rebuttal please there are two primary issues presented before the court today first edition or request the court to overturn the immigration judges adverse credibility determination and second petition to request the court to determine that he is not inadmissible based on the material support ground of invincibility might correct that if he contributed money to a terrorist group and that's why the b i said that he was  ineligible that we have new jurisdiction we asked for this mess and because of our lack of jurisdiction we cannot review the adverse credibility determination actually your honor he didn't provide money to a terrorist organization to begin with you actually provided in voluntarily support in the form of food and shelter to to a militant organization that's not even through the fences yes i believe it would be and that in that case the court the ninth circuit determined that yes there is a factual if the issue is factual it would be bar he would the court would be barred from it but if it would in as far as it determines the asylum claim but the court does have jurisdiction to hear the withholding claim even if it is a factual claim however the real i d act which was passed after after the bell out case reaffirms this this court's jurisdiction to hear a case that involves a constitutional issue or an issue regarding statutory interpretation which through tional or legal fine but if it's a question of whether or not he's contributed material support to terrorist organizations that that he is not barred by the terrorism exception which would affect our jurisdiction because he has a defense of direct us that's correct and you're asking us to recognize for the first time it direct us yes you would be inadmissible because as the facts are on the record he has admitted that he and his family provided shelter and food to militants on three three occasions in india wh h of your credibility argument if you concede that the significance of the credibility argument would would go directly to the to the issue of whether or not he actually has suffered persecution  and we're claiming that he was credible and eligible for asylum once we've once we've proven that the government would then assert the bar but because he has because there is an address exception within the material support bar that he number two why that turns it into a legal issue is with posed to a factual issue the the the yeah it can judge the rest factually whether there whether it's there well this is a theory what we're on  respectfully request you to to look at the record and he didn't provide money again he only provided he admitted he provided money but since material support can be money or any number of other things i don't see why it matters ok very well  again the this court does have jurisdiction to hear the factual issue regarding the support bar and so far as you're considering the withholding of removal issue it if it's a factual issue are you talking about the convention against terror relief the asylum issue however we are at we are arguing that this court must read the statute the plain meaning of the statute in a way that does not bar a victim of terrorism who has provided support under duress to be precluded from admission to this country council before you get before you i am very going to be very interested in hearing how you get addressed defense here but with that question decided by the  that will affect the way that we have to view this case one of yes well the be a was silent as to as to whether they were considering the facts or the legal analysis here so we we would he mentions the patriot act and how it expands the grounds of inadmissibility for material support see that and he goes to the fact that that the patriot act now precludes anyone who knowingly affords who who forge material support whether they know so or not i don't know where does it say that page eighty eight of the administrative record any discussion of any evidence that there might have been regarding of it i just don't see well the evidence in the record is going to be that i can cite portions of his testimony t ministry of record at page one twenty seven he explains that the militants came to his house on three occasions the for the first all three times they had guns the first two times they were carrying him under blankets and were threatening in soccer that he supported callus than himself he's on their side ideologically so why would they have to doing anything to him well he didn't ever support any military activit partitioner supported generally the legal before you did anything through him they did anything they pointed the gun at his father's temple and told them that they would kill him if they didn't provide support to them in the form of housing that they were using they were directing the gun and we know that they were guns under the blankets or do you know if they had something under blankets which he assumed to be guns the latter you're on ok so we don't know if there were guns but he thought there were guns that's correct like me holding something in my pocket and pointing something that looks like it could be the barrel of a gun out of my pocket but i'm just guessing whether it's my finger or whether it's a gun guessing no because of what they had told him your honor they he knew that they were guns and guns on any one of the three occasions the third occasion they actually took the guns out and pointed at his father's temple and told him that if they did not provide him with the requested form of support that they would in fact kill his father and steal everything that the the that belonged to his family and now we're the i j a doesn't actually discuss those those particular facts what he does is he assumes first of all that he's incredible second of all that the there it doesn't matter whether or not it was under duress because anyone who knowingly affords material support according to the immigration judge is barred so he doesn't actually fully consider the dress exception i'm so i can't quite hear you start assuming we would reach that issue as to where there's an arrest exception what would be the authority for finding that we look a little bit at the legislative history it seems that the attorney general has given the  finding that as opposed to concluding that something the executive has control over well first of all the plain meaning of the statute doesn't doesn't resolve the issue if you look at the statute says to provide or to support or to material support but the terms provide or to support the implied deliberate action there's a voluntary elena's that's part and parcel of the statute here so we don't know just reading the statute whether congress intended this we know if we look at the congressional history of the real i d act they didn't mention this no one in congress mention this because everyone was this was this act was passed from fact rather quickly through congress and no one actually went to the intent in barred from asylum or barred from immigration benefits if they so intended they would have either talked about it during their legislative if they or they would have put it in there in the statute itself they didn't do that here so it's proper for the court to use canons of construction that have been employed by the supreme court and the u s court of appeals for the ninth circuit and the congress that you must construe the statute in a way that doesn't lead to an absurd result this year would be an absurd and a futile result congress did not intend to bar victims of terrorism who provided support under duress from receiving benefits there are no threat to the u s to the u s population there they are the definition that the department of homeland security is advocating is overbroad and goes way beyond congress's intent secondly there's another kind of construction that's that this court has used consistently in this recently as two thousand and five and  construed in a way that that is that ends up in favor of the alien and it's also this the statue as the department of homeland security advocates is absurd in futile in that it would contradict both the purpose of the immigration and nationality act naturalization and it would also be inconsistent with international law the the u s has has signed it the refugee convention and in article thirty three of the convention we we have obligated ourself to our country to allow a legitimate refugees into this country and less they are a threat to this country if we apply if you interpret the statute to exclude someone who is not a threat to this country and just because because we determine that congress intended to to include victims of terrorism in this definition then that would that would be inconsistent with our international treaty obligations it's their own credibility why wouldn't we still sustain the b i a that the crowd size did not impress me much but the difference between three visits and seventy two visits from the terrorists that's effectively here petitioner testified that with regard to the seventy two visits he never said seventy two visits he this saddam officer asked him how many times during which intervals of the militants visit you he said that they came one or two months that's what that's what his testimony was meaning they came one or two months the second time they could visit him one or two months after the first time the asylum officer misunderstood this testimony and he himself calculated seventy two visits petitioner never said that it from that from these notes at all it appears that because he put in parentheses that it's consistent with petitioners testimony but more important and there's a couple of times a month for three years seems to have been the testimony it what the asylum officer understood we don't know what was asked and answered your honor and further injury under chain our wall does allow somebody to get around what he said to the asylum officer in some circumstances but that doesn't mean that what he said to the asylum officer doesn't count in any circumstances that's correct your honor but here the way that the immigration judge precluded the petition from allowing his attorney to cross examine the asylum officer here when there were serious doubt as to what was actually said in and asked of him at the interview is a violation i believe of his due process rights it fundamentally provided deprive him of a fundamentally fair hearing good afternoon may it please the court i'm larry croupe on behalf of the u s attorney general and they also have with me here today chris fuller as co counsel from the department of justice but just not a full and fair opportunity to present his evidentiary hearing the immigration judge briefly mentioned it i think you may have brought it up or perhaps petitioners counsel and what he simply said was he has seen no evidence in the law that he's looked at for any type of dress exception but he never mentioned it in his actual opinion and that would be at the administrative record page one eighty three is where the immigration judge mentioned it during the evidentiary hearing now yeah ok there was giving an opinion as  and if that's the case then aren't we obligated to send them back in the first instance to let them under ventura and let them decide the question your honor that would be the case if in fact this court needed to reach that issue but this court really does not need to even address that issue at all the immigration judge is primary finding in this case was the petitioner was simply not credible and that finding is supported by substantial evidence that is this court must uphold that adverse credibility terminations unless the record requires that we believe petition that simply isn't the case or basically you're saying if if we lacked jurisdiction on the record as it stands then we have to dismiss but if on the record as it stands we have jurisdiction we don't have to remain to really find out whether we would have jurisdiction if they ruled under arrest that's correct and what the primary finding was was an adverse credibility determination which this court asking about those two things the appellant i wasn't impressed with the size of the crowd discrepancy i didn't growls and i have no idea how big they are and i wasn't too impressed with the discrepancy in  didn't make a mistake on on that but the three versus seventy two visits and not looking like a street that interested me the appellant says he wasn't allowed to cross examine them to go off the record so i'd like to know what the responses examination i'm not sure why there was not his attorney was present at that interview and that's reflected in the record on page one seventy five on he did have his attorney there he was under oath and he did have an interpreter which he told the immigration judge that he didn't understand what was going on in that proceeding because the immigration judge did question the petitioner during the evidence you're hearing he did confront him about the inconsistency in using the record and to give petitioner a chance to explain and i believe that's on one fifty six come for three years until one thousand nine hundred eighty eight the assam officer event said well three years do you mean ninety eight you ninety nine i think initially said ninety six to which petitioner simply made no response so he was given in addition to the one month or two months another opportunity during asylum interview with his attorney present to clarify what he meant so even you know there's the problem with the three versus seventy two there's an additional problem and which is that the taliban commando force terrorist group continued to visit him according to petitioner simply didn't address and moving to another inconsistency in his testimony which are the dates your honor which you had some difficulty understanding why this would be important the immigration judges concern w that initially petitioner said on november twenty first he said this in his declaration there was a rally he attended a political rally he then subsequently changed it to january twenty first so he had solidified he was at this rally january twenty first when his father in a sworn declaration said petitioner was arrested january first petitioner as well to be asylum officer january first subsequently at the immigration judges evidentiary hearing he then said january twenty first the immigration judges concern was a date was changed that he was arrested on the same day as the rally and thus to enhance his claim of persecution is why that date changed that's why the immigration judge pointed that out but that is one of several inconsistency in addition to a ral numbers petitioner told the immigration judge asked his evidentiary hearing to in response to a question do you belong to any political or religious organizations he told the immigration judge no i do not  of the rally yes that's correct in the immigration stead simply that he believed that this was this change in date was to enhance petitioners claim of persecution in addition the immigration judge said twice in the record this court does not know what to believe with regard to respondents testimony the immigration judge says that an eight page eighty three of the record and then he says that on page sixty seven of the record this court simply does not know what to believe what was the explanation for why those who were feared in the other i don't believe he gave an explanation i think it was the type of sikh religion that he spouse was my understanding from reading the record that he didn't follow i guess all of the five k s or didn't have the hair and beard and is his primary finding what's there for the material in the record about whether there is in fact such a group within his religion with those that follow the five cases i just never heard of a state not following my case there was nothing  keys and i want to know if there's any more about that there's nothing in the record about that nothing more simply petitioners statement that he did not that was it fumigation judge additionally found that the lack of cooperate corroborating evidence particularly medical evidence was troubling in terms of petitioners credibility condition or did have a doctor in the united states that he saw in fact he had a note from this physician because he had mistakes hearing from me in front of the immigration judge but he never saw a physician in the us to verify his injuries and the immigration judge found out given the alleged injuries there would be evidence for a doctor to look at in this country furthermore he had no evidence of any of the alleged hospital stays from when he was back in india finally the immigration judge found that his story was implausible in addition to the inconsistency is because the country conditions simply do not support that story given all of the six different factors including this three inconsistency is to go to the heart and the terrorists visiting him he invited them into his shelter on his property where he shelter them he knew they were running from the police he stayed there he shelter them but they and they believe that they that they were armed and maybe they demanding that they be shown what was under the blankets before they helped them out right you the problem here is even if we could believe petitioner we just don't know what to believe in the immigration judges in the same position unable to reach the duress question at all because the not know what to believe the facts are just so muddled unclear the story is so not credible that we have no facts to work with whatsoever however there is if you were even to believe there is simply no direct exception in the law but is that for is this court needs not reached that issue this case was about adverse credibility the immigration judge's findings on adverse credibility are supported by substantial evidence the record does not require that the belief petition material a mere four we could not review what the immigration judge found to be not credible as his entire story that is even going up to address clane whether in fact he was under duress how many times these terrorists came to his house over what context and background and found that petitioner story was additionally incredible given the country conditions in that report and given the fact that if this militancy didn't exist how could he have these interactions with them on the secret as a patient in elections  in the national parliament then how could this story hold together that was another factor in the immigration judge's findings would you conclude from the record that the immigration judge found the claim with the rest incredible other claim given the fact that the facts are unclear that they were inconsistent that they were not credible the dates were changing that petitioner was not only contradicting his own testimony under oath at the asylum interview but he was also contradicting his father's own sworn declaration and this was to all the facts government the judge notes that he will not allow the petitioner to cross examine the asylum officer because he because the government was not able to cross examine his witnesses that was his reason i walked through there he could have been there well that was was their request prior to the hearing from the defense that the asylum officer be present with the department on security the way the way which an immigration course is often the department of security literally surprises a petitioner when there's a witness that you think and hope will testify for the other side because you're loaded for bear on that witness but if the lawyer on the other side is smart he never puts the witness on as so what you do to protect yourself be for the hearing i gather from what you're saying you can't subpoena witnesses in these immigration hearings they usually put the asylum officer on however if you think the asylum officer was going to be valuable to you that would lead to inference as number one they may be smart enough to figure that out not have them there number two i want to request prior to the hearing that he be available was i thought well that would the your argument you're on actually correct and if i may just address your request because of a witness who wasn't there