stephen shaken to a petition to make it please the court there are several issues that are interesting that are raised many of which are quite contemporary the one i'd like to address is the one that the board conceded was complex which is the question of statutory bar based on persecution of others while we have argued that that didn't occur i think the analysis would be best served if we focused in on you know worst  statutory bar and the evidence here regarding porcher if it did occur is not that it was done to overcome the political beliefs of an individual or because of their political beliefs the evidence is and i don't believe it was refuted that the tensioner didn't care about their political opinions he only cared about one thing solving criminal cases there was no argument below that the individuals who were being interrogated didn't have the information about criminal acts he was a police officer he was completely separate from any intelligent units as he testified credibly i believe he was brought down there because soldiers captured people but they don't interrogate them and he was asked to pain evidence that would stand up in court now this is very similar to some of the things that we read about in the papers about people who w understand under different circumstances but the analogy is that there's a difference between using techniques to get information to solve crimes which we may not find a provable or even constitutional under our system and persecuting people to overcome their political opinions as distasteful is as horrible as some of these actions may have been if they occurred they did not occur because petitioner and his fellow police officers didn't know the political views of the people they were questioning i mean i understand your argument is your argument at bottom that it doesn't matter if the carcieri people so long as they don't torture them for political opinion he would not be statutorily barred from asylum if that were the finding so you don't think torture itself is an exclusion it has to be torture for one of the five reasons my read of the and you get that from section two and yes and also from i think that the case that was probably the most helpful to us was the i hope i'm pronouncing the late been eeks case that was the case in which they found that someone who had worked with the nazis who basically porcher communists was not statutorily barred as a persecutor on account of a protected ground that even though they were communists the reason that they were being arrested and tortured was because they had to trade their country to the nazis during the nazi occupation so i believe that case would support what i think although he was a policeman he was that it does seem a little strange that he would just be interrogating people who were picked up for crime if they're being picked up by the army in an emergency zone and i'm quoting from the ideas opinion the prisoners mostly indigenous farmworkers were question regarding any participation in the shining path any knowledge they had of the shining path leaders and the shining path where about and plans now is that is that finding by the i j a clearly erroneous it's not clearly erroneous but it's not complete what testified was that he was brought down there in his role as a police officer his specific duties were to obtain evidence that could support prosecutions and convictions in court there as we say in our brief clearly there is documentary evidence that individuals in peru were tortured by both sides strictly on account of their political opinion for no other reason this wasn't one of those cases  prove the crimes against the sendero luminoso just because the group has a political agenda doesn't mean they're immune from primitive prosecution one can have a political agenda and also be committing crimes the i'm sure in peru our intelligence office isn't counter intelligence the agencies that are going to ferret out people for their political reasons and try and convince people to hold a different political opinion that wasn't what the titian assignment right now he's just if he's just if he's just participating with the police in and interrogating people or one criminal acts then why would he be persecuted on account of his political opinion if you wasn't perching people on account of their well i could speculate all i think it's more in the speculation sendero luminoso wants the criminal activity to continue they want the bombings the assassinations the abductions the arson to continue and they don't want policemen to stand in their way as he testified that he learned through a girlfriend who was apparently an affiliate of the senderos that his name was on a list it's i don't think there's any doubt whatsoever in the record that with the background material that routinely kill police officers and soldiers and government officials they want to bring down the government and they want to kill anybody you help support the government if you go back to the cage you stated you indicated speak in person her persecution of individuals there's no indication has to be on any particular ground i agree with you the case was cited because there isn't a tremendous amount of what's already on this probably fortunately however in that case does explain that torture can be for different reasons that just because someone has a political opinion doesn't mean that torture inflicted on them is to overcome that political opinion and that is what our argument here is that if there was torture which is separate from the or rather right if that was torture that it was not inflicted at least not by this petition or by one of the grounds that the judge  a found that he had inflicted torture on account of their political opinions but it what i'm suggesting to you is that it leaves open the argument that perhaps it doesn't have to be on any particular grounds a person who commits torture for any reasons is th persecution for any for a protected status and that is the reason why the i j a and the board balland that mr savalas was actually an eligible if there are other mandatory bars as opposed to discretionary bars they haven't been raised if the case was remained in i'm sure they would be raised by the government and if the court does not have any questions about further questions about the connection the nexus between fortunate protected status i'd like to speak very briefly about the counsel problem i don't want to belabor it but it does appear that the case would have been presented somewhat differently at counsel who was a very distinguished counsel i might add had said to mr is a boss at some time i don't believe you or even more tactfully i'm not in a position to help you do what you like to do i think you should go see other attorneys they might see things differently and we wouldn't have had a contest of credibility contest between counsel and the client which is about the worst position an attorney can ever be  a based her finding it wasn't until she made her finding and said i am finding that counsel was credible because of the following he had no motive to lie were petitioner did that his testimony became an issue well it's i mean get past that when you still have the hurdle of laws under which i read the record and and it's pretty hard to say that  required when there's a motion to reopen where the matter was not brought to the attention of the agency previously therefore it couldn't be preserved for appeal in this case everything that happened happened on the record all of the actions that are discussed are based on testimony that happened in court there is it's not a case of someone coming forward after the fact and saying my attorney told me this i didn't tell me this that's why as i say in the brief it is an unusual situation where the issue is able to be presented without the need to go outside the record well it wasn't presented before the board but even saying that lasagna requires for example an and the record doesn't end here doesn't indicate there complied with how do we deal with that well that was the issue of the conflict and the denial of due process was raised before the board and what was said before the board and before this court w testified exactly as to why he hired counsel he all of the interactions between the parties are on the record so it's not necessary to enlighten the court he's testified why he hired the lawyer what  meritless claims from being made claims that have no possible basis however it's not strictly required if explained in this case there's no claim that the council acted with any malice or with any  mr violence he apparently believed that he could walk this very fine line so all of the reasons why the violence requires you to explain what kind of retainer you had and whether or not you went to the bar have been satisfied again when it's not a motion to reopen because it's not a surprise traditionally typically lizotte of claims after all other avenues have been exhausted and there was nothing on the record that would allow the issue to be raised we believe course reasonable minds can differ but we believe that the record as of the close of the hearings in front of the i j a was complete as to what the conflict was and what effect it had on the outcome of the case  arguments that the torture was perpetrated on account of the political opinion of those who was torturing and political opinion includes people who want to destroy government yes the shining path was of counsel then the issue would be before us but the board didn't make that and i don't know how we get around not remaining to the board for them to make the decision we i suppose it's possible for us to make the decision here but we've been told not to do that supreme court spanked us a few times on that is and so i don't know if you would like to have a rule that because there was some testimony we can imply that the i j a ruled on the issue and because the issue has been raised before the board and it's in the brief it records starting at page thirty four at page four sixty five of the record is where the petition if you would counsel of complains about the former lawyer being called to about whether he considered getting relieved or talent and some questions were allowed to be answered and others an objection was sustained but the court raised an interesting problem that we're seeing a lot with the admission we have very competent counsel who participated all the way through who withdraws halfway through because he believes that his client is lying and what and the and the the i j as a part of her decision finds that mr to the motivation for torture as being political counsel testified that he believed mr that alex was lying because he had done his own research and he had determined that he and i could show the  i were members of send out a let me know if they were somehow affiliated with vendetta let me know also comes from his counsel and not from anything else on the record no the findings that there had to have been the on account of political reasons was because the counsel said i know from