good morning randi alexander for petitioner twenty what brings us here today is the determination of when a case should be taken away from the immigration judge what happened here was department of homeland security last the immigration court hearing where in the immigration judge determined that d h has had not that mr menger bar was or was in that zone of persecutor bar where and he would have been someone who may have insight it or participated in persecution counsel helpmeet it's possible i misunderstood but i i thought that what happened here was that the i jade declined to make a credibility determination he liked what was alleged by the government regulation of course refers to a may but he said because your client declined to explain the circumstances that he wasn't going to make a finding in that correct not quite ok what's what's what actually happened was the immigration judge did in fact make a credibility finding she determined that in spite of the inconsistency in the years old interviews three interviews with an asylum officer that in spite of that the government had not as stablished their initial burden of establishing the simply rule on whether the i j a had made a an inaccurate and eroni us finding in determining that your client was credible which was it the the b i did make a determination d novo which would be in the st instance from their point of view well i thought you just said perhaps i misunderstood that the idea made a determination in favor of your client if you did it to be made a determination that she made it in the st instance and determined that the i j was incorrect in making a determination that petitioner was not incredible and on that basis the b i went forward to determine that he did in fact fail to meet his bar or his burden of proof in determining whether or not he had  persecutor bar in effect to be a determined that those three interviews with the department of homeland security trumped anything that the just the immigration judge could have come up with which was actually that's what the b yes the b s a is basically saying that d h yes met its burden of showing that petitioner had failed to overcome the persecutor bar our position is he didn't have to because the da just never evidence indicated that he may have been involved in persecution then the burden shifts to him and as i understand it the current interviews dealt with issues such as the length of service and the bot they own whether he was trained to use mortars whether the girl is killed whether he killed the girls in combat whether arrested guerrillas and turned them over to an interrogators and whether he only performed checkpoints for drunk drivers and so on potential persecutor the fact is this he was in the by the young cast of the autos and as you probably know because of the means hunters so as these are people that go out and look for specific people in this case to turn them over to an interrogating division absolutely not everybody in the army has it well no that's not everyone in the army but there was a certain unit called the s two unit that has been attributed for persecution petitioner at any stage of these proceedings has never ever said that he was a member of s two or that he had any idea of what happened after he turned over armed guerrillas to the duly constituted authorities in his unit and with the way i read this it was almost like casa blanca where the lieutenant was shocked shocked that there was alcohol being used i mean you know he's in the unit that does these kinds of things and you're suggesting that yet no idea exactly and the support for that is the petitioner had three interviews with the department of homeland security asylum officer and at no time during those interviews what did he ever say anything that would put him in that zone of persecutor it was simply in consistencies between a seven year gap in time between those interviews with the d a jess and the ultimate immigration court hearing so at no time did petitioner say i knew i had any idea i had no no access to that type of thing i never saw any harm so from your perspective given your viewpoint unanimous decision one of the panel members agreed with us that even if we look at da justices evidence testimony it's still does a rise to the level so you use what you're asking us to do to reinstate jason your view credibility determination right that's correct well the credibility to find it and the fact that there was a grant of the relief based on the fact that department of homeland security failed to meet its initial burden had they met their initial burden then petitioner would have to  good morning your honor may please the court stephanie hannis for respondent in this case the board properly concluded that v h s did in fact meet its initial burden here which was a very minimal threshold burden to show me just ask you this and somewhat to my surprise your opponent suggests that the i j made a credibility determination is that also the position of the determination in the st instance no your honor in the board's decision it reflected that it was reviewing the immigration judges adverse credibility determining it was reviewing the positive credibility determination and when it conducted that clear error review it concluded that there was in fact clear error in that determination counsel were in the record was that credibility determination made  i'm sorry your honor the the immigration judge in his decision in her decision did say that she was accepting the testimony that the petitioner had provided and in doing so was making the determination that the person was credible for example the immigration judge and let's see on page on page fourteen points to the fact that the as as opposing counsel pointed out the respondent testified that he had no personal knowledge of what occurred during the questioning of the captured military combat and in this case the immigration judge was accepting what the petitioner had provided in in his t which means that she was accepting that as credible so in this case my understanding is that the i j gave when when the b i mean when the government presented its version and i cited some of the things that the government provided the i j a said basically do you have any response and he did make a response and the determination whatever it was was made with the recognition i think she well he did have an adequate opportunity to respond which is something that the board pointed out in its decision and that we pointed out in our brief the immigration judge actually called the parties back in to court after  taking all of the testimony as to the facts of the case and said he realized she realized that there was an opportunity to address those in consistencies and the petitioner declined to provide any testimony to the government's perspective the fact that the petitioner failed to respond to deal with any and consistencies the i just read into that whatever she wishes that's the reason why the board in this case reviewed for a clear error the immigration judge does get to make the initial finding as to the credibility of the applicant's testimony the board then reviews that for clear error and i don't think there's any question that there was clear error in the immigration judge's decision here as the petitioner told two completely competing stories as to his involvement with the military during the war in el salvador  specifically aimed to minimize his involvement with the activity that the asylum officer had concluded made showed that he had been involved in the assistance of persecution now i'd like to point to i'd like to discuss the petitioners argument that he never came out and said that he knew that there was any persecution taking place well pursuant to board precedents the board is allowed to rely on both direct and rd circumstantial evidence knowledge in this case and there are several aspects of this case that point that are circumstantial evidence of knowledge one of those is that the petitioner was involved in a battalion that is known for engaging in human rights abuses he also he also  there's also evidence in the record showing that even in the early eighty's it was pretty widely known that the as to the group of interrogators that he was passing the guerrillas on to both tortured and killed the people that were being interrogated he and if if the board takes that direct indirect there was your central evidence and conclude that there may have been knowledge than the bird  there isn't there isn't any evidence that he didn't know apart from his testimony that he didn't know and that was found to be not credible i also point to the fact that when he spoke with the asylum interviewer he he admitted that he and some of the other part people in his battalion discussed what might be happening to the people that were being turned over to the as to but then said that they had no control over what was happening so there wasn't anything that they could do about it and then another thing that is circumstantial evidence in this case is that the petitioner did decline to provide any testimony to try and reconcile his to his two accounts of what his involvement in this was so that is some evidence that is indicative of the fact that the petitioner was trying to hide what his true involvement was and what his knowledge was of what the as two engaged in the  provided some explanation as to where the actual as to interrogations were occurring at headquarters it's not as though he had never he had no knowledge of where these things were taking place and additionally he said that no one none of the people who weren't part of the us two were alone there which also points to some evidence that a person in the middle of a war ok and in that case it involved a an individual in the salvadoran military he captured guerillas and turned them over for interrogations with with the  special interrogators he claimed he didn't know what was going on but looking to the other evidence circumstantial evidence that was presented in the the case the court agreed that there was sufficient evidence there to show that he may have been involved in the assistance of persecution i would just conclude by saying that the initial burden is really a very minimal threshold burden showing some evidence to support in france as this court said in miranda alvarado that the l you just to set the record straight regarding the underlying procedural history after the initial merits hearing the government de ages asked to call one other witness that would have been the d h s officer who testified that on three occasions he had met with petitioner the judge decided ok i'm to reset this so that both sides can come back and have cross examination of the petitioner in response to the da just officers no further questions when the judge after after them have come back and testified that's correct on after d h i said testified the judge says ok we've now heard from v h s i'm going to reset this so that there can be further cross examination of the petitioner based on this new information that is indeed inconsistent with his court testimony so on that date both sides both the d a just who have the burden of of establishing the may have committed persecution failed to come forward well i guess at least from my perspective when i do agree with the go on is that the government is a very low bar to meet here that he may have something and i don't know there are any magic words to be said that this bar's been m to get the i j gave your client an opportunity to rebut to comment to explain he failed to do that he got the judge the i j a gave petitioner an opportunity to re determination that the government had met its bar the i j a determined the government had not met their bar and i get that so when petitioner said i don't have to testify at this point da just had the opportunity to call him on recross and to elicit additional information that would just argued is submitted