are you ready yes thank you and it please the court my name is k would be about i represent javier bermuda x has me ariza i've had the pleasure of representing mr bermuda's for the past fourteen years on a pomo to pro bono basis this case has been pending for sixteen years we're here because we believe that mr bermuda's has made and shown an entitle me to both asylum  withholding he's requested humanitarian asylum in the alternative which the board has not in or taint and we believe that the board heard in rejecting his motion to reopen based on ineffective assistance of counsel the procedural history of this case is rather tortured as i'm sure the court found out when going through the record but it's where we are at the moment is i believe that there are either is an affirmative finding that the petitioner is credible based on the laughs that's vision that the i j a made or in the alternative that credible the same i j who heard the case initially in two thousand and three reheard the case again in two thousand and ten and the court on his own motion reversed himself it didn't what did he read here  he previously thought it was and in light of the change in his changing understanding of the pre real i d act he now did was going to be incredible i think part of the problem the judge was having  i'm not quite sure that that's why he did it i think what he did was he had the benefit of all the briefing that had been done before the b i m a prior to the time that it came back to him so he got the administrative record and  it was the stuff in the administrative record that he hadn't seen before oh yes absolutely all the that would change his view of whether mr b munis testified credibly well yes because there was there were the arguments that were made with respect to the various factors in which the i j a had found that he was not credible those were all argued to the b i a is are these are new things with respect to mr bermudez or with respect to fark no with respect to mr counsel claim based on events between the original two thousand and three decision and the two thousand and ten decision with respect to mr bermuda's prior counsel the fact that she'd been disbarred the fact that this court had taken she'd doesn't that doesn't really change mr me this is credibility that really stands independent of his lawyer the fact that a lousy lawyer may suggest that other things didn't get into the into the into the record or that there were poor arguments made but it doesn't really change the content or the demeanor of mr bermudez does it it does not but it certainly does allow the judge to reflect on the testimony that was given in light of the arguments ha d been made to the b i a with respect to his credibility and the judge has the there the right to reconsider just like any trial judge does to go back and take a second walk out the went on there is an explanation that he had shown up in the prior meeting and all that right yes your honor that that went to credibility it did and it certainly affected the judge's decision because both before during and after that two thousand and three hearing the judge made negative comments about mr bermuda's credibility based on his alleged failure to cooperate in the only evidence of that was also self serving statements that mr bermuda's had not shown up at her office thirty minutes before the date of the hearing to prepare for it now i don't know about your honour's but i would never ever go into a hearing on a case and then the silent case with thirty minutes or less of preparation because he was supposed to meet her office and then travel from her office to the court is just not possible to do and there was this supposed other meeting that he missed with her but she was never able to provide any evidence of that meeting and mr bermuda's provided his own doctoral ration stating he was never aware of any meeting he had tried to contact counsel to discuss his case whether was never able to get a hold of her and one of the bases for disbarment by the washington state bar if you read the facts of the case that side of by regulatory right to reconsider at any time which he did that was his right he found that mr bermuda's was credible after looking at the record again and found that mr bermuda's had been denied the effect assistance of counsel had been prejudiced as a result of that and found that mr bermudez was entitled to a silent that went up to the board the board didn't contest the judge binding the judge to the board's problem was whether the immigration judge had jurisdiction to to act he clearly did both under the regulation and under fernandez beholder  ashcroft johnson b ashcroft where the board had not reserved jurisdiction it had not qualified or limited the scope of review and on remain and that the judge did what he was entitled to do and we have to remember this this is the same i j from beginning to end all the decisions you see in the record are the same i j so when we got to the last case again i asked the judge once again to to take up the issue of asylum and the judge kind of threw up his hands he says i'm not going to go down that road again we've already been here i'm not going to do it again and he said i feel like my jurisdiction now is just limit the problem was that on that last hearing the b i a had vacated his prior orders and told him to enter a new order well the judge did that and what he did was he denied the cat claim and also he incorporated by reference all of this prior oral the sessions including the initial decision finding that mr bermudez was not credible and then the second decision reversing that and finding that he was credible and aren't we are isn't one of the issues and we're here for is does he have any authority to do that when the specifically told him you're only talking about a cat came here well the issue there's two issues here number one in order consideration cases noted which would have ferric the claim for protection under the convention against torture and johnson v ashcroft the the almost identical language was examined by the third circuit think this would have been a sticking point because it yes because it needs to do both things right if you would if it said we expressly reserve jurisdiction said we we re re re man for the purposes of of examining the cat claim you really think that that that that  that opens it up to the i j a for all purposes well isn't the real problem simply that it failed to as it did here to expressly reserve jurisdiction i would argue no i would say that that it not only one more does the b i have to say it needs to record we'd have a cat claim in end of story if if you if you read that that language to to to qualify or limit the scope as opposed to stating a purpose for the rematch why are we ready many think if the cia said we expressly reserve jurisdiction what more does that have to say i think that would be fine now that would be good well that i wish they do that or they don't hear them then that's that's really your point isn't it that they didn't say we express to reserve jurisdiction which is the first first of two points they are they they they they told him what he wanted to do your argument is because they didn't express the reserve jurisdiction he was free to do something you jurisdiction to review the case rick reconsider it except new evidence entertain new motions do whatever needs to be done in that case the chase hands are not tied and that's exactly what happened here the i j a said i think i can based on fernandez based on patel the judge site souce case as in his decision says i think i can revisit this my decision on asylum in withholding and find in favor of mr bermudez and also find that he's credible so i'm changing my mind about credibility i'm finding that he's eligible and finding that he was prejudiced because he was not given the effective assistance of counsel and granted him asylum county you're down to two minutes you want to reserve time yes you're on our way thank you a doesn't follow its own rules and say we expressly reserve jurisdiction the the argument petitioner goes to the authority of a board decision in their three points they need to be made first of all it was this court that on eleven one two thousand and five at page nine fifty three of the record issued an order that said the matter is remanded to the board for consideration of petitioners at that meeting the board couldn't consider anything else no way dilated our under under its rules it looks to me like the board has to say that we expressly reserve jurisdiction that looks like that's what the board has sad and that all the third circuit did in johnson and all we did in fernandez was simply enforce the board's own rule when and all the other cases that we talk about there's never been a situation where the this court has issued an order and it went back to the board to now take action on remand to is your question did the board have the authority to submit the remain for further proceedings and yes of course it did but it didn't do that well i understand it had to eliminate the purpose but it has previously said in patel that unless we expressly reserve jurisdiction and i j may consider other issues and we would submit that the order of the board that was read twice to petitioners counsel specifically does limit the there's  i'm missing the first step where is the reservation of jurisdiction the reservation of jurisdiction is in the explicit language of the board that says this is for a narrow purpose to address only can we're supposed to read into that the express reservation of words does that is that the board's position that johnson is incorrectly decided in the sense that explicit words are required by the board in order to effect to remain when the board in detail follows i  you're dancing all around to counsel really would like to force an answer no you don't want to answer the question i will try one more time is johnson good law no it's not ok and the reason it's not i appreciate the straight answer the reason that it's not good law is that it  over substance and it didn't we didn't we had doc johnson and we followed johnson and fernandes we would submit that the court never said that magic words are required to understand that yes did we did we did we cite johnson decision in fernandez we would submit that the court for an end is didn't expressively address the situation that we have here and because the facts are different the court has an opportunity to revisit the any and we could disapprove this yes without running afoul of fernandez yes we would submit that you could because again the difference is is that imprint end as there was a remain for further proceedings in remand is there was no prior order of the court that was the guiding light for the board to take action when it ordered the remain and and so the key words in fernandez that were problematic for the court is the remaining was for further proceedings that in contrast to page nine thirty of the record were the remained was not for further proceedings further proceedings does not appear on page nine thirty what it says further consideration of respondents cat claiming this court in its order of november first two thousand and five noted there was an agreement between the parties an agreement that there would be a remake and for consideration of the cad claim but titian are exactly what they had agreed to do in two thousand and five before the court they got consideration of the cat playing secondly the board this court said that upon further review if there is further review petitioner can raise all of the issues that they have with regard to their claims of relief before the court and petitioner gets that and i'm not sure i agree with you but let's move further there's another way that we could look at that and that's to look at the initial adverse credibility right you want to go to that first judge by we would let you go i'll let you go now but  f got to follow through if he's going to find that there's an adverse credibility issue first thing he's got to do is when we get this out here and you tell me if i'm wrong it seems to me he's got to find first of all a if you will one guy petitioner saying one thing one time and one thing another that's the first then after  finds that the next thing he's got to do is confront them right and then after confronting them he's got to listen to the explanation and after he listens the explanation then he's got to say that explanation isn't any good for this from this reason in my view that's the way it's got to be done or you don't sustain what the i g a did but you agree with me on that yes a sonic star i also tell me how the any one of these omissions or these dates or these educations or with his wife and his living six situation or any of those meets that standard because i took everyone i'm through just exactly that approach and i can't find the meeting it well we just pick one we would submit that what the immigration judge has to do is listen to the words of petitioner because words are w twice in the last time my father didn't want to pay these extortion payments to the fark was when he was beaten them he testified he's testified at page eleven eighty three through eleven eighty four eleven ninety three ok that the first time he was encountered by the guerrillas is when he was beaten so then one is beaten goes to the heart of whether they were beaten and the immigration judge noted that inconsistency the reply or page twenty one asserts the petitioner was beaten more than once but that wasn't petitioners testimony so not only when he was beaten but now why he was beaten in his asylum application he said he was beaten because his father didn't want to pay extortion payments at page ten twenty seven in his testimony he stated it was because this family supported the president elect of the new government in in the country and page eleven eighty three through eleven eighty four so not only when but why and then secondly what action what action did he take he said he left front of with the inconsistency is not confronted with that in kids as he was given the opportunity to explain and what were his explanations his explanations were number one after after the explanations if that's really what happened after the explanations to the i j a tell me why he didn't accept the explanations the immigration judge said that he found those were inconsistent these relating to when he was beaten and why i was beaten and the immigration judge very analytically with your algorithm said now let's look at the explanations of petitioner and the immigration judge addressed each of those he said there were memory problems from eleven nine hundred eleven ninety five in confusion but what's important is petitioner didn't explain how his memory problems in confusion tied to his inconsistent testimony the contradictions in the omissions he said that there were page eleven ninety four petitioners a second explanation was these are not very large changes i appreciate your trying to get through  this quickly counselor because we didn't give you a lot of time but i took each one of your omissions that you've just i took each one of the well first of all i don't have a lot i can do with dates because my president suggests the dates are not really something they're in consistencies that's not something i have to look at i look at the failure to discuss is education at the university and i tried to find something about that like about the issues with regard to his wife and their livings situation frankly i thought that was speculative and related to the persecution but even if there were materials i can find that they were confronted and after being confronted that the i j a explains why he rejected the explanation of the petition he was confronted your honor and he gave explanations with regard  to another you could give me some pages which show the confrontation i would refer the court to eleven ninety four eleven ninety five all right i got it down ok got to go look at it again and if it doesn't have a confrontation you're dead those are those are situations where the where the immigration judge asked the petitioner about inconsistencies and for example with regard to the omission he even addressed not only inconsistencies but also admissions omissions in petitioner said i didn't think it was necessary so that was another explanation so in summary i think with regard to the adverse credibility finding again we go back to the standard of review does substantial evidence does the evidence of the contradictions and inconsistencies go to the heart of the claim with regard to when it happened always get there if you have there really is an inconsistency that's really worthwhile not just dates or something else and if it's the petitioner is confronted dad on here's the and here's what you said one time here's what you said another dime i'm confronting you and what is the reason there for and then after that and here's the reason i don't believe you then it seems to me i get to what the standard your view is you've got to follow the procedure first we would submit that the immigration judge follow the procedure in making declaration regarding ineffective assistance of counsel says these words quote i told her everything that had happened to me my family and me in colombia when it went when a petition or comes before the court is i told my lawyer everything then how can the argument be that the lawyer didn't prepare and didn't that easy counsel if if if if he's told her everything and she didn't follow through she didn't prepare she didn't present what he told her didn't include it and you know whatever statement they were prepared for didn't prepare that that's clear evidence of ineffective assistance of counsel we have those kinds of claims before us all the time but that that that there was some prejudice established with regard to for example documentary evidence petitioner says well i told you everything and then he says my lawyer didn't have me prepare letters from my father the record belies that on page twelve ten through twelve fourteen the immigration judge permitted petitioner to read from six letters of his father so petitioners testimony also page nine hundred eleven ninety eight where he says that he contacted his father and he mary obtain documentary evidence but he was unable to do so because of mail delays that belies the assertion that he was never initiated that he could possibly get documentary evidence to support his claim ineffective assistance claim he has not established either deficient performance nor prejudice there in this case is a right hand in the left hand the right hand is a process issue did the immigration judge have the authority to exceed the explicit command of the board to address only the cat claim no the immigration judge did not the immigration judge was tasked with making a specific finding with regard to the cat  you your honor pages eleven ninety four and eleven ninety five are questions from the trial attorney the government attorney they were not questions by the i j mr bermuda's based on the experts testimony has  traumatic brain injury has cognitive problems he has definitely has memory problems tell the court those are not getting any better with the passage of time mr bringuier does have a job driving a truck he got fired because he couldn't remember where it was ago when he couldn't follow the g p s instructions on the truck so that this memory issue was a real issue i think the judge took that into consideration when he got the case back with respect to what was agreed to before this court in back in two thousand and three or four when this case was up here the first time the parties agreed to two conditions two conditions number one mr bermuda's would not be deported while the case was ongoing and number two that mr bermuda's could present any claims that he wanted to on remember when it came back that was set up that just tells you that the record is open with respect to appealing issues to us correct but there was no there was step the government keeps making this argument that we stipulated to it that they remained was exclaim a ted exclusively to the issue of the cackling that was never i was i was there that did not happen there is no nothing on the  that happened and if you look at the order that the circuit mediator filed with the court a week before the final order was out he says that the parties have agreed to two conditions he lays them out and that set he says if nobody has an objection the court's going to enter an order in a week the order comes out in a week and in that order dropped into the second paragraph of that word or is that the statement about its remounted for the cat claim i've never seen that before that was not you know that was not something i agreed to the circuit mediator put it in there the case was if you read the docket for that particular story you this order was filed in two thousand and five are you not protesting to us this order no i'm not protesting the order your honor i'm just protesting that the government's i mean the the i i certainly was not privy to that to any discussions that you had with the mediator so all the b i a can do is look at our order could tell us that you're surprised by the second paragraph doesn't really help the b i a tell us that the b i a is wrong when it fought when it seems to have followed our directions well it but the mandate which has been in effect for over one hundred years basically says that when the court the court of appeals hasn't actually decided anything and sends it back it's sends it back for a decision on anything and everything like your eyes your side their best argument your best argument is patel so be i only rule not nothing nothing not our mentioned that you believe that the i j a took into consideration your client's cognitive problems when the case went back to the i j a is there anything in the record that would indicate that and we will turn next to you