two thousand and twelve testimony was not credible is not supported by substantial evidence and should be reversed for two reasons first the immigration judge and the board of immigration appeals fail to consider mr rojas as reasonable explanation for the one material inconsistency that went to the heart of his claim whether and to what extent he had committed acts of torture while serving in the peruvian military and second the immigration judge and the board of immigration appeals gave too much weight to perceived not apply and for that reason the immigration judge was down to consider mr rojas is reasonable explanation for any inconsistency is the go to the heart of his claim and explain why the immigration judge believed those in consistencies were not those explanations were not credible any failure to do so meant that those inconsistency as he did consider i mean he did consider the explanation it's in the decision well your honor the immigration judge did make a one line reference to it on page twelve of the opinion which is one on one of the record but the legal standard in this court is that a reference or pointing out an individual's explanation for an inconsistency is not sufficient so was he supposed to say well what he was supposed to say was up to the immigration judge but the immigration judge should have at least given a reasoned explanation for why mr rojas his explanation for this key issue was not possible and the immigration judge did nothing you're talking about when he thought when he said he was referring military when he said he was for in militarily correct to really correct your honor and and if i may i'd like to take the court through a little bit of that testimony because i think it will illuminate mr rojas his explanation on this issue so in two thousand  confusing question by his attorney it was put did you yourself taking to prison individuals that you have encounters against and his response was i tortured people and i know that's at the record at thirty six seventy three there were no further questions by his provide context for this all we know is that on cross examination he was asked by the government how did you torture people and he listed he responded by listing various activities all starting with the word we we would blindfold the faces of the terrorists we would beat them and that's the record of thirty six eighty two now during his two thousand and one testimony mr rojas never confessed to personally torturing anyone and was never asked what role he personally played in any of these activities now flash forward eleven years and in two thousand and twelve he's finally given an opportunity to virtually explain his statements in two thousand and one and he's asked again what role did you personally play did you personally torture anyone and he testified unequivocally on numerous occasions as throughout the record that he did not and that he then explained as your honor mentioned that we said i torture people and i could show and i listed these various activities i was referring to activities i believed that my platoon may have engaged in on one occasion and also stories and rumors that i had heard as a low level soldier in the peruvian military about actions that the privy military had engaged in in that region where the shining path was active now in light of the confused testimony in two thousand and one and the lack of follow up on these two points mr rowhouses explanation was a plausible one and the immigration judge was bound to consider it his one line explanation or not even explanation statement that that was mr rojas his explanation was insufficient he didn't have to accept it though correct no he did not have to accept it but he did have to explain why it was not a plausible explanation and the board of immigration appeals in reviewing the immigration judge's decision erroneously concluded that because the immigration judge mentioned it in one line on page twelve and that's the only citation in the board of immigration appeals decision to that point in the immigration judge's opinion the board of immigration appeals also here because they were required to hold the immigration judge to the standard by this court which is again to explain why that is not a plausible explanation for this key issue now i'd like to also briefly turn to the second point that i made earlier which is the immigration judges improper reliance on in consistencies the did not go to the heart of the adjustment of status claims i know again the heart of the issue that was before the immigration judge was whether and to what extent mr rojas had been involved in any acts of torture while he was serving in the peruvian military and whether that would be a bar to his admissibility real id act case the immigration judge was not permitted to rely on any minor in consistencies or omissions those are not an appropriate basis for an adverse credibility finding and the immigration judge here relied on three minor inconsisten of the number of quote encounters that he had had with potential terrorists now these do not go to the heart of the issue which again was whether and to what extent he committed acts of torture but in addition the immigration judge it's clear when you consider these statements in context that he mischaracterized several of these and consistencies and did not look at the context and improperly concluded that they were inconsistent and i'd like to take the court through a couple examples of that i'm familiar with what you know with what you i think we're familiar with your tortures activity may have gauged and was under threat or he was coerced essentially under the threat that he would be killed if he didn't do this now that argument was raised in your brief before the  not quite exactly like that but the gist of it was there when i read your brief here that argument drops out but why why why did you give up on that argument or your honor and i can't speak to the reason that that particular issue was not raised on appeal i do know that in reviewing the immigration judge and the board of immigration appeals determination a decision was made to the two legal standards in this court one that you need to again explain why any inconsistency that is pointed out and why the immigration the applicants explanation is not a reasonable one you need to explain and second that you can consider minor inconsistencies those were sort of two glaring errors that were noticeable from bo that that he did all the steps correct your honor and i think that is still our position and the reason that the relief we are asking it women who are not pursuing that argument here we are not pursuing that argument on appeal however we are asking this court to deem his two thousand and twelve testimony credible determination of that issue that would be our analysis i mean obviously the f b i and whether or not that was for because it's not entirely clear that well it's an open question of the torture of our whether or not you know if you act under co findings from the first from the first hearing right and that's correct however i think even the findings from the first hearing i'm never go into any degree of detail regarding what role he personally played but what he ever dead on it was only in two thousand and twelve when he was given an explanation to actually given an opportunity to actually walk through the explanation of his role and what he had done on that we first see just how low level he was and the fact that his role was limited to serving on his regular guard duty on the rooftop of case law construing the flexibility of the torture by statute the only published opinion is a six or good case of dillagi versus holder which is a two thousand and twelve opinion in which they essentially determine whether there was a nexus between an individual's actions in the torture that occurred and the sea i'm sure now assuming for purposes of this argument that we are bound by the two thousand and one testimony i don't think that a one word one sentence statement i tortured people and i could show which again was in response to a question that didn't even ask him whether or not he had committed acts of torture it was did you yourself taking to prison individuals you had encounters against that statement combined with a paragraph in which he lists actions that we took on is not enough to show any nexus between his actions and torture or a degree of c enter about activities that were involved he was involved with and i think that you know going forward to two thousand and twelve it's clear when he is given the opportunity to expound on these statements that his involvement was actually quite limited  contradictory on this issue he's actually been remarkably consistent with the exception of a one word response he gave in two thousand and one in his asylum application he submitted to the court that he was part of the peruvian military obligatory military service and in two thousand and one he was just asked by his attorney was your act of joining the military voluntary or interrupted his attorney and just said voluntarily and then in two thousand and twelve he testified again that his service was mandatory and also submitted documentary evidence to support stating that unequivocally we've been males will require to serve in military during this time i think for these reasons on the immigration judges is on decision to take this please the court i'm mark walters representing the attorney general in two thousand and one mr rojas said i tortured people he did not when asked on cross examination did you torture people in peru say no i didn't mean to say that he said in the emergency zone ok can you explain how you torture them really do you really want to know the details and yes and then he went on to explain in gruesome detail how he tortured them now he says when i said i meant we and also when i said what i meant to we i didn't mean to include mean he's laying it off on the peruvian military generally or others in his unit when he gave that explanation and the immigration judge and later the board did consider it the immigration judge on mention a number of things that cut against it first he was found credible in two thousand and one and he never appealed it and the government never challenged it second he gave the gruesome details and heard he had mid some involvement  torture in two thousand and seven when he was started backtracking from this i tortured people statement in two thousand and seven he says well i didn't torture people but i was a witness i heard and observed what was going on while standing guard they also both the board and the i j a noted that his eye tortured people statement is consistent with what he put in his asylum application which was to check the box yes when asked if he or any member of his family had ever harmed someone and then finally his entire application for asylum in two thousand and one was based on seer of what the shining path guerillas would do to him because of the torture and if he meant we not including me then why did he say when they asked well how would they know you were involved in torture our faces were not covered totally inconsistent with is explanation that i does not include me and means we would not me as far as the other and i said we would submit that that alone i and i tortured people that there's almost nothing a revealing court could do to overturn that because the explanations you give after that are going to be very difficult to to to make credibly in this case it hasn't been honored is explanation yes yes and it was considered and it was rejected and and substantial evidence supports the decision to reject it the as far as the other so called minor and they are more minor they are as they are an essential as this but they are going to the heart of the claim an asylum claim that says because of my military service in the marines and i'm going to be persecuted by the shining path when i go back well what was that service what were the details of it and when you say i am participated in the military voluntarily on one time and then later say it was mandatory you are distancing yourself you're trying to distance yourself from military among a certain age group and person in that age group could voluntarily join the marines well that's that's possible but at the knee he had you know here we have you know i don't know about you but you know in my year of we had mil you know we had the draft and many of my contemporaries joined up rather than waiting to be drafted sure if you wanted to pick your branch of the service you didn't wait to be drafted or you volunteered yes that unfortunately was not his explanation i don't know but i mean he had no idea why he sent it and that's on pages for a six and zero seven when he was asked as far as the training goes he initially said he was assigned to a unit that was designed to combat terrorism and he received intensive training to that end and then later he denied that he denied that that's what he was assigned to and denied getting any specialized training and when asked to explain that he had no explanation and that was  i'm sorry i don't have a specific page number for that but he didn't have an explanation for that one he said he was in combat constantly and this goes to the heart of the claim because the more contact you have with the guerillas the more they're likely to be able to tell who you were and the more they may be offended by your actions he said he was in combat ten to fifty times more than ten less than fifty when asked to estimate this is combat with the shining path later he denied being combat ever he said it was harassment and it was maybe three times he doesn't know why he is the word combat in two thousand and one when asked to explain when asked he said it was more than ten but now says two or three as i really don't know why i said more than ten minutes on page four twenty two so when you surround the main problem with this i tortured people with these other admittedly lasser things none of this court's precedent forbids consideration of other less central in consistencies especially if you can haven't considered cumulatively what you could hear and if it relates to the central issue in the case i have one apology i'd like to make to the cornyn opposing counsel in the reply brief they point out that on page thirty eight of our brief we overstate the situation by saying that he admitted he tortured people in two thousand and one and again in two thousand and seven that is incorrect in two thousand and seven he stood guard while torture was going on so elsewhere in our brief we've got it right but i we did want to point out on and off for an apolog commander an order yes ok now if you had not a big the order what would have happened to you i probably punished or blamed that i was cooperate ing with the terrorist and what would you think the form of punishment would have been against you it would have been mainly physical do you think you would have been killed or put in prison probably yes now then when i read the the  important issue of very important issue and i think what we have you know the in the very heart of the other thing that your argument that what happened in two thousand and one when he was seeking asylum probably makes some sense that he he may have his circumstances in order to support his claim for asylum on the other hand i thought it was also interesting that the that the immigration judge at that time said well if we didn't have this problem  i grant you know get relief well what the immigration judge sent is what they were doing to this shining path the shining path was doing to the marines torturing and he said that's how you have to deal with individuals like this you can deal with them lawfully that statement is completely contrary to law the fact that group a tortures does not mean that we have to admit somebody from group b who tortures but well later on in this i think i'm sorry i mean overt missed in this book but in the second hearing at the end of the at the end of the hearing the i g says well the torture boy didn't apply he would i would grant him adjustment of status yes well i read that your honor and this  speculation that this case has been going on for a long time it's been up and down several times i think the immigration judge was trying to indicate that if this gets overturned for any reason there's no need to send it back to me that this person is but unfortunately unfortunately the u s policy not to provide safe haven to torture is trumped that and if i may your honor the question about whether you said consider the dress argument when it hasn't been made there or is attacked the whole decision to be made are you going to say no i didn't torture and at the same time said but if i did i was forced that's a really hard argument to make on appeal and makes it even more incredible than maybe we are right now so i think counsel is stuck with the choice they made make one of the other i ok i tortured but it was under duress or in this case no i have an explanation  it could be a legitimate question if had been presented but it hasn't been briefed and it hasn't been presented and i don't think our statute provides a duress exception now i'd have to you know that that's not the department of justice is position because we haven't been asked to take a position on this that's just my reading of the statute on page one hundred four the minister of the immigration judge sets out can detail what the definition of torture never the board never really get it the second circuit sent it back to the board the board never really answered that question they have not yet answered that's correct your honor and and the supreme court didn't say it applies i know as you know i thought i supreme court just did not like the reliance briefed case where the petitioner actually pursues it all the way to beat the court and the government has a chance to respond ok fair enough unless the court has questions you're your own is if i may like to address to the issues that came up i mean the government's argument starting with the government's indication that mr rojas has been repeatedly inconsistent with the court that's a mischaracterization of his testimony if anything over time mr rojas has grown increasingly more specific in two thousand and seven and his two thousand and nine declarations he was not changing his testimony he was simply giving the specificity required by stating that he stood guard while serving on the rooftops the barracks and i could show which is consistent with his two thousand and twelve testimony the government would also have this court rely on the immigration judges two thousand one finding however the immigration judge in that case actually found that under those facts mr rojas was not a persecutor under the persecutor exception on two asylum claims and again simply because mr ross's asylum claim which he was pursuing in two thousand and one relates to his military service does not mean that any fact that relates to his military service goes to the heart of his claim doing making that rule which is contrary to this court's president would render the heart of the doctrine and precedent unusable in this instance and that is and that's absolutely correct because in relying on a series of factors including the fact that mr rojas has now been here since the age of twenty five he's now forty seven he has a wife and two children all of whom were born and raised in the united states and have never been to peru and he is their sole income provider all of these factors merited adjustment as a matter of discretion thank you your honor thank you counsel interesting case matter submitted