and as a result of their membership in their faith they were subjected to harassment they apply for asylum in the united states and at the beginning of their asylum hearing the immigration judge told them that the testimony alone would never be good enough and you can unaware because that is not in the record but it was brought as proof of their face and the i g told them he was not going to call whoever was on that card you can find that on the expert tab seven during his testimony provided several non responsive answers and the immigration judge told me i hear not contending that it would be that i chase responsibility to do its own investigation and people that is not our contention are really in merely illustrate the good faith attempt to bring in the evidence that was requested the immigration judge asked more during the hearing whether mr donnegan understood the interpreter you can find that in tab three present their case before the immigration judge it's our contention that the immigration judge improperly required this family to provide outside proof of their testimony before he had a chance to hear their testimony and had any chance reason to disbelieve them and ignore the good faith attempts to provide the required evidence the record is also replete with non responsive answers and some circumstantial evidence that m other than just saying i'm baptist because the court had questions about you know he he was a little bit sketchy on his reasons as to why he became a baptist and i think that he didn't he couldn't even provide anything in this country about attending a baptist church is that correct it is correct that he didn't provide the letter and all that just wanted something to say that because otherwise anyone could come in and say i'm a baptist this is correct but he did he did attempt to provide the card which ignored we must point out at this time that these directions to provide evidence were primarily directed at our clients instead of counsel they would hear attempted to testify every time he said i is not supported by substantial evidence and for that reason we asked the court to remand for a new hearing and i will defer to my co counsel to begin our argument ok thank you your certain religion most people you know go to their church sure you know whatever synagogue or whatever their place of worship and somehow identify with people that are involved i mean being a certain religion is more than just saying you know i am a baptist i am catholic i am jewish yes ron it is more than that it's required proof enough itself is not incorrect however to require proof simply on the basis of saying yes i am a baptist without stating any reason for this believing mr de haan we submit that that was improper and by doing so he placed a heavy burden on our client and after he asked our client for the proof he even told our clients counsel he will not believe anything that he would have to say by saying such things he made it very clear that he was not going to leave our client and if you place such a burden on our client our client would have trouble meeting now he did a card to the immigration judge submitting to him look at it from a judge's perspective if you know if someone if if i were a trial judge and someone said i want you to call this witness well i would tell them no to because that would mean i would be involved in a pound conversation party contact yes none of that is an argument that could be made we submit that because he did know without considering that it was a good faith effort in this or this is a he did not say anything that to the record that our client presented a card in the effort the allege of inconsistency is relied upon by the immigration judge in making these adverse credibility for him in action in this arc in tension that those inconsistencies because they are based on faulty testimony cannot be relied upon to sustain an adverse credibility finding in he versus ashcroft this court stated that even if the translation does not give rise to a due process violation that a faulty translation may nevertheless two thousand and one hearing of persecution most of that evidence however was given by mr han seen and the immigration judge completely ignores that evidence in his in his determination and he focuses stated i have no problems in armenia they beat me and things like that completely ignoring the second portion of that phrase and i see that i'm out of time well but he also said that there was no showing that whatever problems he had were caused place in all of the hearings there were different interpreters used these hearings and but but you can see a very big pattern of mr hosty and giving unresponsive answers to questions for example the immigration judge will be talking about and will respond talking about government repression or geographical term i haven't lived there for four years the four years i've been here so we think that if in the record there's substantial amount of evidence indicating this or the husband was having difficulty understanding mr hosty and on the other hand didn't have the means and if you look at her testimony it is completely consistent with the application for immigration thank you thank you for argument good morning your honour's please the court my name is debbie mystere and i represent the attorney general this is an appeal of an adverse credibility determination with respect to this no sample cations for asylum and protection under the convention against torture based upon their claim that they were persecuted on account of their alleged baptist faith in armenia because the record does not compel reversal of the immigration judge him board's decision we asked the court a state sort of my understanding of the argument to some extent that the court seemed to be focused on whether he was a baptist or not and improperly shifted what they would say would be an impossible burden to the talent but it so probably the areas he is corroborating evidence always required it was not wrong for the court to ask for that the court unnecessarily shift the burden maybe respond to require it because of the significant inconsistency before the court respectfully opposing counsel have missed after he handed the facts in the record when the immigration judge asked when he unconscious because he was a baptist in his home and then retracted it without explanation when he was interviewed by an asylum officer so that stark inconsistency was already before the immigration judge secondly just before the immigration judge said their testimony would never be good enough he had asked mr zandi on are you a baptist in this country and mr zandi andras responded no at that point the immigration judge turned to  their counsel and said well you're going to turn to mr fagan their testimony is not going to be good enough here you need to find something else to back up support your claim and we submit that was entirely proper in light of the immediate response mediately prior before the board the the agency has not had an opportunity to address and correct that problem if it was a problem that was a simple matter that could have easily been addressed secondly as a factual matter the record does not support that's certainly their argument your honor that certainly the argument they've made in response to our exhaustion argument however it is an entirely new matter and it is a matter that could have easily been rectified by the board had it been brought to their attention how many chinese were what did this matter kind of court your honor it went to court eight times over four years in this case the immigration judge bent over backwards to translators over the over this stuff for your proceeding and furthermore petitioners themselves acknowledge that while lead petitioner apparently could not understand the translator his wife who one would assume understands the same dialect of armenian that he does understood the translator with no problem and that really undermines their claim that the translator was that was a fault here either the translator was at fault or petitioner and his wife speak different languages but whatever the whatever the case may be she seemed to understood understand then with no problem he retracts it no your honor he wrote in his asylum application in a full paragraph that he had been beaten unconscious because he was a baptist in his home and then when he appeared before an asylum officer he retracted it and you'll note incredible in the standpoint that you know i mean most people don't get confused about whether they were beaten or not you know that's kind of an experience that doesn't just go away absolutely your honor that is it  is unquestionably a significant inconsistency that destroys the ugly petitioner's credibility but apart from that there were other inconsistency in his the sound that location he stated that he'd been born into a family of that that his parents and his grandparents were baptists yet during immigration proceedings he testifies that you converted at age sixteen immigration judge asked him which church did you convert in armenia and he couldn't remember the name of the church immigration judge asked him what was the procedure you went through for conversion he couldn't remember what the procedure was ask questions about the baptist space faith and john roll to see if he knew anything about it i believe your honor he did at one point ask if he asked questions about the principals of the baptist faith that was not he was and again he couldn't describe them that was not the only you know the only basis for the adverse credibility finding that was one that was one part of it well after he w that he was beaten what evidence in the record is there a past persecution the only evidence in the record is his wife's testimony that he was beaten and his inconsistent testimony  ministry of record page number one twenty immigration judge asked him point blank as a result of your beliefs did you on any occasion have any problems and mr zanti and said no the end of that if you believe that would that be the end of the inquiry but it would be it wouldn't be the end of the inquiry if there was if there was some credible and valid evidence that this individual just did not understand what was going on but he was represented by counsel he had proceedings continued over four years and eight different times over the strenuous objections of the ins which believed that he was engaging in dilatory tactics to just wait out his father's immigrant petition that was pending at the time but based based on that no combined with the lack of evidence of past persecution and other significant inconsistency in this record the government believes that matter is truly at an end at that point your honor either with the court's indulgence i'd also like to address quickly the issue of the telephonic hearing opposing counsel is made much of the immigration judges failure to call that the name the person listed on the card first of all there's no absolute right to a telephonic hearing in immigration court the relevant regulations are atheist far one thousand and three point twenty five see secondly the immigration judge gave them a further ninety day continuance after that hearing for them to was purportedly from their church here in the united states but again that's an odds with the earlier testimony that he was not a bat just in the united states so there was no there was no improper behavior by the tell you what i'd like you to address and rebuttal on this one and see the fun things about oral argument because you can have everything planned but then you have to talk about what we want to talk about that and so don't feel like you're come feel like you're being picked on it happens to everyone they come up with those plans but here's here's what i want you to read but this because of what they focused on you talked about a lot in your there was a lot of discussion in the opening argument about that the judge just wouldn't call this person on the phone all right well now after you obviously sat there and you listened to the government's position and the government pointed out a number of the inconsistency east to this court about whether he was a baptist or not now if i were the judge in that case i'd want to look at that person because what was present in making that phone call you could have your brother you could have your friend you could have anyone you know you call the phone number and say you know hello this is pastor so and so and you know and as judge with all of those inconsistency i want to look at that person i want to see everything that they had to just to avoid the situation that anyone could be on the other end of the phone and tell me that they were the persons pastor can you respond to that well that's a very understandable consideration  but when when such requests for a witness are directed at someone who invariably does not speak english who is not an attorney who may not understand all the things that the court might consider in whether or not they would be willing to call someone on the phone to have them appear before a hearing had been had he been an attorney or someone who was more savvy about the legal process perhaps you would have understood all the considerations that you're making right now but this is just a man who is seeking asylum who has been has been told on numerous occasions you must bring us a letter and he has a lawyer right he has a lawyer who did not attempt to bring the letter who  the letter and the request for a witness were not directed at his attorney if you look in the record they were directed at him personally you must bring a letter and i'm sure he says that attorneys understand that when your attorney sitting next to you and said this is what i want to see you know the m prints from that there's a pretty logical inference that the reason that there's no letter is your client couldn't get a letter because there isn't anyone like that out there but it's also logical to see if you look at the record that there are things that should have been happening in that court that were not happening and we understand that it is the burden of the respondent to make his claim for asylum but we must understand also that since he is personally making that you know making the claim and personally having to find this letter and find someone and i mean who to send that letter and if you look at the record he states that he has no one in armenia to send said letter and the i j a did not address that in his oral decision the both sides did an excellent job today in the court appreciates the comments that both sides thank you the matter stands submitted