case i think the court could grant and should grant the petition for review and could do so either on constitutional grounds or on non constitutional grounds i think that the due process for it makes sense here because what happened before the immigration judge smacks of unfairness basically positioner was deprived of an opportunity to present actual full live testimony on the record addressing the k reconstruct the record if i remember the cross examination is the first time at which your client was confronted with the inconsistency right thread and all we have are the immigration judges notes that give like a like a one sentence response your position is that your client in fact gave a much more fulsome response that's not captured in the notes or what i have no idea so that's what we don't know well that seems like a real problem if you have the burden of showing prejudice right well so because let me just what you what i heard you say and the reason i jumped in was that you said he was deprived of the opportunity to put on like a four legged entry presentation and i guess i my assumption was that well now all these required to be given is an opportunity to be confronted with the inconsistency to provide an explanation and then the idea can you know make a determination and it still sounds like he was given that opportunity here well in a sense but there's no we don't know what his the i j a in her in her written decision said that his explanation for that wasn't thrower impelling enough but we don't know what his explanation was we don't know how thorough it was because all we have are her notes i think with respect to prejudice there's i think two things that really support an argument as a prejudice one is that the i g herself after the hearing before she handed the case out to a law clerk in the written decision was prepared found him credible and said that she believed him and that credibility was in and i've lost the chronology here evidentiary hearing then subsequent to that several months later she called the parties back in for a status conference and said you know i'm sorry i did not i failed to record the cross examination i do not think credibility is an issue that based on that you know finding that you know sort of promise the party stipulated that she could do so and why would they have what would the petitioner have done if she had said credibility may be a problem well according at ninety where the court said that the critical question for due process is whether and i just action prevented the introduction of significant testimony this is not quite like any of these other cases but here i would say that the i g prevented the actual hit him from having an apple actually opportunity present live testimony that's captured on the record and it's significant because that explanation of this inconsistency is something the court has apparently has to be given and has to be provided but i guess i would have assume your theory for prejudice was a little bit different which which was simply that when the i j a made the representation that i don't think credibility is going to be at issue that  g had said otherwise your predecessor petitions counsel would have said well if that's the case then we want to make then i object to your one sentence summary of what his response was because in fact it was much more fulsome and if if you know less counts for the government is going to stipulate that he said the following eighteen things then i want to basically redo the cross examination so that we can have a transcribed record not that you would  necessarily get a brand new hearing because he had the opportunity when confronted with the inconsistency the first time rebel i don't mean a brand new hearing but the choice it with a question was whether to redo the cross or to accept having the notes rea sure here in those cases the court has said that when i do prevents the introduction of significant testimony prejudice is found easily because the testimony could have been compelling and so it may have affected the outcome of the proceeding i think here for prejudice v facts of the outcome could have been different is illustrated by the by by two things first even without looking at the sound officer's notes which there's you know the motions panel said they could notice but i know that's sort of to your reconsideration but even without looking at that the i g herself after the hearing found him credible so that's as to the asylum officer before so i think that's an indication that you know before she had the case after the written up she had said on the record that she believed him that's you know closer in time to when she actually heard his testimony heard the cross examination before you know the person of the law clerk read of the decision was just relying on the notes i think that illustrates the outcome really could have been different there was an updated application at which point i assume he had counsel and they just copied verbatim i think the old language and why would he i think he signed something saying that this thing had been read to me in my native language and everything in it is accurate why don't you get a pass for that well i think i mean i think it's clear you know i don't know exactly what happened there but it is right that it was copied verbatim from the old application and we know from i think the  demonstrate that at least he was asked about that before he explained it had never been read back to him i think i strongly suggest it was never read back to him again he doesn't read english he signed a form that isn't her attorney get him to sign but i think if anything that just sort of shows you know the further prejudice i think the fact that are the same sort of means that if anything we should look at them more to the explanation from the sound of his notes originally in which he addressed exactly the same content of morning honors me please the court alexander later the government your honour's this case involves two alleged procedural due process violations but the petitioners arguments fail at the prejudice juncture on both of them  bench notes that he's never shown to have been materially inaccurate or a missive and on which the board's decision explicitly refrained from relying right but but that's kind of unfair because i j had said credibility is not going to be at issue so why would the prior council have had any incentive to say your honor you've you know willfully sort of under represented what he what he said at the hearing i mean i j said that he was asked this question here is the it's like a one sentence summary if i remember and she did use them to correct the immigration judges bench notes in a couple of respects but moreover yawners but the immigration judge said i i don't know i don't find i don't find him don't find him to be incredible in this testimony which is why i believe the exact formulation of his answers if they are slightly different than my notes from what he said that factual information provided that the factual information provided is accurate and correct i fully acknowledge that i fully acknowledge that that's on the record jonathan make a couple of points in response number one there is no indication that the immigration judge was anything other than professional in the conduct of this hearing this is the only point at which maybe he's saying otherwise he was the immigration judge i don't know whether it's he or she was perfectly honest she said is it ok you know i i don't i don't have it but credibility is not an issue  find him what he said was so there isn't she remembered some sort of obligation to explain afterwards why she's gone back or he's gone back on the on the statement that was made  the right after the hearing no she didn't your honor but she did actually do what you're describing anyway when she listed in detail five different grounds for finding mr davis's testimony not credible and the point i was trying to make just a minute ago by pointing out that there's nothing else in the record that calls into question the i j s behavior is that the explanation here that leaps off the pages of the record is just that this was a pre decisional comment the record shows that when the immigration judge said this from the bench they had just started to prepare the written decision and the immigration judges law clerk realized we just forgot to turn on the recorder but she said it because there was a problem with the record i'm sorry she said there's no credibility issue here because there was a problem with the record and what what the what the i j a was trying to do was to say it's not material as i understood it and then the decision comes down it turns out it is material well mr could you just have the opportunity to confront those or he was confronted with those problems he had the opportunity to explain them on cross examination it was captured in a form that's less precise than we would have liked but at bottom here's the issue the only impact of the immigration judges conduct here on this record the only thing that results from the immigration judge having made this preaches original comment and then later being unable to avoid a credibility finding is that we get bench notes instead of  verbatim transcript of cross examination that's the only impact so the only way that matter just stopped short of course the reason that is important here is because the the fault the i j a found was that the explanation given for the inconsistency was not thorough and something right wasn't i just remember thorough being one of the one of the words so if that's true and in fact his testimony on cross like i said it was five paragraphs long not one sentence then then it is problematic that the lawyer didn't have any incentive to try to correct the i that particular moment well i understand your point but they would have had an incentive to make that exact point in their brief to the board prior counsel could have said here's what mr davis actually said on cross and this is what got left out and we have a transcript so how could he because prior counsel had their own notes and because mr good deeds had his own memory of cross examination and cross examination was about things that happened to him it's all about information that he already knew and he was there answering the questions there are so many different sources from which mr davis could have pointed  had known farther in advance that there was going to be an issue regarding his credibility and so it showed up at the status conference and he said no i want to have a read on cross examination how does that help him his cross examination he doesn't renew cross examination these pensioners are still there the immigration judge and everybody involved know what he said at the first cross so he either says the same thing again we've got the same inconsistency is a diametric flip flop between being targeted by the military and targeted by guerillas or change his testimony and now we've got new like you're assuming that the bench that the bench notes are are accurate because nobody's taken a position the contrary until we get here iraq is it because they were told that it didn't matter your honor that but they were told that before the immigration judge they had mr could you just had every opportunity on appeal to the board to point this out at that point the average credibility finding it already been entered i understand your honor's point what he that he had no incentive to bring it up before the i j a but if we accept for a minute that point he has every opportunity and every incentive to bring it up before the board and say no here's what i said here's what i didn't say he's got to show prejudice and this isn't just a technicality i mean a procedural due process claim it's not just enough to identify that a mistake was made we really have to show what the problem was that resulted from that mistake and mr good uses just never said here's what i would have said differently here's the evidence that didn't get captured here's what i would have done and it's hard to imagine how that could work anyway where like i said a minute ago if he does a read on cross either maintains the same is inconsistent you're crazy once i think never had a chance to correct it i'm trying to remember is there some other later point which he himself like during the the asylum officer interview made this mistake i thought it was just in the applications let me just say i can understand the system  statement that he made three fourths of which was never turned over i'm sorry i'm sorry trouble following the question you're saying that what he said in the cross examination i don't know what he said when he said consistent about the fact that who actually sold for the murder was far and those nerves were never turned over well your honor even setting aside all of our other arguments about these notes just for a minute it's impossible to come up with a scenario where these notes really help mr good didas because number one is judge wapner pointed out a few moments ago after he told an asylum officer that wasn't read back to me he cements a brand new sound application with the assistance of counsel where he says exactly the same thing so we've still got an inconsistency even in the notes come in and furthermore as we pointed out in our brief he's got this inconsistency about the military versus the guerrillas the notes are just one piece there that really doesn't fix it because he's got this other new application but the notes introduce new and consistencies it's a whole third story about having his hands tied up and being attacked by a group of people because a brother was in the military and none of that comes out of any other point so even if these notes come in if anything they create more and consistencies and furthermore he never before the agency said oh yeah what about these notes or do you have to know about the notes all you had to know was i said this at some point or he would have just said my asylum application at the beginning wasn't read back to me you know again this is all his own testimony he's faulting the government for not giving his own statements about facts that happen to him back to him in a record that is of arguable reliability at best and that introduces new and consistencies into a record that already has an consistencies so bottom just neither of these documents really is going to make a difference mr davis has the burden to show specifically how either of these alleged errors are not just proceedings off course and it's he's got a number of arguments about that here but he didn't put any of them before the agency in a bar and we can look at what these documents say and see that their impact would have been incredibly limited ok thank you counsel thank you  exhibits eleven and twelve that were mentioned invention and it's are those are i had to thirteen's that's all she says there's no correction based on her more thorough notes or anything as i'm not maligning the i j i j who decided this case is actually very and i think what happened here was she herself found him credible more time passed the case was handed off to a law clerk to be written up no disrespect to the law clerks in the room either but i think this the a complaint that what the i g did here by disregarding this agreement and finding him incredible was unfair and that it prejudiced him and that he didn't have an opportunity on the record to explain the inconsistency all of that was raised to the board with respect to whether he could have sex should have said to the board what he would have said otherwise the board doesn't find facts and doesn't accept evidence on appeal so i don't really know what counsel means when he says he could have explained that to the board on appeal i don't think that's i don't and i don't know if they got confused or mistaken which is more then which is different and more than what you characterize it as which is you tried to convey it was a gorilla as well as to read well what do you want us to do  so i think i think that if you find i think that you can find a due process violation and prejudice what the remedy is what and to the board have to go back to the idea for a new credibility analysis and i think  and i think to have him have that opportunity to give an explanation for this which i think especially based on the notes i could see coming out very differently when he has a chance to explain it seems what seems like happened here which is that both times an attorney prepared the application they didn't read it back to him that all along his account has been that it was that it was the gorillas that prosecuted him and then with respect to the is sort of further inconsistencies with then they are notes that something that they didn't say will have to address whether those inconsistency is pretty real id are enough to still find him incredible but that's not something that he conducted in the context of the existing record well new evidence could be presented i would certainly file