and the case then moved with declaratory judgment to the federal court and the court granted the defendant's pelleas a motion for summary judgment on the basis that the court held that there was substantial evidence in the record the surf i misread a record that there was marriage fraud so what do you do with the evidence and substance where the call her the former spouse  variations across witnesses or witness statements in the time when when the breakup occurred but as your honor pointed out that the key to appear is the key to the record and  this is what the hell we point to as far as the substantial evidence is the fact that there is two literals made by the u s citizen spouse petitioner and but i think you do have to look at the probably value of those two withdrawals our point is first of all neither one was done under perjury risk of perjury or was a sworn statement the first one was done it's the trial court who are an administrative agency charged with finding facts how to weigh and balance information unless i mean it's obvious on the face that something is not credible so can you point to anything that tips that balance so far and in your client's direction that we should say the agency abused its discretion of not finding it incredible i believe your eyes the lower  an interview in chicago february two thousand and eight then there was a request for evidence issued subsequent to that interview and at that point they retained counsel and submitted numerous dark means phone records though on not just on her inconsistent statements about the purpose of their marriage but the fact that he provided three different dates for when he began living with her and that he provided inconsistent evidence about the dissolution of his first marriage in the philippines i mean there was ample evidence of different sorts that the agency relied on and we changed its conclusion what why wasn't it entitle to do that why does that constitute substantial evidence i think one thing your honour's is to look at the time frame of the case and the marriage was in two thousand and one june two thousand and one the i went through the petition was filed in august two thousand  then we have this withdrawal of them we have this the second filing then we have the i one forty petition and then a notice for intent to deny is filed in march nineteenth two thousand and twelve that this allegation of fraud was being made you know they were waiting for a number years for the i won forty petition the labor based application to be approved and without any prior notice i received this is basically because it difficulties in marriage that he was living out of state for a period of time he was traveling from connecticut chicago during the relationship he gave different dates about when that happened yes i mean i i claiming that she was duped she was not complicit in you know in any fraud and yet she's filing petitions and withdrawing them and filing again so is there any comparable case in you know which the  former spouse who's the marriage was for immigration purposes and says that twice where any court has found that the conclusion that there was marriage if it is determined that there it is the next step is for the petitioner or sorry for the beneficiary of the application to prove that the marriage was was bonafide o that you know sufficient evidence of that and you know again here i mean really the only point that the petitioner other than requests for evidence he had the opportunity do that was this notice of intent and in two thousand and twelve some and i have been this height before right may please the court there are three things in mr villa lose a file which taken together constitute substantial and probative evidence of the first i one thirty that she filed for mr villa lose benefit in which she states you know sworn statement the reason for the withdrawal is that my husband used me the emphasis is hers states speaking of mr villa lose he did not marry me for love he took advantage of me because i'm an american citizen he married me so he can stay legally in the united states and the third thing is the conflicting unresolved evidence presented by the beneficiary regarding first whether or not his marriage to ms osmena was bigamous and second when he began to when marriage fraud i want to do it could i just ask him in dealing with statements that she was very inconsistent and the rest of the evidence seemed generally consistent with a long quarrel in a well established marriage potentially how does the agency approach that kind of conflicting evidence such a document could standing alone be susceptible to the kind of reading that the court is referring to and i do think that there may be a way for a reader to read that narrative needle right and come to that conclusion but that's not the test here what the agent does is review the entirety of the record and look for was well on notice that this was an issue right there was a request for evidence with respect to the second i one thirty many years before this is in the record at pages two zero seven to two  to supply a bona fide marriage and then later with respect to this i won forty then at that point the employer right who may not have known that there was this issue with this marriage now he is put on notice at six thirty nine to forty two of the record and so again the employer and the beneficiary have the opportunity to respond and certainly they did just six forty three to six and the beneficiary is to respond to the notice of intent to deny and there was nothing for closing the employer or the beneficiary from perhaps  her to give this apparent anticipated explanation that the that the appellant seems to be holding out there as a possibility but i think for example to say i think i have that won forty out of the texas service center and so different service centers may engage in different protocols and of course i am familiar with me through my practice that sometimes the protocols and the approaches change over time so i don't know what the what the standard procedure was at that period in that period of time but in general u s c i s relies on the record in front of it gives the beneficiary and the in the first instance on this i went forty and then later on appeal provided this document about anna norman apparently and apparently norman back in the philippines and both of those as we discussed as we discussed in our brief generated more questions and more conflicts in the evidence than me answered and so it was perfectly appropriate under these circumstances for the agency to to to question that evidence and certainly to  re evaluate the other evidence provided by the beneficiary and i'm certainly not in a blog's to credit one particular narrative or one particular version of events particular number of months and that's not the view that the view that the agency had was you know this is this is your start date this is this is information that the beneficiary is providing to the agency in an effort that he provided simply casts doubt on that and suggested that he was not reliable source of information with respect to whether or not  reference to the marriage cases there always is a interview at the us here you have soffits and in this case there were two interviews but we do not have the benefit of the results of those because the withdrawal was made after each of those interviews approximately so we you know i'll see at those interviews are there conducted under oath you know and i guess that's  put under oath at these interviews and you know you know we don't have anything on the record to state what the result was at whether she you know i mean whether she stated that you know this was a bona fide marriage or you know and obviously you know she would have been involved in the compiler lieschen of the evidence in considering the request for evidence that was done in two thousand and eight and in reference to the point concerning the fact that there was an opportunity to respond again two thousand and eight was was where the response to the requests revenants was submitted but again there was no decision made in the two thousand