and the other one relates to the discretion as to whether or not waiver should have been a if the court looks at the record on hold you'll find that the immigration judge as well as a board of immigration appeals here as a matter of law on both instances with respect to the first issue of ability immigration judge and a board of appeals were required to look at four things to determine whether you had to have been a misrepresentation in this case we know and i'm sure you've reviewed the transcripts and the briefs it was misrepresentation by omission what's critical here is that in fact that omission was done by a government agent a government official a government employee as reference and mr gardner's testimony the expert for the government so it was an omission induced by the government employee mr eisen teach when he came in to fill out his i five ninety form was told by this government employee to mit the fact that he was a member of an army of republic of serbska secondly when we look at the next issue whether it was voluntary how can the immigration judge in the board of appeal say that it was voluntary by mr s and in fact it was neither deliberate or voluntary nor willful on his part who is this  o am i or whatever the person is you say works as a lawyer the government i am and that was the international office of migration the government was never able to identify that person infected critically looking at mr todd gardner's testimony states that there was no formal training of any of these government employees until two thousand and one all right five ninety application was filed in two thousand and acknowledges there was just an ad hoc type training some of wh was involved with prior to two thousand but none of which that he could attest occurred while the interview with mr s and teach in this case the third point that we raise with respect to remove whether or not this purported will omission that was induced by i o m was whether it was material or that mr gardner one of the government's experts as well as their second expert mr mcqueen testified clearly that both and all members of the united states who had anything to do with processing refugees in the former yugoslavia knew that every single adult male from age sixty to sixty one and there's some evidence that it was from a sixteen to eighty one were mandatorily conscripted to serve in a military whether it was a server military croatian military or the bosnian muslim military so every single person who assisted and determined that people should be considered refugees knew that every male was at one point or another a member of various military groups so how could there be material it didn't stop the government from asking for their questions he didn't close the door in fact he says he was in bosnia during that time he says he's a  next question that we have to relate that relates to remove ability is whether the record on a whole supports that this omission of military service was the reason why i sent teach benefited and received this re and was a lot into this country a closer look at just the form of the application the i five ninety clearly there were other reasons in which mr awesome teacher was eligible to come to this country the form face although brief clearly states that the un h c r recommended and approved mr us and teach it also states that the i when morgan ization in their bio and interviews of mistrust and teach clearly also approved them to come back so there were other means that mr as a teacher was allowed in and was vetted through the process not just as the government says by this one i am individual or an ins agent who apparently didn't ask if he was a member of the serve military from ninety one to ninety five or ninety six we believe it's compelling that the standard here the government needed to prove clear unequivocally and convincingly all the facts in this case when you look at mr gardner's testimony specifically at the administrative record two eighty two he couldn't even address the issue of materiality he says i'm saying that it could be material that that it is certainly he does quit clarify that subsequently in his examination but that's not unequivocal in my opinion that's not clear effect mr todd gardner clearly states that the fact that mr s and teach was a member of the army of republic of serbska was not and i repeat was not a disqualifying factor at all when i tried to cross examine mr gardiner the court stopped me from finding out although he had the material before him whether or not the u n h c r the united nations high commission of refugees whether or not they his testimony that the immigration judge found to be credible and the board of immigration appeals didn't dispute that planets we credit he suffered discrimination he was a victim of the war the third qualifying factor that would have allowed him to become a refugee he was from a mixed marriage advise me and server christian orthodox who married a muslim woman from bosnia so those of them  in the the r s is that what it's called yes it is the area it was remote you say he was one hundred miles away and didn't really get into what was going on with the atrocities but that's actually correct but with respect it's not just what i say and it's not just with mistrust that says what's critical here is that the immigration judge and the board of appeals ignored what the government's expert mr michael queen said under cross examination he expressed he said i no evidence of involvement no documentation of it and from what i could see mr aston teach was not convicted that if any warrants issued for him he did not participate in any of the atrocities no had he disclosed that his remoteness and all of that would that have made a difference do you think oh absolutely i think it would have you think they would have said that's ok because we don't have at least i don't see any record of other people who did or did not clean whatever the membership is it's almost mandatory to live there so it wasn't an option and there are a lot of people who got didn't  status as well as the i one interview the court or the immigration judge refused to allow us to have those documents they made sums and she stopped me during the cross examination of both mr gardner and mr mcqueen in trying to list that information we were able to get from m gardiner in his testimony of fred properly and clearly that infect the i k h a u n h c r did allow mr us and teach and vetted him and recommended that he become a refugee as well as the i one so we thought we had enough there for the purposes of materiality the other critical issue as i said was with respect to the second point which is the abuse i think when the court not the abuse i'm sorry the waiver whether the court as a matter of law failed to prove give mr s and teach this waiver now i know that's a discretionary provision but i think the court in this case after finding the immigration judge in this case after finding mr essence each credible finding that he was a victim of persecution of self and threats and hostilities this court did not properly weight the mitigating factors with the negative factors this court in fact what it did was for the immigration judge the board pills what they did in fact was say we believe in collective guilt we believe that if you're of a certain ethnic group that you are culpable and responsible for all the crimes that happened this spike effect that you may not have agreed with that despite the fact that you may not have participated and despite the fact that you had nothing to do with it because if you look at their analysis and the waiver issue both the immigration judge and the b i hate state as a fact or thought trustees committed by army during a time and in a place where atrocities occurred his concealment was material to his refugee application because prevented a line of inquiry prevented that adjudicating officer from questioning him for that regarding what he was doing and where he was and whether or not he could possibly be inadmissible and precluded them from making that determination close in time and close in place where those events occurred that determination should have been made by the referee by the ins officer due to an application not  proceedings years later in the united states where the government has less access to information and evidence than it would have closer in time in place to the atrocities that occurred mr centered focus is on the information provided by the international organization for migration worker to respond to your honor's questions that is actually a government contractor that was contracted to do france and work on the applications i think it's an agency that falls under the united nations and they would help th he was told that if his application would be denied which was poor advice that being said mr centage admitted that he knew it was illegal not to disclose that information and he chose to not disclose it because he didn't want his  application well and he acknowledged that later yes and it was just advice it wasn't a statement of authorization i'm authorized to relieve you of this obligation and it wasn't involuntary i mean he still prefer appeared before and i am as an officer he was asked to confirm that the information in its application was true and correct he was placed under oath and he signed that application subscribe to those statements made and not only that but then military records that were seized from the brigade and i says done investigations to determine who's in the united states who may have certain these brigades and going through the military records and so it was discovered after the fact in subsequent investigations i mean he did do something not to my knowledge i don't know of any other external factor other than the immigration services realizing that he all but there were some things pushing why were they why were they looking for these well because human rights violators are a priority and terms of investigating individuals who should be who should not have been in the united states so i guess the department homeland security investigates cases where they have evidence that individuals served in particular military organizations that may have engaged in atrocities this is a general search of regard to bosnia and  i mean there's definitely investigations beyond that but i've seen a number of b r s cases i do believe this is an area that they specifically looked into which mr i think it's also focuses on the fact that the would have placed him outside of bosnia and expert witness mr gardner testified that without that disclosure on the form there was no reason to for the ins officer to inquire further into military service and once that applicant have confirmed that in fact he didn't serve it there would not be any reason to assume that he was in fact in bosnia serving in the army when he said he was had already flooded when in fact he was serving in the seventh talian of the b r s in one thousand nine hundred five in the vicinity of testified that it didn't gauge and heavy combat against this this column some of which was armed some which was unarmed and that they were in the area were sweeps were occurring afterwards around these individuals up we know that extrajudicial killings did occur in this area we service because that inquiry should have happened right it's an it's an objective standard and the government doesn't have to prove that he would have been excluded only that for the inquiry would have been what exactly  also focuses on the fact that he met the definition of the refugee and while he may have had a well founded fear based minix marriage that's not what's at issue here even even if you can establish a well founded fear you would be entitled to refugee status if you had been inadmissible for participating in genocide or traditional killing that's a separate component so that's sort of apples and oranges there this is my earlier question there was really someone called  say the mcqueen said that he did not believe that he participated in actually szell killings and that the seven battalion did not but he did believe that the seven fatalities there was likely that he participated in combat against the column and that it was likely that he participated in sweeps to round up these people now the immigration judge found that mr sentence was testimony was credible but he wasn't there and that's a determination meet in immigration court but there was enough evidence in the record to show that he was  involved in not a trial of that has not been appealed by idea just to the board and we're not contesting in disability finding the only thing the focus focus of this case is whether or not it's material that he didn't disclose his service in an army that was certainly gauging human rights atrocities at the time that the government should have the opportunity to adjudicate in that application whether or not he was or wasn't in miscible that the applicant should make that decision on their own behalf because if  is not disclosing it doesn't come to light tell years later the government's in a difficult position of trying to produce evidence in immigration court years later and it's just a location and trying to figure out what whatever could have or should have happened had it been disclosed in the first  sense here he knew what he was doing was illegal he didn't disclose his military service it was well full it was deliberate he was under oath he was under oath and it was material i mean there was enough evidence here that it could have resulted in and its ability finding an this is purely a weighing of discretionary factors that the agency is entitled to do and that's unavailable under twelve fifty two eight to be and as to the actual language of the waiver under twelve twenty seven this court can review and there's yours the right and the jurisdiction to review as a whole and should look at the record as a whole to determine if the immigration judge and the board of appeals were correct and whether there was substantial evidence which is a  requirement i think the seventh circuit has said that convicted on many occasions and said it has to be clear unequivocal and convincing and there has to be substantial evidence what's interesting about the government's position is they claim that they don't know how this investigation started will they what's in the acar if the court looks at it specifically page starting at page thirty two ten it's a memorandum from the u s immigration customs enforcement five gentlemen by the way mr richard butler at all times when was you're just making this up it's speculative we found finally from mr butler's memorandum that he states specifically and i apologize for reading it and i'll quote it on page thirty two fifteen many of these individuals assisted in crafting this misrepresentation by local national support personnel from the international organization of migration office in belgrade serbia that gives us the credibility set to suggest that i true of mr us and teach said he didn't make it up and say some arbitrary i one officer and this officer told him to admit this fact it's clearly identify what the government did to try to rebut that was they brought in mr todd gardner he said i have no knowledge of what the training was because i was involved in two thousand in fact he said there was no formal training of these i o m rightness officers before that what's critical is they knew that every member every male member of bosnia were required to be in one military or the other mr estes did not deliberately or voluntarily omit that fact he was induced to admit that fact quickly just on the waiver if i may be permitted it's interesting the government states that we don't have to prove that he's in admissible but in every case in every single case they bring up and remove ability in a deportation they have those facts why would they need mr mcqueen other tend to try to establish that this person was an eligible what happened in this case mr mcqueen under cross examination admitted that he was not inadmissible he did not participate in the atrocities i submit that the policy of the statu and the positive the united states is not is to deport victims of a war and innocent people that were induced to admit facts but tell our them to state in this country after suffering so much so i would ask this court to reverse the immigration judges as well as the board