one two three four seven zero one two four zero seven eight decisions which is rather unusual two or in two thousand and eight first the prior counsel appealed and lost and then i did a motion to reopen which was granted then there were three decisions in two thousand and twelve t or before this court one from march twenty third where the appeal is dismissed one from aug twenty seventh where the motion to reopen was denied and then there was also a decision denying a motion for a stay nov fifth of two thousand and twelve that that decision is now technically before the court but it is part of the certified record and it has an interesting bit of information in it in the footnote which says that the court did not consider exhibit p when they were ruling on the motion to reopen which i argue is an important piece of information first i'm going to summarize the five parts of relief that mr  and then i will highlight the three points that the respondents brief is completely silent on at some point i would suggest we talk about whether petitions move some mistaken or in the government saying that your client know he didn't want to leave to go to lebanon because he was afraid to go to levanon however he does have to support himself he doesn't have permission to work in america the case is very long and he is allowed  ghani the alien executing his own order he is absolutely allowed to do that and also there is more to the appeal then the asylum application which i guess would be the motion to reopen what he wants is for the frivolous finding to be vacated and he could not get a green card based on his relationship to his father while there is a frivolous finding that absolutely yes that's not a band that's not abandoned under the section that the government sides right and if he was able to if he won his appeal and he was able to come back then he would be able to adjust his status and probably scheduling hearings in two thousand and seventeen and that helps alleviate the jacket and that's also why we hope that you will reverse the frivolous finding out right rather then send the kids back for more hearings which will probably w ghani may testify on his own behalf and his father may testify as they were ready willing and able to do at the last hearing regarding ineffective assistance of coun that would be the second relief the third of five is that evidence compels a finding that the denial of the motion to reopen was manifestly contrary to law because we know further fact that the board did not consider the whole motion now never had the opportunity to rehabilitate his credibility by testifying on his own behalf his father did not have the opportunity to testify and perceiving your talking again that remained the proceedings so therefore because he didn't have the due process of testified at the time of the first hearing and that didn't happen there what we have is testimony by him at the first hearing which is contradictory and  no other evidence presented so it's hard to say that the idea a finding of basically deliberateness with statement is not what what what for example mr abdul ghani is an affidavit containing is several points on how his attorney failed him and how he was not given proper counsel for example he said in his affidavit that mr i had sent his father away because he hadn't prepped him that's on page seven sixty five of the record well that's not something that that would have come up at the hearing that is something that he's telling about afterwards that doesn't go to whether he told the truth at various points which is was the i j a this point that the less you unless you say the council didn't tell him to tell the truth than if he had he would have know there's a difference between being inconsistent making mistakes confounding things and actually making and knowing in deliberate false statement that constitute the extremely severe sanction of frivolous finding rehabilitated himself from frivolous to just merely not credible and i think that something that might help his incompetence of telcel address that i will tell you that the attorney eighth two thousand for a withholding application he was completely flustered in july of two thousand and six when the judge got the priority dates confused and then instead of calling it a withholding application which is what was filed and a person literally cannot have a frivolous finding attached to a withholding application there's only one application asylum and withholding there's no two pieces of paper correct because the withholding would be based on similar things persecution right so that's why they provide one piece of paper and there's different application for either relief but you make a declaration of what you're applying for and to clear and i told her in two thousand and four that he was applying for withholding of removal and then when he was flustered and he asylum or i mean isn't it more accurate to say changes his application that says asylum and withholding to withholding only when my client was sitting in the court room he heard his attorney say he was filing w holding application when he signed the declaration the application doesn't it have the asylum kind of warnings on it it has it has warnings but he was  really you know as a as a layperson and racial lines extremely confusing i think it would be too much to put on him that he understands like the subtlety was you told to him and by the way with the holding you don't have a firm last warning i mean as far as he was understand he was just being told that he has to tell the truth and i also just want to mention that he left lebanon when him he was seventeen years old so whatever happened to him you know happened to him when he was a teenager and i think that you know it's very you know possible that you might have explained that he had bad memory you know  might sit here and say i read the transcript and i think that man was just confused but can i say that the i j isn't correct in saying and saying the evidence the evidence can tell the i j there he kept saying he was from the small town because that was the town where the grandfather was the mayor that was the care where the family had control of the telephone system that was the town where the connection with the israelis was alleged so he is so heated himself purposely with that when in fact he had never lived in that town that's what the i j concludes i mean not conclude that opportunity to testify about it and explain and that's what the problem is that's the due process problem that he the case was sent back to flesh out an issue and he and his father were not permitted to testify when you said it was submitted remitted to to flesh out an issue wasn't that an issue in effective assistance of counsel correct and how and how again get back to how whether you were telling the truth or not relates to the ineffective assistance of counsel well he would be able to testify about whether what his intent was in order to have a frivolous finding there has to be knowing in material well wasn't knowing i don't know he never got to testify you know i come from silver spring maryland even one material deliberate fabrication is sufficient to justify a frivolous finding here substantial evidence supports the agency's for villa's finding for three reasons why the petitioner testified inconsistently about basic biographical facts two he failed to provide an adequate explanation for this inconsistency and three he made a statement that the agency recently interpreted as an admission that his claim was fabricated but judge warned him that he believed that he might make a frivolous finding based on the inconsistent testimony he provided so he gave the petitioner warning of that and then asked him to explain the inconsistency and he  asked him repeatedly in many different ways yet petitioner failed to adequately explain the inconsistency in fact he made matters worse initially he testified that he got his application wrong and that he just didn't know where to put what information later he changed his testimony and said no actually i did live in saida as indicated in my application i just got my testimony wrong so we have inconsistent explanations even when provided an opportunity to time that that hearing was over he he basically testified to something which now appears true the man was from say and it was during the interim in  appeared that he was saying that he was from that smaller town by the border correct that's right you are right so once he said yes indeed i'm and i'm from saida then what happens well your honor what happens is that we don't believe his story and that's a reasonable position and then after he says we have the we have the story in the middle that seems to be not true and then at the end of the hearing he says yes i am from say and then at that point does the m the immigration judge say to him why did you say seita why did you say the other story yes everybody should judge did i ask him that and and he just wasn't able to provide a coherent explanation he  mistake in the application i really from the small town and then later on he says you're saying by the end of the first airing he's saying i'm from saida just like in my application and then what happened and then the immigration judge asked him well why did you initially say that you were from cache or field and that the pharmacy it was ok didn't catch or feel and at that point he gave a speech about how he deserved to stay in the country and then he ended his speech with a statement that i'm doing all of this because i want to stay here right which then the i j a interpret everything i have is i live that's how he interprets that statement yes or no the agency recently interpreted that statement as an admission that he had fabricated his claim given the context in which it was made i would agree if he had just said it out of the blue it wouldn't necessarily take on that meaning but he was repeatedly asked by the immigration judge to explain inconsistency you know it's like several minutes several pages in the transcript and he just couldn't and then he ended with this with this statement and so i think given the context in which it was made it was a reasonable interpretation and you know we also have felt that it was an inconsistency about a basic biographical fact we also have insufficient explanation and we have the admission so we have three pieces of substantial evidence that supports the agency's helps with this to be clear on th testified full of law and then at the end he repudiates the testimony so you know i only did all that because i want to stay in the country or is it still a frivolous application yes your honor because his testimony that which is inconsistent with his application makes his application also frivolous because in his application he stated that his family is from  grandfather was mayor of that town and that there were certain incidents that happened in that town and it also says that he was born and raised in saida and so we have inconsistent information in the application and once he provides inconsistent testimony we don't know  believe and that's where the frivolous finding comes in well you may not know what to believe in and if you're going to buy that it was frivolous you have to claim that the application was frivolous and i think what judge boggles asking you is does the hearing become part of the application yes it does the testimony fills in the the application and so when we speak about in a sound application it's it's the written application as well as the testimony that my tire looks do you have a citation create a case or a regulation that would support well your honor i mean i think we would compare it to adverse credibility is something the court probably has seen often in adverse credibility cases we look at the testimony in addition to the application and it's sort of a common practice that the entire of both things are of a jurisprudence have to be a know of any case unfortunately i don't know of a tough my head but i happy to supplement the court with that if i find anything after that and i just have a question about what the final decision on the application actually is the original asylum application in the statute we are the i want to know what the final decision is in the words of the statute i'm sorry i don't understand it's up better by the  testified or indicated in his third asylum application and testified in immigration court that he was mistreated due to listening to prohibit radio stations but he left out that information in his first and second applications and he explained that his translator must have left it out back no one bought it and the court upheld different was finding there and i think we have more in this case where petitioner made a statement that was recently interpreted as an admission that he had lied shelby permanently illegible for better but the end of this chapter effective as the date of the final determination on such application so i wanted to know what the final determination asylum application what is that date it would be when going back to whether petitioner apply for asylum or withholding factually he applied for asylum in the pleadings former counsel requested asylum withholding and kept protection and throughout removal proceedings he referred to an asylum application he referred to an asylum hearing in fact petitioner in his own handwriting indicated why he filed his application untimely he said that he was here in school and he was hoping things would get better in lebanon and so i think that also indicates his intention of actually applying for asylum and not just withholding if there is such a thing as only applying for withholding as as your honour's pointed out the the application of for my fave five eighty nine is a unitary application there's no mechanism to apply for withholding alone moreover i can as i question in your view is the asylum application standing alone the written application i don't think you can look at it separately because given what he said in his testimony i believe that his application is now frivolous because really we don't know but you have to take my hypo on its terms  the yes because the finding is that he made a deliberate fabrication and so it must have been fabricated from from the beginning and so and it's frivolous specifically why ated as the application specify where the pharmacy was i don't know off the top of my head i know that he does say his grandfather's from kent sheffield we have a conclusive determination that there was no bombings as opposed to the pharmacy was in a different place then he said it was well if they didn't see found that this was a material fabrication and it was material because we could no longer believe that there was a pharmacy  and one more point with rick with regards to whether petitioner filed for asylum in terms of his ineffective assistance of counsel claim he's essentially asking the court or arguing that petitioners former counsel should have foreseen or predicted that he would make this fabricated claim and have only applied for withholding well that's that's gamed the system and this court has already held that withdrawing your asylum application after it's been found frivolous does not prevent a frivolous finding and and so the court of the court should do the same thing here otherwise we would render the frivolous provision meaningless if we if we attach no consequences ok and that it was bombed three times and that he was in the pharmacy one of those times in that he worked in this pharmacy later he was asked by the immigration judge well did you ever live in a town called saida and he said no i only live there two months judge said well did you live there for eighteen years at any point and you said no i never lived there for you thousand years so we have this very contradictory testimony and the reason why it's significant is because it's  basic biographical fact we all remember where we were from where we where our fathers you know employment was that we that's something we all remember you don't need an attorney's assistance to help you remember that you don't need preparation to remember that and so the fact that he got that wrong suggest implies or necessarily implies that he created a story and he couldn't keep it straight and that's why that's why this is where the city were or where the pharmacy was it was significant filed his decision to reopen and that he wasn't in withholding proceeding with anything done with that at by the way or anything the board on appeal  considered his argument about having only applied for withholding and cited lazhar for the proposition that withdrawing your asylum application or an untimely asylum application doesn't prevent  rebuttal well first of all i want to say that there never really was any conclusive proof that there were no bombings it was just an entrance of the immigration judge and the immigration judge preventing the father from inability to get the city right discredits the whole story and gives gave the immigration judge a reasonable basis to say the entire thing is fabricated so what would your response to that my response would requiring notice an opportunity to rebut to all that in the first instance in that hearing i mean he said you know there are big consequences here and he gave them multiple opportunities need to explain  know because the mr i had had sent his father away so his father could not come and corroborate or clarify the testimony and the father came to the second remand hearing and was very willing and able you know weeks or i'm going to bring another person to testify and so that's why the second remand hearing which was after matter of y a l was very important for the frivolous finding but they didn't ask for that kind of continu finding and i i just want to mention that that you know the opposing counsel did not mention anything about exhibit p it's also not in the respondents brief and i'm what i'm referring to is that a significant piece of objective evidence in support particular rule about it off the top of my head i don't know what the date of the report was it may have been if it possibly might have come in out after the first motion you know was filed and i'm going to check on that and let you know  that would be true but it does show significant changes because the original hearings happened before hezbollah was even in power in lebanon so there were extremely significant changes you know in two thousand and eleven  and also it i'm hoping that you send the case back either vacating the films finding where or perhaps to flesh that out more and i hope that you would ask the board to assign a new judge their silence brief was basically silent on your authority which you do have to ask for a new judge there were all they said about it was that i could discuss with d h d h as counsel the department home i could discuss with my adversary whether would be appropriate to have a new judge well first of all if i was the h s why would i want to have a good judge thank you all leagues have any further questions thank you that case will be submitted to the remaining cases will be submitted on briefs and you made your