respondent so let's talk about a first piece of evidence for a post in political asylum application to responder has to find i phone to answer a few  and if we put on the region statement where the responder was hit and in the on cross you can still ask how heavy it is cause and me our country injury so how far can we go um how can we say that's our mission up mission is a legal term means that the party is writing it on purpose trying to hide something to avoid being event for one occasion so there's no limit of details you can put in so how can you say that that's our mission so um for this piece of evidence know you want to reserve some time let's hear from the government may please the court any to turn on behalf of the respondent the attorney general i'd like to first begin by revealing what issues are now before the court and then which issue was not beef is not for the court before because it was not exhausted contra petitioners claim the provision of evidence or any issues about the merits of his applications are not before the court because they were not before the board they were not raised to the board and they were not addressed by the board the sole issue in this case is whether the record w in the record the first inconsistency goes towards an initial a mission from his testimony and my colleague on the other side says that this doesn't matter and it was an oversight and i have three responses to that first m fled china based on one singular instance of alleged persecution and this was the beating and the arrest in the detention by the police this was the crux of his claim he left china he went through three or four countries before arriving at the u s three or four months after that he filed his affirmative application and the this and then before the court before the immigration judge he testified and this information about his beating and arrest was a vague he said on a direct that he was beaten ten times this takes me to my second point here on earth this is that significant whether or not he says initially that it was beaten ten times or whether you compare it to his alternate testimony that he was beaten six or seven times on his first day and then four or five times on the second to last day because persecution is an extreme concept this court has explained that that that ha extreme concept and so a claim that somebody was beaten ten times which it was not clear before the immigration judge whether this was ten separate b chains or one instance of the beating where he was hit or struck ten times could have a very trial attorney asked is this ten times in one instance where you were struck or hit ten times or were this ten separate beatings again going going to the point where like one one between may or may not and this and i'm having trouble understanding that conclusion because either way it seems that he's testifying to more than one beating spread over the two days you just agreed with the inconsistent finding it wasn't that he denied being beaten it was that in his initial testimony he omitted the fact that he had he was beaten said more than one time ten times to be exact so his initial testimony was just been ten times what there was no no clarification it's so vague and no carbonation as to whether this was the one between or ten separate times inconsistencies do not have to go to the heart of the claim and in this case the immigration judge and the board did review mr assange this claim under the totality of the circumstances that is looking at each inconsistency in the aggregate looking at the accumulation of these facts this court has two cases which are in the opening brief opening brief universes d h s s was talked about a between being in event crucial to his claim that goes to my first point about this beating unpublished case that one also holds that the agency reasonably based its adverse credibility determination on petitioners initial emission from his testimony of an incident where maoists were attacked attacked him in his home those facts are the same as the ones in this case to the second inconsistency that mr hu that mr that the agency found this is the omission of these beatings or the frequency of these beatings in mr sayings  declaration he does say in the declaration i was beaten but again going towards the significance of this for claim of a claim of persecution it has to be something that's extreme it's more than a nuisance it's more than an offense or incident that would offend  a normal person sensibilities and so considering that he did file this application affirmatively three or four months after his arrival in the us he should have included the fact that this involved ten beatings over separate days because that leads to that has a bearing on the severity of his claims in both cases i mentioned it suggested that it wasn't multiple beatings over ten days i'm trying to figure i mean i understand the difficulty in eliciting this testimony but what is the inconsistency that's identified it's that initial mission your honor so it's his initial up when he explained that he that he thought he just had to say that it was a beating and the i j a there i think faulted him for failing to explain the omission but he did explain it whether the i j a was going to creditor not is another question but he didn't it's not that he didn't explain it so he explained it your honor on appeal to the to the board where he says that there must be a an issue with translation and you know but he also said before the  that i thought just the total of the beatings oh yes the admission from mr carro so basically what i thought we had here was a record where the applicant is saying look i just said i was beaten in the application i didn't get into the specific number of times but then when i was asked for specificity at the hearing i said that it was you know ten times multiple times over these two day what what is the concern here by the concern so the concern your honor is again that initial that he was on direct that would have been the point where he should have made his claim known that he was beaten ten times on or ten separate times not just the one time he says beaten ten times and it appeared to the immigration judge that he was a bolter bolstering his case over the course of questioning so on cross the trial attorney asked additional questions and then he added these additional facts that were not that were missing from his initial testimony and so was an appearance of bolstering or embellished embellishing the claim that he'd initially presented as just being beaten ten times and this goes again your honor i'm saying bearing on the severity of the claim this is the crux of his claim to credit the application the explanation it just has to show that he sorry not under carling under my g d had eighty petitioner must do more than offer a plausible explanation he must demonstrate that the reasonable fact trying to would be compelled to credit his testimony and again under the totality of the circumstances this is not a circumstance is not a case your honor where the immigration judge or the board said gotcha you know i had the opportunity for each of these inconsistency to explain the reason for the initial emission or the omission from his declaration he was given a chance he had counsel before the immigration judge he was counsel before the board and he had to he had ample i can't say i have been at all but definitely found that it undermined his credibility the immigration judge was not sure this i mean if he found that he wasn't beaten at all of course that would suggest that he had no no claim of past persecution if he found that he was inconsistent in the frequency of the beatings then that may go to the severity of how we was treated and whether that would rise to the level of persecution but it's not entirely clear from the record that that was the i case conclusions so so i'm a little can i'm a little perplexed as to what we've got as the finding here is it that the man is not credible at all and therefore you know has an established past persecution hasn't explained as and established it serious enough what what is the the conclusion your honor to response to that the first is that  his it's not it's a matter of him being credible in the totality of the circumstances so the immigration judge found it so there's no analysis on the record about the merits of his claim so whether or not it would be whether or not those betweens lead or would rise to the level of persecution there are no findings on that so the agency didn't go that far and they are properly didn't have to go that far because a credibility is a threshold determination which can be based on any inconsistency not it's between the line about or not having a credible claim about one beating or the entire beating because looking at the entire claim there were several inconsistency in his claim where there was the initial mission the mission from his declaration his father's a mission which was supposed to support his claim it wasn't written as a letter to say oh my dear son you were visited did you arrive in the u s ok it was submitted specifically to show it had some bearing on the chinese government continuing interest in petition maid that police whether it was police or family planning officials visited his home that all gave the all undermined petitioner's credibility and so the immigration judge had no idea who visited what who prosecuted him had he been beaten once had even been twice and all of that under the totality of the circumstances led to the adverse credibility determination which i just want to ask you one more question whether in this context or others we usually conferred fact finders who have the ability to you know see the witness firsthand so i'm i'm accepting that is basic but again to pick up on what judge sachs said we were not sure what the i j a found not to be credible why would it not be appropriate in your view to remand to get that clarified so your honor respect leave you disagree that it is it is clear that there was an inconsistency as to the beatings whether or not it was an inconsistency about one between or whether it was beatings doesn't matter so much under him title to asylum if he was beaten but not but there was some ambiguity as to how how frequently wouldn't he that does have some bearing but again looking at that initial admission and looking at all the inconsistencies accumulation and the aggregate that initial admission of of and he was given the opportunity to explain this he says ten beatings and he was asked again on a cross so was this ten beatings on one one event or ten think that that point credibility even in this context sort of out in the air somewhere if this is all about the beatings and the number of beatings and whether it was severe enough to warrant inconsistency is like he said about his wife or his age or or anything else these are inconsistence related to the crux of his claim his entire claim was based on this this this being the b t n and yes and so not necessarily but again because under the totality of the circumstances it just any one inconsistency could could render could lead to and had first credibility determination and was it complete at first credibility determination if if it was look you've lied about this i can't i can't credit you about any thing right but we don't well in the sense that there were several this wasn't the only inconsistency or thank you very much  you reserved to mount two minutes i think