no no you can go basically granted asylum be i a on the i appeal government council stated the record is simply too deficient upon remain and there was a lengthy discussion between government trial attorney and i j about whether there should be at the novo hearing a recreation of the record government certainly zales stated we probably should have at the normal hearing i j asked what the government wanted next page i think we should ask we would ask for a new hearing several pages later  it appears that it's not too much of an exaggeration to state that almost every other line is indiscernible and i will say beyond that we had an interpreter has been disqualified and then the trial attorney goes on to state that the way you describe it to me to the i g the only way to do it would be at the noble hearing because if what you're telling me is that the interpreter was of questionable value anything that is in the translation interpretation would be of questionable value suppose we throw out the transfer we say you can't use it to impeach ok wait the i j a did isn't didn't the i j a also find that your guys did something at the second hearing that was contradicted by his application that isn't affected by this transcript problem well that is a very good question basically the first issue is that they did only one apparent inconsistency between the written statement and the testimony which was basically with regard to  with regard to the imprisonment of the individual makes up the dates when he was in prison and stated that at that moment he was not in prison when according to the statement he was we do not know whether the i j a would this inconsistency alone given that he found him credible the first time as well this is an elderly man from iran we do not know if based on that inconsistency a long would have denied asylum or that's why we wait wait wait you said that he found incredible the first time botched transcript for impeachment and take that for what it is and then you can use your earlier statement or not but you can't have it one way and not the other well your honor that is correct what i'm saying basically we are not using any statements from the first transcript but you are using the what you said it was the finding if there was credibility i and i thought your point was that we need to go to the second hearing that the noble hearing and that's it we could pain the judge silverman suggested we just put aside the earlier transcript we don't rely upon any impeachment evidence there the real question is whether there was substantial evidence in the record or the i g a in the second the normal hearing to make determination necessary to find an adverse credibility terminations that is correct about yes that is exactly the question and i think because the i j did not do that because the first transcript was employed we would  but but as least as i understand it the second hearing your client testified twice and like in my notes here that on the occasion that he was taken to the comey tarnower you say it  that the attackers left after forty five minutes or an hour that he did not call the police afterwards when he was asked about the discrepancy regarding that he didn't recall what he said in his application so you got the application and what alleg that decision and said based on this sole inconsistency i'm going to deny asylum this court would be able to review under substantial evidence but we do not know what the i g would have done had the first transcript not been used for impeachment improperly are we in a position to do what judge silberman indicated which is to simply ignore any evidence related to the first transcript or anything related to the first hearing look at the second hearing and find out whether there is in the record substantial evidence to about and and said in making his determination i understand the court's question the concern but the issue is whether or not the standard of review is whether substantial evidence with support i d s credibility finding right and if the idea is credibility finding is based on improper factors and there's this one factor alone that is the only inconsistency guy jason the best position to judge based on that the mean are based on the applicant's testimony whether he is credible or not and you should think counsel that a single basis for an adverse credibility is insufficient there's got to be more than one no your honor i'm not saying but i know that if there is one that it goes to the heart of the claim actually in this case there is also the client stated that he does not recall and he may have been mistaken which is reasonable answers he could have made up an excuse he stated that he did not go on to state why that was an unacceptable explanation because already their entire record had been tainted by the use of the first transcript so what i'm saying is based on that so inconsistency we do not know if the i j a would have found him credible and the court by reviewing under substantial evidence would be sa decision is correct that the night based on one inconsistency which it may not even have been decision that is our position your honor and the second issue is in this case the government states that  basically it would not be fundamentally unfair to use that actually got it was unfair would it be implied but it was not fundamentally unfair to use their first transcript from the first hearing but the government's own position was that  morning morning please the court so we heller on behalf of the attorney general this case involves a need of interest and of iran who was found that he failed to meet his burden of the stablish in his eligibility for sound because he was found not credible immigration judge here which was the same immigration judge from the first hearing in two thousand and two and the second hearing in two thousand and four based his adverse credibility determination on ten specific inconsistency and to put together a complete record for its review counsel how many of the ten specific and consistencies were determined with reference to the transcript of the first he nothing in the regulations or any case law from the circuit or from the board not permitting the agency to rely on sworn testimony and evidence in making an adverse credibility what about opposing counsel's statement that the government agreed that the old transcript would not be the government through with that i disagree with that there is nothing in the record  regarding how they're going to make a complete record on review whether or not they were going to use attorney notes because mr you see and proceeded in both proceedings pro se or whether or not they were going to take new testimony and  have a new hearing in order to put together this record and that the immigration judge didn't mention that the interpreter was disqualified but again we have no there's no evidence in the record as to why this interpreter was disqualified and the that was used the disqualified we have no other information as to why that mean that he or she would not be used in further immigration judge hearing again i really do not know of the circumstances at the agency level as to the faces of the disqualification or whether or not i want to let's assume for a moment that the the idea was finding that for whatever reason visaged translator would not be used interpreter would not be testimony would be impeached based upon a partially indiscernible transcript and even when it is discernible that it's based upon the efforts of either an incompetent or whatever  interpreter involved who was disqualified yes i think that that is a fact that the interpreter what i'd call if i had the necessary predicate to anything i mean well let's let's say for example if you had an interpreter who didn't speak farsi and you have a person that they're on the stand and the guy's the stripper speaks spanish doesn't know anything and says some mumbo jumbo we wouldn't give any credibility that the idea wouldn't give any credibility to that why should we give not an audiotape and someone transcribed the grand guarding the translation problems that are smith was just asking you about the why i understand correctly that it's your position that they never complained about the translation to the board is that your your up what you mean by predominantly ninety percent of this argument is based on a translation error you see here correct but it was not raised at all before the board my understanding and again i i would hesitate to check you know with my record but my reading of his brief did not challenge any translation problem it was a transcription error which he raised and the board addressed that and said well here the immigration judge based the adverse credibility determination on the clear portions of the transcript again there's no record evidence that there was any problem with mr you see in understanding the interpreter and this fact there was a problem with understanding testimony it's not just a blanket sweeping argument that i didn't understand my translator and therefore this forced your let's testimony just for discussion purposes  because of the problem with the translator whether or not raised with explicitly and because of the indiscernible portions of this transcript redecide that due process requires us to reject any findings based upon that is there sufficient evidence on the one remaining credibility count to permit us to affirm the v i i without reference to the first hearing in any concern i have about that the idea is finding one page eighteen stairs after after going through all of these are the findings of the discrepancies and that's in plural the discrepancies as set out above are such that the court cannot say what to believe about response just what it looks to me like this is a cumulative fine you think all the discrepancies together so we're going to throw out nine of them but i'm concerned that you know the judge might have said well there was to determine whether or not mr scene should have provided property of evidence what i'm saying is that if you as a said there are ten things wrong in any one of them would have been sufficient that's one thing but here the judge kind of says you you you take the whole package and  record but basically i have complained against several interpreters they're very rarely disqualified unless they find that there is an egregious error in the translations of that interpreter consistently does this record show why this interpreter was disqualified and it doesn't from my family the immigration judge is the one that made the reference would be the one who knew right correct and he decided he could rely upon the first transcript portions that didn't say inaudible well then that the case that was in error your honor are telling me is that it's an error but you're telling me let's rely upon the i j a for the evaluation of the interpreter but let's not rely upon the i j a based on his evaluation of the interpreter because he decided he could rely upon what was in the transcript grunter i see because position even if i understand the course position but i think that the i j a stating that the interpreter was disqualified and then the government stating that if the interpreters let's take a look at the so called concession by the government and i took a look at what it's on a r one twenty six pages five to eight ok the way that starts the way you describe it to me he's talking to the judge that would probably the only alternative because if what you're telling me is that the interpreter was a question of value i don't see a concession by the government i see it the statement that says ok i j if you're right that we can't trust the interpreter which comes exactly back to the problem it's not the government saying independently the interpreter was questionable it's the government attorney acknowledging the i j a statement  yet that's the very same i j who decided he could rely upon that transcript when it wasn't an audible yes and your honor in this case it was even if we take out the interpretation issue there are still by the government admission way too many indiscernible sure but what's discernible that mean you make recorded transcript a record i hearing and part of it doesn't record and part of it does that doesn't mean the part that was recorded isn't accurate or can't be relied upon well your honor actually one great example is for example when they asked about whether he converted at what age he converted and the first transcript reads ever since i was ten years old the trial attorney agree to do with an oval hearing and we would simply ask that they have a chance to make a determination on in the first instance that i j how do you know he didn't because he was the one that made the decision concluded that your client was not credible based upon the inconsistency because as judge seldom asked government counsel your honor the i j a in the decisions they said there are way too many there are basically discrepancies and he doesn't