relevant sections of the i and a employ identical phrasing to define conduct that triggers the application of the persecutors bar the relevant definitions state that the alien ordered incited assisted or otherwise participated in persecution genocide or extrajudicial killing the language of the eye in a uses active words and they require that the respondent want to take an active role in the persecution genocide or extra for just killing  this court has set forth a two omen test for determining whether the persecutors bar applies st there must be personal involvement and nd there must be purposeful assistance the regulations provide for a burden shifting approach in determining which party has the evidence for a burden to shift the burden of proof to the respondent to prove that the persecutor bar does not apply the department st must submit evidence for both personal involvement and pers purposeful assistance and that evidence much indicate that the bar may apply to mr kristof his case the department failed to submit evidence of either element necessary to shift the burden of proof to mr christie i'd like to talk about personal involvement st the board in this case ruled that neither mr christian's personal involvement nor his awareness of persecution was necessary because his actions were part of a chain of conduct this was a legal conclusion which this court reviews de novo the ruling conflicts with lots of longstanding precedent from both this court and the board in matter of the are the board recently stated that the standard for personal involvement involves an analysis of the relationship between the respondents action and the persecution the mere acquiescence or membership in an organization is not sufficient to indicate that an individual may have participated in persecution in kumar this court considered whether a prison guard at a facility in which political prisoners were tortured was subject to the persecutors far in analyzing the element of personal involvement the court determined that there was insufficient evidence to shift the burden to the respondent to prove that the pers statement of personal involvement is that everybody who was a member of the v r a which was the army for the serbs involved in the civil war was personally involved in the genocide persecution and actually additional killing i think that's  probably not a fair characterization of the findings i mean they're talking about a particular time the separate nico they're talking about being in the trench they're talking about the location they're talking about the particular  category within the military unit if you want to call it so i don't think it's i don't think it would be a fair characterization is say that i j simply said anybody  you know who was there at that time and was part of the v r s was somehow implicated so my my question really goes to the standard  and i think you know you stated it nicely when you said it where whether it they may and there are so that's kind of not a very strong word there you know that there may be evidence and then it shifts so would you agree that in making a determination of whether the i j a is findings support this may that we look at that for substantial evidence well i think there's two issues one is whether they were applying whether the board particularly was applying the right standard and what it means to be personally involved and i was reviewed to know by yes then the determination of whether the person was personally evidence yes the case is to support that there can be circumstantial evidence but that circumstantial evidence must be more than being a member of an organization in which some of whom has members committed persecution genocide or accidental killing so how do you respond to  point in the record when the when there's evidence that he was in the trenches and nearby where the massacre took place well clued in this retreating individual or a line of individuals combat operations and the board itself has said that being a participant in a civil war is not the kind of persecution that can be considered for personal involvement so there is evidence that mr kristof was soldier in  civil war however there is not evidence that he was personally involved or purposefully assisted in the persecution or genocide and those are two separate issues and the decision of both the immigration court and the board to conflate those two issues and it's important to analyze them separately and then it's clear that although he purposefully assisted the b r s he did not purposely assist in genocide extrajudicial killings or  persecution and this case is also distinguishable from cases that have found other circumstances on top of being a member of an organization that have allowed the court to make a circumstantial finding  example in the matter of n b c which is cited by the government in this case you had somebody who is in a command authority and somebody who has a higher position is more likely to know about the overall plans of war which might include you know persecution actually to show killing and genocide so in that case finding that there was circumstantial evidence goes beyond simply being a member of an organization well on that but on the days in question he was  n the time period in question he was nearby he was nearby but there was no i didn't infer that he knew what had happened or knew what was taking place well there was an evidence that that kind of information was spread to people on the frontline the i g found the apis found it sort of incredible that one would disclaim any knowledge so we have to go with that lack of radio being found at a front line and which was in a unit that was not the same as mr cases so on that point i would say that there's not substantial evidence supporting that conclusion however about common sense i don't think we jurors all the time you know you don't leave your commonsense at the door to the jury right i'm not sure that common sense would support inferring that somebody who is in a trench on the front lines and who is in a very low position would know about events taking place far away and he was not somebody of a lot of information and a time of conflict is kept on the need to know basis i think it's common sense that you know that's silly tell soldiers all the way down the ranks what's happening in every part of the country when you say far away well it was not within view or ok right because we're not talking far away as one might imagine when we're not talking you know that it was or something like that right geographically it's not far but it is not close enough to find out just by virtue of being in that location there has to be communication of that information and that's where there's a lot of evidence that there was communication however i would point  t that even if mr position knew of the persecution that took place he didn't purposely assisted in that he didn't do anything other than engage in regular unlawful combat operations and that is supported and we could pass that what are your comments about for if you can do you and what the record shows right well i think that that's why this court and the board have been so clear that has there has to be evidence you know sufficient to shift the burden because once the burnish if it's almost impossible to overcome for respondent because if the respondent and i if the allegation then the court can use that to say this person is not credible so in mr kristof his case  burden of court found that the burden shifted to him he denied it and then the court said that by virtue of denying it he lacked credibility and so shifting the burden was more than that it was more than just appeared and i had a laundry list personal involvement and purposeful participation would you go back to your statement because it was an interesting one and i want to make sure i understand it where you said once you shift the burden if the a is to hold these credibility findings that in effect you make a rebuttable presumption an actual presumption and i would appreciate if you would expand on that point yes well the problem is that the you know the central issue in mr chris is his case was whether he participated in persecution and in the immigration court decision he said you know based on the evidence that he may have  and i think that's probably a common fact pattern in this type of case because in the case croom are we had a similar circumstance where you had a respondent who was a member of an organization some of whom the members committed persecution  but he was able to testify credibly when he could he testified credibly in kumar that he worked for a government agency and that he also affirmatively protested what was this persecution and here we have all these facts about even being a member of this unit and what it was and what it did and the use of weapons all of that did not actually nor did the benefit of your client once the evidence came that did it actually i would say that the experts at that very few members of the th battalion were directly involved in persecution so in that way this case is the single school from cases where you have individuals who are part of the organizations in which all of the members or at least a majority of them were involved in persecution i think under circumstances like that if you have an individual who was a member of such organization at a time in place when persecution took place that would be a reasonable inference to make the department's own expert that it was a very small number and he also said that there was no evidence that mr kristof himself was among that small percentage of the th battalion that engaged in persecution you want to save your remaining time but i think you good morning alison i go representing the attorney general may please the court i take issue with several things that my opposing counsel said what i don't believe that mr mcqueen ever said it was a small number of people in this book gave that were involved there were eight thousand muslims men and boys killed during a plan for ethnic cleansing of the dream of ali what mr mcqueen testif compound protected by the un that was housing muslim men women and children the evidence in this case shows that mr christic was an infantry member and he was trained as a i believe it's page i think it's page twenty one he he testified that he guarded the line and that he knew that a column was approaching this column were the men who they separated out the women and they sent the women and children one place and then they took the men in the men were driven and the men and boys were the ones who were who were who were killed he he testified himself that he and the immigration judge found that he guarded the line and he knew about a column that was approaching and that he had orders to stop them he also testified that he only followed orders so if his orders were to stop this column of men and boys approaching my opposing counsel would argue that the only way that you could found to have participated or assisted in persecution is if you actually shot somebody but the case law in this circuit is and actually across the country is very clear you don't need to be involved in trigger polling if you did something that assisted if you that's that's how the soldiers in was of want to progress including respond and had orders to prevent people from the column from passing into safe territory and when they were prevented from passing into safe territory generally was that he was in the trenches right but he's also said that he guarded the line and he knew about this column approaching and that he followed orders and the orders were to prevent the column from getting to safe territory i mean i think you know you have to look at that and say  you know he would have this he would have had the immigration judge believe that he served for four years with a special designation as a gunner in the very brigade that was responsible for executing eight thousand dollars innocent people and that he hunkered down in his in his trench for the entire time and yet that's what not what mr mcqueen said mr mcqueen said and we can't put these people these individual people it's impossible to show that he was the one that shot that when he was on the chart that way but that's not that's not what's necessary the regulation says that if the evidence indicates that the bar  apply and remember this is not a criminal case we're not talking about reasonable doubt if the evidence indicates that the bar may apply this man was part of this of warning brigade th battalion he was  documents show that he was there on the days in question his designation was as a gun aim or the genocide began with heavy artillery bombarding  where the muslims fled and that he said he followed orders they were ordered to stop this column that is sufficient to indicate and then the burden was on him and he could have proved it with credible testimony showing where he was or that he wasn't there the problem in this case is that mr christic was not credible throughout the entire procedure he gained entry to this country with false representation he was convicted of a account you know the evidence that mr mcqueen testified to about his designation about his you know the fact that the records show that he was on duty those days he admitted that he was in the trench that he followed orders that cal combatants but not know that this was a genocide it was just it was a targeted ethnic cleansing of muslims in the area and these people that formed this column right soon got what they they were not combatants they were they were civilians mr critz overcome the man and indicate if the bird shipped him which the government argues given the credibility findings was it possible for him to overcome the burden shifting he could have pointed you know as mr mcqueen pointed out the serb army in this case kept incredible records which is how we know the position that he served and in the days that he served he could have shown in the records that he wasn't there he could have credibly testified about his you know what he did on those days but in fact his kick his testimony about where he was and what he was doing shifted constantly st he was sleeping during during you know the battle except that this started on july th and ended on july th this was a two week period over which period of time eight thousand people were killed and i never denied hearing no i don't believe you have a denied being there because the documents put him there he but what he said was i was in a trench i was hunkered down i saw this column i didn't know what they were doing i didn't i was busy you know loading or artillery and i nor them another time he said he was sleeping and then he said that the shooting only went on for five minutes he had this a valving testimony about what his participation or what his activities were during during that time and so he absolutely we have had cases where the burden has shifted and with credible testimony the applicant has shown that the that the bar should not apply but in this case when you look at the entirety of the evidence i mean this gentleman knew coming into this country that if he were pinned in this brigade in this of warning brigade th battalion that he would have to explain that and so he lied and he he didn't take that opportunity to say yes i served i was you know forcibly recruited these were the days i was there i wasn't involved i wasn't anywhere near but he didn't do that he lied because he knew that that would have prevented him from entering the country part because he made this material representation and then the immigration judge had to find that he would not have been eligible for asylum status at the time he came to refugee status at the time he gained it and i believe that the immigration judge took into account i'm not sure if that i'm trying to remember that it's a sixty nine page very very detail you know i know that the judge took into account his service and said that his service in this brigade would have raised questions and cut off a line of inquiry i guess the question would be if the petition were granted where would this go then go back to the immigration and well it depends on on why the participate yes because actually the immigration judge did not take that step further to decide whether he has a well founded fear of persecution i'm sorry i misunderstood the question but it would have to go back because those other elements have not  established so it the agency would have to have the st bite at determining whether he actually met all of the other qualifications to establish asylum yes if the court has no further questions i actually just will killing factor obviously is not conclusive but would that be a factor that the judge could consider i think to his credibility but he still has to hold the department to its burden of proof to show that there's some evidence that shows personal city that's more than a credibility issue seems to me it seems to me think knowledge and that i'm not to admit that i was even there and can't isn't that one factor that could be considered i think you can i disagree i think that it may show that his credibility has problems but it doesn't show that he participated in private conduct i just want to briefly i dress the call and reiterate that even if he was in the trenches defending against the st of all there is substantial evidence that there were many armed people on the while there was a disagreement as to what percentage but there is no disagreement that it was a substantial number and that there was heavy combat between the two sides and the department's own expert stated that defending the color lines against the column was part of a legitimate combat in a civil war and i would direct the court's attention to the ministry of record at page nine hundred and seventy for that thank you thank you live like to thank you both for the very helpful arguments and also the briefing which is very helpful and extensive in this case the case of christie versus barr is submitted