good morning my name is sandra kaufman i represent the petitioner i'd like to reserve two minutes if i remember the issue in this case is pretty simple it's whether substantial evidence supports the b a s the board of immigration appeals negative credibility finding the petitioner's argument is that the neither the immigration judge nor the b i a conducted a very well reasoned analysis and and basically that both decisions were very bad decisions and mischaracterize the petitioners testimony there were four reasons that the relied on and the negative credibility finding the first was the petitioners demeanor during his hearing and then there were three legit areas where the petitioners inc testimony was inconsistent with his written declaration regarding those allegedly in consistenc they were all based on mischaracterizations of the petitioners testimony and the petitioner will would submit that he did not actually testify inconsistently during his hearing and any claim that petitioner submitted a written declaration saying that he he went to the police station on day one and issued a complaint against his neighbor and then the next day he went to the louisiana police station and issued a similar complain the judge says that he testified inconsistently because he because it was her words impossible that he could have gone to louisiana because he was arrested on that same day but the petitioners said in his testimony i want to  the clerk there told him his complaint didn't matter and to go home so brushed him off and he said he went home and then he spoke with some of his friends and they urged him to go to louisiana and then he said the next day i went to lady on and filed a complaint there when he returned home he was at the bus stop after returning home and he got arrested at the bus stop so there was no inconsistency there the i j a basically put words in the petitioner's mouth in the b i agents rubberstamp that in its decision but the analysis was very shoddy by the the b a a they took the petitioners language in his written declaration that that he was insulted as an assertion that he was verbal ie assault insulted or that there was some kind of x similar to torture that was committed by the clerk but that's not what his declaration says it just says that he the clerk misbehaved in his testimony in court the petitioner said that he was brushed off and that he was frustrated by how the court treated him because the clerk the petitioner testified repeatedly that the clerk told him his complaint didn't matter and told him to leave and so i think in his declaration when he said that the clerk misbehaved he was he was  referring to the fact that the clerk didn't take his complaint seriously and didn't didn't do his job as a police officer didn't take the complaint so so that second inconsistency whether the whether the petitioner testified inconsistently about whether the clerk misbehaved or insulted him i think that that is also not a not a real inconsistency there regarding whether or not the petitioners demeanor implicated his credibility the i j a said that the petitioner broke down and cried when he described his father's death but showed no emotion when he was describing being should be similarly affected by recounting the death of his father and recounting being tortured but i think those are two very different memories and this court has held in cases like ren beholder which the petitioner cited in his brief that victims of trauma it's going to affect how you testify when you're in court when you're recounting a really traumatic event and the fact that he didn't break down crying when he tortured the way he broke down crying when describing the death of his father that doesn't suggest that he's a dishonest person and i think that it was wrong for the judge to find that he didn't testify credibly based on that another reason for rejecting that the negative credibility finding based on the the demeanor reason is that there's nothing in the transcript that can support that finding by the judge there are a number of  cases decided by this court that say that if the record of the proceedings of the transcript doesn't obviously show some kind of evasive ness or inconsistency is by the petitioner then no deference should be shown to a sufficient i don't think so your honor i think that although it is a real idea i case the reasons must be substantial and if the reasons are trivial or if the reason cited by the i j a or the b i in fact don't exist which the offered a very plausible explanation of what happened he went to louisiana which is twelve miles away from and he came back and he was arrested upon his return the i j a was not required to accept the explanation that was given the i g did not even acknowledge that the explanation the i g said that it was impossible and it is not impossible to travel twelve miles away file a complaint one police station and then come back and still be arrested at eight o'clock in the morning it's just not impossible the reasons that were cited by the i g in the b i a e a were not supported by substantial evidence there if the transcript is read closely next to his declaration it is very fact which are conclusive unless the record evidence compels the contrary conclusion and petitioner has not articulated why the record evidence compels a contrary conclusion of a chilling effect of this being a post i'm sorry on your question oh immigration judge is authorized to consider relevant several relevant factors the tally of the circumstances such as demeanor inconsistency between his written and oral statement as well as internal inconsistency and petitioner is simply clerk misbehaved with me and that the police clerk insulted him however in his testimony on page one forty four there is no mention of this ensign at all on his direct examination it was only after the immigration judge pointed to the fact that he admitted this information and that's on page one eighty four and eighty five the record he repeated and i quote nothing happened at the police station when he reported the incident again it was upon further questioning by the immigration judge to make sure he understood that this was a fact that he had committed then he stated oh yeah i was insulted so that is a clear inconsistency between has written testimony and i mean to his testimony in court and his written declaration there was also inconsistent with what garst to the falling of the complaint in louisiana which i'm not saying correctly on page one thirty nine of the record he stated that he was arrested at eight am on one forty four again on direct examination he said after speaking with the police at mola poor he returned home and the next day he was next morning he was arrested there was no mention in his direct testimony that he went to another precinct to report this it was only on page one eighty six and one eighty seven that there was any mention of the second complaint and when asked by the american immigration judge about this omission he says and i quote i did not remember that again and it slipped my mind that again as a clear inconsistent statement there is also the inconsistency with regards to who was there when he was released from the police station in his written statement on page one forty seven i'm sorry on seven o seven he said that there were three individuals that were there mr direct testimony on one forty seven again three individuals it was only on cross examination then he mentions that there are four members of his community plus the three individuals that were there his release we have cases to talk about credibility and emotions are significant in terms of demeanor and that's of course the problems we also have cases that say really shouldn't speculate about how such high deference to this because the this court cannot sit in the place of the immigration judge and so it's not speculation to think that because his demeanor changed from one direction to the other it was just an  observation of with regard to his nonverbal communication just as an observation is acceptable this court such as the coloration of an individual during a critical examination whether or not he expresses some you know elaborating a norm and nervousness or whether or not what is the modulation or pace of his speech all those are factors that this court has recognized in st the and this is this finding by the immigration judge and affirm of the board is in line with those nonverbal communications that your you're correct your honor however the other factors that i and mention that was noted in that case such as the modulation of speech or coloration of skin those are the factors to that would require a demolition judge to formulate a an observation and then following an opinion based upon that observation and this case the observation was there was a negative inference that was a form trauma that he didn't express the same emotional response with depends on how he felt about the situation you're right you're on him but in this case this court has said that there is the deference that's afforded because the immigration judge is there in person with the individual say i have some doubt about her credibility because she basically reported this like she was talking about some clinical observation and not what happened if the immigration judge used case and so demeanor is one of the first factors that's mentioned in the statute as being one of the factors that the immigration judge can consider so if it is so along with inconsistent testimony and other factors as well but we've got to d your theory would endorse that approach to that hypothetical wouldn't i would say not i don't like the characterization of saying that's the theory however there have there would have to be other factors do going into the much but when you ate it up with objective factors then you can count so i'm saying that with regard to the totality of the circumstances and all the relevant factors the agency did exactly what the statute requires them to do is look at all will have factors and to tell the circumstance and the chairman whether or not this individual provided credible testimony and there in the agency is within their purview to be able to use these factions is to determine whether or not that this individual being truthful whether or not his testimony was credible and the standard well the fact that he cried in situation one and not to what does that have to do with his credibility with his it's one of the words with truth it's one of the realm of factors that be considered for instance the fact of someone's coloration during direct examination goes to their demeanor as well so your honor what it doesn't matter here if we were to discount and say that at least as explained was an improper ground when the b i a went on and said furthermore there's five reasons why that support lack of credibility so would it matter in this case it wouldn't if you almost every time but yes it would not matter actually because of that fact is that there are other factors here and looking at the totality of circumstances the record evidence does not compel the conclusion contrary to what the agency rate if there is one if there is just one credibility credibility determination that's valid then the standing decision stands that hereto so we don't have to dissect every single one right that's correct and we've provided you with terrible examples and record evidence i wish i had another ten minutes this this case is very fact specific and it requires a lot of digging into the transcript but doesn't that militate against your position if it's facts specific then the deference is given to the fact finder your honor i think that deference must be given if the fact finder gives reasonable reasons and in this case the demeanor finding like the court pointed cited other reasons that could be considered like the modulation of speech or whether the person starts washing but the judge didn't cite those factors in her decision so the judge did say there are other reasons we have cases that thought that's a legitimate basis for an app or its credibility terminations right i think there have been cases where demeanor was relied on and was approved of but in this case the particular demeanor finding that the  d will now take a brief break and we'll return it ten thirty for the last case on the calendar which is made up first this a lie