morning your honor may sound like the ego that used to happen to me when i had an argument schedule that seemed to be the time when the cold would set in so i can appreciate i have a cold and i took a b t the the facts are essential to understand there were the petitioner at the immigration court level provided for identity documents all from china or persons my understanding your honor is that she did in fact pain them herself however a couple of them worse subsequently sent to her by her mother  while she was immigrant in immigration court proceedings be very careful what you say ok what evidence is there in the record that  to an office in china and was given personally any of these documents i don't i don't know that they're specific evidence in that and this is who had the evidence of how she got the documents in the record i know that in the records she indicated that her mother had sent her a couple of the that was quite different from  four documents in question were a notarial birth certificate a chinese resident id card also known as a national id card the chinese household registration and also a chinese driver's license the problem came when a couple of them or the documents were sent to the government's forensic examiner and the government's forensic examiner concluded that two of the documents were counterfeit the document examiner that the cited that the notorious birth certificate and also the national i d card were counterfeit there was substantial testimony taken but and and that document or examiners conclusions are not not absolute because they're not there are subjective evidences that the documenter or the civil journey evidence to the contrary i mean that leaving aside the clearly erroneous standard i didn't say anything this ingested to the contrary other than argument because what you're telling me that the examiners report was just suggestive it's not conclusive i don't see any evidence stacked up on the other side to suggest that the report was  actually your honor so that's my question that's actually the crux of this case is subsequently i will indicate that initially the petition had not obtained a passport for and and subsequent to the decision of the court the petitioner felt like she was had no choice but to go at the chinese embassy for a passport she obtained a passport from the chinese government which in fact verified that the documents that they ship submitted to the court were in fact valid is no no i'm not that doesn't follow at all it may suggest that she is in fact the person that she says she is but i'm not sure how that demonstrates that the cock humans who are not counterfeit you can have counterfeit documents even if you are the person you say you are well then let me restate  the passport that issue was her identity that the documents were found to be counterfeit which questioned her identity so later she came up with additional evidence  reopen that's correct you're and then she didn't show any of those circumstances as to why she hadn't gotten the passport earlier in the b i said if i had denied her motion to reopen so let's not discuss the passport at this time is not part of the record ok there's two reasons first of all me if you're going to make a motion to amplify the record you should give due notice to the other side so that on the side can the can object and oppose it it's too late now to amplify the record let's go into other issues in this case that is essentially the only issue in this case it has ignored it in the record as part of the motion to reopen yes ok so it's in the record yes you've got it in  us to be i responded to that by saying well there's no reason this couldn't have been attained in and it was an erect and so what's wrong with that i mean ordinarily don't get a do over if you have a trial and it can go well you don't say well ok i'm to go get some more evidence have this trial all over again ok let me demonstrate why there should be a do over first of all was there a reasonable expectation for her to go get a passport she had already supplied four identity documents that accurately identified her all right thirty well it turns out the two of them are counterfeit there is no evidence to the contrary we have no reason not to accept the judgment of the immigration judge in accepting the forensic examiners report and you don't have anything to offer except that it turns out she really is the person she says she is you've got other evidence to establish that but that doesn't counter the fact that they've got a report that says are counterfeit so so you're telling us that in fact ok she thought she had enough turned out and not enough so we should do it all over again so that she has another trunk chance to get enough and and why is that well she had provided for identity documents which accurately identified her as who she is number two you know the second issue if i may your honor is the fact how you made that you won't be answering the question sleep ok she's a refugee she's filing for asylum saying she has a fear of the chinese government she doesn't want to go to the chinese government and they ask for a passport she was asked in the court why didn't she do this she said because i was arrested i didn't believe they would give me a passport once her case had been denied she felt like she had no choice but to go to the government and ask for a passport but that was a legitimate reason the question is was it reasonable to ask was it reasonable to expect her to go get a passport before the fact and there's two things that suggest no  not one of which very ironically is in the board's decision itself the board in its november decision said moreover we conclude even if the immigration judge erred faulting her for not applying for a passport so the board itself acknowledges that that the court erred in faulting her for not applying for the point passport also a alleged persecutor the real issue is was it reasonable to expect her to go get a passport when she was afraid to do that and when she already had supplied for documents which is she asserted to be legitimate i would submit to your court that it wasn't reasonable i'll reserve the remainder of my time representing your client we're going to decide the case sometimes lawyers don't understand what the problems they have until they read this position and you read the disposition we're go we'll hear from the attorney general or her representative i guess you're not the attorney general but you'll do the morning good morning may please the court play on behalf of the government why don't you just for the record state what you adverse credibility finding because identity has been an issue in our case from the very beginning she submitted fake documents to counterfeit vacuum it to to reestablish what her identity was this is are any evidence whatsoever in the believe that miss woo knew or should have known that the documents were counterfeit miss would have indicated that to get a national id card requires a photograph of photographic id the reason why national id card was found counterfeit was because it did not it was not presented with a photographic id and throughout the whole entire case had never made any attempt to explain how her photo i failed to have a photograph and it where in the record is or testimony the knew of the times she submitted the documents that the national id card required the photograph to be attached well she found out in two thousand and four from the direct the examiners report that there was no photograph included later in her testimony or in the declaration she indicated that in order for her to testimony in court that's alstom only one and then she said i knew that my national identity card document was counterfeit because it didn't have my photograph on it and i don't know the examiner submitted a report in two thousand and four indicating that hurt her id did not have photographs i understand that ok now what about any testimony or any evidence shows  knew that the national id card was think because there was no photograph on it there's no technical evidence that she knew this iranian technical evidence yes she should have known she knew that  attached to a motion to it was attached to a motion to reopen it which she was challenging her prior attorneys assistance before the court and wanted to think she commented on what the fact that she would never submit a false photograph to support a identification vacuum it so she was clearly aware that ideas photo i d s were needed for identification documents but there is a motion to reopen filed the motion it had to be her about the status of her document says the latest two thousand and ten there was even a notice or hearing notice which indicated at the bottom that the documents were insufficient and that she needed to either make some kind of explain why citation to a piece of evidence which shows that means at the time she submitted the documents prior to the hearing in two thousand and eleven oh never with hearing sixty five thirty seven it was there today did you have to speak of love as the report is found at a minnesota record page five thirty six to five thirty seven it was submitted to the court on august ninth two thousand and four so since two thousand  knew that the vacuum it didn't have a photograph in it or i know the document was submitted in two thousand and four from your examiner it said it didn't have a marks exhibit two is counterfeit because the laminate does not contain the features president present in genuine laminate them or testified to the lack of the photograph and insert when she was describing the counterfeit nature of the document so during the testimony well then but that's not something petitioner would have known until the testimony was given all this talk about years of notice would seem to apply to those that testimony ok the immigration judge did explicitly state and reminded counsel that he needed to confer with his client to let her know that the documents she had submitted up to that point were insufficient to establish  their her identity to their belief and at that time it was in july two thousand and ten there is a hearing notice that was made a part of the actual exhibits to the case in which the prior to the prior judge da had actually that she knew or should have known that the documents on which the average credibility find he was made were counterfeit you maney you mean he's a case tell me why you mean it doesn't apply have known can be should have known is not something that has to be a factual determination to record evidence so that if you're if you're thirty one years of age and you go for national id and requires you taking a photograph and you can't explain or make no attempt to explain to the judge why there's no photograph in the document you submitted as evidence that this is a national id then we should infer that she knew that there was no photograph in there she's never said i took a photograph she didn't say i went to the the facility and he took my photograph i can't explain why my photograph is not his vacuum and there's never been any attempt at all for this particular petitioner to indicate or to try to explain why a person who would normally have to go down to take a picture for a photo id have a document that doesn't have her photo and it so she should have now and we have reason to suspect that she knows that that i back and that that document was not it was not a valid document because they should have had her picture and she would be the only person who would know whether the picture was and she had to go get the document no one can get her identity vacuum it for her reason to suspect this is not a fourth amendment case and it doesn't end cap it's that it doesn't require the i j a to actually explicitly state that she knew it's enough to infer that she knew simply because it would require us to believe that the chinese government has a motive to actually issue authorize counterfeit documents and there's nothing in its record that would show that the chinese government that she got the identity document later but we would argue that when she applied for that particular document she did not submit the original so a passport examiner would not have known or may not have been able to detect that the document that they were reviewing for the pas motion to reopen that's not if i did as a motion to reopen that's not supported by evidence that was not previously out available and you know well over time i think we have your position thank you thank you for your argument or bottle and sense we extended your colleague's time will wind up extending yours to well i'll try to be very brief your honour's in regard to you mean it is true that her mother had sent her two of the documents if we apply them in a case though even even assuming they are counterfeit that would not necessarily be held against her or if she didn't have personal firsthand knowledge of the fact that they were counterfeit i would also indicate in the guardianship money too though because all we know about how she acquired the documents is what she said and it's her credibility that city issue so we may not have affirmative testimony that that she knew but we've got counterfeit documents and there's never been anything to do to counter and the b i decided that came in too late so here we are why is the b i not entitled to say it's too late why wasn't the i j a based on the record before the i j a entitled to say she hadn't established who she was well she had submitted documents other than the two documents which were deemed to be counterfeit that did establish her identity well if they're valid but they couldn't be authenticated that was the problem and you could come up with she may have had four counterfeit documents and they could establish a tutor counterfeit and i couldn't say anything about the other two that doesn't establish her dennehy as something the i chase compelled to conclude it's true your honor however this is a re case in many cases identity is established simply through testimony if there are no documents available and she can't reasonably have pain documents in this case obviously she had documents and did submit them but her testimony added to the documents to to identify her and i would further note that the judge i didn't question her credibility in fact he indicated in his decision that herc that her testimony was consistent that he didn't question the credibility of her claim the only basis of the judge's decision against her was the was the two documents which the forensic examiner deemed to be counterfeit if identity is the issue and the passport subsequently verifies her identity then that's valid evidence that should be she should be entitled presented may i make one more who don't want to grant review for the proceedings and you can stablished identity and those for the proceedings yeah sure honor let me tell you why i believe that the law is insufficient as regarding this situation that the language of the law says it regarding evidence that was not available and could not have been discovered but i would submit your honour's that the law ought to include or could not reasonably abend expected to be obtained and even the big guy in a indicated in their footnote that it wasn't necessarily reasonable for the judge to expect her to obtain a passport i read you that foot faulting her for not applying for a passport so or is a statement that begins even if it is not a statement that suggests agreement with the proposition being argued i mean i just i heard you say that before and i let it pass but that doesn't suggest that the b i think the i j was wrong on that it just says even if he was wrong you still lives so well if there are ok if there was no reasonable expectation for her to have done that then she shouldn't be barred from being able to do that subsequent i think that's the case seek her opportunity to go back to court verify her identity which is the central issue that has being concerned with w