understand your your get your three minutes and probably more of a fast this problem will go way over and i know there are obviously a lot of issues at stake in this case but with the court's permission really want to of his membership in a band organization which boasted his credibility and which despite his multiple requests was surprised by the government for over a year including before and during his hearing and its absence was used to attack is successfully attack his credibility during the hearing and obviously the psych in issues that there is no substantial evidence showing that the i j a comply with the e o i r s binding language access plan which compelled that he identified b c is limited in this profession and premi motion to reopen as this court is aware b c presented a card conclusively establishing that he was a member of the southern cameroons national council interleave this court said on a motion to reopen the b i a must actually consider the evidence after that a card would come in and there and there are a lot of there are a lot of the reason we're really focused on this card and i wanted to start with it is really did this is this persecuted and so there's no you know you're the only issue was whether or not there was a nexus between is b c himself a member of s c n c and once he's able to establish that he's he's been a he would be able to make a prima facia claim and which what made it improper is they concluded that because there was adverse credibility it meant that there was no need to actually assess both the weight and the credibility and the impact generates two thousand and seventeen and i was that was that was before the immigration judge as part of the exhibits and the immigration judge also said at the at the end of the hearing is problematic for true essence the supporters as far as political opinion that's in the record before this court is and is in blue i can white and where is the car that was it before the v i i it was a true color one and there is a big distinction because you can then see that there are markings on there there are dates the stamps that show which we believe makes a makes a credible and objective and it's court cowden so so so he and other cases that there's nothing that inherently this think about the car that would make to make th court make a b i believe is not credible so had to be i had to have had to assume the truth of the current at the time it was presented so can you tell us a question about kind of the role of the card overall in kind you know to just play what changes what doesn't sort of thing let's say that let's say the card comes in let's say it was a mistake not to have the card because it wasn't available earlier wasn't part of the a file earlier so it was a mistake not to reopen the car but let's say that the b i it wants to still maintain its address credibility front and this is again putting the english in the pigeon english question off to the side for them could your client qualify for relief with an adverse credibility overall adverse credibility finding but admission of the card into the administrative record and then do its analysis from there or does that adverse credibility finding cameroons under the banner of yes you can see so this is one of the you know you're about to get out of jail free card this is a guarantee to go to jail card because it was the piece of evidence that the that the immigration judge was specifically of the due process concerned concerns that cause that causes and so there but also the card had value in terms of credibility to rebut the issue about his membership in the se and see if you recall in the c f overlooked was that the record makes very clear despite what the decision may ultimately have said from the immigration judge if you look at contemporaneous record judge immigration judge repeated that it was a close call he wasn't sure it was he wasn't he and he actually said somebody is going to be upset with me because i need to write i need to think about this and when when do you test counsel was asked about what do you think the st thing he said there's no you know we don't we're not sure if he's just a supporter because his brother may be a member o just say that there was a complete reevaluation of the entire record including the card consistent with a motion to reopen and then for reasons that you may disagree with and i've read those in your brief the i adverse credibility fine could your client still get relief under that scenario or would that adverse credibility finding kind of foreclose that or would you say  er or regardless of being bound continues to make the same adverse credibility findings could your client get relief in that context or would the consideration of the whole record inclusive of an adverse credibility finding still give you kind of have that we think that one sense or if it's remained of the records reopened given the center how many of the card in terms of the entire case that you know it would it would need to be reexamined because that the standard here is not that we get we show that we win at this particular in this posture as this case is this this judge this court is how to go on you know while we cannot say that the the hearing included the card and is that all the relief you're asking for were you asking us in addition to that to revisit the adverse credibility finding we're asking for that the record be reopened to allow for the current and for us to be able to present the card and particularly to to to present the case in a posture where the card which establishes which again makes a prima facie claim for asylum allows the previously applied for asylum implausible testimony as to how he was able to leave cameroon without a passport etc and adequate letters of support so do you wish to leave those in place or are you asking us that those credibility determinations that don't necessarily relate to the court also be revisited we think that where given the immigration judge is uncertain about the case and how certainly describe it it's a close call that the presence of the card allows the judge to re examine where where everything else and i think quite frankly that would be if he comes in and he says i'm in  think this point the opportunity to allow the immigration judge to make it reads emanation of the record which may may lead to to you know the giants not placing weight on those in consistencies but when you have somebody who says give me  relief i'm a member of the s n c i have nothing to show you other than this other peripheral evidence i think it puts the case in a different posture and at a minimum you know the b i a sort of allowed the immigration judge to to look at to re examine the case under the circumstances but for example why couldn't the immigration judge say ok the court comes in but your statement as to how you got out of the country without without a  believe your member but i still find inconsistency is i can't be resolved i mean that it's not you know but we're asking for the opportunity at this posture we're not we're not prepared to say you know we need to show that we're going to win but i think that you know this judge given given this record really was look this is what he was looking for and this was this was you know we discovered it and i'll get to that  again sort of concluded that because there's an adverse credibility finding in the record that means you know you sort of stays with you forever it's a stage that you carry a scarlet letter in and that's that's our point that you know not withstanding the adver could leap over the issue of the card and simply reaffirm its decision on the basis of this adverse credibility determination basis that we've made a substantial evidence even taking count of the card and and without that extrinsic evidence that it was pure speaking speculation so it's our position that that's no longer a basis for a diverse credibility finding at least an administrative record based on the  judge and as well as separately the rulings on the motion to reconsider and motion to reopen and do i understand now that you are you are only proceeding on the basis wanted to make on the card is that you know there are the fundamental unfairness with the fact that the current during the entire time was in the possession of the government and so the be i offer no assessment that from january two thousand and eighteen when b c crossed the border into more suited to nineteen including the merits hearing the card or card was and the government's possession and you know  we sort of wanted to highlight the fundamental fairness of the government with a tortie and repeated requests to obtain just a copy of the most critical evidence in the case which again it's his own card and then the garda the government arguing vigorously  successfully that the absence of that such evidence renders him renders or not credible and defeats his claim for asylum and so the government had inherent advantage because it's literally impossible for him to actually present this card because it was in the government's was i  a immigration hearing and then use the absence of that very evidence to him and so i just wanted to get that in their judgment because i you know in any other context a criminal case civil case this would be subject to sanctions but here you know when he finally the supplemental briefing you suggest that these are binding on the agency and i guess i guess what i would say is when i read the statutory language that suggests that there  have from the statute indicates that the agencies have to promulgated these points not that they have to promulgated binding pleadings and then the plans themselves don't indicate that they are binding and so it strikes me that it's almost like it's almost like congress saying hey we'd like you to tell the world what your what your thoughts our policies are not bound by just just just in the name of kind of incremental disclosure tell everyone what those are and so those those come out is probably policy statements so i guess my thought is if these are just policy statements failure to comply with a policy statement doesn't come which there was no discretion in terms of what they must do and be frank they didn't do it many of them then do it for over a decade because if you recall the executive order indicated a one hundred and twenty dollars day period but beyond that and you saw thousand one hundred and sixty six had made clear that this was a responsibility there are ninety five federal agencies had to ensure that limited limited english proficiency persons are able to meaningfully access to programs binding on the agency as opposed to kind of advisor plan the best practice is sort of documentary and you know you know when i read some of these these documents i thought to myself it's best ambiguous as to whether this command is the kind of prepare best practices document and to laura or policy this is what we'd like to do but i don't see anything saying there has to be a binding plan and there has to be a plan that's binding nor do i see the plan saying this is mean and so if both of those kind of opportunities for binding this are absent then it seems that there's a problem getting the less well we we pointed the court to the  the department of justice under multiple it administration said you have to issue these plans and by the way i think attorney general holder essentially you know reiterated that very strong terms we can some agencies were not implementing them and  also requires regulations for for fed federal recipients of federal funds so the o j using it's the thirty has actually gone after folks are receiving federal funds to ensure that they're they're complying with that and d o j is actually also repeated at the same four step process that that applies to fed recipients of funds and grants also applies to agencies so we don't think that there is there's an definition other words you know there are equally binding but had not gone through through making had enough and actually i think this plan is in a better posture then than what we had in morton v ruiz which was it as an internal legislative manual the b i a there is a bureau of indian affairs which had a way to assess who gets out who gets benefits in terms of whether you're on a reservation or near a reservation and the supreme court in that case said well not withstanding it's an internal manual and it's an internal coup congressional committee rule that says you're entitled to executive session if it if some information about you is going to be embarrassing that and again the supreme court ruled that now would standing that it's a it's an internal rule of a congressional committee they were bound to follow it again because it impacted fundamental rights so so the line of drawing judgeships is not whether or not the particular rule is a regulation or has gone through form roommate king the issue really is whether or not it actually impacts fundamental rights and it flows from some statutory constitutional imperative and we believe that this plan here does and by the way even though i hadn't gone through making it was a process where stakeholders were and it says so details and plan were stakeholders were consulted where there's a requirement that it be publicly available so we think this is actually a stronger evidence of this then you had in his limited english proficiency and and i can go through a little bit of that but you know we obviously prefer that leslie be applied under the circumstances because the fundamental rights here involved which is one obviously the effort to eliminate national origin discrimination which was right at the beginning of executive order to his ability to meaningfully participate under due process in these proceedings particularly if you give it given that it involves a potential removal and potentially relocation into a country where he may be tortured and three that also international law as a court so i am a great i'm  this pidgin english notion what was it was not real and he even said i know pidgin english and at the end after there was extensive colloquy he said you know you don't you don't need you don't need english you know you're fine as you are and so on that record it meant that he is one he actually thought that even he was that b c was not credible and he was making this up too and you saw that in the demeanor is him conclusion about the adverse credibility fighting based on demeanor where he found him unnatural and robotic and argument is that the reason he was unnatural about it is because he was trying to participate in a judicial proceeding where in a language that's not his best language and he wanted that ok he understands and so then you really your point is but when you start looking at the record and see so many indecipherable some things that were clearly an indication of  language problem there should have been more of a review or more digging to find out to what extent is english different from pigeon english that's correct your honor and two quick points on that on the st is at the at the moment that  he st appeared in a master counter hearing before judge ellington at that point the judge had no indication of his english for physicians your lack thereof in other words he didn't have the critical credible fear interview transcript before him there was no asylum application at that point in our agreement is that he should have inquired and as the immigration bench book requires that what is your best language and he didn't do that and sue that would stand even under the government's argument a reasonable reasonable efforts are reasonable steps at the point where b c communicates the judge my mind my local language my best language is pigeon english that's the language i speak at home that's my way the language my parents speak at that point the judge was on notice should've been some reasonable efforts to take steps to ensure that he was able to fully participate in the proceedings and a final point itself has actually made the same argument when because one thing d o j does is because many state courts receive federal funds from the partner of justice it means apartment justice actually goes in and ensures that d o j that these st a courtroom is different a court room where you're using technical terms where your whole life is at stake is very very different so now would standing if you could fill out his asylum application rican say something out that at the end of the day and everything else really sources to the person's ability to understand the questions posed to him in standard english and so for at least for that had native language but he represented before he found boxing in his native language was english he never requested interpreter in any other language in fact when that going to be on the french interpreter he said no i speak english he never  that's that's what is it missions are but i think there's a lot of evidence in the record where it wasn't quite as seamless as you're making it out to be something that was different and then we find out later on from the people who testified that there is a significant difference between pidgin english and standard english so d it's not like you have a dialect similar to is in a quote english clothes could speak or to ascertain whether that is in fact the same language it seems usually within the realm of reasonable that we would have here  saying he spoke english intending this he was referring to english as he knows it as pidgin english and the listener or the judge interpreted that to mean standard or proper english and just a limited english proficiency as a barrier to accessing the choir's services as this hearing progressed it appeared despite statements made at the outset that there was some difficulty understanding communicating in to the questions of the i j perhaps because it was speaking so quickly compared to what we see understood i don't know but at the outset shouldn't there have been something done by the i j a to determine whether there was and enough an adequate language proficiency in english and if there was any question just to bring it to an interpreter for a translator record that gives them the full benefit of that and it seems that if there was a more robust record here in terms of you know proficiency or anything else like this then then the case for substantial evidence of english language proficiency goes up but we don't we don't have is i think judge ambrose that we don't have a super robust inquiry here at times we have a choice between i believe english and spanish in that's the choice it's presented in between the two it makes sense to me that you would pick english but but i think that that's that that's different than kind of a deeper call a plea you know messing we need to call his testimony think wish me to modify reverting back to speaking georgia that was very obvious on the record and balance and borrow he don't answer yes or no in english any killing is very elemental english words that was obvious from the record there was about a the native language i'm as being different a different kind of english and in standard proper english which we should the full well but i'm fairly early on he raises the the concern when when he's asked about the statement that he was detained and then that he was released because his father said he had the perceived discrepancies between the interview statements and and here in statements doesn't that provide an additional basis for us to be concerned that there process requires that those those types of elin be provided interpreter card during the course of the proceedings but it explicitly it argues that reasonably was held until after the appeal to the it was complete you know why the government was open documents i do not and so it strikes me that if if his lack of being able to prove this was a reason for adverse credibility determination then it is material to the adverse credibility determination of might not be might not change the outcome that determination but at least bears on it and that's what a motion to reopen is all about when evidence when it's specially timely like this one was and when the evidence truly wasn't available before don't think that they are their expertise in the in the thirty or sixty or ninety days after the hearing you probably have that for a long time but the a c n c card is very different and what it was not help me to says this belong to the southern cameron route council and i think the i j a at one point conceded i don't have a page in front of me that members of the a c and c would likely be entitled to asylum so if that's the case if i'm stating that correctly mr to lot this point about this being a maybe the key piece of evidence stands pretty good discard even though they had it in their possession but don't worry about it it's irrelevant or immaterial and in fact it is easy he has credibility named critical evidence and whether or not it's persecution happened and because he was a member so he could be a member and he could not be and he be a member and nothing ever happened to him and what he's claiming is that he was a member and then afterward the says it's the key piece of the puzzle and the more and more i'm looking at this it seems as if it's a key piece of the puzzle that may not win in the end but at least he gets a chance to present if i understand if i understand in addition to those reasons if i understand the reason that you're defending the b s finding the materiality is once you believe the d c gave conflicting statements about his membership in that showed he was a member his statements are still inconsistent because at one point in time you say he said he wasn't a member if he had signed affidavits of one hundred people that said he was never a member but no card similarly that would be just inconsistent either way once what you're saying in essence is because he said one point time he was a member and at one point in time said he was not a member but a supporter that distinction makes the card terms of persecution it doesn't appreciate that you can you can abstain asylum based on past persecution but also based on but also they stone the possibility of future persecution and so where this components of asylum one is you have to have you see for a well founded fear you have to have subjectively how well founded fear be fear for yourself but the objective component requires the person show that a reasonable person is position would fear persecution either because  be individually singled out for persecution or because there's a pattern of practice in his home country of persecution against a group of which he's a member and that's the s n c the records show that they've been banned since january th saying that in six hundred and three of the record the idea repeat and i quote the st time he looked at this case look at the country conditions on june st he said it's pretty clear that there is arbitrary arrests in detention for people that support a southern cameroonian independence and people get hurt that's on for ninety nine dollars and he also said at the basis and a country conditions show that as you can see members are being persecuted anything that the conditions of it got gotten worse then he's entitled you know is entitled to asylum this is not a card for sam's club this is for being a member of an organization that is under tremendous persecution by the cameroonian government and i wanted to get back to a question jack kraus had asked you know our request is that this be reminded the way to the immigration judge rather than to the  a open the record and do another analysis we think they're appropriate remedy given the i j s and certain c of the ideas the premiss see which i j placed on a c n c membership that he be allowed to look at this card and view the evidence and that in a different way and and respect to the lack of disclosure the problem here wasn't just that the government didn't disclose it is that that having not disclosed this card the government on cross examination then asked asked b c show us evidence color copy of the card because i think it's it's relevant obviously it's up to the to the court but you know having seen that what was in front of the bia is important respect to the language access issue i mean our view is that the substantial evidence or spanish or english just for sixty that is not reasonable under any circumstances and in fact if anything we have in their least three other occasions on that same answer counter hearing where people the people come before the before  judge tellings and he says spanish best spanish best and so he recognized that the emperor really is what is your best language not do you know as between english or spanish obviously b c chose chose english and another point to and i'm coming up my i've got a couple there were two minutes left is when defining limited english proficiency the plan makes clear just because your profession in one aspect doesn't mean that your profession another aspect so the early p persons may be competent in certain types of communication e g speaking or understanding but still be p for other purposes reading or writing and so the fact that you know he may have been comfortable doing something a writing does not mean that in an adversarial setting being cross examination without counsel reciting very dramatic events that he was able to participate fully every respect to participation the true test is is he able to participate as somebody who's language x assistance services is that the persons are supposed haven't quote an equal opportunity to participate fully in the services activities or other programs i ministered by the agency and so india would say in our in our sixty talked about the cases they actually pursue against a court's day they say and i quote court cases are often highly structured stressful experiences requiring specialized terminology what are careful attention to providing effective language services many people have a judicial process that places unfair and unconstitutional burdensome on their ability to fully participate in the proceedings that is what we have here and you know i will end on that because i think you know having the o'jays own words i contacts it's very important because i do point that the court judge ellington knew he said i speak pidgin english that's my local language at a minimum at that point he should have said that is your best language and allow him to get into thank you very much thank you to both counsel for a very well presented and brief argument in connection working backwards in connection with the court that you wish to send if you want to attach it to a twenty eight jail letter or something like that that's very important case i would ask if a transcript could be prepared of this or argument and it would be ok to just this but it between deckert and the government was that ok you know objection from from our s ok and i want to know to your honor that this is a case as you mentioned important but it's particularly important to a lot immigrants who are you know discussing language access and because the government never addressed and in response we appreciate this of the requests for supplement a briefing to really put in focus some of some of these important issues thank you thank you to you and mr ram that's and it will take the matter under advisement