to as a democracy and proof is required to condemn people we must there are always side of that my client is from el salvador and he came to united states looking for refuge as so many do you almost every member of his family has experienced egregious acts of out as you know and so to say it's ludicrous i mean i don't tell me if i don't understand the case based based on the fact that the  is not about the truthfulness of any sort of fact in this case we're talking about standards of law in this case which is why should not be reviewed you know because what we're talking about is the legal standard for probable cause and whether or not the talk about that ok so generally speaking of a notice cannot be trusted so not based on specifics in this case but just generally speaking the st thing issue with red notice is that we don't even understand the justice system in our salvador and whether or not it's it's just ready they don't have your back the facts i don't i don't mean to be rude here but you're getting back toward facts the b i use it as a red notice is reliable for what it purports to be namely requests by member country that's true believe this is equal to probable cause so we very quickly hear your time's winding down address the n b c case and our marriage cases because you know the guy believes that those to in their case that was a case of a person committed committing atrocious work here back in bosnia or his opinion or john or country at the time i mean he was accused of killing people as a member of the military and he falsely testified that he was never a member of the military so that the proof that they had to prove that he had committed these atrocious war crimes didn't involve a red notice so it's not super equivalent to the case that we have here but they did have copious amounts of evidence they had expert testimony was the only takes some evidence the word in n b c and the word we have been married is some evidence the record has some evidence in the  right it says some evidence to establish probable cause to show that a serious crime has been committed or in his case war crimes but in that case only have to go off and that's what would rise to the level of some evidence or probable cause is multiple pieces of evidence including expert testimony his own false testimony i'm pictures that of him in military uniform and i don't know a reporter something from the government court is arguing about whether or not the standard should be a preponderance of the evidence and they say no it is not an onerous standard that it does not by some level of prior standards it is some evidence and they say that means probable  cause that's the level that they have to meet and since then that's what's been cited and so here i'm saying that a red notice alone does not rise to a level of probable cause as it is not verifiable evidence they had no evidence to verify that this the probable cause standard is used in many different areas in immigration law so it wouldn't just in the i somebody i read knows could possibly deny someone the right to seek asylum in many different cases beyond just my own so i am worried about red notice raising t level of probable cause on its own because it can affect more immigration cases than just this one but even in this one it doesn't rise to the level that's required because our own justice department our own our own government said nobody notices you not client's own testimony however they did not make that our eyes did not make that argument in their brief to the be a they didn't make that argument in front of the immigration judge and i would argue that they waived that argument completely that my clients own testimony could be used as evidence in proving that they had probable cause particularly because they have to show probable cause to buy him from seeking asylum before he even testifies so he had an event has to fight when he said that this bar was created so they can't use sorry i'm running out of time but i'll just go into my rebuttal time little bit here so yes here's a question probably they they did reach out to el salvador because we have an extradition treaty and i was never did not respond to them which i would argue points at the bac work our way through these various points in the government's view the only issue here the only question before the court is given the evidence presented and the entirety of the administrative record whether the agency reasonably concluded  and at bottom your honor this case is about evidence and burdens of proof and i want to start with the st thing i think that is has gotten a little confused or conflated here the issue of serious reasons for believing me it is true that the agency and the courts have recognized that serious reasons is akin to probable cause or tantamount to probable cause that does not mean your honor and there is nothing in the regulations or the statute that requires a government entity whether it be d n a test or the agency to satisfy burdett probable cause what it means is did the agency have enough evidence before it to assume that  and serious reasons just means it was their probable cause to believe that a crime had been committed that is the ultimate agency a determination that needed to be made here in order to invoked the bar it is not somehow d h s burden to establish in the st instance that probable cause exists or that there are serious reasons for believing it is ultimately and only petitioner's burden to establish that the art does not exist and i think there's a lot of confusion in the briefing on that but you know if i have the red notice alone does the red notice alone is a problem cause yes or no i think the answer could be yes it depends on the case you are going here as well no good depend on the case you got one red notice  reason but there is other evidence in this case to support the determination that there are serious reasons for believing and again this gets into there's a lot of confusion about the threshold determination and that i think is the key here that separates probable cause and serious reasons for believing from what's really at issue in this case i think judge making your question actually goes more toward was the red notice enough to trigger the threshold burden shifting and that's the key and frankly burden shifting is a call an imaginary burden and i only say that in light of the attorney general's most recent decision on a similar mandatory bar i know it came at the th hour and i apologize to both petitioners counsel in the court for that but the very recent decision  explaining that in this context when a mandatory part of relief and protection applied there is no initial burden on the governor nevertheless your honor nevertheless that is certainly what the agency said here and the question ultimately going back to your original point is whether that re notice even on its own but here coupled with other evidence gets over that way what other evidence can you point to i look at the guy to thirteen does it add anything to the red nosed i don't think it does your honor i think it does either ok burden and it doesn't take a whole lot of evidence to get you over the hump and so in this case even if the eye to thirteen had to stand on its own and again your honor i do want to make clear that even if you agree that the agency referred to it as burden shifting but but it only shifts the bird in the sense that it changes it and what i mean by that again there is no doubt that based on the language of the statute and the regulations petitioner is the only person who bears the burden of establishing his eligibility for belief  protection and that includes proving that he is not subject to a mandatory bar so that that st threshold question discussed in cases like n b c and certainly the board's decision here is whether enough whether or not there's enough evidence to thirteen probably just sort of bolsters you know the information we have in the night in the in red notice and you know even if i'm having i'm having trouble ignoring petitioner's testimony at your point being that the agency and the court somehow should ignore in court testimony because the burden hadn't shifted at that point again that ignores the realities of hidden being held to his burden throughout the entirety of the proceedings it's his burden eligibility for relief and protection he cannot ask the agency in the court to ignore his own sworn testimony i mean that that makes no sense and so in this case again even if the red nose were standalone it certainly sufficient because i think  evidence and the ultimate question is whether or not the record compels only a contrary conclusion compels reversal of the agency's decision here and again that you know allows the court to certainly consider and look at the testimony which partitioner i think it was just ericson you might have mentioned this petitioner testified that he did quote a bunch of stuff for m s thirteen including delivering packages of drugs and weapons serving as a and doing these things quote many times you know certainly running guns and drugs and serving as a lookout that's not a trifling matter your honor and he also admits to being being charged with a crime around the age of seventeen i believe it was in two thousand and ten stemmed from the i think the melee with a suspected police officer where petitioner was actually shot ended up in the hospital and then was charged with a weapons offense but he admitted to going to court being i think being saddled with some sort of community service after the fact so again as a whole the record amply supports the conclusion that there are least serious reasons for believing at least probable cause for believing that petitioner committed a serious nonpolitical crime in el salvador and ultimately out of that's the only question and the courts the court should only be concerned merits any claim that the agency failed to conduct the appropriate analysis of the seriousness of the crime the i j a and the board relied on the information in the red notice which can only be issued if the issuing state i should say issu nation determines that there was a serious ordinary law crime committed statute that the article that is identified in the red notice criminalizes participation in the list of organizations whose purpose is to commit crimes and who do so with and the court is bound by mary in the sense that mary actually was cited with approval in m m t seat which is the board determination again dealing with a different mandatory bar one which disqualifies applicants who participated in extrajudicial killings but both of those cases together american n b c stands for the proposition that is the fundamental be he says of the government's position here which is that under nevertheless they all overlap and the provisions provide that if if the evidence indicates that is the standard if the evidence indicates that a mandatory bar to relief may apply it's very critical if the if the evidence indicates that the bar may apply then the burden shifts to the petitioner to establish by for prime minister the evidence that it did not and the agency faithfully applying those standards to this case and he ok let me check with the other two judges judge cross judge erickson i see the the shaking heads and so therefore thank you for your argument  arguing that there are no standards for reaching a conclusion that someone is barred from seeking asylum and i don't know how anybody is supposed to defend themselves in any situation where they're trying to seek asylum with that kind of it's no standard evidence standard so they're saying that it doesn't have to rise for parents of the evidence standard it can be less than that and then every other case they equip they make the equivalent to a probable cause that's the standard here i don't know how we're reaching anything lower than that because that's what is said and if there's anything going on it's not specifically stated on how you're supposed to do that kind of analysis i also like to talk about serious the seriousness of the to do that alan says based on a footnote it doesn't provide any sort of rigid outline as to what you're supposed to do to reach the conclusion that something isn't a crime of violence in every other area of immigration law that has to do with crimes of violence there's very serious standards that you're supposed to follow and that they can allow you to reach the conclusion that a crime is considered serious and in this case we just don't have that we don't know how we're supposed to analyze a foreign statute for that but i would tell you that looking at the foreign statute it does not for choir serious violence in the statute the judge lets the statute in that day i had a decision and i don't see where the statute requires violence violence in order for someone to be found guilty of that statute and there is talk about a group of people with their aim to commit crimes but it doesn't say that those crimes have to be in front of us because all we have is a red notice that lists the statue we don't have the underlying arrest warrant we don't have any sort of affidavit from the police we don't have a request for masaba or for his arrest based on any particular crime that he committed