neither the board nor the immigration judge adopted for example the government argues that the courts are the firm immigration judges conclusion that mr dini failed to establish passports q sion because the government has a multiple arrests beating suffered at the hands of the roman romanian police do not rise to the level of persecution a problem with that is that the idea never sat in my reading of the immigration judge's decision the immigration judge found mr geno had failed to establish past persecution because he quote failed to show that the authorities interest in him was on account of political opinion or any other projects ground that it seems to me is the sole issue before the court and another point the government argues that even if mr genius  she never had the opportunity to apply the presumptions of future persecution and obviously on the supreme court's recent decision and us vs ventura this court cannot in the first instance decide that question as i said earlier the immigration judge rejected mr dean is past persecution claim for just one reason she said that he failed to establish that the authorities interest in him was on account of political opinion or any other protect ground in reaching that conclusion in my view the immigration judge committed a clear error of law it's not just a question of substantial evidence or determining whether the evidence compels an opposite conclusion but in my view the immigration judge committed a clear legal here because for nearly twenty years talk about the salish the presumption but in terms of the the presumption what's critical is there was never any criminal charges brought against them it's true the police did have some legitimate law enforcement reason part of a long period we're talking about here was this right versus science establishes this presumption in iraq that he had an individual from sri lanka who was caught red handed transporting weapons for the l t e clearly the sri lankan government had a legitimate interest in that person but torturing they accused him of transporting weapons for the l t e in all these cases there are multiple reasons for the arrest the fact that they have a legitimate interest law enforcement interest in this and it is that doesn't preclude a finding that he was also in part persecuted because of political pain and it definitely does not take this case out of the scope of saying right now and the application of that presumption and the thing about this case that that makes me think that application of the presumption as is most appropriate is i think the act the evidence is actually somewhat compelling that the authorities were in fact motivated at least in part by his perceived support for the charges and we're dealing with an individual who's dealing well we're dealing first off at the most basic level we're dealing with a situation where we have a man who's accused by the new government of atrocities in defense of the former government we know because he's been deemed credible that those allegations had no evidence that would be direct evidence but there is compelling circumstantial evidence the fact that the department of state report because you profile says that in romania military courts follow the individual to meet the signs throughout their lives this man's held in this circuit is if the government harass an individual without bringing any legitimate criminal prosecution we presume that the government is politically motivated and that's what the court should do in this case we have a case coming out of  fiji forgotten the name of momentarily where they put him in jail and they beat him on several occasions but we held that was police just were harassing and moving around but we write we did not grant because there was no evidence the government was now the board can do that your honor but in this case they have not done that because the board made no finding that he had been persecuted in the past so that's an issue that has not yet been ruled upon by the agency let me ask you just so i understand the record the i g found the evidence and the record does not objectively support subjects the fear that the authorities in romania would continue to have an interest in a low ranking noncommissioned military officer who served for one year in the military almost ten years ago if i understand correctly at least the reply brief teles said that you do not object to that i don't contest that particular finding your honor we have not argued that point that's because that finding not take into account any past persecution i don't like the way that you attack that you know that the the i j a made a mistake not finding past persecution and had found past persecution you have at least a presumption right and then we would have to go back to the i j a and say does this overcome the presumption slightly and then the burden which the government ok persecution is that what he found now well we're not saying that your honor because he clearly found that there was not cast persecution however often i mean it's go down alternative routes and i think you know the i j did he started out with the first one i think which may have keyed into  that sounds as though it's a political or at least arguably political party i don't think so your honor i mean they were not picking him off because he was a member of the harvey eisen he was a member of the military both before and after the revolution you know i think he started in september of eight ninety nine he continued with the required service until september one thousand nine hundred so the suggestion that they were picking him up because of different views that existed before and after the revolution just isn't evident in the record and he was in the military both before and after what he when he's talking about it in his testimony he says they're looking for the guilty party and they want to find out who shot at the demonstrators he doesn't say they're arresting me because i was part of a military group which they attributed a political opinion to being part of the military does not mean you after all people that were in the military defining a political opinion to them it was because it was one of these units that supposedly had shot at the demonstrators who they were trying to find who among these various units was responsible it's not clear how many times he was in fact arrested i mean it talks about  and in doing that you know he was looking at what the petitioner testified to and the petitioners testimony was he looking for the guilty party and he did not indicate that he had a certain political opinion he did not indicate that the romanian authorities attributed a certain political opinion to him so there's no evidence of a political opinion here so that it's not a mixed motive type of the case with mixed motive type of cases where there's been potentially some kind of prosecutor prosecutorial experience or accusations there's also something else but here we're missing something else it just doesn't exist he doesn't attribute of political opinions himself he doesn't indicate that the authorities attributed a political opinion to him and when we go  can show are guilty of terrible things again the whole issue is the crime which really doesn't exist because they thought he was in the military both before and after the revolution but this was you know at least that's what they were they believed that he was he was associated with the former regime and that's the fabricated i mean sometimes you do have you do have the authorities saying certain things about political opinion i mean that does happen on occasion certainly it's not going to happen every time you can sometimes you circumstantial evidence but i don't think in this case there is that kind of evidence because he doesn't have a political opinion i mean his being in the military that was required service he wasn't pro the prior government i mean not that he doesn't say he was he doesn't say the other in his testimony doesn't indicate that t a political thing and i don't think that you have to assume that they have to if you know political opinion means nothing about what happened here to say that i mean they want to find out who shot into the demonstrators and they know it was someone from one of the military units but they are not saying all the military units are bad and therefore we're going to trigger political opinion to mean that some of the same people started before and after the revolution no you're arguing the facts but he says they got it because they were looking for scapegoats right and i think i don't agree with your definition of the word scapegoat i mean you're saying if you're a scapegoat that means  the basically the sham he indicates with his testimony which i think is just expounding on what's in his application they were looking for the guilty party i mean he says it's real i mean this happened we were looking for someone and they were confused as to who was involved in it i mean he indicates he wasn't he doesn't say it didn't occur he doesn't say it wasn't someone else you know the military unit i mean they were just the police in his own words were confused as to who was on the other is you just very quickly if i may i mean