present today in court we are here i am here back in front of the court again on an appeal of another one of the judge warrants cases this one is regarding an asylum matter the facts of the case basically are that we have two politically active gambian couples from families that were active within the country of gambia both before and after a coup occurred in one thousand nine hundred four prior to the coup suckles father was a minister in the government equivalent to a cabinet member and she was very active in the political party and work for the government herself her husband was not present at the the coup but had traveled to the united states and testimony was presented that his brother was involved in his brother who was a personal bodyguard for the president of the prior president before the co was also involved in an attempt to count counter because it failed and people involved were executed the issues today on this case and i know the courts all aware of the requirements of asylum so i'm not going to go through those details but the issues really are are twofold they have to do with credibility and they have to do with what's persecution we have a situation where the  testified at the hearing about of rape and there are two questions the just did a great happen or did the rape not happen if the right happened case law supports her entitlement to persecution given all the other factors surrounding her case her family's political involvement if the rape didn't happen then she still may be entitled to asylum but there's there's a view here that i think is important to present not because i realize that the judge is entitled to make a decision and it's not your place to say i would have made a different decision than he one of but that's what he did and we can support it but it's important to consider it in the context of the entire hearing and what happened and how the people who were testifying were treated at the time of the the rape was supposedly revealed at the time of this island hearing that's what my client said her husband said an interpreter sa that there was no question asked about it but there is a question about whether whether the asylum officer heard it clearly he didn't he said i didn't hear her say right but there was some language in which she said that she was insulted and embarrassed which could have easily been assaulted and embarrassed there's a number of things that could have been addressed that could have been discussed that could have led to further information and discussion about it which were if you if you follow the immigration judge and the board of immigration appeals and you discount her testimony and you say we're going to say this judge has sufficient evidence to deny that this right the current or to find that it didn't occur there's still sufficient evidence to grant her asylum based upon two arrests and she was arrested twice detained both times she witnessed her father being beaten during the first arrest and she was very frightened and those facts if you find them credible under our case law are sufficient to establish persecution there is a second part of this case and the second part of the case has to do with he was if a family member was to return who had been involved in that counter code they would be at serious risk so the question then becomes was there facts efficient to support the finding  that he his brother was actually involved in this counter coup because if he was then he's established a well founded fear of persecution the problem is that when the brought when that attorney attempted to call the brother as a witness to get additional information the judge essentially browbeat her into not calling this witness he was a very critical witness and said that she needed to make an offer of proof as to his testimony which she did but which was later discounted as was the testimony of my client and that his failure to allow that testimony would would include have made all of the difference in this case because if the brother had testified consistent with what the one of the applican so this case is is in my opinion is is relatively straightforward there's been there is and i'm sure that the service will say that there was lots of conflicts to us in conjunction with what you're saying and therefore we're going to deny the case in terms of the wife again they said we don't believe the right because it wasn't revealed properly and there's this confusion about it and and we don't think that being in jail twice and we don't think that witnessing your father being beaten up in jail is sufficient to establish persecution good morning your honor terry scatter in am representing then responded john ashcroft this case involves to petition areas who just drawing their credibility before the agency by trying to invalidate this story to win a grant of asylum to gambia obviously both petitioners for performing prefer to remain in the united states however as the board recently found and that is the decision before the court on this petition  review neither established past persecution or a well founded fear of future persecution through credible evidence i'd like to focus on the wife's claim because that that really was the lead claim in th case and her claim i would agree with the petitioner the rape claim was so central to her case certainly had she  rape that occurred for political reasons that would be sufficient that level of harm would rise to the level of level of persecution and be sufficient to establish her claim however the board extremely very her testimony was limited to her certain that some of the soldiers in her house they raped me there were no details there was no indication how many soldiers were involved and whether anyone else was present in the family compound at the time it was simply a bare assertion there was no mention of the great in her asylum application that's a material omission from the application and as the parties have focused in their brief saying there was no mention of the rape in her interview with the asylum officer now when that was called to her attention at the hearing the petitioner gave stiffing explanation she that she had not mentioned it at her airport inspection interview and later according to this court credibly testified that her mission was due to embarrassment you know a cultural matter of of not mentioning something of that nature to a male airport inspector but here well initially initially claiming that she did not tell the officer about the rape then shifted her story when the immigration judge pointed out that the officer would have had no reason to question her about the rape because it was missing from her application and she raped his explanation for why it was not in the asylum officers notes his or his report was well perhaps it was in after only interpret it when the immigration judge pointed out well mr bag you were present you are fluent in both in english gambian dialect why wouldn't you call that to the officers attention if it was in accurately translated his response was i don't know i don't know how to explain it that perhaps misako had not mentioned it to him because she was embarrassed i mean it up param a sammy type of explanation of course when he volunteered that explanation on the petitioner's behalf he was unaware that miss sancho was insisting that she had indeed mentioned the raid and i have a question for you if i mean these interviews with the  husband's testimony the asylum officers testimony the lack of any reference to the rate in the asylum application itself going apart if you look at the record a couple of things that i wanted to one of them is that at the time that respondents brief was submitted they said that we didn't address the issue on the after of proof to the i a e a but we did in fact and there's two parts of our brief where we specifically discussed the offer of proof so i wanted to point that out to the court and those were at page ten and seventeen of the v i i brief that we submitted also in terms of the due process issue regarding the offer proof on a lot of trouble by this whole process but i mean i i think there is as the government argues a lot you know certain amount of evidence in the record to support the determination ma could be produced through transcription of an electronic recording at a minimum the record must convey in a meaningful clear and reliable summary of the statements made by the applicant at the interview the board needs to know what are i'm sure this court scene other immigration court records where they questions and there are questions and answers asked and there are scientists in weekend in cases where people are arrested and questioned by investigators they do a question answer they sign on the bottom of the page you know they read i don't think it is it meets that requirement because not of all the things that she said are down there it is what she thought she heard her say that he that she felt was pertin i don't think it complies because when there was an interpreter used and he was writing it down we don't know if he covered everything she said if she had had an opportunity to review it to make sure that it had said what she thought she represented to him i think it would be adequate if she signed the bottom of it saying yeah that's what i said i think it would be adequate but she had no opportunity to review that she had no idea what it said and that she thought it would reveal the rape and now that's why reliability of them being based on the person having a meaningful opportunity to review and sign of yes there are and i don't have those in front of me but i would also be happy to provide those to the core given that given the translation  didn't ask and number two i told him the first one when he didn't ask them so i didn't have the second one being i didn't tell him but he didn't write it down for there's another way to interpret that and that is  and with that would make it consistent and that is he didn't ask she didn't say he didn't ask details but he didn't ask the details about the rape than if she had revealed the break to him and then he didn't ask details about it and certainly she wouldn't have gone into it any further she would have just revealed it and that would be a consistent interpretation a bold statements that she made remember we've got a person who's speaking second language and there was supposed to be an interpreter there but the interpreter of the word came to the hearing at the immigration court spoke the wrong dialect so they dismissed the interpreter and decided to proceed in english does the best they could because they had the wrong interpreter and of course they want to can they want to continue and satisfy for another day person came from out of state and they spoke the wrong dialect so it was a big problem