congress's meaning of the serious nonpolitical crime bar this bar as a reflection of our acceptance of a fundamental international value the abhorrence of the atrocities that took place during the holocaust it is intended to prevent the admission as a refugee of certain criminals who are undeserving of refugee status however it is not a legal means for barring well intentioned and deserving political refugees from seeking asylum today i want to talk about the standard applied to determine if an applicant has such a serious nonpolitical crime as well as credibility mcmullin president is the precise issue is that the probable cause determination it is your honor it is probable cause and its petitioners belief that probable cause doesn't reflect congress's plain meaning of serious reasons to believe we've already solved that problem for you and go this panel cannot overturn go and go as the probable cause is the pure definition and go we said it equals probable cause you say you're right doesn't it only name bank or can change go i mean the decision has been made well judge was go referred back to  versus grant in the second circuit and all of those cases some merrily stated that probable cause was the appropriate standard however probable cause traditionally does not reflect the plain meaning of serious reasons to believe  say that you say that but we've already said the opposite i mean i i hope that opinion and go was written carefully we tried to and then we came to the conclusion that that his a fair a fair analysis for us to take how can we change that how can this panel change that when you've made the decision and go well i think the guiding factor and go  is that applicants for asylum in those cases freely admitted the fact that constituted a serious nonpolitical crime bar this is a matter of first impression over this or that wasn't goes facts and that is the same case in sedona he contests he said it didn't occur and the person who came over to testify was not a valid person to testify i don't really go the same way you do right and in the second circuit which is the other circuit that has looked at this issue we have another case kaku ism and koos i'm there was a egyptian applicant for asylum who did not admit to the conduct that he had apparently engaged in but in that case the evidence against the applicant was so significant and detailed the applicant was not a political refugee and under no circumstance that he  contest that the basis for the evidence that was used against him was somehow biased as it is in this case but this panel can't ignore existing one circuit precedent and jump to the second circuit so i think you have your argument but that would on page thirty nine of the government's response of briefing government posits that simply once the four factor test of mcmullin has been met when in essence the applicant fails the test that the fact finder could and should determine the crime was non political and thus that there are serious reasons to believe but probable cause is a phenomenally low standard and a long history of probable cause cases from  probable cause has helped the men reasonable suspicion and the law enforcement contacts and that is the most well developed body of law with respect to probable cause and if we were to understand probable cause we typically look at how probable cause has been applied in the law enforcement context for you your argument would be an interesting argument if this were a petition for rehearing in bank but we can't change go goes as is probable cause simply under the current state of the liar on under the ninth circuit probable cause is the law and it is it is petitioners contention that the plain meaning as a matter of law and logic should compel on that issue the correct standard your honor that we that the petitioner believes would reflect congressional intent would be something more akin to clear and convincing evidence and serious reasons to believe is reflective of clear and convincing evidence because a standard for example as preponderance of the evidence would only refer to significant reasons and in this case when congress an act of the law congress pacifically put in serious reasons to believe not just simply reasons to believe now assuming that the plain meaning of probable cause were identical to serious reasons to believe and pose no semantic difference and assuming this court as judge wallace said were to hold fast to the probable causes the standard the government's assertion that probable cause existed as to both the guatemalan and salvadoran charges were in fact the very basis for the persecution and in fact that these charges were rooted in the biased corrupt source of government persecution and considering the testimony taken in the removal hearings  several expert witnesses corroborating witnesses and testimony the evidence points to the fact that the charges against the petitioner were false and ginned up and intended to persecute him for his political views and his that he had an arrest warrant that was provided by the court that he was stripped of his immunity by the legislative assembly even members of on his own party that a person has been found guilty that he bribed the person he went to jail for and they're going to say that shows probable cause so tell us why they would be wrong in making that argument right well the immigration judge reliance on the warrant in this case was flawed because the petitioner through counsel below presented significant testimony and to show that this warrant was biased and inherently not trustworthy document simply an immigration judge to rely on such a faulty warrant when there is some indication to indicate that it is unreliable in the foreign state concerning the standard for issuance of a warrant that is something that was not in the record and we do not have any information about that but the fact that you bring that up judge tough is important because because we don't have that evidence and evidence wasn't presented we simply cannot state that the warrant was procured to any standards of due process that meet our standards here in the united states what and what what case you rely on that they have to meet our standards and you know i don't have any case for that your honor but i read your goal the gold standard argument and i wonder have we ever held that they have we have to find out if they do it the same way we do right i did not encounter such a case at all here mister but the fact of the matter remains in this case the determination of something so critical as illegitimately for refugee status cannot be left simply to on the basis of fabricated documents and when the petitioner presents a fairly solid case as to why the documents mean used against him or faulty the immigration judge should not be permitted simply to apply a low standard of probable cause typically used for the apprehension of individuals not for the ultimate decision making in a case suppose suppose suppose we take the position that we're going to look and see whether or not probable cause that he measured up to probable cause how would you argue that there wasn't probable cause based upon he had to make a decision who he believed and the credibility issue is really left up to the administrative law judge as approved or disapproved by the board of immigration appeals so how would you argue that if we have to use probable cause that there wasn't sufficient based upon the determination of credibility being left to the administrative law judge would be your argument i think it's a very difficult one your honor because probable cause is a phenomenally low standard and some askin tell of evidence could logically lead a fact finder to determine there is probable cause you keep saying remember probable cause is the standard that we use in criminal case to deprive people of life and liberty and absolutely may not have been it's not a low standard it's it's a standard that's recognized in many other contexts so i don't evidence but it is the lowest standard that we have in criminal law and we have been we apply that here in the civil context we essentially eviscerate the meaning of what it means to have a serious nonpolitical crime are when congress adopted when congress adopted the the basic the wording of the convention its intention was to prevent individuals from committing atrocities with the punitive so individuals such as hitler who may not have received the conviction it was not meant to simply permit an immigration judge to take shreds of evidence and say silver may have committed serious nonpolitical crimes are tied the united states which just qualifies him from receiving asylum in withholding of removal and given mr silva's stature and his case is no why do you know latin america the agency phony or faulty in some way and doesn't even meet the standard of problem because what's yours well i don't think the polo was ever argue that the evidence was fabricated it was argued that the evidence is trumped up charges not that they're charging documents were improperly issued or that the courts didn't act appropriately it was more he was targeted for in inappropriate reasons and he didn't do these crimes and my response is there's plenty of process attached in both countries  of the documents if we focus on the salvadoran charges first we have to try to you know the legislative body voting eighty two to one to strip them of legislative immunity and in many central american countries before a congressman can be subjected to criminal prosecution his legislative immunity yes be lifted now what's surprising about this is across all the political parties even his own congressman who was above him he was a deputy deputy congressman abstained from the vote he didn't actually vote no the only person that voted no was a person that disputed the process generally so we have the salvadoran legislator on one hand doing that then we have a salvadoran criminal court that held hearings as to whether to issue an arrest warrant for mr silva mr silver had counsel at those hearings those hearings lasted a series of days in fact he excused himself in the west hearing based on a phony doctor's note saying he was unable to attend because he was too sick when he admitted on the stand that he bus a less clear because we know the salvadoran court relied on forty one days of hearings and forty one days of hearings and mr silva to the murders was a witness who the ministry  whether he did these crimes all they held is that there is enough evidence on this record to give probable cause that he may have committed these crimes and that's all that's necessary under the standard and going to the standard i want to touch on them and molen actually said probable no court that puts a higher standard than probable cause and they shouldn't because the fact of the matter is a foreign country's judicial process is not on trial in an american and in a straight of hearing now i do want  make clear that the board did not say that just because it was among court issued an arrest warrant or the guatemalan court issued an indictment that that's per se enough they did analyze whether it appeared that their country's probable cause was followed and they were based on what they saw before in their record so there was enough cause there but they didn't hold the purse able and unless the court has any more interest in that i just want to touch on the credibility finding because i know my colleague mentioned overturned and the other stood he would still lose on that point mr silva only testified once at the first round of hearings were three rounds of hearings before two different gratian judges when the bottom only charges were brought to light and they teach us elected to pursue th serious nonpolitical crime bar mr civil like to not to testify again so all we have is this testimony pertaining to el salvador we have no testimony pertaining to what happened in guatemala or anything pertaining to guatemala so there is nothing that is testimony  would require the court to review a credibility finding in order to have a wall mounted guatemalan charges stick so it's not necessary other we do it all rest on the priest unless the court is question we do hold the substantial evidence does support the credibility finding you mean the lack of credibility oh you're right i'm so used to seeing adverse credibility finding that i forgot to actually if you're under the adverse credibility finding ok and then i'll turn to the convention against torture information now the easy analyzes two different ways which is a little a typical they analyzed in the salvadoran context in the guatemalan context and it seems to me the reason why they did that is they were pretty assured by the extradition evidence in the record that if he was returned el first with the el salvador the i j a found that mr so but would stand trial and not be killed if returned given the his stature in the case is notoriety and there's evidence in the record to support his position on that mr silva's wife was acquitted on about half of her charges and his mother in law was also charged with a similar crimes as to him she was acquitted on all charges plus agent parker when he did his investigation in el salvador a lot of  he may work me or candidates and persons that i talked to said that there's a possibility that the trial the trial could be fair and impartial they weren't saying that every judge just corrupt or that quote of mine was entirely corrupt there is well of corruption but they were saying that there's a chance this could be assigned to it to a fair tribunals and then the immigration judge link that with the fact that there's a lot of international observers following this case that it is very likely that mr civil would get a fair shake if he was returned to guatemala el salvador is that the same analysis one that was followed go by our court yes your honor and i believe the board actually explicitly cited go for that reason in its decision here so that is the same analysis and then what about the country conditions in el  salvador the country conditions evidence does state that there is corruption in the el salvador system and i don't think anyone would dispute that it's also very prevalent in guatemala but he didn't say it was ironclad it's not as if no one can get a fair trial and i know not only that it's a sort of trial and that he'd be in prison but also of course probability that he'd be tortured because i don't know of any court case that stands for false imprisonment as torture so it's a very very high burden and i believe their argument is if he was in prison in either country there would be harm rising to the level of torture in prison which would lead to him being tortured as a legal argument but that's you know speculation upon speculation you have to show that each chain in the causal link not only would be i just want to mention that the salvadoran and the guatemalan charges are connected the fact that they are separate doesn't mean that the provide independent evidence because they come from the same source of biased corrupt government and it the evidence that came from that is not inherently trustworthy and the expert testimony in the administrative record shows that one other point about credibility is that this court has held time and time again that corroborative evidence standing alone setting aside the testimony of the applicant can satisfy the applicant's burden and in this case even if this court were to find that the testimony of the applicant  not sufficiently detailed or if it was not credible that the other sources of evidence from the experts in the country conditions could stand alone power the petitioners failure to testify in a semantically precise manner he made a few errors with regards to dates he neglected to put in a few instances of persecution and his application should not cause his entire testimony to be  have under our law we grant that unless we feel the evidence such that were compelled compelled i think his words we've used to feel otherwise that's a pretty tough burden you're just who was fresh into the program so it's pretty hard to make the argument that we can reverse that into us is we feel compelled to do so which is a very high burden well unless the issue preclusion issue of the law th case comes up in that circumstance because the government had a full opportunity to litigate the issue of the bar and it can't be like the case it can't be law the case that the i j a said because the board reviews it in can be very right but the immigration judge had to make certain factual findings in order for the applicant to qualify for relief and those findings have to be preserved well the findings themselves had to be reversed because he used the wrong standard of review he thought he had to accept the credibility so the board then reversed on that basis so that opens the record for the i j a to start over again and make sure that it was fair they went to a third i j i don't see how second determination after it was remanded once i do have one case that points to the fact that the issue preclusion doctrine does apply in this circumstance and it is going solace vs us department of homeland security  that in the ministry of judge and l j yes i believe so yes god all us and in that case they said that the law in the case would not apply only in a circumstance where there was a