was reached by the board of immigration appeals in the matter of r k k really gives a blueprint to the immigration judge on how to handle cases that have in her proceeding similarities and it also gives this court and any reviewing court a blueprint on how to analyze those types of cases in regard to adverse credibility determinations the they came up with a three prong test after the i g already decided a case that we can then say that those procedures weren't followed that we have to send the case back how is that our role as a court to sort of police what's happening within this agency well if the i don't any particular case law that's directly on that point your honor however this is this was a case that was reached by the by the board of immigration appeals there was no part no previous case credibility terminations are those procedures that were innocent are k k required as a matter of due process i believe so because the language specifically states that the judge that after the three prongs are met each of these steps and and that's correct and i had think that that does put the burden on the immigration court to follow or the immigration judge to follow these procedural standards so that to preserve the fairness of the proceedings declarations two different asylum matters and both are declarations of brothers in the case in our case the declarations could have both been true and here the statements could not really have both been true right because they're inconsistent with each other well while there was a matter of that is a separate issue as far as that was a also credibility circumstances both at that point if you don't have a clear explanation as to why that the similarities are are considered to be adverse then you don't you're not making a decision based on the hotel circumstances and if the judge is weighing her at first credibility to him a nation is making this a factor of her and there's probably determination and that heightens her doubts as to the credibility of the of the respondent then i believe these these procedural rules should be followed so that the judge can make a determination based on all the evidence before her i think that's what this case is really i thought that the evil did the harm that the board was trying to get at rely was the assumption that because people come up with the same story that they must be lying the unexplained similarities that are the problem like the same typos the same spelling mistakes it looked like someone had taken the same story and told it twice but other than the fact that it had the same typos in the same words there would have been no reason to think these two stories could not both be true here we don't have the same typos and the like we have two stories about the same incident and they're different and so yes they're similar in the sense that they're about they say sort of the same thing but because they're about two brothers and they tell the same thing but from each perspective so they become inconsistent with each other the real problem here is that they're inconsistent isn't it i mean they can't both have been the only one who had their nose broken well i believe the immigration judge did mention that there were similarities that she was concerned with the in the decision and i think that needs to be well certainly the consistencies do you have an argument let's i wonder if you have an argument that the i j s decision is nonetheless so riddled with errors in connection with the adverse credibility determination that  we can't be confident that had she not made those errors the same result would have been reached i mean there was there was this emphasis on the failure of the  testify when she never said she needed the psychiatrist to come testify there was this emphasis on the very first thing that she raised in her in her ruling was this distinction between one nine hundred ninety seven  nine about when he was stabbed which gave him notice to address the opportunity to address that and it really seems like an exceedingly minor nit picky type of inconsistency she seemed to be wrong about the university thing and how long he attended the university there she seemed to believe that the brothers testimony at the hearing was inconsistent with testimony at the hearing and the b i a seem to believe that also i think that's probably wrong so putting aside the r k k matter for a moment do you think it's it's possible that although there were there were certain problems with minutia and testimony to put it mildly that that because her ruling was so riddled with errors that we can't be confident that this reasonable immigration judge would have reached the conclusions reached by the judge for as you said nitpicking with dates that were pretty much almost at the same time the responded in this case that said that he had incurred head trauma and he was asked to remember please the court lindsay croesus bond and this court should deny the petition for a view and uphold the agency's decisions denying asylum withholding of removal and cap protection although the similarities between petitioners affidavit in this case and his brother's affidavit in a prior proceeding the similarities between them became an issue in the immigration judge's decision this court should not remand proceedings pursuant to our k k the reason for that is that the board upheld several specific cogent reasons based solely on petitioners proceedings and not the similarities between his proceedings and his brother's proceedings when when deciding that petitioner failed to and the similarity issue was a big factor let's just take that as a hypothetical i know you're gonna say that's not really what happened but that was the case would we then as a court have the role of reminding because of the archaic a or if if the board had up held the decision the adverse credibility decision because of the interest enter proceedings similarities and the immigration judge had not followed the procedures  and i would agree that this court should remain proceedings to allow the board to direct the immigration judge to to follow those procedures and it is do you have a case in which we've done that i mean it's sort of seems like that's logical but i actually had trouble figuring out it went a procedure is adopted after a proceeding what our authority is to fix that i don't know a vote of a case dealing with that i know that this this this case only came out in september and i'm i'm not certain if this court is addressed to you don't have a position with respect to whether the government doesn't have a position as to whether our k k applies to cases that are still in the system unfortunately i don't have a specific position on on on cases in general however i can say in this case even if we were to assume that the board had made that that finding which i don't think that the board did in this case but had the board me that finding you can look at the procedures that are outlined in  distinction between or the similarity between the two statements she did not specifically state to him that she was going to rely on it however he was aware of the similarities between the between the two documents and he had that that awareness and both documents i couldn't tell whether both documents were even in the record so both documents were not actually submitted into the record the counsel was using it solely as an impeachment document for the witness testimony however petitioners own counsel supplied the da just counsel with this with with his with the brothers affidavit herself so  years prior to prior to the to petitioners proceedings i'm sorry i know i see it in your letter he confirmed that he provided the government with his file you're saying that that includes impeachment purposes when when he used his brother as a witness so he had meaningful notice there he also had meaningful notice during proceedings because the petitioner was present for his brother's testimony was watching his brother sesame as british as the brother was being cross examined regarding the substantial similarities and the substantial similarities were actually read into the record at that point  counsel read it out loud so both parties were aware at the end of the titian or his position as brothers testimony the immigration judge specifically asked both parties if they had any more questions or witnesses both sides declined she also asked if there was any more evidence that the parties wished to submit and again both parties declined so they didn't they didn't ask for a continuance to get more evidence to supply an answer about these about these into proceeding similarities could you respond to just chabris question to your opponent about the other errors that i j made and whether we those taint this whole decision yes so the board of health  based on on certain aspects of the of the of the testimony that the immigration judge addressed but not on every one and the ones that they that they did we forgive me just a quick clarification question are we examining the i j s decision or that he had been injured in april of two thousand and five and in may of two thousand and five hell ever he also submitted medical documents stating that he had been injured in april of two thousand and five in may of two thousand and four now whether  a date falls in one year or another may matter a lot in some cases and mean not matter too much in other cases in this case the petitioner left his home country in june of two thousand and five so we would be so disgusting either something that happened a few weeks before he left or more than a year before he left so whether or not he has a well founded fear is implicated in that time period so that's why that becomes important here now when he was first confronted with th just ask you i mean if we're looking at the big decision i mean that is the first thing the vi a relied on right i mean the the the first thing it seems that the b i relied on is just as importantly the immigration judge offered specific cogent region reasons for her just to leave first the immigration judge found that the respondent and his brother gave conflict and testimony about the two thousand and three incident can you show me where is the conflict in testimony so i understand the problem with the statements ok but in terms of their live testimony where is the actual conflict ok so petitioner so kitchener's brother is testifying on page one ninety three to one ninety four and at that point i'm british brother is confirming that this incident where he was punched in the nose after being told that he that the police would give him plastic surgery to fix his big nose he's he's he's confirming that that incident happened to him now if you compare that petitioner's affidavit petitioner's i'm not talking about the the the live testimony the live shows i mean we know that there's a problem with the petition right affidavit but i'm you know the live testimony sorry i'm just trying to find the page numbers here  soon this could be important because it's the very first reason that the big cites for upholding the end it certainly is so i see i recall you're saying where you're saying well perhaps that could be that could he could have been testifying consistently with his brother because he ends up saying at that portion and i apologize i don't know the exact page number but he doesn't vengefully say in that statement when he says well ok during the time that you're getting punched what's happening to your brother and he says the same thing however it's really important to know that petitioners are required to be testifying in consistency with his own affidavit as well so either petition or rather we have this issue with his you know there's this possibility that the the af was wrong for at least a possibility that the affidavit was wrong for reasons unrelated to the petitioners credibility and but you're saying we have to look at the decision and the first reason that the  gives for upholding the adverse credibility determination is that there is this there is conflict between appears to be conflict between their live testimony and and i just didn't see anything in t so petitioner he is testifying before his brother's testifying he first gives the story where where some where he's being punched and then he is asked what about your brother so at that point but there was no right is gosh we're out who first you know he did he say when he says my brother was hit and i was hit and then the brother says i was hit and i didn't see what would happen to him because i was knocked out and i don't see how those two things are inconsistent i agree with you that it is plausible that petitioner was testifying consistently it's not compelling that he was testifying consistently with his brother and he also if that was an error and if there are other mean i think we all agree that  at least committed some other errors agreed so that was that was the first thing the b i cited and you know there was arguably that was an error to say that they testified in consistently at the hearing and then there are other errors throughout the throughout the i j s ruling how can we be confident that a reasonable immigration judge would have reached the same conclusion about credibility absent all of those errors well we have to go back to the to the standard of review here and it's compelling evidence we need to have compelling evidence that the board made an error not that the immigration judge made an error by the board in error and here we have several areas where the substantial evidence does support their reasoning and as long as the financial evidence supports at least one of the reasons given and here there are several then this court must uphold the board's decision regarding regarding that particular incident either so the the board and the immigration judge give petitioner the benefit of the doubt and assume that he was testifying consistent with his own affidavit and in that way the seung that he at that point was testifying inconsistently with his brother perhaps he was cut testifying inconsistently with his affidavit but he never claimed that he was even after he was aware that the similarities were at issue so so just assuming that the petitioner was doing what he was supposed to do in order to fulfill his burden by testing consistently with his own affidavit then that is true that the testimony was in conflict just chivery i also asked you if we had reason to think that his own affidavit might be incorrect for reasons other than his credibility and that was early in the question so you haven't really addressed the do you have a response to that idea whether or not there were other reasons why the so petitioner has never has never stated another reason his brother blamed the translation however since his brother was the one who testified in court that he was the first one hit it seems as though his his his declaration was translated correctly now powell has stated this court's decision and powell has stated that that once the petitioner is found to be not credible when he when he appeals that decision to the board that's sufficient notice that he needs to explain why he was credible in all areas not just the areas with the immigration judge remarked on and he never stated anything beyond i think that i should have been allowed to change my affidavit after i was aware of this did he ever identify the translation as what he wanted to change or what about the affidavit he would have wanted to change he did he did not not not that appeal and not he didn't ever ask for a continuance to go get the translator as they did in our k k and had to go back and we would have to find that there was compelling evidence in the record that he was credible yes in order to well unless you agree adverse credibility determination do you agree that the rule is that if we can't be confident that the same result would have been reached absent the errors then we should remand it unfortunately no because the compelling evidence standard is that that the that no reasonable person no reason a fact finder with us on this so even if you enough found the same way even if there are possible explanations that aren't that you know aren't addressed by the board that's not enough this court needs to find that the that none of the reasons that the board supplied were were supported by substantial evidence and that there is compelling evidence that this person was credible thank you thank you we let her go over time so we'll give you two minutes or about know i made sure that that was the case before i asked the question but i i mean this lawyer just failed to identify this inconsistency and failed to address it after it became a big issue in the proceedings and it may be that a lot of that is what drove the immigration judge in her in her adverse credibility determination but is there anything we can do about the fact that minu can have such a terrible lawyer that he didn't deal with this obvious problem well i haven't addressed anything in the thing has been brought up in the in the briefs as to whether or not the representation was an effective that possibly could be the case but how the the the in matter of k though the onus is placed directly on the judge as far as especially in the first in the first prong that the judge should identify the similarities between the documents or other evidence under consideration the applicant of the similarities that need to be explained and that was not done regardless of whether the attorney was explained it didn't explain it were asked for a continuance i don't think that's that's the test