to be eligible for withholding removal and that to rebut that presumption the government must show a fundamental change in circumstances and not just any change a fundamental change in circumstances  freedom would no longer be threatened in fine with the government has failed to rebut that presumption the immigration judge made several important factual findings on page one on two of the record this is in the immigration judge decision the immigration need to find that quote afghanistan is far from being a stable country with a stable government on page one of three the judge made the finding that runs from the problems of the soviet occupation on that point and that's fine right on page one of sixty immigration judge made a very important factual finding one that goes to the heart of the board's decision he said quote to say that there is control or various factions within the country of afghanistan is overstating the situation dramatically immediately after making that finding about afghanistan's inability to control the various factions that operate within its borders the immigration service concluded that although circumstances ha really two things first it focused on the immigration judges factual find that afghanistan is less stable and that the government has only a limited ability to control the various factions that operate within the country living presumably these afghan cronies who station it's something that you past persecution by the soviet army on account of that and a few political opinion i believe it was his father's opposition to the soviet invasion so he did benefit from a presumption below that he would be persecuted in the future by the soviet army on the same ground the established established when he entered the country obviously whatever standard of review the board applies the government rebutted that presumption because the soviets no longer around the soviet puppet his time away from afghanistan he doesn't benefit from a presumption as to value but as we address in our brief our motion to remain and the board did not address that claim and the factors that the board was looking status is on the on the ground there at this point your honor if you look to the country reports you know there it's a difficult situation at this point but certainly that goes to whether or not he has he can show that he will be persecuted on account of his  that regulation says that the board reviews questions of a lot of judgment and discretion to know and so the terms judgment and discretion have distinct meanings so if you then go to the supplementary information in the federal register which we started our facts but here there's nothing no legal ambiguous legal standard being applied what's at issue here is a purely factual question it's no issue about is it on account of is it persecution the issue is have the persecutors lost the will and ability to harm this man and the board said they had and they rested that conclusion on purely to factual assertions that it's he the fact that he was absent for sixteen years makes them safer that's a factual assertion and the second thing is that they said the afghan government situation dramatically and said afghanistan is far from being a stable country with a stable government those are the two factual findings from the judge the b s a on the other hand didn't give those any difference at all it's that  is the extent of their entire analysis while the immigration judge took note of aspects of afghanistan's instability in certain areas we assign greater weight that's determining that's a factual thing we just we assign greater weight to that portion of the state department country report recounting the country countries progress in its burgeoning democracy and self governance and then it goes on to say in the next sentence while there are unstable regions in the country there is great progress being made toward the establishment of a stable democracy they're choosing you know to emphasize the stability with that the judge that it doesn't exist and essentially they're just planting the judges factual findings and making their own and they just i signed facts or in effect made their own fact finding or you nor i j is the remedy that it goes back and then on this record they redo the changed circumstances right situation and if they come to the same conclusion and they cite all the facts they still would have to have a particular just right finding it has to go back they have to do a particular ised analysis and they have to give the appropriate deference to the factual findings of the immigration judge because the law  regulations are clear they don't get to make factual findings in the first instance and what i'm saying is that's precisely what they did here and you think you think hat again we're back to this what does this mean greater weight if they have various facts plus they have the country i on appeal he have greater weight to one or the other of the facts in making its legal determination you know that's an unclear question but i think the answer to that is if if they think that the immigration judge is factual finding about the stability of the government might be offset by some other part of the country report i think under the current system they've got to remain on it and ask the judge to decide that because the judge has to make that gets me is to make that factual determination