itself is a tool of persecution claim of the convention against torture the relevant question for this court is whether the history has shown that the hell's the conclusion that he is more likely than not to experience torture fuz returned to nepal  record that compels that conclusion and therefore the position has not met the requirements to prevail before this court with regard to the cackling with regard to the question of this court seeking to have the court reassess his guilt or innocence i would know that that is consistent with our position is consistent with the use of the board and of other circuits in those cases have generally arisen in the context of domestic convictions of the board in other courts have stated very clearly that is not the judge's role to look behind the rector of conviction to reassess guilt or innocence and in circumstances  as the two of persecution itself so i think our position your honor be that it would be appropriate for the immigration judge to make an independent term a nation of whether the petitioner wasn't fact you know they have i mean this perth prosecution is the who of persecution so i think it's different from in that regard don't you well the cases like there were statements by police officers when they arrested the petitioners in those cases indicating that the arrests were politically motivated and they warned the petitioners that they needed to cease their activities they indicated they were looking for the petition because of their political activities if there were indications in the record that similar things were true as regard to the conviction and this is just for speaking hypothetically you know if there were perhaps statements from the judge that you know referencing the bishop of activities suggesting that the conviction was on the basis of those activists something beside them your facts of the conviction i think that it  might be possible to draw analogies to cases where courts have looked to the conduct of police officers in making arrests that have led to conclusions of political motivation in those cases a certainly again under the substantial evidence standards here in this case the record does not compel the conclusion that it would takes or how do we know that i mean nobody analyze that record i mean there were there were lots of power to examine that part of the record as i understand it in my state and so the board did state that it was not you know able to go behind the record of conviction to reassess guilt or innocence i would note that just comparison of the methodology and findings contained in each of his core proceedings is also the best and most convincing evidence of the political rather than the legal character of the decision so i think that the board understood the petitioner to be innocence that therefore that result his prosecution has as persecution claim to it as it just to be clear is it's it's the government's position that we can never whether a foreign conviction is a form of persecution surrounding the prosecution or in this case the conviction to see if there is evidence beyond the mere sort of conviction itself you know whether in the police conduct leading up to  and in the paul but the immigration i mean the immigration judge in that the i thought it had the power to to look at that so that's me you're creating you're making a distinction that i j and that the police they were not allowed to make well you're on the evidence that the petitioner submitted in this case support his claim that the analyzing evidence that neither the nor the the way analyze in that i mean a map i mean if you can show me where they analyze the evidence i think it would be helpful a record question i guess this is judge newsome so what do we do with the back to anything that the petitioner didn't mention b to rest in or a conviction on any of the asylum applications i mean i assume that typically an asylum claim says you know i'm being persecuted on account of my for instance here political opinion but here the asylum applications sort of defeat the nexus argument right because there was never the the arrest and conviction was never mentioned so the political opinion piece of the theory as it currently exists never sort of got off the ground in the asylum application what do we do with that so your honor is pretty about that in it these cases are cases in which the court is looking at determinations of a foreign government that a person is guilty of a crime and  court says ok look this guy has been charged and convicted of murder but when we look at the record if we look at the totality of circumstances we understand that the people who are charging him are a group of generals who have been charged with war crimes and murders themselves and not one of them has been prosecuted or found guilty of anything which is exactly  s the the net police government has been urged repeatedly by the united nations by the u s government by every international body to look at the disappearances of women murders that took place during the civil war that went from one thousand nine hundred and ninety six to two thousand and six and the government has repeatedly under all the different administrations refused to do that because many of the people who were sitting in the government itself to this day are the people who have been accused of conducting those human rights violations  you a practical question this is this is what i'm struggling with you're saying can you start off by saying in this case that i'm not asking you to look beyond being behind the facts of the conviction not looking at whether or not th murder conviction was valid but the process that led to the conviction if if we agree with you and your client you walk in and before that i tend to be i i and you present the process we so we have to look to the facts of the conviction are you sort of pushing us into looking behind the facts of the conviction anyway it's really hard to separate out and i and i understand that judge but in this case we're saying that it is actually the supreme court that is the party that determined that this man was guilty of something that he was exonerated for in twenty two thousand and  a district court that had a trial by an appeals court that reviewed the record the supreme court gets the same record they decide that they're going to list other experts to review the evidence of the case in order to come up with some new way to find that my client was guilty of the murder the new panel says it's reports that what it finds does not substantiate what the supreme court wants to prove there is no evidence that my client murdered the person the only evidence in the records pertaining to this case is that he was reportedly reportedly talked to the victim in the middle of town the night that she was killed so yes it's hard to separate out the two issues but if that's the sole evidence there's no i witness there's no material witness a material evidence there's nothing that can connect my client to the murder and then all of a sudden the supreme court decides that we're  throw out all of the previous decisions nine years after those decisions were rendered and say that he is guilty based on the record work where he clearly were just found not to be circumstances in any of these cases and if we were saying to that ok we don't like the decision of the supreme court and that decision was read in a timely manner and that  formed that there was an appeal of this decision which had to be done within seventy days after the a court decision and that you now and then he lost yeah that would be a different situation here he's never even informed within that seven thousand and seventy dollars days that there that there's an appeal that's pending before the supreme court he's never told that the supreme court or his lawyer are considering this issue which is a violation of the nepal constitution and ok that all is occurring with in the old wrong circumstances that there are war crimes outstanding and nearly identical issues of the women and rape of murders that are not being prosecuted and that the response of the government to all the pressures that it's being placed under to actually carry out