also present counsel table this morning i'll be arguing the adverse credibility issue is the amount of the arguing the firm settlement issue and we would like to reserve two minutes for a bottle the immigration judge found that mr jeffard was not a credible witness based on three perceived in consistencies which viewed under the totality of the circumstances do not support an adverse credibility finding the most significant error made by the immigration judge was his application of a narrow and in correct definition of the term come out just for ard testified that he and his partner decided to come out he also testified and has maintained consistently through these proceedings that he never told anyone including his family about his sexual orientation and that he did not know how the mob that brutalized his partner discovered that the couple was gay the immigration judge created an inconsistency between these two statements by imposing his own question asked you are thank you them a gracious judge did ask that question and we submit that the term coming out first off is a short for coming out of the closet which is a colloquial term and we have here a communication between an the and that was out of believe pages one hundred four to one hundred five of the record and shortly after mr fart mr jeffard corrected the record by stating that no and testifying as he has consistently throughout these proceedings sure you up your honor so the this interview that occurred all we know about this interview is that at some point after arriving in the united states several immigration officers question mr jeffard this court has consistently asylum application states that he was attacked outside of his mother's house on december ninth two thousand and fourteen and he later testified correctly that he was attacked on december twelfth two thousand and fourteen this court held in rent versus holder your honor that minor discrepancies in dates that cannot be viewed as attempts by the applicant to enhance his claim of persecution have no bearing on credibility is that my way of saying is that a minor discrepancy i mean it seems like it goes to the co application terms of nothing i mean the murder of his partner and then also what happened to him after that and he seems to it seems like that would be a significant day for him and to get that account to be either the same day or three days later trying to figure out why that is that significant your honor is that i see my time is on right now but i would answer yes so mr it was certainly a traumatic and significant incident that occurred on december twelfth two thousand and fourteen and the murder of his partner on december ninth two thousand and fourteen your honor this court recognizing however that victims of abuse often confuse the details of particular incidents including the time and dates of particular assaults here as mr fired was eighteen at this time his partner was brutally murdered and he was later attacked so so there might be some arguments why either none of these things are necessarily inconsistent but the standard of review is that we have to uphold the credibility determination unless any reasonable adjudicator would be compelled to conclude to the contrary so you know i hear your explanations and they have a certain plausibility but  they certainly don't sound like they're definitive thank you judge or a cough so under the real i d act yes the standard of review for this court is substantial evidence however that the real i d act is not give immigration judge a blank check to insulate the reasonableness of his opinions from this court's review and your honor specifically regarding the date discrepancy this court and every almost every other circuit has held that a trivial inconsistency such as this one does not support an adverse credibility finding counsel before you conclude i'm looking at the excerpts of record two seventy six through two eighty four seems to be the moralization of an interview with your client burden is on the government to prove that that petition or received an offer allowing them to remain in that third party country indefinitely now here on earth the government did not meet this i would address that in two parts i would first like to start with the fact that as you stated that offer did not have mr civil sings name on it it had an individual civil saying go for a different name different letter now that's a pretty unusual name and so it's common for people to misspell unusual names why wasn't it reasonable to think that this was just a clerical error and that the evidence that it was your client is substantial enough to support the determination that the agency yes your honor thank you for your question i would point you to pages one thirty one and one thirty three of the record which lists names that are similar to that of petition petition or on top of that this database submitted by the government is impartial incomplete it's a link that council today is unable to verify would be i mean it's impartial impartial and that we just have this one page there's no context as to the meaning of this document it's old it's translated and now your honor even if the court wanted to take that leap and assume that this was a typo which i would like to remind the court the government has not presented any evidence that this in fact is  typo even if the court would like to make that leap this legal mechanism the only evidence they submitted submitted this one page printout does not rise to the standard required by this court this court requires that any yes your honor in light of everything the government submitted i would point to this printout again itself which refers to normative ninety seven now those documents that the government submitted to support the fact that brazil allegedly offers haitians a place of refuge seen mainly at pages two thirty seven through two forty three of the record there we see that normative ninety seven created temporary limited work visas that were new of all every five years and you honors this court in machine versus holder and that's five nineteen federal appendix nine sixty three found that evidence of a temporary work visa does not satisfy that indefinite permanent status that this court requires honor i would point the court to the sheema of the sessions case seven sixteen federal appendix six thirty two that was a recent case that this court saw all where the court looked to evidence such as the government submitting passports submitting evidence of a permanent resident visa similar in the a g g case where this court discussed the need for evidence of refugee status travel documents something to give context to this legal database also what do we do with your client testimony because he was asked whether or not he hit legal status in brazil and he said he had a protocol and he said that the protocol allowed him to stay in brazil and that he at resident status copeland with the  other evidence why isn't that enough to constitute substantial evidence thank you your honor so i believe the court is referring to the record around one hundred or one zero seven where mr jeffard testified that his name came out for residency and in answering your question i would refer point the court to the hike case for forty six federal appendix that thirty and thirty one and there the court made it very clear that a lay petitioners own testimony regarding his residence status status and his understanding of that status was completely irrelevant and that takes me back to your honor's point that aside from this testimony which in high high to poor as well as your honour's in a g g we are told that this is irrelevant all the government has is this brazilian database that been printed it's impartial it's old and it's been translated and it does not satisfy the requirement that mr just for ard would have been eligible to remain in brazil for an in where the court discussed the fact that the finding is not contingent on whether the resident applies for status and his knowledge of that status so i would refer the court a cap relief i want to ask you about that for two reasons one based on the adverse credibility finding and then also i believe from based on the country report that there was nothing in there or nothing sufficient in t credibility finding prong i would point the court to the garcia versus holder case which is seven forty nine federal three d seven eighty five which tells the court that an adverse credibility finding alone itself does not always paint brazil as a place where he immigrants are going to thrive haitian immigrants such as mr jeffard however this country report and the underlying documents that the government has submitted merely show that there's an economic crisis in brazil evidence by the fact that mr jeffard as we see on page ninety nine of the record lost his job which also would have made him ineligible for this temporary work visa but we're talking about kids with torture church and what did he sent i mean why should he be sent back either to haiti or to brazil if we find that there's that this whole bar doesn't prevent him from from being sent back looking at the country  i looked at is there anything in there absent your client's testimony that would support relief under cap is your honor i would first again remind the court that that burden has not yet shifted to mr jeffard however if we're going to hypothetically assume that we now see that mr jeffard received an offer what do you mean the burden hasn't shifted he has to prove eligibility for me i'm so sorry your honor i was still stuck on my to talk about yes i'm sorry your honor with regard specifically to the report if it were to come to that for kat there are several sites within those brazilian reports itself cited within our brief of incidence of the your honors are correct so what about the question that was implicit in the last exchange is assuming for the sake of argument that we agreed with you that their credibility determination should be upheld is that the spouse and or do it can it be in effect trumped by the state department country report i would argue that dispositive first it's dispositive as to asylum in withholding and second if he hasn't demonstrated that he's actually a gay person then you know the country report doesn't indicate that he would be  assume that he is a gay person the emperor's credibility determination doesn't trump any country conditions report that will establish that gay persons are subjected to torture correct correct but the adverse the country condition report says that there's no there's no evidence that the haitian government acquiesces to torture and we look to haiti or do we look to brazil so he was to examine so we'd have to send it back to the deportation order is for haiti so if you believe that if you agree that he was fairly resettled in brazil then maybe it would need to be  request removal to one country or the other no not that i recall just tell me take this through because i'm trying to figure this out because it looks like the i j a looked at the haiti country report is that correct all so we look at the country report to see if there's anything there that would support i can't really are you saying that we would not be able to factor in that he is a gay man that he said he said he has not proven he's gay i saw that that's why i'm asking this question he said you know he hasn't proven he's gay and that's when you look at the adverse credibility determination are you saying it's all or nothing yes because his testimony goes to the core of his claim whether his alleged partner was on december ninth and he was attacked the same day or whether so how would other than saying that he's gay and describing his past experiences how would he go about proving that he was gay if that's something he had to somehow some other way prove he couldn't call his partner's partners that so so so what what would you have him do or what would the jade have well he testified that his mother came to his brother's house on december thirteenth and said he had to leave his mother was the one who he who he claims witnessed the crowd coming to his house multiple times on december ninth and back on december twelfth his mother is the one who came to the brother's house and said he had to leave and would know the reasons but there's no declaration or anything in the record from his mother so apparently his family was told the reason why he had to leave his mom came to the brother's house and said it and so right now the current posture of the case what is the resolution in your mind i think that the agencies decision should be a for he wasn't found credible and he had firmly resettled you know alternatively he had firmly resettled in no anything bad happen to him with the police or with the government so i'm still hung up on what you say he didn't prove he was gay he testified he was gay there was no evidence in the record to the contrary so your argument is that oh because you purportedly lied about some date got it three days wrong or  you haven't proven it well we have is your statement you're a man oh you say you're a human being i don't know maybe you haven't proven that that's the thrust of your argument is a no no it's with these specific the claim that he's making is that he's gay and that he's at risk of being persecuted or tortured because of that that's a material fact in your view not facts that don't make a difference like where the material first and then  immemorial that the rule of evidence accepted by some state courts false and one is false and everything has been firmly rejected by the federal man i'm at risk of persecution and torture but there is inconsistency is in his claim the good at the core of that claim the only one the ghost of the three inconsistency is the only one that goes to the core of his claim about whether he's arguably is this whole business about whether he had come out or not and the and the definite inconsistency turned there on what the i j thought was the proper definition of come out and it's that weak read that you say shows that he hasn't proven that he's gay he also told the asylum officer we decided to come out i came out then they attacked us what does that mean well they asked what does that  then do you think there was a clear understanding between the both of them based on their exchange well it wasn't just the asylum officer it was also his testimony in court the immigration judge asked him so you started to openly live as a gay person yes but that was contradictory so i just wonder and because he also described that he only met his current partner  and in a setting that was secluded and hidden from other people and he only and they so it tells me that there was some problems regarding how they were communicating and whether they were cross they were communicating effectively the i j a and and and and the petitioner here because everything he described or a lot of what he described was not an open so it seems i think his language has you know he has some issues with the language could it seems like there's might have been possibility that they did not understand each other on that very important point because would you agree that some of the items that he describes or some of the statements he makes is that well he and i were open but then we only met with out his mother would know he'd have to leave so his mother would not find out they would have to meet at a grandfather's old sort of shed and that was the only way that they could meet so in terms of openness and what he was saying seemed very contradictory but he did mention that on the day of the incident they had been together walking together and then they separated and that happened counsel was there any argument made to the board regarding translation you your honors i'd like to just first clear up the record on the question of the country removal one eleven of the record that the immigration judge did designate haiti as the only country for removal so if we decide this case on the first credibility determination and determined that that substantial evidence in support of the removal order do we get to the farm resettlement issue you know as if the adverse credibility holding is not reversed i don't believe we do get to the from a settlement issue however the cat really is still in question your honor is this the second point i'd like to make is that regardless of this date on the date discrepancy regardless of whether the attack occurred on december ninth on december twel the fact remains that mr jeffard was attacked on the basis of his sexual orientation and what do you do with opposing counsel's argument that he never proved he was guilty your honor i believe that as i argued previously that the immigration judges understanding of that term come out and that false application of that definition is what led to this confusion the record i would also point this court this court's opinion in smith smith kline beecham corporation versus abbott labs where this court recognized that quote coming out to many gays and lesbians is a life defining moment of celebrating one's dignity and identity and that deciding when and how and to whom one comes out is a vital part of this process and the record is clear your honour's that froggatt and his partner were open with each other that they came out to each other and that they had their sexual orientation from the rest of the world your honor and back to the interview your honor that draws in that you had it raised to eighty four of the record mr fart in his interview with officer mulhern stated i'm afraid to be killed by the population because i'm a gay man your honor mr mr froggatt far has consistently maintained throughout these proceedings that he is a gay man and that he has a legitimate fear for his life should he be returned to haiti i thank you counsel thank you to all counsel the kids just argued is that me the four decision by the court and again we thank the students and supervis