morning everyone welcome to the ninth circuit and we're very pleased to be here with you today we will hear the cases in the order that they appear on the calendar so let me call the first case has been submitted on the briefs that r and i would like to begin with a discussion of the standard for review in this case so that the immigration judge and the b a's opinions both use the word to mean or at numerous points however none of the adverse credibility findings plausibility and inconsistency which would pertain which would be reviewed based on the testimony so there are a small handful of such adverse credibility findings that were affirmed and i'm going to attempt to go through them in the order that they were addressed by the v a opinion beginning with the issue of petitioners testimony regarding what would happen if you were returned to india immigration judge in the b i found that answer his answers in this testimony to be non responsive we would argue that his answers were actually perfectly responsive to a question calling for speculation when he was asked what would happen if you return to india he responded i don't know it could be they would kill me further both of the opinions  record taking his answers out of context they stated that i don't know answer as number sponsor of which it still would have been a response of answer calling for speculation but in the context of could be they would kill me i do not believe it would be unrespons another matter of testimony that the opinions found nonresponsive was petitioner's testimony regarding his family's involvement in the college standing movement again it's a perfectly perfectly responsive answer to a question calling for speculation exemplary he responded i don't know i don't think so which is again the opinions took his answer out of context with the i don't think so which is what makes it fully responsive and it's clearly a question calling for speculation also i believe that the opinions misstated the importance of this issue whether plaintiffs or petitioners family were involved in cost any activism doesn't pertain to his claim he never testified that he believed he was that he was persecuted by the police because they believed him to be pro calloused only because of family involvement rather that they imputed that opinion to him because he was visibly osieck the next area of testimony was found problematic were the details or lack thereof around where he was arrested opinions found his testimony here to be non responsive and vague on a look at the record his answers are directly responsive to the questions asked this was on cross where the government attorney inquired when you were arrested were you at the station or on the way to the station to which you responded on the way he was asked how close and he said well not very far about ten minutes  these answers were responsive to what was asked so mischaracterizing the testimony as not providing enough detail i think that that's more problematic as to what questions were asked next when the  when he last spoke to his uncle and the immigration judge found that he took an inordinate amount of time to respond to this question again i point to the line of questioning this was on cross and there were approximately forty lines of transcript in which the uncle's name was mentioned at the very beginning and the government attorney went through several different sort of convoluted developments of the question to which petition a couple times asked for clarification which is reasonable and by the time these forty don't believe that was implied by either the immigration judge's opinion or that the i is opinion both of them read to me as if they were referring to the numerous questions required to get to the desired answer is my understanding delay in time between question and answer rather just sort of a secure circular this progress progression towards the answer that was desired the next area of testimony found problematic was whether a petition or believe himself still to be a suspect for a bombing that occurred many many years ago at this time the issue there that was raised was the plausibility of this belief there are several issues with the way this testimony characterized first the decision mischaracterized the record petitioners claim and his fear of returning and the general thrust of his testimony does not have anything to do with whether he is still a suspect for the bombing rather that he would be persecuted by the police for his speaking out against the police related to his brother's death death the original arrest while the bombing may either have been a legitimate reason for the arrest or sort of put up for why they were arresting him as the s someone they may have believed to be callous tony that's where the issue of whether he would be a bombing suspect comes and not the subsequent arrest which was linked to him speaking out against the police related to his brother's disappearan issues was to dispose of them hopefully clearly and quickly and get to the remaining trivial inconsistency of the birth certificate and so if you agree with us to this point it is the only trivial inconsistency in the record  and it says nothing about his position his truthfulness nor could it be construed in any way as an attempt to hence his claim his identity was not issued any point in this in this matter many many identity documents were submitted  our understanding is that his mistaken correction of his response regarding something so trivial with an explanation of why this issue was so important to the immigration judge or the b i a but his explanation makes no sense that he was mistaken  uncle was an example he needed for school or something and he wasn't even in school what made no sense why his uncle would have his birth certificate and the reason he gave as to why that implausible scenario would be true itself makes no sense i don't believe that th because he said it first i'm just trying to remember the details he brought it with him and then he said he was saying it was and before anything contrary occurred so he's testified that he brought it with them on direct months years later on cross the topic comes up again and he sa i might be mistaken and i might have thought he was confronted with the fact that the stamp on it that didn't happen until after he had changed his testimony that it was going in that direction i would assume but very early on in the questioning on that topic started this thing as i understand am i correct that this thing dragged on for four years this hearing it seems to have yes so he could have testified and you know the first time and then three years later you go back and over the same question so that what happened then i believe that the government attorney wanted to really address the issue it was very briefly touched upon in the initial hearing i think time ran out and then the next hearing was for a more complete cross examination and so it came back up well art our standard is what we have to record compels finding it was credible ok we'll hear from the government you've got some time for  good morning your honor may it please the court manual after the attorney general this case involves three bases for an adverse credibility terminations demeanor and consistencies and implausibilities to start with the demeanor when i will get to the at the i j a here had the opportunity to observe the witness mr grainger of the three separate hearings early on she was constrained by his demeanor and she called him on it and i asked him are you nervous are you on medication he said no his demeanor was a bit of a red flag to the i j a after she witnessed his testimony early on in this whole who sort he was testifying slowly she said look you know make your case i guess and see what that but it shows that he's lying that alone says nothing i'd be with you on that but i'm not i mean argument respect for you up not the point here is that she had ample opportunity to observe him over three separate hearings and she  this thing drags on for years and she god knows how many cases she must have heard in those four years and you know i find that difficult you know going back two weeks  do something without having to seriously refresh my recollection it seems it just seems so bizarre to drag this out for four years i don't know if it's bizarre your honor there's a massive caseload in immigration courts and i'm not and no one has if you're suggesting that the witness may have forgotten what happened to him i don't think that's a that respectfully your honour's i js are used to holding proceedings over those periods of time so they have their own techniques for taking notes nobody has ever questioned the accuracy of her observations or legal correctness yes but no one i haven't number of reasons that are i believe i'm doing two cases i hope i'm not confusing them i believe in this case there was a possible application for adjustment of status that was pending in the background that may have had a reason for one of the  examples of testimony in the case and that her generalization was because of his equivocal answers as non responsive answers his hedging she got the distinct impression based on someone who has who has heard i don't know about the ch in particular but that's all they do is hear these cases day in and day out her impression was that he was trying to test various answers and assess their impact on his case and see which ones would please the court the most and what she pointed out and she specific examples one was which none of which actually back up the conclusion she started with that's that's the problem i mean that the so called demeanor findings here are based on things that we are in a good position to evaluate for ourselves so for example if a terms of whether an answer is no one response and or vague i read through the record relevant excerpts here and i thought the i j a must be smoking crack to borrow a phrase from one of my colleagues on the district court i didn't understand where the i j a came up with the conclusions because you could read the testimony and didn't it didn't match at all well i think i think one one point i would make is that non responsive does just mean you don't answer a question it means the words you say don't respond to what was just asked of you and there were several examples of that and when that keeps happening over and over didn't that's what i'm saying i read the answers i mean i read the questions put to him and i read the answers and they were perfectly responsive that now maybe the i j a wanted greater certainty in response to a question that called for utter speculation on something that the petitioner would have any personal knowledge but that you can't fault the petition for that he was trying to be honest i think the element that i see in the record and again your decisions one over never the reason you give such deference to those findings is because you can't all look at the cold record and see what the i j a saw and you certainly saying judge watch for that of i think my answer to the delay or the timing part is it took a long time and lots of questions in the judge's opinion viewing this to get to certain points which she thought were pretty readily he should have had a yes or no answer i don't know i don't remember and on that point the burst of a good is a bit of example that's an inconsistency but it's also a situation where it's not part of his examination that i brought this with me from india and then on cross examination he began to express doubts about whether he did or didn't and then he says your opponent right he changed he said t birth certificate his answer was because my school had it non responsive and he's dancer yet again and finally he said flat out when you confront him with the stamp he said i don't know anything about end of story so that's these are factual inconsistency and they go to his veracity because if he didn't recall that he brought it just say so or i don't remember i'm sorry and of course this is totally t and then he said why did you get your passport and he said just like that non responsive he called him on it he said my father told me to get it and then later on of third hearing he said i got it so i could have another inference there so between the inconsistent demeanor and the implausibilities i think that he and the bottom line is that the there is no extraordinary circumstances shown here to overturn the of truth in this isn't just an over common commentator that immigration judges have the power to consider any inconsistency that immigration judges have the power to consider any inconsistency is quite distinct from the issue o support an adverse credibility determination yes sir because they go to the again and i think what you're asking me is do they go to the merits of his claim anyway as the final truth about his claim and they they don't have a direct bearing on his testimony about what happened in india however he submitted these documents in support of his claim and he changed his story demonstrably about how he came to get those and that suggests that i think those are plaque and white in consistencies and they i'd like to take some of this time to clear up some of the questions that you had on my first discussion first part of the reason why this case dragged on for so many years was that smaller smaller issues got blown up so for instance there was  long cross examination of the petitioners wife at the first hearing by the government attorney regarding whether petitioner had ever lived at various addresses in southern california then the government so the birth certificate was introduced as an in part of the introduction to the case on direct saying you know what is your name when were you born is this your birth certificate to authenticate that the petitioner was who he claimed he was and then direct proceeded the government attorney made an issue of the birth certificate and spent i believe about ten pages of the transcript examining stamps and asking if the interpreter could help read them and sort of going on about this issue which is why cross didn't get addressed at that initial hearing then the cross examination followed and then there was another issue the government attorney wanted additional school records to come from that petitioner had spent three months repeating a class which we then came back and provided of course so that's part of the delay and the government raised the issue that the immigration judge had early on in the hearing raised a demeanor finding that petitioner was not testifying you know had said i need you to speak up on careful review of the record it happens throughout where it's microphone issues the immigration judge an interpreter are clearly coaching him on how to use a microphone a couple pages after that the interaction that was just cited petitioner checks in with the judge and says how is my level how am i doing i think it was very clearly someone who is not used to communicating in this format having an understandable i struggle to tell microphone one thing that's troubling me yesterday that is that he appeared to be testifying that one of the reasons that he feared persecution when he implausible that he is going to be picked up again on account of that railroad station bombing and the was saying because we now everybody now knows that it wasn't sikhs who did it  your honor i think that's a bit of a mischaracterization of his core fear i think that becomes that supports what he's afraid of so he's afraid that the police will continue to persecute him because he spoke out against the police for corruption possibly related to his brother  and the issue of whether he would or would not be a suspect for that is more linked to when he was released from custody he was made to sign a blank document this something we hear about a lot he's made aside a blank paper with a signature and he was afraid that any charge could be brought against him as a a yes your honor i think that there are two different reasons why he might be might be persecuted one we do have lots of evidence and i'm sure we submitted tons of country conditions with this matter that sikhs are commonly persecuted however i think that the more persuasive issue is that he was actively speaking out against police corruption and to hate police behavior in his community the fact that he happens to be a sikh and a member of a more vulnerable both political social religious class merely makes him easier for the police to target for such behavior and again i think the link to whether he could be found to be a suspect is more of the amorphous well yeah they could charge me with anything they could there's any was is is their testimony that you say must be compelled to be credible that he was in the past arrested on that ground that he was arrested or his criticism of i believe that that that testimony is not challenging you are on the record that that's why he was arrested