mr lopez good morning we understand you're splitting your time with your co counsel here this morning and we'll just ask you to keep an eye on the clock so that we can hear from both of you welcome sure thing  my name is tanya lopez and together with m my argument will take up seven minutes of our time my co counsels will take up six minutes at this point i would also like to reserve two minutes of the and for rebuttal your honour's mr sutton his record of convictions is not established by clear and unequivocal evidence which state the specific subsections that mr suddenly pled guilty to rather all of these documents show that mr suddenly pled guilty to counts one and two as amended while the government argues that the complaint and indictment are judicially noticeable documents guilty to an end to an offense different than that asserted in the indictment so how do you respond to the counter argument that this is a little different than those cases because those cases involve a charge that had been dismissed whereas this requires the court to and for what changes were made by mr sunny's clear agreement and that is still a direct violation under a holder because mr seventy is not pleading directly to the complaint as it was filed he is pleading to counts that are amended and since it is not stated exactly what was amended it requires this court to infer what was made and that was the ultimate holding about about how the beholder having established the relevant documents reviewable for the modified categorical approach total for is their language that a defendant must knowingly display a firearm rather this is a description of the facts underlying the conduct similar to what was done in matter where defense counsel at that plea hearing stated that the defend two and i understand the point you're making about some of the other language is not as precise but when you combine that with the charging documents and then the plea agreement we have a pretty good picture of what what he was pleading guilty to and therefore what he was convicted of well your honor as i stated the indictment and the complaint are not reliable documents in this course because the plea agreement amended those and so he's pleading to counts one dollar and two dollars as amended and it's not proper for a court to end for what changes were made highly technical argument with there's really no doubt what happened here counsel you're asking us to put on blinders we don't like to put blinders on you know it's one thing if there are charges were dismissed but if this is same thing that happened in a previous case the the police called agree the dangerousness part was removed but he pled to the rest of the information your honor that still requires this court to  change what is written on the plea agreement to change what is written on the judgment to change what is written on the order accepting mr sunny's plea agreement because those dangerousness and those subsections that language is not included in all three of those doc what do you think factual determination that the language in the plea colloquy was a match to a deportable crime a crime involving multiple and furthermore relying on this language is problematic because it adds an intentional mens rea element to subsection a two that is not stated in subsection eight to twelve all for just states uses a deadly weapon it does not include any type of mens rea element and that's why it is also improper for this court for the and the i j a to rely on that information modified categorical approach does allow for the court to look at the plea however day comes to modify the manner in which may be used and this court again up held and recognized that decision and it comes in and although the the b s a failed to consider the persecution mr side suddenly faced you to his political opinion and membership in particular social groups all of this amounted to torture of beatings acid thrown in his eyes gunshot on stabbing wounds and death threats this allows him asylum withholding a removal and relief of the convention against torture your honour's turning to my st point none of the four bases for the adverse credibility findings are supported by substantial evidence st the i j a m b i a erred in finding mr suddenly non credible because he did not mention his membership in the law of the last party until cross examination mr sunny believes his persecution was because of his neighbor neighborhood watch party actions he also states that he has helped his cousin jean sunny who was a member of the haitian counter ambush team and as a part of the neighborhood watch party he would detain alleged criminals until the police would come and arrest them the harm did not arise directly from the law veloce did not arise from the law last party but arose instead because of his actions with the neighborhood watch party and helping his cousin who was member of the haitian counter ambush team on record pages one hundred and twenty eight and one hundred and twenty nine you can see that d h has pulls out of mr sonny what political party he belongs to nd year honors  became visibly shaken when speaking of his son's death in record record page one hundred and fifty three d h asked him a sudden his mother how many children he had and she said he have two children and later was said one here and one in haiti but was never asked whether both were living for the i j a to make this a large basis on his adverse credibility finding myside me should have received a clarifying question especially since she was not testifying in her native language this can be seen in her usage of  is improper grammar and could mean past tense rd the b i a erred in finding mr sunny's response regarding his medical records impossible the error here is that he did they didn't take his response in its entirety on record page one hundred and forty three mr sutton his response of we don't have that was taken to mean the haiti does not have medical records but fail to take into consideration mr suddenly being cut off and saying right after i wish i had someone to contact in haiti and to obtain those medical records for how discrepancy with the criminal records there are two errors here st there are many reasons why people plead guilty as can be seen in the supreme court's decision in north carolina vs alford nd the i j compares mr sunny's under oath statements at the hearing with a pre sentence report of people who were speaking not under oath with information we counted by a government employee this document is not only hearsay but fundamentally unfair because mr sunny had no opportunity to cross examine these individuals and if you look at all those documents there are no material discrepancies turning to my issue of crab aeration there are two errors here st the i g can only ask for crab orating evidence if it is reasonably available mr sudden here testifies that he has no one in haiti to contact obtain these medical records for him and nd the i j a says that the i g never required mr sunny to obtain such crab orating evidence to support his claim which goes against this court's holding in iran house his family was just killed in and then later when he left haiti his son was killed by arson mr study clearly has a well founded fear and clear probability of persecution on account of two protected grounds his political opinion and his membership in particular social groups today's focus will be on his family his family has links all throughout the haitian government when his he was a child his grandmother was chief precinct which caused him to be kidnapped at age seven his cousin who was murdered was a part of the haitian counter ambush team and mr suddenly himself was hired by the mayor to be a part of the neighborhood watch party you're in as i see that my time is running up so i will say in conclusion mr sunny respectfully ask this court to grant his petition and reverse and the man to the be a for any decision thank you very much thank you very much and whether the board's adverse credibility finding is supported by substantial evidence and the answers to those question are yes with regard to remove ability it seems the petitioner agrees that the statute aggravated assault statute under everson a law is divisible morning but they certainly did in their brief they didn't argue this morning and in their brief they did but they did not exhaust that before the agency and in fact before the i j a and the board they seem to agree that twelve o four a was in fact divisible because they just simply it says that if a statute sets out alternatives and those alternatives are punished will separately by different grades of punishment than that in that is elements and that is what the statute is here  held that twelve for a are separate elements and lay out the crimes in the alternative and are not alternative means for the committing the crime and i point to this court to state versus kelly and in that case aspect of whether there was either physical harm inflicted or whether the aggravated assault was committed with a deadly weapon or dangerous instrument so for those reasons the statute is divisible and the modified categor categorical approach applies and applying the modified categorical approach looking to the judicially notice of noticeable documents which here is the indictment the plea agreement and the transcript of the document cannot be relied upon for modified categorical purposes but if you really read those cases those cases say that where the count is modified or dismissed and changed almost entirely to charge a separate offense that isn't a situation where you cannot rely on the language of the charging document here if you look to the charging document in the plea agreement it seems clear to me at least and talked to this court as well that it the only change that was making to the indictment was that the government in exchange for petitions plea of guilty was that it was agreeing to remove both allegations of dangerousness it wasn't doing nothing and the plea agreement doesn't indicate otherwise that it was otherwise modifying the substantive charges under a one and a two so that aside i think the court can look to the language of the indictment to show that petitioner pled guilty to a one and a two and in conjunction with factual basis statement says all the elements of the crime of eight dollars to twelve dollars o three a two and trouble for a two and totally tracks the language of the subsections but to make much of the fact that  and finding that his crime did not use that language to find that he was convicted under it too because it too only requires intentional conduct and that was the language the defense counsel used and that's what case law of this court makes clear that when we have an assault and then there's an aggravated element president and there's a sufficient couple state of mind that a simple assault rises to the level of a crime involving moral turpitude here we have the aggravating factor use of a deadly weapon or dangerous instrument and we also have a heightened mental state and that intent here under the case law of the board in this court those two factors transform a removable now we'll turn to the issue of the adverse credibility finding  the board found petitioner not credible on four grounds and the evidence in the record does not compel this court to conclude to the contrary the st ground that the board relied on party and that he worked as a security detail for candidates for that party that claim that those facts were not mentioned in his asylum application they were not mentioned in a declaration that he minute after the asylum application this is not just an additional detail to petitioners claim this is essentially an entirely new claim that omission from the asylum application and the declaration supports  immigration judges adverse credibility finding petitioners counsel argued that it the court should give it no credence because that really wasn't the basis of his fear that really the basis of his fear was his work as  a member of the neighborhood watch but petitioner was asked repeatedly why that information was not included in the asylum application and he said initially that it was which it wasn't but he said that there's a lot of things that he thinks about that he didn't feel like writing down and those were his explanations the judge was not required to credit those we were sent to the record are you referring to for that last part that there's a lot of things that he thinks that he doesn't want to write initially asked repeatedly why it wasn't the lavalas party membership and his work as the security detail for candidates were not included and he said it was there it was written on his declaration he did say that and then he goes on to say that there are a lot of things i have to say i don't like to i don't want to write it down and then the rd time he was asked why the information was not included in the written application and he responded that i don't have an answer for that if that wasn't the basis of his fear not a way to bolster his claim then he could have said oh it wasn't in my application because that is not why i'm afraid he didn't respond to that that is an omission and the immigration judge and board were entitled to rely on that and making their credibility finding another ground was petitioner's inconsistent testimony regarding the circumstances of his conviction petitioner twice said that during the testimony for the immigration judge that he  didn't flee the scene and that he didn't flee the scene he twice said that but looking into the police report he admits to police officers that he did in fact flee the scene of the crime that he crashed just car and that he hid in the bushes while the police were investigating the aggravated assault and that he did so because he was drunk and he was scared though state when smart weren't made under oath but that doesn't matter because for credibility adverse credibility finding the immigration judge is entitle to rely on in consistencies whenever a statement is made wherever a statement is made and whether or not that statement is made under oath that isn't inconsistent statement and the board and the immigration  were permitted to rely on that again but agency also relied on the fact that before the immigration judge petitioner twice i believe said that he did not intend for his victims to be placed in reasonable apprehension of fear yet he pled guilty to that and it's a permissible basis to for the just to rely on that because we cannot on the one hand hold him to those statements for a plea deal and then not hold  to the same statement for purposes of credibility the immigration judge also relied on the fact that petitioner was not able to corroborate his claims of being shot and stabbed  was shot and almost died because of that shooting and that he received a blood transfusion he also claimed that he was sad and those two instance happened on separate occasions and for each of those instances he received medical treatment you could not provide any documentation for that so initially response was that in haiti or we don't have that in haiti when asked to clarify he said rather i don't have anyone or i don't have anyone's contact information to be able to obtain those records those two responses to that question are inconsistent and further you know raise issues of credibility in the immigration judge was entitled to the law and that as to the final basis for the belated term ation was the testimony regarding the petitioner's child argue believe that as a weaker finding as there is explanations for translation errors language errors and i would say that potentially it is an arguably weaker basis but i would just note two things on that and mediately following petitioner's mother's testimony regarding the children one in united states one in haiti immigration judge asked petitioner if he wanted to question his mother but declined to do so he had the opportunity immediately following that testimony to clarify and he did not take that opportunity to do that and i would also note that even if one of the grounds is a weaker grounds for the adverse credibility terminations the remaining grounds are sufficient to sustain adverse credibility discrimination i think is the case where the skordas tell that even one omission is sufficient withholding and the board also from the petitioner waive his cat claim before it for not raising it so that is also off the table so the court should affirm the agency's finding of remove ability and also affirm the agency adverse credibility finding and deny the petition  thank you thank you the fact that the court must engage in this prohibited fact based analysis stated in much the nd the indictment is not is not reviewable because the plea agreement amended the indictment and because the three documents the plea agreement the order of the court and the judgment do not state what the amendments were to the charging documents and that still requires this court to and for what changes were made which is not proper and rd simply because a defendant a sense to a factual basis statement does not make it reliable as the supreme court the kentucky that defendants are left at the mercies of their defense counsels and may have very good reason not to contest what is stated at these hearings and now turn it over to my co counsel and i think the biggest point here  regarding mr sunny's credibility finding is that he was pro se at the time and in english is not his st language going point by point on the four bases for his level os party political body work that was two thousand and eleven and a short term temporary work as for his neighborhood watch party workers from two thousand and eight to two thousand and twelve so for mr sonny most of his persecution all throughout his life has been because of his in his neighborhood watch party work and in regards to his convictions although it is a hearsay document the i j a has has to make sure it is fundamentally fair especially since mr sunny was pro se at the time and english is not his st language mr s was materially consistent all the time with what he said at the pre sentence report and what he stated at the hearing and regards to the alford plea mr sunny pled guilty because he wanted to be there at the birth of his child and that should be that should be taken into account and during corroboration he did not know when he when he was in the middle of the statement and because of the two thousand and ten earthquake it could be seen that it could be harder for mr sonny to get and he most importantly was pro se thank you thank you and i want to echo the comments of loss and thank you for your participation in our pro bono program we greatly appreciate that for those of you know i just don't know what happened here to say these people are not yet lawyers they have a few more steps to take before they get there but some years ago while i was had responsibility for the court we just started we needed more help for were coming without representation is huge numbers they come in without lawyers and it's like searching for a needle in a haystack but we have competent attorney that look over se case and if they come up with one that they believe that that we need to have more done with eyes looking at it for our discussion we have a rule that allows law schools to bring these students forward if they have a professor there's advantage to the barn is willing to take the responsibility and that's what you heard today very fine arguments and it's because we needed some help and of course they get the opportunity to come here and and and become a lawyer for a day but it really of great help to us and we appreciate the law school and their efforts to assist us we not only have people such as as we heard today but many lawyers volunteer to take pro bono cases when the court believes that we need representation on both sides so that's what we we want to let you know of we ordinarily just thank them but you should know that they're providing a great service that we need so that we can properly administer the law