immigration judge in two thousand and six on the grounds that she had been kidnapped raped and forcibly married to a wealthy and politically well connected man in bombay the da just appealed that decision and subsequently moved the b i to remand the case to the immigration conflicts between masako audi's testimony and the contents of the nesa file the misaka lotty was not credible and so denied her application the issue before this court is whether the board of immigration appeals abused its discretion in granting the department of homeland  security's motion dream and the record shows that the board did abused its discretion because its finding that the evidence submitted by the da chest in support of its motion was not available to it at the time of misako obvious first hearing was factually incorrect this supposedly new evidence was in fact in d h as his possession at the time of her hearing and any reasonably diligent t h s attorney would have discovered that evidence since it was the need since it was founded in the name of lottie told the government twice prior to her hearing and once during her hearing that she previously identified herself by the name of moving but nessa she told the d h s s this on november first two thousand and five when it detained her when she tried to enter the united states from canada and the shift at that time she told them that they had been previously admitted to the us using the native move about nafta then on april third two thousand and six she submitted to the immigration r one thousand three point two c one provides that a motion to reopen proceeding shall not be granted unless it appears to the board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing as a course court held in and in hong versus ashcroft the standard is conjunctive the new evidence must be material and not available and not discoverable at the previous hearing the courts have repeatedly held the so long as the evidence could have been discovered through diligent research at the time of the individual hearing it will not be considered unavailable afterwards for the purposes of motion trichet to reopen a couple of cases in its help did not even dream that the sole evidence which the da just submitted in support of its motion with the contents of the notes of file itself plus a statement from a d just officer who had not been involved in the stock a lot hearing but simply became you don't think there was any right you had at that point to appeal not looking at u s c twelve fifty two i don't see i see the i see that we have the right to to appeal final removal or removal this is a classic example of an interlocutory order her motion which was not sworn she didn't even claim that this evidence wasn't available and she made no explanation whatsoever of why she couldn't have done the same thing with this v h s officer don't call the guy gotten the find the file before the hearing and why they didn't introduce it into evidence and sort of another question do you deny the substantive merit of what the determination was that that your client that nasa and sokolov the are in fact one of the fleeing literally for her life and she felt she and her cousin this mr all felt that it was a life or death situation so quite frankly if they engage in immigration fraud these documents pertain is is a real individual who nor soka wadi pretended to be for the purpose of seeking then immigration benefits in the united states i got it i gather the  fact the evidence was already there and that the essence of your argument absolutely but they could certainly be frank with you i'll be perfectly frank i'm sorry don't interrupt go ahead they could person in the same proceeding it must bring whatever claims they could have brought against the person the same proceeding so they got those not exactly the same problem in the second proceeding they knew they could have submitted the net so the contents of another study that's a file the first case and they would ever charges out of that in the first case so the fact that they didn't means that any subsequent proceeding we've barred by race judicata well aren't there provisions for discovering something after even if they could have done that before no there isn't no you're isn't you're under the gun the government has chosen to write the regulations in such a way that if you if you do you must you can only give them the case reopened at the evidence wasn't available at the same time they've written the this is how they wrote the regulations and these regulations are mostly enforced against respondents i mean i would be thrilled that this court were to rule today that anybody can bring up any new evidence anytime anytime in the proceedings i mean we as people restrepo as any respondents in  this case who frequently discover new evidence later on afterwards would just go wild if that was the rule but this is a rule which is routinely and forced against again forced against respondents answered and and this then that's why the board has this rule because they don't they know perfectly well if they didn't have this rule we'd be doing most of the reopening of the government know examples of how this court hasn't forced this rule against against respondents can be found in for example the case of he has nothing h y z o t i vs holder five seventeen federal three fifty four in which the court held that you couldn't do that because somebody tried to somebody from albany and try to reopen his case on the grounds that there was new evidence of his persecution in albany and and the new evidence were newspaper articles that were written before his first hearing and this court upheld the board of immigration appeals and saying well you could have found those newspaper articles before your hearing the fact that you found these newspaper articles after after the hearing doesn't make this new evidence is exactly the same thing same case you've got here except i was suggest it's a lot easier for d j s to find something in their own files that it would be for somebody to research the entire internet and find something and get this court held that because some article was a very it was written before the hearing therefore it wasn't new new evidence when the person tried to submit it in support of a motion to reopen thank you does not indicate the turn of the second a file and there is no way that that would trigger an investigation into the existence of  a file in fact enduring or being admitted to the united states does not result in the creation of a file in other words that the woman named now had entered the united states with the passport as a visitor or now some other type of visa there is no way to file created or it could not have been were filed with you i think the problem for me is responsibility is to take the moment to lose for the file when another immigration agent didn't die at that foul was discovered so why so i don't see an explanation in your briefing nor do i understand why it was this was could not have been discovered or presented at the former i'm sorry i'm not clear on the cousin in law ok i'm sorry who the real one that's her cousins her cousin's wife you're saying that it's a lie the reason she didn't list it according to her is because it wasn't her it wasn't her application but not to look for petitions under an alias the applicant tells you i've used these four and it's your choice to say well it's unlikely that there isn't a number under that alias because it probably wasn't created as opposed to inability to look is that not correct repeated line and omissions on the application she is filing that you know prevented any other investigation being done until there was a triggering  and understand that that is problematic to the agency i think the difficulty here is that there's just one standard and we have to enforce the singular standard and with regularity as pointed out by your opposing counsel our cases will say this was a publish a bailout someone seeking immigration who was denied it and we would say no you can't reopen because the things that you want to tell us about were available if only you had searched for them in your first hearing if if that is the requirement that we place upon immigrants it seems to me that that's the requirement we have to place upon the agency as well how can how can you get a rial and an equal pena and in in for fled their own country i'm not i'm not convinced by the argument that the government in one times files on these people and to whom is told i have used another alias doesn't have an ability to search it's own finals in a way that's perhaps easier than someone who has fled another country analyse expected to provide to identity so they thought i guess my question is who bears the burden of that choice and it seems to me that the person wanting to place in the evidence does because that's what we've required of immigrants and so you mail in the agency must stand in the same position and if you choose not to look you pay or you pay or the outcome of that but your honor it's really not a matter of choosing not to look there have to be a trigger you to say look it seems like you know there's something fraudulent going on here  i don't know the exact so i don't want to say i mean many people have names that are the same or similar so i can't and surely give you an answer to that but you're right is that not correct well at the point that he was looking into it there was a whole lot more information available then there was  her original hearing and that's the problem we're looking at it kind of in hindsight but you know i could if i had more a lot more time which i don't i could l isn't that an argument that you should not be allowed to reopen but you should explore the means that are available to you well i think that of the issue is whether  evidence that the court really the government could not have been covered previously you can't be used when it discovers the frog ok so it seems to me that you keep using the phrase could not have discovered but that's not you could have discovered it you just have a leans in why you didn't wow i don't know where you're going on the discovered but why do you keep saying that i mean either you can find it under someone's name or you can but you have to have a reason to do that investigation and the information that she was providing which were not true no you know gave them no reason to look for them what was the information that wasn't true  one of them wasn't the one you're talking about right i'm sorry what do you mean one i'm talking about ok maybe i don't understand the  an application that was filed at a particular time that indicates that she was in canada and not in bangladesh right right i mean wh talking about was before and the matter was reaming handed ok so even if she had listed those two applications you wouldn't have found the one that you're relying on  applications of the time of the hearing yet prior to the rename ok so what does that have to do with this is well i'm and going back in time to try to explain why it could not have been discovered ok the only fact that would support that it couldn't be discovered is if you can not bring them up based on people's names that's the only fact that would establish that it could not have been discovered as opposed to well it was reasonable for us not to look those are two different things i mean do you see th be hearing another words a lie on the application that you did not know before the hearing because the play understand you correctly you knew about the two applications before the hear petitioner your honor you know you ask the government if you can pull up a name and d h has file based only upon a name absolutely you can and the reason we know that is because that's exactly what  so that there was no reason that the h s would have just listing a name of an alias would reasonably trigger them wanting to match the name with the of the alias around or as a matter of fact their own regulations require them to search all aliases if you take a look at page twenty three of our pages twenty three and twenty four of our opening brief eight c f r one thousand three point forty seven g requires that the d h s do certain investigations are called circuit security checks of anybody's filing for for immigration benefits and those security checks include mandatory but mandatory about graphical checks to that's using the quickest text using applicants name birth and aliases your honor so they're not only could they look under aliases they were required to look under aliases for all we know they did look under the alias based in fairfax because the d s s officer didn't inform the judge that the security clearances were were security checks were done the require the a presumption of administrative regulate regularity requires us to assume that they did check for her aliases and that they did find and that's a file and they simply didn't decide they didn't reduced it to decide not to reduce it for its own reasons but on page twenty three and twenty four of our brief and as i said before the regulation is a c f r one thousand one thousand three point forty seven g and those these records i mean are we talking about the same database is china absolutely and but and what's very significant here your honor is that to be perfectly frank with all due respect to two opposing counsel what we've heard as opposing counsel testify in this matter there is nothing there is no evidence whatsoever in the record to back up all the assertions that she's made regarding that they could not have found this file or was not or even that it's not their policy to look under an alias is there is nothing in the record to support this my question to this call the question the court should or should should be asking itself is why who did not care a good who is the attorney representing the d h s at the individual hearing and who is the attorney who filed the motion three man why didn't she say that we couldn't have looked up couldn't found this file why didn't she say that we didn't find this file if you look if you look at what the what the the government's motion they didn't even claim that they didn't have this information available to them all they said was that mr acker found this information well so what the fact that mr eckert found the information doesn't mean that the government couldn't found the information and it certainly doesn't it doesn't even mean that the government didn't find the information it simply means mr eckert found it that proves nothing and then what about this thing about the green card on your i'm looking at the four i five eighty nine and i cannot prettyman would be so kind to to point me again to the section of the i five eighty nine where it asks if she's applied for permanent residency i've been looking at my copy of the i five eight and i can't find it which which wine is that i the only question that i can see on the four and i five eighty nine ask if you've ever applied for asylum before well she didn't apply for asylum before i don't see any questions on the form i five eighty nine whether or not she applied for for for permanent residency well do you concede that there was some untruths or omissions on the application or not the only the only untruth on the application the on the file but first of all number one first of all number one as the court pointed out her position was she was a move and not so any way that she was just that she just at one point posed with her and second of all number two your honor these applications which were filed upon her behalf which by the way she testified were entirely prepared by somebody else she didn't read them just stunning them these were all years ago it's very if she did not actually keep a copy of her records nobody let me tell you something or other nobody goes around memorizing their any numbers ok so the fact that she wouldn't even necessarily even have known within a number was so the fact that she did not list the a number of an application which was filed in somebody else's name and whom she's substantively posed as doesn't mean that she's lying about it most likely it means she simply forgot ok your time was up thank you both your