the court russell everton on behalf of the petitioner ana mr hunter was granted protection under the convention against torture and his wife and two children were granted asylum because of the persecution in torture they suffered and will suffer in iraq if you before the court and the only reason why he was denied asylum and withholding of removal with the immigration judge in the eyes conclusion  conclusion is incorrect the first is the lower the agency's adverse credibility finding and the second is there's insufficient evidence that either mr hanna or the republican guard to which he had  correct the adverse credibility findings your highness credibility and come to your you're not challenging the conclusion that the republican guard was responsible for atrocities under saddam hussein isn't the question whether or not there's a sufficient nexus to show your client active participation or knowledge of or encouragement in those atrocities but i'm not here to defend the republican guard and i  agree they committed atrocities and tortured people and did terrible things but is it your challenge basically to the nexus prong that that that the government simply did not show a sufficient personal involvement by your client in such a argument is both that there is no nexus to mr and his activities within the republican guard but also that there's insufficient evidence in the record that the atrocities that the republican guard committed it would actually qualify as persecution as that term  distinct from persecution what the evidence in the record here's a problem i have maybe i can get to the heart of it he was in the republican guard for five years i see a period of about five months i think it's from january to may of  hundred one when he says he deserted but we've got a much broader period of time during which i think the record shows that the republican guard did engage in substantial acts of atrocities and so but the question is was your client involved in any of them and that's what i'd like you to focus your argument i mean where's the you know does he have evidence i don't believe that shed a lot of weight on where he served but commented i think the fact that his sister who lived in san diego where the hearing was taking place didn't appear at the hearing to corroborate his his allegation that he had deserted and lived with her for four months and he took that into account as as another example of supporting his efforts credibility determination  the sister's testimony i don't believe would have been dispositive to this issue but also have shown that she did live with her for four months because given that always still all we have this is testimony those were four months in which the the gulf war was was ongoing and the brutal suppression of the kuwaitis was was taking place so it seems that that would have been at least relevant i agree it didn't call her as a witness any evidence that would go against i g s finding that the iraqi republican guard was entirely composed bowing to yours other than mr hanna's testimony that he that would shift the burden to mr honna some a pretty low bar of what they have to prove and if they if they presented evidence that iraqi republican guard is an elite military group comprised entirely volunteers immigration judges isn't that enough to then shift the burden the evidence that the da just provided below indicates that the republican guard engaged in traditional military functions in protecting iraq from enemies both within the country and without and that in so doing it in gauged in indiscriminate maybe intentional killing of civilians that the republican guard unit has no heat unit protected saddam hussein from insurgence as well as from internal military coups and in doing that it committed atrocities in doing that but not that it singled out people on account of a protected gro and persecuted them and that the motivation in doing that was one central reason for that i think the da just has to prove particular evidence as to your client as opposed to the iraqi national republican guard yes your honor in comparing this case to the cases where the bar has been applied there has been direct evidence of someone's involvement in acts of persecution either through their own testimony or through military records that were obtained tying that individual to unit and battalions that that were known to engage in acts of persecution that went beyond mere membership does that have to be done  it it's a two prong analysis the first is has the government to do sufficient evidence to establish a prime f a should case that the persecutor bar may apply and at that point is the government  introduce what all call nexus seven and says that your argument yes your honor that the did that to meet their initial burden has approved both that is active persecution occurred and that the respondent the applicant engaged in acts that would satisfy that nexus definition then your argument i think was that that mere presence in the unit is not enough to absent well call nexus sev bears the burden of proof what evidence is required to have stablished the prime aphasia case and at that point would you agree the burden then shifts to mr hanna shift the burden to him both on the act of persecution down the nexus can the immigration judge consider the adverse credibility finding and his the omission of the refugee interview and sort of his begrudging later acknowledgement that he was in the republican guard as evidence at the first stage to establish the prim there doesn't seem to be any limitation on the evidence what what where would you find the limitation on what evidence could be considered the immigration judge has had broad discretion what evidence to consider but there still must be some evidence before that that the burden would be that that's correct and the immigration judge noted it several parts of the record that just belonging to the republican guard is not enough to trigger the persecutor bar and that it would be judged found that it was it certainly is possible for someone to serve in the republican guard without engaging in acts of persecution what do we do with the a k forty seven testimony to me that was very troubling he says that they spent three months training him how to take apart and clean and reassemble an a k forty seven but nobody ever would not receive the training that would then allow them to use the weapons against the regime itself given that there are already crews that had but he admitted that he was trained in that least i'll call it maintenance  coalition a cough rifle and and he wanted the immigration judge to think that even though he could disassemble clean and reassemble it that he had no idea how to load and fire it i mean i could show somebody how to do that  sixty second degree may be unusual but it is the context but check but since that's substantial evidence to show that he's lying that he's trying to minimize his role in the iraqi republican guard whatever it was to my knowledge for the persecutor bar to have been triggered in other cases it requires more than someone providing incomplete or implausible but that's it goes to his attempt to hide from disclosure to the authorities what it was that he actually did in his military service and and then we have to look at his omission in failing to disclose that fact to the b c i s employee who interviewed him initially at the refugee camp and then this story about i was trained as a communications operator but i really spent my five years as a baker yes and the last point he had trained as a communications operator and his testimony was that when he was assigned to a communications unit there were more senior officers and soldiers there that perform the actual hear from the government that we're all familiar with recall if we could that the first question is is a non citizen is is an alien removable from the united states ok and there are the i eighty immigration nationality act it's clear that the burden is on the government to prove that once that's proven in here the charge was no valid entry documents a then the easy non citizen or the alien can can then apply for relief f protection or removal at that point in the eye and a as clear a u s c twelve twenty nine little a c four a the burden is on the applicant at all times to prove eligibility for the relief or protection from the government has a lot of burden initially for the persecutor bar is that true that's not quite correct your honor what happens is again the bertha's at all times on the applicant when the evidence indicates i think burden then shifts it to the alien to disprove that he was a persecutor it's not required of the government to produce such evidence ordinarily in immigration cases the evidence comes very frequently from from the applicant him or herself so so the question is without regard to who bore the burden yes is there substantial evidence maybe the substantial evidence is not the right word is there a nuff evidence to trigger the prime  membership does not suffice so what evidence is there to tie this individual member of the iraqi republican guard to acts of persecution we  example that he even was a member of the republican guard not only in turkey when he interviewed with usa half but again in the united states when he interviewed with customs and border protection one is all to hide his involvement one of those lack of credibility  s you know he's done plausible testimony regarding his firearms training all speaks to the i j s point in his finding that he was hiding the evidence of what he truly did in the republican guard and that was enough to shift s the translator who participated during interrogation involving torture by electricity as to what the person being tortured was saying or or the serbian colonel whose unit rounded up two hundred muslims and machinegun them we don't have anything close to that on this record we got a guy had best was either some sort of a communications operator or a baker and somebody who could clean his rifle even though he didn't know how to fire it but what else have you got here i'm scratching my head  made out if he had testified truthfully the first time he was asked in the refugee camp what did you do in iraq if you were in the military i was a member of the republican guard and i was a baker and if that testimony were credible then there would not yes that's quite correct here however we have somebody who cannot tell the truth really about much of anything at all and from that yeah i did say wait a minute you appear to be hiding what you did with the guard and that is enough republican guard is all volunteer and mr hand says no i was conscripted is that enough just a little bit because we know it's not a whole want to shift the burden is that enough then a again if it may be if the id made the finding based on that alone that he was hiding in then that's really i think a key point in this case that he was hiding his evolvement but if it were simply i was conscripted in the record evidence of as as your honor note says that these were highly motivated volunteers absent that finding that additional funding by the i j that the the lie was to hide the involvement that may not be enough that day one back in turkey that membership in the republican guard might result in his not being eligible for asylum in any other release but he sought counsel what would your case be strengthened if he had been confronted at the merits hearing with a question on cross examination isn't it true that you were involved in the torture of innocent citizens while you were in the iraqi card and he denied that and then the immigration judge found that he was not credible would with the government be entitled to an adverse inference based on that fault the nile that the truthful answer was yes if that additional question ha made if the idea found specifically as to that point a i think that the case would be strengthened certainly i would think more of a government snipers but this government didn't didn't confront him in that manner does day i had the government did it but it didn't have to hear again it was rather clear from from all the way through event that he was first unwilling to admit his membership not only in turkey but again in a month you were writing that it states he was found not credible as to what he did do with the republican guard he was found not credible respect to his weapons training and so on down the line your honor in that is substantial evidence supporting ideas finding that he was lying about what he truly did but the problem is that the record doesn't other than sort of generally knowing that the that the guardian gauged in atrocious acts yes how does that go beyond mere membership even if even if we take all of those points in favor of the finding that he was lying about everything yes where is the nexus that ties him individually to some act of persecution if i could credibly i was a member of the republican guard i was a baker i washed dishes etc i did receive combat training but i never was called upon to use that because that was back in the kitchen baking bread ever had a chance to explain not give an account for his life in iraq was when he applied for refugee status in turkey and his first statement to the refugee agency there did not disclose his republican guard service but then though by the end of that process he did he provided his military booklet and more information to directly there was another why was there not later on he denied knowing why his initial application in the border patrol agent is still a prior inconsistent statement that the fact finder can consider is that he did provide an incomplete accounting of his military service and him no cash he denied knowing why he had been denied immigration benefits after his refugee interview he did though he did put the officer on notice that there was a refugee application that that part that was part of the government's record that could be accessed and that he had served in the military and it may be that he didn't know the exact reason why that the decision denial decision that he did later present to the immigration court is in english and it's not clear if he knew exactly why his application  denied i'm a technical or you know the very different case that that was the only basis for the adverse credibility fine but the problem here is that we have you know more than one and do you think it's important to note that all the evidence of his military service in iraq came from him that there is no evidence that he didn't provide had he not disclosed military booklet or the detailed accounting of his time in the military there would be none of that in the reich or do you  means i don't your honor and i think further complicating is that it's a translation from the original arabic and it may be a technical term that doesn't translate well from arabic into english i see my time is up thank