marty even for petitioner mr ali i would like to just start briefly with what the immigration judge accepted as true the facts that are not in dispute that mr oweis father was murdered his sister was raped and murdered his house was burned down and his two brothers were killed in that fire in addition there is on controverted testimony of a doctor who stated that mr ali suffers clearly quote clearly has some type of brain injury and symptoms which were consistent with traumatic brain injury all those facts are not in dispute yet despite these findings the immigration judge found that mr ali failed to meet his burden of proof to show that he was in fact tortured on account of a political opinion or a particular social group these findings are without merit the first is the error of the board in affirming the immigration judges exclusion of evidence the immigration judge excluded key evidence from dr drew early who concluded that in fact i'm s but you said all of these things are the only things we testified to by your client correct and there was no adverse credibility finding in the sense that it was found you know there was no finding that that your client was lying correct established and those were the facts that i recited at the beginning however the immigration judge then concluded that mr ali because of his limitations was unable to establish specifically that he was tortured or that the torture occurred on account of a political opinion or particular social group and those are the core the and that's what my doctor drily is report and his mom's letter are so key because dr drew really in fact conducted a physical examination of mr ali and concluded that he had scars consistent with torture whips on his back bruises on his legs you know other scars on his head things like that his mother's report his mother's letter in fact indicates that the house was burned down by the enemy quote the enemy mr ali testified the board to the contrary doesn't sustain or affirm that finding but instead incorrectly finds that dr gurley's report was excluded because it was late and that is not accurate dr drew's report was submitted in two thousand and eight december two thousand and eight that's two years prior to a final determination by the immigration judge but the immigration judge literally does not even mention doctor drily report because he excluded it for inability to cross examined and this is quite ironic because the board in its decision here actually provides a basis to include dr drew his report the board allows d h s to submit evidence despite the inability of mr or lead to cross examine the h s as witness and the board notes that inability to cross examine does not provide a basis to exclude a document it's as the board says it's a basis for weight the you you you think that the i'd say without making an explicit credibility determination o'reilly credible because they didn't find that he was lying well the i g found several facts that he believes i guess that would constitute a credible finding at least with respect to those no evidence of torture and that's contradicted by both dr derleth report in the later report dr options report the neurological exam which actually are confirms traumatic brain injury and the mother's letter which would have confirmed the on account of part of the requirement which is that the the torture and the harm inflicted on mr ali and his family was on account of a protected particular social group as well as political opinion so the i j a went on to fact did not even mention some of the corroborating evidence some of the keep it literally dr drew his report the word doctored really doesn't appear once in his decision because he excluded it in its entirety from the credibility that was presented and what is important is that for the judge for excluding the mother's letter says well you presented it late but i would call the court's attention to mr ali's testimony in may of two thousand and nine that explanation no the i g is not required to accept that explanation but what the i j a is required is to accept the explanation and the explanation that was later provided in two thousand and ten was that this is a symptom of his diagnosed mencia there's insufficient credible evidence to support and found in his testimony i mean he's not he's not the finding basically is that he's not a liar but he's not liable and why that that's essentially what happened the object does except that he was attacked although the i g says there's no evidence of torture and again that's why the medical evidence is so important also the letter from his mother is so important and so yes your hon while you know there is clearly evidence and if you read the transcript it's very apparent that that there's cognitive issues that's why the corroborating evidence becomes so important and the fact that the board affirmed the exclusion of evidence for reasons not provided by the i j a and in fact then allows d h s s evidence in for the contrary reasons provide sufficient basis on that basis alone to remand the matter back to the agency for further finding and further analysis inconsistent inconclusive that the court cannot establish with any reasonable certainty what happened who proper who perpetrated such actions or the motives behind such actions and that's what mr ali has the burden of showing that any  say an extra witness to these events someone who observed it that wasn't so operation that would be independent corroboration of the events such as his mother who said i was in the house i wasn't in the house these people burn the house her statement is is incredibly lacking in that regard and it was submitted late and for no good reason or civil war going on in that country there was until nine hundred ninety nine when it stopped in fact there was a finding made by the agency that the civil war ended nine hundred ninety nine and if we look at the twenty ten department of state back row note says in march two thousand and three the government signed a peace accord with the ninja's the group that he may or may not have provided the terrorist group that mr ali may or may not have provided material support for that was another finding that couldn't be made based on the consistencies was a peace accord signed with the ninja's in the country has remained stable and calm since the signing that age sixty five from the republic of congo and he he didn't come directly to the sort of smuggler and again the testimony was incredibly inconsistent on it when we look at the heart of the claim here it's just it's rife with inconsistences and we talked about  accurate report isn't that true it's unclear or or possibly his veracity we don't we really don't know if the i j a found it not incredible we have to assume that means kratovil well free sumit means credible it's if he says the sky is blue and he says the sky is red at the same time which do we hold as credible i mean if we look at is the key events here your honor the sister's death he initially says in his written statement or sister's body was found in the woods then in the the document that was not admitted into evidence it was just admitted the doctored or early report that actually says that he told dr door lee that the body was discovered in the woods by neighbors and they saw  the body with bruises and blood all over it and no direct examination he says that the cobras came to his house kidnapped his sister and killed her but we haven't seen the body then on cross examination he says i have a problem remembering things and i forget things quickly when his own mental health professional the did in fact testify was asked on cross examination what if she learned all he testified inconsistently regarding major factual events such as when his father was alive or dead or when his house was based on this would show intent and that was his that wasn't the i j a is fine and that was his own mental health professional saying based on my analysis of his condition he may not remember a date here or there or he may be confused regarding opposed to ninjas yes those are the two opposing groups see allegedly they're both terrorist groups that engage in all sorts of horrific acts when asked about what sort of acts his group that he belong to he conceded that they engaged in rape murder he said he didn't participate in it but he stood as a security guard for their meetings he provided them the food and water did other errands for them and when he was asked  regarding his role in that group he he did in fact say that he was a member he was he was a participant and he was with them he joined them so then when we look further regarding who did any of th stuff to him allegedly what happened the father's death in his written statement he says the cobra's kidnapped his father never saw him again and then on direct he says the cobras came to our house and killed his father because ali wouldn't join him and i cross examination  he says my father died when the house burned and later found his father's body my father's body says quote it seemed that i didn't see it i didn't see the body it's just it's neither here nor there it's the exact type of case discussing the most traumatic events of his life when he talks about the house burning and his father being killed would you could see that it were traumatic events there were absolutely traumatic events but it's his burden to show that these events were perpetrated against him or his family based on a protected ground and he had he's completely all over the map with regard to that which is the perfect type of case where this court if we look back in a case like diablo which is two thirty two fed third through eighty five to two thousand case from this court when there is significant uncertainty regarding what these events were it's the type but case where other and somebody is is you can easily find some he's a victim of that of that struggle and that they bomb torture people when the convention of torture would convinced convention against  torture justify keeping a person here rather than sending them back into into that environment but we have to look at what the standard would be there he would have to demonstrate that he suffered past torture by or with the acquiesce e of the government of that country and that it was the government the command is not in control of what's going on yes we can see that wasn't at the time but again there's no evidence to demonstrate as more likely than not time at the time at the time he alleges that for past torture at the time allegedly was tortured and then if you can't show that as well we need to look at whether there is whether it's more likely than not that he will be tortured when he returns because my question is made so we have to assume that he found mr ali credible before you want to look at the corroborating evidence or if if we would submit that i was he wouldn't have been looking at it sure it's if it would reasonably be if it would reasonably be expected in a case like this where there is essentially a credibility determination cannot be made the agent does at some point say i can't determine if this is credible or not because i one hand he's saying this happened this way and on the other hand he's saying it happened a completely and totally different way these people are alive at this time and harmed by these people these people are alive at this time and harmed by these others and he you know as opposing counsel noted indicated during his hearing that he had a letter supposedly from his mother but he apparently lost it and then the immigration judge sets the deadline for additional evidence and it goes by eight months go by he's traveling he conceded that he had traveled back and forth between new york and ohio five times looking for employment but somehow couldn't contact his attorney as attorney said no never contacted us plaza at the last minute provides us letter the letter doesn't really corroborate know who the enemy is and it's his burden to show these things in order to establish his eligibility for relief absent that showing he hasn't met his birth and that's really why we would suggest the substantial evidence supports the finding that why the immigration judge said the list of contradictions and omissions large and small is nearly endless in this case i would submit that the petition for abuse she denied due to her question yes or other it obviously the traumatic nature of the brain injury causes an impairment that could account for the for these these contradictions did the i g take that into consideration the  noted but at no point did alise counsel he was represented through this entire hearing ever raise any question with regard to you know whether he was competent to testify or that his testimony shouldn't be believed his own mental health professional said contradictions on major events that could be an indication of the lingering nobody has ever said that because of whatever happened to him you simply don't know what happened to the man to man clearly bad things but we don't know you know how and by whom we have to take his testimony at face value and it's completely contradictory and it's completely full of holes thank you thank thank you i would like to start actually with this court's decision and where this court laid out the standard for expecting corroboration which is that the numeration judge must first identify the facts are facts the facts or facts i where it's reasonable to expect corroboration explained why it's reasonable to expect a man who has been diagnosed with dementia in traumatic brain injury who has no family remaining in his country his only sole remaining relative is a mother who is living as a refugee in mali why it is reasonable to expect rely on something that is set credible media is believe a book a literally i mean you can have someone who's mental impairment is is is a delusion and who believes that it believes things that the f b i is telling him through his teeth and you could say this person you know he is suffering from a disorder and is not law is not a liar subjectively i think it's it's clear that the immigration judge believed mr ali was subjectively telling the truth he had certainly exhibited signs of confusion memory loss things that were diagnosed then we go to the question of objectively whether he object maybe even the subjective i mean if he testifies to contradictory things then what is it you believe your honor that's precisely why the corroborating evidence to the extent that that requires under deol or any other case or just by plain reason to go to the corroborating evidence that's why the immigration judges exclusion of the corroborating evidence is so important and we can presume as the government would like us to or the board alleges that the immigration judge wouldn't have found th evidence to be sufficient but we don't know that and it's so important that the immigration judge didn't discuss several key pieces of evidence which might have been sufficient to the fact finder to the individual who listened to mr ali's testimony to the two witnessed him come in multiple times he would have we don't know what he would have found had he properly considered that evidence but instead he excluded from the record for reasons stated that were not then found by the board the board created other reasons for his excluding it from the record which actually weren't the case and for all of those reasons that's which reasons are there that are not the case so the immigration judge said accusingly i do apologise the immigration judge said i am not going to consider dr rude letter because she is not present to for cross examination the board said that was proper because the immigration judge excluded it because it was untimely and that's just simply not the case i dr gurley's letter was submitted in may two thousand and eight two years before the immigrate judge's decision a year and a half before his deadline for evidence so because the board affirmed the exclusion of evidence on reasons not provided by the i j a and in fact reasons that weren't true that by itself provides a basis for remained if i could just briefly briefly mention the material support bar which the government alleges one that wasn't found by the agency and q i would just note that of page one ninety four of the record in denying mr always claim for failure to establish that he was an impute political opinion the immigration judge said mr ali provided basically no support to the ninjas and therefore there would be no reason for the cobra's to want to harm him so the government can't have it both ways if he provided no support to the ninjas for the p