the court i'm done expect shurmur person in question in this matter this morning on behalf of the offices of kaiser capeci i'm with my partner jack i kaiser's at the table to the only question before this court today is whether or to shoot out an unarmed combat and by shooting over his head the courts and it's decision at page seventy four the record relied on that sole incident to determine that he had indeed participated in persecution it was a colonel in charge of a christian camp your honor about starting with a yes or no he was a colonel in charge of a prison camp that included in its population people who have done no more than this or agree publicly with the governor i do not know if i do not know that the record reflects why they were in the prison camp but he did  was he did oversee i believe ten prison camps and he was in the military for about forty years was there that's correct and he was president when villages were  no the record does not reflect that at the judge's decision at age seventy she acknowledges that that is not the case and i believe in the record at one fourteen and one fifteen she acknowledges that other would be persecution to gun down this person and then you stand up there with the others and either with a rifle or pistol depending on which story you're telling you hang your rifle head how does that make you not a persecutor ok i will respond to that question by stating that i agree with the court's recapitulation of the facts because that is what the court stated the immigration judge stated i think seventy and seventy one so i believe she did agree or disagree well my response the question is that you are not a persecutor because the test the legal test under  recruit rodrigues mojado mcmillan and also matter of federico is whether or not the objective effect of your actions resulted in persecution the objective effect of his actions did not result in persecution because the other movies in our military put up in front of a firing squad one or two people would be given blanks but nobody knew who had the planks for sure but one of two people beat them blanks and so their six people for by definition would be going to kill me now are you saying that in that instance if i could somehow demonstrate in my rifle was alone in the blank i would not be persecutor according to the legal definition that we must follow and that they must have followed those three board of immigration appeals decisions yes what if i'm a guard or prison camp and i marched around all the time in the prison camp ok i disagree with the court in that instance because the course uses the term this whole process we're talking about one instance where he was ordered to kill someone a nd under the threat of death and where he disobeyed that order at his own personal risk because he was a christian and me also possible that he would only be punished by imprisonment disgrace if he refuse you know he clearly states that it was under the threat of death and i believe that's one thirty seven and one thirty eight of the record and also he begins to find that once the seven no one sixty two person that person fires over his head and then nothing else happens you think that would qualify as persecution no because you have joked the fact of the individual's actions were not persecute florrie and not i'm talking about from that from the point of view of the person who got shot at in other words were that person be able to come to us and come today to an asylum officer or an immigration judge and say i was persecuted because i was fired on because  was one of the protected grounds even now the bullet missed me i think the answer is probably yeah i would agree that it's yes because the individuals obviously detained rather immobile they can't leave money at the shooting at somebody and you going to hit somebody with a ball except to for that actually consider persecution i guess is my point right i don't necessarily group that because that would have to be the reason for the shooting whether it was on account of i'm just talking about the persecution aspect of it i mean the fact the fact that you aim if you're if you're the person who is being persecuted that somebody is trying to shoot you usually with that could qualify as persecution see that's we get all these cases where they where the government says well there's no evidence that the person was shooting them on account of racism and the first of all now you have to imply that i was them because often persecutors now communicate their motives at the time ok i understand the concern of the court but in this case that is not the case we have replete testimony at pages one thirty one fifty s her decision and that he intentionally shot one of the individuals said the court did not make a finding of credibility the court used that testimony to to find that he was a persecutor so we have to look at the testimony as evidence and determine that he she did shoot above the person said and he intended to do that it was because of his religious beliefs your over your thank you for your argument well here in the government just urge the court to accord some deference to the attorney general in its end here in his construction and interpretation of the immigration laws with respect to who constitute the persecutor and who isn't eligible for position yes it is you are ok but then turning the example around you're basically saying that in times of military stri if someone is fired on by a military group that's automatically considered persecution from perth from the victim's point of view which is not the government's position and in many cases  that's military whatever they say well those are that's a different that's war if you're fired on in a war civil civil discord that can't possibly be persecution i see an inconsistency can you help me yes you are first of all we it is not our position that this incident occurred in the context of civil war there's been ongoing rebellion in the delta in burma it was there was no japanese the japanese during world war two but it is not clear that this was a war number one so therefore we can't say that as we can draw these broad rules that if someone is fired upon in the course of a war is there or particular context where i think all three of us are having trouble with this same concept it's clear from reading this record that the reason this individual was summarily executed was because of the individual's actions and beliefs and ordinarily that would i think most paranoid of people would agree that that that constitutes persecution but if it were in the context hat itself would not those acts would not be construed be considered persecution here the attorney general has decided that the detention and tying up of this man and the force operating out of the delta is that special force one of seven the first incident described in the record in his testimony in his own words is the beating death of the elderly man who is suspected of being a japanese just returning to that point he was in command in the command position when he fired upon the karen girl he was the second lieutenant he was a platoon commander of that platoon clear from the record that he was senior officer present on the scene it's clear he was not the senior officer on the scene with respect to the actual execution of the man he was most certainly as platoon commander the senior off on the scene when they captured the caring girl and brought him back to headquarters so he was not a p r an enlisted guy just operating on orders he has some accountability as a as a commissioned officer said something else during direct examination he would then change his story but with respect to the shooting above the heads of the karen guerrilla at one point he testified that they murdered the karen guerrilla in retaliation for the murder of three of their guys a couple weeks before and he only came up with this shooting about the has a story after having testified about it several times so that wasn't his first story in conclusion your honor we would ask the court to your honor the only thing i have is that i do not believe that responded changed his testimony at any time i believe that everything even as a pro se individual which he was initially  is consistent i believe that under our t v shows because there is no finding by the vi or the immigration judge as to his credibility that he is credible and that as a result if we look at all the pages that i previously cited directly before i sat down that he did did not shoot the individual he intentionally shot above his questions before is because the law does not take into account intent thank you for your argument thank both sides for their argument the case just argued will be submitted for decision in the court will stand in recess for th