reach serene represent a young individual who just turned twenty one a few days ago and came into this country crossing from mexico at the age of eighteen due to a traumatic event that happened in his life where he witnessed the murder of his father there is no dispute his father was killed in two thousand and eleven when he was approximately fourteen years of age the indian government in the death certificate refused to state the reason of his death or how his death was caused he was medically evaluated at the port isabel detention center and he was evaluated as well by an expert provided by my office and both diagnosed as showed he was suffering from post traumatic stress disorder that report was given no weight in any of the hearings whether for his credibility findings of the judge or the board of immigration appeals or whether his mental trauma had on the immigration judge that he could answer questions and talk to his attorney found him to be competent yes from your standard review correct but it did not address the issue of his trauma pertaining to his credibility and he gave no weight and it grew fused to discuss the medical reports which indicated and illustrated i'm suffering from emotional anxiety hallucination delusions none of those were given any weight by the trier of fact or the board of immigration appeals the record was that the i g did express concern and considerable dialog maybe with you or someone from your firm but then received representations back again from from the lawyer representing seen that he has these sufferings but given the test of competency b understanding proceedings consult  lawyer he actually was competent given that yes i thought the lawyer made the representation to the i j a as to that at all times at all hearings i represented mr johnson there saying as i just explained we aren't stating he was incompetent the standard of competency was shown the issue over here was his credibility and whether his medical hallucinations or his mental trauma had any role to play in his credibility be so the issue you're presenting to us is not that there was some suicide obligation for the i j a to hold a competency hearing or call an expert the sole issue is whether or not the credibility finding is well founded whether the credibility finding can be made without any of valuating the medical reports and his medical diagnosis made by the government and his medical examiner that he's suffering from post traumatic disorder and the only report that states why straight is having those problems and hallucinations and emotional distress was the report we provided that wasn't examined or given any weight that is correct i did tell the immigration judge it based on the matter of the board's decision at that time that if the issue was whether he could answer questions whether he could speak to me he was competent base if that was the so criteria and judge and the immigration judge said that was the sole criteria he asked me to make a medical evaluation and i told him i couldn't make it i'm not a medical doctor i could not make any medical evaluation based on his mental state what role his mental state plays on is testimony i can't state only the medical doctor or a medical clinical physician or a medical practitioner code and that's what's missing credibility finding the only you're accepting the asylum rough notes as having your client saying i wasn't a party which is the essence of the inconsistency that defeats was he had provided a statement to the border patrol where he said exactly what he said to the judge the asylum officer had no reason to believe he was suffering from an emotional trauma was under any medical diagnosis was hoping the government would provide us with the border patrol statements where he stated what had happened to him in india was consistent with what he had stated why would he say something else to the asylum officer that is aga asking should have been evaluated based on the other cases that came out on whether his mental state played any role in that that is a prior inconsistent statement what he told the asylum officer so it is  can disappear but it exists and that wasn't ever taken into consideration by anyone that's why i'm here before you stating that is a major issue in this case regardless of that as well as his age as he's just turned twenty he was a juvenile he was eighteen he witnessed the danger fourteen he's suffering from headaches memory losses i can't tell you what why he has memory loss is only a medical physician but these were reports provided to the judge and when he evaluated the and made the credit credibility finding he should have looked at these reports he should have looked at the united states department of state for four he should have looked at the country conditions reports he should have seen what it states regarding the police was it plausible that his father could be boarded by the indian police for asking for a seek homeland peacefully in the state of paying job it states he would the indian police has unlimited power to arrest kill and murder individuals that's on the first country report works and to the issue you presented here so explain that to me you provide cites i'm sorry to the country report it provides a canvas to understand the facts i mean if you're living in a country where the police do not of individuals that we can understand he might be delusional in making it up by being consistent we have a report which states the indian police or they need security forces of well done for murdering individuals and arresting individuals understood that the adverse credibility finding was the fact that with his let me get the correct terminology here his credible fear interview credible fear interview and notice and took into account the great inconsistency before between what he said at the c f r and what he said at the asylum hearing of the removal here correct i don't see that as an issue you raised here the issue i just explained your honor was that he had made a prior his first statement to the u s border patrol was completely consistent with his application that he was a member he  participating he did say that that is why the asylum officer without attaching that the government didn't attach that border patrol statement found him to be not credible because he had said so it's an incomplete record on their part on that he had made a prior consistent state but now does that have anything to do with his post traumatic stress disorder i cannot make that evaluation that is the evaluate here and even reading the record of your statements below it is of course deeply tragic the father and their these sympathetic remarks that you're making about what might or might not be plausible those come across today as they did before but as i understand the issue before us now you have to point to record evidence to show compellingly that no reasonable fact finder could see an inconsistency here and so i don't see what you're trying to say that makes that finding of the i g affirmed by the b i a clear error when i hear you saying is oh he couldn't have pursued the hearing at all because my client was so troubled nothing he said could be relied on i don't believe i said that you are but what i'm trying to state if i'm not making it's a player apologize is his medical state of mind was never considered and neither was the medical report of what he was so what's the best case you got that the b i is a firm it's here should be reversed because you state that the i j a didn't consider what i think even the government conceded which was that he'd had this tragic episode and he did have emotional traumatic but he was competent what's the case that says we would reverse on that notion competency is one issue the other issue is the effect of mental trauma regarding your findings the judge's findings to be i e findings for a adverse credibility findings can you for any case that says a person is competent but he's got medical difficulties no finding can be drawn from that person's competent statements and that was the case the b i alluded to which we stated it's in the big ideas it's jr the decision is that if you're diagnosed with a medical condition you should steps the money as well as the medical report but they said they're not going to go by that ruling because they believe he was competent and if he's competent why should they give any weight to his  testimony of the medical report that's why we're here is all of these issues are interrelated and if the finding of mental competency is based solely on the issue of whether you can answer questions without looking at a medical presumption breck that's what you're saying thank you well i don't need can i mean i'm just saying i'm just stating that is the argument we made in the brief before the big guy the board of immigration feels on this court i would if we if we were to agree with you at least that the tuition for review should be granted what is it that we that you would have a say to be  a in terms of what would be happening were the case returned to the consider and make outside his test media ballyhoo ation of the medical findings which have been introduced in the record without objection by all parties where it states he's suffering from this trauma due to beatings he's incurred there's no dispute about that there being enter the contradict everything they stayed clearly he has suffered  persecution when it would go to go back to the i j a or only to the i'm just trying to think of the specifics of it and not just you know whether you win or lose but the specifics of how this would play out giv question i guess if we if we were to grant review and send the case to the be do we then tell the b i that it needs to go to the to the i j a to have a new hearing or reconsider the i j a findings what what specifically what happened procedurally to the case my understanding is the be i cannot make factual findings as they cannot make factual findings it has to go back to a credibility finding back to the idea immigration judge to consider the medical report that was entered without objection where the findings indicate he suffered from these traumatic events due to physical beatings by the indian police and his father was murdered that is good afternoon may it please the court victoria braga appearing on behalf of the attorney general the court should deny the petition for review the record shows that the petitioner was competent for the purposes of removal proceedings additionally substantial evidence the agency's adverse credibility finding in this case and their denial of relief and protection on adverse credibility grounds considering first the petitioners competency for removal proceedings as the petitioner indicated in his argument today the test for competency in removal proceedings is whether the petitioner has a rational one factual understanding of the nature and object of proceedings whether he can consult with an attorney or representative if one is present and whether the  adverse credibility finding as the court noted today there are serious inconsistency in petitioner statements to a border patrol agent to an asylum officer conducting a credible fear interview and in his testimony before the immigration court specifically the petitioner said multiple times to the asylum officer conducting his credible fear interview that he was not a member of the man party and there is a record of the credible fear interview in the record and it's found on page starting on page three eighty one of the record if the asylum officer conducting the interview first spoke to the petitioner about events that happened in two thousand  fourteen and after that time he asked the petitioner were you in that party meaning the man party and the petitioner said no not me the asylum officer said did you participate in any party and the petitioner said petitioner again did you ever show any support for that party and he said no ma'am not me never again i don't think it's i don't think it's contested the reason an so you understand that there's still a dispute about that here it didn't appear in oral argument today that petitioner was contesting that there was an inconsistency or that he was admitting that those statements were inconsistent with what was presented making the adverse credibility determination however it's clear from both the immigration judge and the board's decision that they were aware of both medical reports in the record i'd first like to point out that reading through both of these medical reports it appears that neither addresses how the petitioners condition might affect his ability to testify rationally as the agency found and specifically the immigration judge found in his decision the petitioner did despite his condition of post traumatic stress disorder present testimony in or a rational linear and coherent way here's bonded to the questions that were asked of him remind me what the i g did with the medical records because i agree with your in august of two thousand and fifteen or possibly july of two thousand and fifteen does confirm that petitioner was suffering from p t s d and that he was being prescribed medication for that condition however the government's medical report also contains a statement that the petitioner was oriented in space time and position that's consistent with the findings in the medical corps presented by the petition seemed to indicate that the petitioner was able to rationally explain what had happened to him in india so in order for the court to accept the position as argument that his p t s d or his mental condition that he was suffering from affected his ability to testify credibly or caused him to make inconsistent statements there should be some sort of indication in the record either in the medical reports that such a condition would cause the protest or petitioner to testify in a confused way or to make inconsistent statements and that is not there there also might be evidence in the record that petitioners testimony was overall confused or confusing where is that's not the case the petitioner was able to respond to the questions asked to him his attorney admits both before the agency and in briefing before this court the petitioner answered the questions that were asked of him and was able to do so in a rational is the consequences are very the inconsistency that is the cause of the adverse credibility finding in this case this court has never as the board said this court has never addressed in a published decision whether inconsisten is between an asylum interview and testimony before the immigration court can be used to support an adverse credibility finding but as the board noted other circuits have considered this issue notably the second and eleventh circuit have found that such statements can be used as long as there's an indication that the record of the interview is an accurate representation of what happened and there's no evidence that the sound officer was in any way trying to mislead or coerce the petitioner that's certainly not the case that's also the case that the reliability you would say that second circuit case within the it's very difficult to pronounce that's the one yes and thank you for not making the pronounce that i practiced that a couple times but i guess the last legal question i have is he suggesting that this g j r or a decision creates a presumption in circumstances like this one i think what he's essentially asking is an extension of jr to his case which is a case where as he doesn't c us the contest the petitioner was found competent matter jr and does deal with a petitioner who has been found not competent and a petitioner whose competency or whose mental condition is affecting his ability to testify rationally here the immigration judge is clear that whatever mental conditions the petitioner was suffering from they were not affecting his ability to testify rationally i think the immigration judge actually says he had the ability to testify rationally and consistently however he failed to do so oh i'm so matter of jr as i would not play here would that be at play here where it's clear from the petitioners testimony on both direct and cross examination as well as from in questioning from the immigration judge that he is rationally representing his case and what happened to him however and the unexplained inconsistency with what he stated to the asylum officer remains and as the immigration judge pointed out on the board affirmed this is an issue central to his case so central that it made the agency correctly doubt his credibility and to find that without fear interview was conducted in december of two thousand and fourteen or january of two thousand and fifteen and his testimony before the immigration judge was in a of two thousand and fifteen so it was a period of maybe five months with that if there are no further questions the government would ask that the court deny the petition for view because the agency's adverse credibility finding and denial of relief and protection on the ground is supported by substantial clarified one part of i believe scotland so when he was arrested how much time last what he stated to the border patrol pertaining to him being beaten by the indian trying to ascertain was how much time elapsed between his initial statement to authorities that he was not a member of the party and later statements that were and can see one week or  clarifying that for me please so he made the statement that he was not a member of the man party at the credible fear interview that's in the notes and then one week later  arrested at that point of crossing from mexico or when he turned himself in i'm unclear on that he stated he's coming to this country seeking political sanctuary in fear of the indian police because they killed his father debate him because he was a member of modern party that's the first statements he told the united states government which he told to the judge which he stated in writing which he provided corroborate your proof i was a prior consist the government never ever attached that statement opposite i can access it it's a documentary privilege belonging to the u s government in maybe an eye to thirteen which is a privileged document or it may be a statement made by officers to the border patrol to other agencies what is the source for your knowing supposedly what he said to the when he crossed the border the asylum officers know that's why i made it he said you're inconsistent i don't believe you why d to the border patrol when your arrest and now you're claiming not to nobody knew he had a medical problems statements during credible fear interview are not at issue here the issue is the mental state of the individual the age of the individual and the emotional stress he's none of that was raised or known to anyone and the only report you have just because somebody has post traumatic stress syndrome means nothing the only report you have is it was caused and you have to give the underlining facts some weight because he was beaten by the indian police and the his father was murdered that's why suffering from this trauma you can't ignore that that's the only facts you