wife who's been married to for some time has three american born children the government has found mr mccullough i will and in the proceedings of the immigration judge  we believe that the immigration judge applied the the wrong legal standard in his claim under the convention against torture i think that's that if you're correct counsel what's the remedy the remedy is i  would i would say at a minimum every man and however i believe that this court can decide the matter is a matter of law because under the convention against torture ninth circuit is taking the position that  a previous faith finding of of previous torture which in this case the immigration judge recognized it finding of torture creates a presumption that future torture will exist unless the government shows the conditions have changed individually to such a degree that to rebut that presumption in this case i believe that the court can find that as a matter of law the judge below several the family members have applied for and been granted asylum and other in other countries including the united states so the question of torture is probably already been dealt with and which is why we present to this court that the judge probably didn't apply the correct legal standard given the fact that he found torture but then went on to say but he won't be tortured if he's returned without it's without addressing the presumption that the government now has to rebut but we do with with regard to whether there's been problems or not the first point in that is his last trip to albania was nearly ten years ago in that trip he went specifically for the purpose of his brother funeral his brother been killed the family believes by the communist action or in the alternative the blood feuding that goes on which is by the way in the in the record of the of the conditions the country conditions report the important thing though is that he went back over ten years ago for that purpose during that visit his wife was on call that he was going to come out alive his life was threatened what happened there after i think it's extremely important although his his mother and sister remain in the country and he had been back a couple of times previously over ten years ago he never once returned to the country after that time i think that's very indicative of at least his own personal feeling as to his safety in going back notwithstanding his mother's there judge by regarding the issue of his mother being there this is something that the immigration judge wouldn't allow mr mccullough to to testify to because he said it was speculate speculative as to why his mother and sister haven't had any problems since they've been back there and we can get into that in the process issue as to why he didn't do that but it's if even in the country conditions report the blood feuding that goes on in albania is somewhat limited to adult males to the government it is in the fact that the government is aware of the problem and does not take steps to stop the problem and then under the convention against torture the question is not so much whether the government government is is actively involved in in in the problem but if they're passively involved just torture in the in the sense that they won't do anything about it which is what the case is an albanian or even according to the conduct of the country conditions report that the government relies on almost exclusively that's made clear in that record and so the question really is for this to this court has he met his burden and the ninth circuit the burden is just over fifty percent more likely than not is he going to be tortured if he goes back  the history of this family and the many different things that they've been through from the five years in a labor camp to mr mkhize own imprisonment while in the military for expressing anti communist beliefs was beat to the point of unconsciousness was put into a cell not big enough for him to to lay down and was fed bread and water twice a day was her decision ari what about the  requires if this core and again the the matter of remain and is is i'm not sure that the ventura decision requires this court to do it if there's a matter of law the court here and i would point to the new rule decision because we believe that upon remained although i'd like to address then my second argument on remand we believe this should be remanded to a different immigration judge and the reason but i remained would be to the b i a to decide this in the first instance not to the i the we're all here today because conditions in mr mccance situation in the united states has changed because he was convicted of various crimes and he conceded that one of those convictions made him  it's not it's not a high standard the important cases would be the latter case the thomas case where it's not even it's not even a requirement to be discussed in the research just has to be raised to the b i an important point and i think this is why may maybe this court can statement they said they find no prejudice to the respondent regarding the due process nor are we able to find reversible error in the record before us which suggests that they considered more than simply just the due process issue wrong i think that when you look at what the evidence the un rebutted evidence that's been presented including the the the the immigration judges finding of credibility on behalf of my client may think of it i think it's pretty clear that he's at there's been evidence of torture if he's returned there's a presumption i think we've dealt with why that presumption should hold and why the government has not rebutted that presumption and we ask this is submitted