party in india who was persecuted by the congress party he was savagely beaten twice by the congress party and for his membership in a college delmon for his political opinion for his religious opinion my argument is that the immigration judge made a clearly erroneous decision credibility decision which was not based on the to totality of the facts and which did not demonstrate clear and cogent reasoning this decision was upheld by the board of immigration appeals and furthermore they made him permissible fact finding with regard to the decision itself  needed just as you argued that the judge facebook to consider the record a moment ago that doesn't immediately put someone on notice that you're saying that matters excluded from the record should have been included in it so it's that that i think we're concerned about was that error of exclusion made it was that or agreement made to the b i i i i try believe that i believe that it is the immigration judge improperly did not give proper way to the respondents testimony and his supporting documentation i don't see anywhere in argument that there was a decision to exclude certain documents so is there something else and the brief that you submitted are somewhere else on the record where you when you raise the point you know i don't believe there was anything significant but i think that the b a a is aware of the case law for example in dead j v mckay c ruling that a court has a right to waive a filing deadline if it's in the interests of justice if you don't tell them that you think the i j a failed to exercise that discretion why would that be are you know that that was an error they had to review because they clearly in the b i l s decision they indicated that they looked at the documents and that the d i j was not compelled to find that the documents were persuasive or overcame his negative credibility finding so they did look at the documents and did ignore them and they said that in a specific sentence and furthermore i believe that the b i a knows the the the law that these documents can be looked at  us indicated that they only i understand that but the first sentence indicates that they did look at it and the second sentence the second sentence says that they didn't raise it but it says that they did look at it and they didn't have to find it persuasive and i'm also raising it to this court because the b i a because this court has the power to to review the p i a s decision and the the court's decision my my feeling is that even without the documents the credibility finding based on the facts in the record based on the testimony based on the application was really outrageous it  immigration judge specifically made mistakes in fact the the respondent initially testified that he came in that he was the second attack was march two thousand and ten no two thousand and twelve then he then the attorney asked when did you enter the united states he said i entered in november two thousand and eleven in fact he ended and entered in september two thousand and eleven and then the attorney said to him so if you were here in two thousand and twelve when was the second attack he said two thousand and eleven and he would p did that two thousand and eleven over and over and over again despite a very hostile judge who kept badgering him and quoting him back in saying so you said it was two thousand and march two thousand and twelve and he kept repeating no i'm sorry i made a mistake it was two thousand and eleven and he never deviated from that two thousand and eleven statement throughout his testimony and that was fully detailed to the board of immigration appeals and furthermore the judge in his his one paragraph basically one paragraph credibility finding in which he recounted the testimony twice said it made errors of law he said that that the attorney he said that the attorney asked him asked him his that the attorney told him that he had entered in two thousand and twelve which isn't true the attorney asked him when he entered he said he entered in november two thousand and eleven the only question that the czerny asked to prompt anything was if you were in the united states fridge in two thousand and twelve when was the second attack you said two thousand and eleven stuck to it but the entire wording of the immigration judge was he mischaracterized the testimony it appears that he wasn't listening to the testimony that he prejudged fact finding because because obviously that one sentence wasn't enough if it was so minor and it was it was just an error in a date and not sufficient for negative credibility find it so that the b i a went and looked into something else which was also insufficient and something that the judge couldn't even find a very can confusing colloquy between the trial attorney when the as when was the last time you were a before you came to him before you came left india and then when after you left india and the guy answered in every every single scenario he made no inconsistency and the b i a made up the fact that there was an inconsistency there and made factual finding that it wasn't able to make pursuant to pad more and and  yes please the court i'm virginia gordon for the respondent your honour's this is a case about burden of proof the evidence does not compel a conclusion that the petitioner met his burden to establish eligibility for asylum withholding or remove all or protection of the convention against torture for two reasons first he presented conflicting and changing testimony that undermined his credibility and he has not pointed to evidence that would compel the contrary result the inconsistency is that the agency relied on here seem to me really quite minor one could be explained this date change could be explained easily just by a slip of the tongue basically and misremembering and the second just seemed to be some confusion about  the coming to the home coming to the field that also seemed to me that the agency placed an awful lot of weight on could you speak to that i mean aren't the aren't those more legitimately treat is the de minimus slips of the tongue rather than telling can be considered in the totality any and any inconsistency even if it's a slip of the tongue is there is there no no inconsistency that you would discount no that's a slip of the tongue would not be enough to find a person not credible and to have that be supported is the date inconsistency is really of that of that nature i mean when you have are talking about events over extended period of time many of us have difficulty recalling exactly what year and could be read you corrected yes and i think the issue but i think the issue that happened here was that they in looking at the totality of the circumstances the only evidence that the judge had to consider was the testimony and when looking at the testimony closely it was filled with these sorts of inconsistency is which filled with what what when elsewhere there i'm i was pointed to these two in particular and he really only discussed these in the i'm sorry yes it was these two in particular but because of these two it led to immigration that wasn't filled with inconsistency i apologise yes it was not i will not say it was filled with inconsistencies and it had these inconsistent things and in particular the judge did focus on the march twelfth date and i and in looking at the testimony where the issue arose was that the attorney prompted him so he did not change his testimony until prompted by the attorney when the attorney asked when did you come into the united states and he did give that you were in the room after be matters for the a who observes the witness to decide whether there slips of the tongue with they're informed by the attorneys prompting that these are these are matters that we can't second guess on yes under under th discretion to i'm sorry should be considered to have that first opportunity to look at what the person sitting before him providing the testimony gives and make that judgment on credibility based on the demeanor of the candor the responsiveness and with limited testimony being the only evidence before him this is this is what he had to rely on he said now let's talk about the other hospital records that would have confirmed two thousand and eleven hospitalization yes there is a medical record in there however it does contradict the immigrant petitioners testimony because it says he was treated in february two thousand and eleven so i know this is another date issue but it just gets to the believability of his account have the billeted to waive a missed deadline and here i want to understand what your what your position are we should find that in this case his discretion should have been exercised in favor of allowing it well in this case the petition did not provide good cause and one of the rules under the practice manual is that if you submit late evidence you provide an affidavit or a personal sworn statement stating why that evidence is late now there was a motion for late filing which included a statement that said despite diligent efforts by the petitioner he was unable to obtain the evidence however there was no additional stay fit statement to explain what those diligent efforts were or why he couldn't receive the documents now the majority of the submitted were all dated on june twenty fourth or twenty seventh two thousand and fourteen that was already after the deadline of june second two thousand and fourteen a deadline which had been set on may twenty third two thousand and twelve in the presence of counsel with the believe there was at that hearing and what petitioner explained was that his attorney told him that the attorney would explain what he needed to do and what was written on that paper so in that in this case the attorney had both the oral and written notice and  minimum the petitioner would have the written notice with the assurance from his attorney that the attorney would explain when he needed to submit his documents he did say that but he did also decide to to continue right that is true so in that case then if we feel that is if you feel that it's not been waived because of the board making that statement then what perhaps has been moved is that there was no argument ever made about dodgy until today in the petitioner did not argue that the immigration judge made an error of law or fact in deciding not to admit the documents are you taking the view that the statement in its decision should be construed to say that it is making a finding that there was nowhere or i think that you i don't think you could construe that i think you might construe i would concern as saying the board said there was no there was no argument made about error and that was the end you know why get right argue right that it wasn't argued and they were just pointing out it wasn't argued and marking out there but if the if the court were to disagree then because it made that statement we still feel that the deciding not to admit this evidence in edgy the issue there the petitioners counsel explained that her office caught on fire and that's why the evidence can be submitted even though she had it and that the immigration judge there was an abuse of discretion saying that there was no good cause when the office is on fire but here we have a case where the petitioner and counsel received noticed more than two years before the deadline and had two years to together those documents and d not communicate with the court at any time in those two years until july eighth two thousand and fourteen six days before the hearing which doesn't provide as the immigration judge described enough time to ensure review of those documents to make sure there's a full and fair hearing the government attorney had not received any of the documents so would not have been able to respond to them and if the immigration judge had admitted them to be fair he likely would have had to continue the hearings of that day and just could review and respond to that evidence  if there are no further questions i see my time is almost over so in summary the government feels a petition has not met his burden because of his incredible testimony and the lack of probing evidence and we ask the script and i the petition thank you all i believe that judge you have to also you have to look to good cause and the extreme extreme prejudice and hardship that would cause and the due process violation that would cause in not putting in the documents because these the respondent never ever said that he the second attack took place in march two thousand and eleven he just kept repeating two thousand and eleven he never said march two thousand and eleven and so it does comport with  with the documents that all say february two thousand and eleven and the judge didn't address it and that is an issue of fact but and the client never said it for them or in taking the documents in a normal court proceeding these were tiny little pages it would take two minutes to read all one minute to read when you get rebuttal evidence in any hearing you look at it it would have no hardship whatsoever to the government who have been practicing for fifteen years and who didn't even object the evidence evidence like this is always taken in because it's very very difficult for petitioner to get evidence from a foreign country and the terms of could cause obviously there was a lack of communication with that with the office it was in tiny little writing in the notice with little initials on the bottom that are hard to make out and went out and i am sure that he had language problems and i'm sure that he just there was a misunderstanding with the office but he did get the documents and this is very similar to the judge a case where the gentleman who was persecuted from togo he gave in his documents just a few days before the hearing and they were rejected by the by the court because the court strictly enforced  local deadlines and made a negative credibility finding and the documents would have reversed that finding and and the second circuit ruled that that the court the court should have taken in those documents in that case and furthermore i think if you look at the judge's decision he made so many factual errors all right in his just one paragraph he made constant factual errors in what the what the client said it was as though he wasn't even listening to the testimony as though he had just we judge the case i really don't think there was nothing in the judge's decision that was reasoned and cogent to to to deny this case and i think that the b i a and i think that this court should should perhaps send a message to the courts that it's very very difficult to get documentation and people's lives are at stake and you know  argument not to send a message i think in this case it was in the record there was no reason that the judge couldn't rely on it it was severe or severe hardship to the client and that's my orders thank you thank you both we're going to t