good morning ladies and gentlemen the clerk may call this morning's case government has proven by clear and convincing evidence the misconduct was married when she was admitted to the united states as a child a refugee and second is there substantial evidence to support the conclusion the miscarriages asylum application even if that term was broadly interpreted by the agency contained deliberate meant material fabrications as will be shown the answer to both of these questions is no the claim that this kind of was merely when she came to the us counsel counsel you just said with the claim the miss conny was married when she came to the us is completely based upon miss condoms uncorroborated out of court statements which cannot carry the burden of proof since the immigration judge unfairly clay and repeatedly held the ms connor was not a credible witness and there's a bill settled that incredible testimony is insufficient to establish a fact even by a preponderance of evidence much less the clear and convincing evidence required to establish  court to determine the misconduct was telling the truth when she said she was married when they called and called her a lot or every way which way i am what she's filing a lie and what she's the question see the question is why do they have to write to rely upon those things that they want to agree with and disregard everything else and offer no explanation and don't juries in fact finders do that all the time people say you're lying about this but you're not lying about that the fact that a witness is incredible about some things doesn't mean they're incredible about everything isn't that sort of commonplace place it's not you but an immigration judge is different from a jury and immigration judge must give a rational explanation for is a citizen's a jury doesn't the judge properly rejected the marriage certificate is authenticated and discarded and refused to consider it not only as the judge said and then bare fact this letter of the miss kind of produced an a document from the gambia saying in fact there was no record of her marriage on file and if the judge said i don't believe lie and then that law i cannot be used to light or in removal i'm struggling with what standard you're asking us to create and whether you have any case law that would suggest that a finding of incredibility cannot be used in determining light or immigration is certainly well separate separate issue but now i mean to the extent that you're just saying they believe some things are not believed others that doesn't seem terribly persuasive in unless there's a logical connection between specific things that the judge did not believe and the things that the judge as you say had to believe and that again any fact finder would have to find on your side that we're not a jury where if you would convince us you're ok you've got to convince us that no reasonable fact finder could good believe the immigration judge what i would like to convince this court of is that the immigration judge offered no rational reason for choosing it is first of all number one very importantly the judge never said he believed miss condit was out of court statements and if you read this decision you'll find that my characterization of judge newbury's opinion of the respondent is supported by his his decision this that she was either married or she wasn't that's right i'll agree with that we should we should we count the district or the immigration judge if if faced with conflicting statements by your client can't conclude that one is the right answer your honor if he did you would say well the person is incredible because she said two different things and she also said the other so you can't come to conclusion he never heard a supposed to to conclusion he never addressed the issue of made a finding did me the only that you could you c from his decision that he must have believed that the perv when she said that she wasn't married but the only thing i don't know whether you have to say believe or not i mean he obviously didn't have much confidence in her credibility but he can come to a conclusion as to whether she was married or not and clearly she was married or not right i mean she was either married or she wasn't the judge offered no rational explanation for cleaning he knows she say that she was married not not just in some out of court statements but on documents didn't she on her adjustment application and then she stated in many other occasions that she wasn't marriage under oath under oath and in the in her immigration proceedings and also by the way if you look at the notes of the u s c s examiner who examined her from her notes you can derive the fact that as soon as she came in she told him told the examiner that in where the facts are not whether the facts are compare not clear the party with the burden of proof loses and here the government have the burden of proving by clear and convincing evidence the miss kanu was married when she came to the united states and they have nothing but the statements from a person who will say but ever heard she feels is appropriate to that situation and this kind they effectively need misconduct their witness and place take their whole case on her and but they never offer any explanation of why despite saying that this woman is a liar that they would choose to believe part of her testimony but not now this country i had a similar case before this court a case called king versus holder probably in which we had a similar situation in which a person who group of men who had lied for long periods of time to the government decided to go to to go truthful and therefore testified at length that they had that one of them had in fact entered into a fraudulent marriage but here judge the judge hacker in that particular case offered very specific reasons she ever wanted to test my death and offered very specific reasons of why she believes them now even though they were saying completely different story in the past this is there's none of that from judge newberry we understand your argument i have a question which may not be here nor there but i am curious how did she get from sierra leone to the gambia she fled she fled she ran through the jungle well but i mean it's the countries don't border each other your honor that that never came up in the in the trial of all she testified to in her mother testified to change you know she left one country and it please the court stretton strand on behalf of the government if i may begin by addressing the i j s finding as to the misrepresentation about the marital status the i j made clear that he believed the first when it was ceremony at the mosque then he also believed the august thirty two thousand and six i six zero two waiver application where she specifically acknowledged that she lied when she was trying to obtain her refugee status and apologized for lying and then i was because if she were then she couldn't get derivative status based on her mother and then he also believe the june twenty two thousand and seven letter that she sent said i don't believe anything and therefore she loses that's not at all the case the i g made clear that what he disbelieved was her testimony in the i j a hearing where she claimed not to have been married and he he specifically said that cantus sworn statement in her form ninety harari three administratively forty five in her original six zero to carry great weight he thinks that the documents she filed under oath when she was seeking a justice status have more weight than the testimony that she's now presenting where she backs away from that and he specifically says that what he finds incredible is her testimony not those documents he says as the record does is your opposing counsel statement of the burden correct your burden to show by clear and convincing evidence that the case yes it absolutely is and he found the i just pacifically found that the d h s had carried that burden as as  by clear and convincing evidence as as did the board and of course on appeal question as judge boxes question suggested is whether the petitioner has shown that no reasonable my opponent hasn't said anything about the frivolousness argument we're prepared to rest on our brief on that unless your honour's have is that is that frivolous simply because she lied repeatedly or what what is the what is the standard that makes the trouble is as opposed to just bad it has to be a deliberate fabrication and of course in the with respect to the frivolousness finding we're talking about her claim that her loss of hearing was related to the supposed gunshot and there there are specific procedural protections in place before and i j can reach a frivolousness finding has to give the petitioner a notice of the consequences the the evidence is that there was quite a deal of evidence the i j a and the board relied on the inconsistency between her version about what happened she claimed that a gun went off near her ear her mother's various versions of it the mother at first said that a bullet fragment entered her ear then the mother backed away and said it was the sound based on cases i've seen over the previous years i mean we see those kinds of discrepancies all the time where they don't result in a frivolous determination there's no repair to say i mean there's all kinds of you know we thought the persecution we thought there were two persecutors and they say no there were three in the room and one of them was crying and the other one says  t was happy and they you know will will defer to the agency but with the agency doesn't typically say it's frivolous based on those kinds of discrepancies is that fair is this sort of more gracious or just happens that this is the decides to make those specific findings as the board stated in matter of the why both the adverse credibility and the frivolousness determinations  are based on identification of inconsistency is in discrepancies in appellant in an asylum claim and the consideration of any explanations offered for those it is the frivolous determination soley based on the on the hearing on the air problem or is it also based on the business about saying different things about whether she was married it's just based on the your problem and if i may there was much more than just the inconsistency  g laid out a long list of evidence that he considered when making this determination was the inconsistency is in the testimony it was the medical exam that was conducted in the gambia before she left the gambia where the doctor said that her hearing was normal after hearing mark of well there was an exam where the where the doctor checked normal for years and hearing then the i j raise this concern at the end of the february twenty sixth two thousand and nine hearing the real problem is that they stood on the record absolutely your honor he raised his concern he said i have a concern about your explanation for how you got this hearing problem and here's my concern you and your mother tell the stories the medical records from the gambia say no problems please explain this to me i'm going to give you an opportunity to do that  then submit petitioner submit to to respond to that concern the michigan ear institute records where she was where she was treated diagnosed and treated at the michigan years and those records in fact under further undermine her claim that her hearing loss was related to the supposed that incident with the rebels be they tell the forms reflect on i may not undermine it but they don't include it there was no statement that there was an injury and they say that she had ear infections as a child but i'm sure that because she had some problems as a child it necessarily implies that she didn't also have an injury that there's more to there's more to those records than that however there is the statement the specific statement that she suffered no serious injury it's not a failure to mention it there's a box checked no serious injury she's there for a diagnosis you'd think that she would be telling the truth when she explains to them what the problem is not only that on three separate occasions in that very record it says that she has to measure suffered any noise exposure any noise exposure and the supposed problem is that the gunshot went off next to her ear not only that it says that she has had ear infections all her life and the diagnosis is chronic otitis media which is chronic inflammation affliction from from from infections and then again then again the i j a having received this supposed explanation questions her about it and says what wait a second this seems to suggest that you that this didn't happen this is this is ear infections what can you tell me about this this is now at the march the march two thousand and eleven hearing and he says look this is your last chance to explain this to me i'm really concerned that this is made up and here are the reasons and please this is your chance tell me anything else about this she talks to her lawyer eleven minutes later comes back and says i stay on the record so the court relied not just on all the inconsistency of the conflicting document but also he specifically mentioned it's her failure to offer any explanation when i asked her about these inconsistency and also of course he relied on her demeanor which he found to be evasive inconsistent your language barrier issue going on in this case if she's gotten an interpreter there the deter interpreter is  speak her specific dialect there's no claim during any of these here outclimb that is no claim that as we say records that have interpreters with some regularity and translation subsequently indicate that there was  a lack of success in appropriate translation but there's no such claim he has no suggestion from the record or claim you have any input on my probably irrelevant question about how she got from one country to the other she claims that they first went through guinea and from there they ended up in the gambia that's all the doctors in the dozen or on the ground so it's a little bit of senegal but it's pretty much of a straight line and of course the i j a here didn't believe she was from sierra leone part of his part of his credit address credibility fine with it and you haven't shown to be that you're even from sierra leone he  believed that so he didn't have any documents that related to serially own the the the explanation for it is is that's not before the court right now but in the i j a lays out quite extensively in his opinion credibility what the basis for that is name from the gambia to the united states yes that's where she obtained her derivative refugee status and if i could just add one further response to your honor's question about on very much the same grounds there was the question of whether the whether the person who claimed to have been persecuted was you persecuted because he was listening to prohibited radio stations and the grounds that and by the way fruitlessness finding that the government has to show for a hostess by a preponderance of the evidence and here the court said the preponderance of the other standard was satisfied because there was an inconsistency the radio incident was not mentioned in either of the first two applications but it was mentioned in the third and the only other piece of evidence that the court held was required to support the frivolousness finding was that suresh tried to explain the admissions by blaming the translators but indicated that he had an approved both applications before he signed them and this court held that evidence is is under substantial evidence standard that evidence is sufficient to support the frivolous and then thank you counsel thank you i would ask that you deny th your honor regarding the medical records the important thing to bear in mind is who was the source of the information on those medical records at the michigan institute the answer is it was her mother wasn't mrs condit and what do we know about her mother her mother isn't even literate in her own language much less english her mother testified through a translator her mother doesn't even know when this conner was born she said that she was born during the season why because only her husband has words this is the source upon which we are asked to believe the miss cano is a liar because her mother check other this illiterate woman check the box the said she never suffered serious injury for an explanation it's not a very good response that well i didn't give an explanation because it would have been a lot of the answer is i don't need to give an explanation because there's nothing to explain the source of the discrepancy is illiterate mother it's not her and whisper the source of the lead to script see is answers which a woman who can't even sprague your own language put on an english language forms of few months after she came from africa knowing that your honor but the other the other issue regarding the events in syria leon in the issue of whether or not one of her things or no other the immigration judge found is can do incredible so only because her testimony conflicted with her mother and that she found found her mother incredible so how is it that you can be found to be incredible and in fabricating your evidence so only because your testimony conflicts with somebody the immigration judge says he doesn't believe but doesn't that lead to the conclusion that if all the witnesses are incredible you can't make any factual finding that is exactly what it was your there's no reliable evidence the party with the burden of proof loses that should not be a controversial statement for the furthermore the question there's also a legal question here the regulation speak to deliberate fabrications on the application the second circuit has ruled that form the asylum application is the argument when you say the application did not have this information in it are you you are you are saying i mean what is the reason related to the face of the application even if the applicant has the application of the short answer is that it isn't but the longer answer is that if you look at the warnings on the application this is very interesting because of the the application contains two warnings of two different things one is a warning against criminal that you could be subject to criminal prosecution and that statement says you can be subject to criminal prosecution if you submit of an application with false statements or affidavit with false statements but the warning which counts in this case the frivolous application if your application contains false statements so any reason any so if you read this the form itself is drawing a distinction between the application and affidavit is presumably filed with the application has that been