court my name is catalina cross and i represent the petitioners i'd like to respectfully reserve two minutes of my time for a bottle the focal issue in this case is whether the immigration judge and the board of immigration appeals improperly held that the department of homeland security had the authority to issue the notice of intent to deny status and its decision the b i a concluded that the immigration judge had jurisdiction to terminate the asylum status and that the department of homeland security had satisfied the notice  the holding in a jar from the th circuit court in two thousand and twelve for the decision in a jar it is clear that the department of homeland security and its president organization does not have the authority to terminate asylum granted by the former ins but these i highly the department of homeland security merely asked the attorney general to terminate asylum through and then i j have held a hearing about i'm not sure this notice argument is your best argument but i but it seems to me we always said before terminated so i don't understand how the prior case prohibits this procedure well your honor the department of homeland security is not an agent of the department i think is merely notified they just merely notified the  department of justice that intel you know that they wanted serious so your position is that they must initiate the proceedings also they must issue the noticed your honor what what what possible difference would that make to your client your client got a notice and the b i a said there's a hearing on a specific date in which you can show up in oppose it however any substantive rights of your client see and the wrong person terminated by asylum but how do you how was your client prejudiced in the slightest by this procedure well that's just procedurally the proper mechanism for notice would be it through the attorney general it's well rexus is that it is your honor it is what congress said that only at the department of we are sitting in this case we also feel that the board of immigration appeals erred in concluding that the department of homeland security had met its burden in establishing fraud we believe that the petitioners application for asylum was not analyzed properly the immigration judge used the report provided by the government and overseas report that report lacked foundation and it was used to find adverse credibility as to the petitioners claim and that's another issue here that when the overseas report the only basis for the finding of bread for his credibility it was not your honor there was also credibility issues but they tied back to that report the report in essence stated that documents presented by the petitioners were fraudulent however the petitioners do say that they personally didn't receive those documents they had requested them from armenia and they were sent over and again with the credibility of the credibility  but we don't know what they're referring to what the court was referring to when they said exemplars or what the report says they didn't present exemplars there was an exam as did you make a request for the exemplars in the end before the object well before the i g we asked for we for a specific question may not be important but i just want to ask it did you did you ever ask for the exemplars did the petition or you get the petition yes they did ask for the example and tell me where in the record they asked for the exam oh no i'm sorry are we asked the petitioner for the signatures don't match and generally you have two signatures to show that they don't match in this case we were just saying that the signatures didn't match but it didn't match what and so that that was the issue it seems here in the whole hearing their combined hearing  once in a jar came out department homeland security figured out what was going on here that they need to have an i j make good terminations on the term a nation but also then at that point your client was reasserting asylum and so they seem to have blended these hearings into one and it seems like the term a nation of the burden of proof was on the government and for the asylum the burden of proof is on titian or but burton was to present to on it seems like the burden would have been on the government for the termination in giving the documents or allowing proving the knowledge proving that the occupants of the r i were fraudulent is that your understanding yes your honor it was the government's burden to prove that they were fraudulent and we don't think they met that burden for tell me why we don't think they met that burden for one for example to go back to the exemplars they didn't produce exemplars they didn't even make an attempt to produce the maker of the report i understand it's not always reasonable to reasonable effort to forward the alien responsibility to confront the witnesses in this case the maker of the report is the witness and there was never any efforts made forth to bring that witness and even when the government presented the report they reference three different officers that made the report by name but they don't give any other information and then there's an unnamed and identified and with the investigator in armenia and that's a problem this person isn't even so aside from the whole due process arguments that that regard and showing knowledge i just wanted to ask you because the b i did issue an opinion or decision in the matter of p s h that says d h us doesn't have to prove that the petitioner had knowledge frog nature of the documents and it seems like we're supposed to give reference to that the eye is interpretation of it's own regulation so i'm trying to ask you should why should we consider of knowledge because you are asserting that he didn't know is that correct yes your honor where we're asserting that he didn't know and were asserting that because he didn't know he can be held to have submitted fraudulent documents if i turned something into a court believing that you know the documents are authentic then i didn't have the requisite knowledge that they were fraudulent to be to have that be an adverse credit credibility to the st regime one that was limited to a it he could only make or she i forget who was in this case could only make an adverse credibility determination based on documents if the i j a also found that your client knew the documents were were fraudulent documents were fraudulent or didn't she say the st time i i asked you if you knew was that these documents fraudulent you said no i didn't think they were but i didn't believe you were found you unbelievable on the issue is that sufficient for to make a finding honor i don't believe that that's sufficient to make a finding when you take the totality of circumstances mr grigori and actually indicated to the judge that he didn't personally obtain the documents that he had the documents requested from armenia and they were  brought and he assumed them to be real because of the seal that they had and that was a seal he had previously been familiar with so i think any detail in the record about how we got the documents who got them for him no your honor his role was in the documents there's just thing there he said that he his wife for one of the documents i believe a document from two thousand or two thousand and five he his wife obtain the documents from armenia but he just part he all he said on the record and i can point you to where in the administrative record he said that in the adverse credibility she relied heavily on this report to find adverse credibility in the not affected the rest of the proceedings specifically when we get to his cat claim it was denied without a separate analysis asked to the actual can't claim simply because the judge said that there was an adverse credibility and she tied that all back to these fraudulent documents so there was a lot of your heart i mean put aside all the adverse credibility you're quoting produce efficient evidence to support a cap on torture not on persecution on torture yes your honor he was he presented documents showing that he had been arrested twice in armenia on one occasion he was held for two days and he was beaten he suffered a concussion he went to the hospital we produced hospital records are the nd is that there's that compel a finding of fear of torture as opposed to fear for fear of persecution yes because he was held for forty days at one point he was physically assaulted while in custody and this is by the acquisitions of the government or the government acting through the police and that it's a matter of opinion i suppose but we hold it that is considered torture being beaten and held in a cell it's a form of documents however we have to bear in mind that we're thinking documents from out of the country and there's issues obtaining documents when we're trying to obtain documents from a government that is unstable in another country and that does take time little who is u s c i s assistant i assume based where in moscow s moscow received a request from somebody in los angeles to open an investigation and then he said moscow forwarded this to local investigators and an embassy in your revenue which i assume is in armenia the investigators sent the following information and when focusing on the signatures which i think is the real one the document is altered as is attested by the fact that the signature on this document does not match exemplars of the former ministers signature so what he's saying is i'm telling you the document was altered because i called someone and they did an investigation and looked at the exemplars and and they didn't match is that a fair fair summary well you know we don't know how he found out and what he doesn't have any personal knowledge mr little correct a presumably he gets his knowledge from talking to othe did we know what their conclusions were do we know what they did well this court in and got said i'm not asking what we said in court in decisions i miscue question about this record no we don't know you know the whole process we don't know what they did we don't we don't have to came to the conclusion other than they say compared the exam players they compare the signature they compared the state do we know whether the investigators themselves compared the example ours or whether they ask somebody else to compare the exempl s i don't know is there anything in the record that shows the partment of homeland security made an effort to present witnesses to testify on the r i or about the r o y or produce the examples referenced in the r i he was not an indication in the record that i said you speak up a little there was not an indication in the record that i saw but under angle of this court went through an extensive analysis correct they their posture was different then the posture here because petitioners are a societal lease and they have already been admitted or it seems like admitted into the us and have lived here for two decades so we they were accorded due process in these proceedings they were given a notice of the the fact that there were fraudulent documents in the record that went to the their role and their membership and they were afforded an courts have found that the admission of documents like the r o i violate petitioners due process rights we have the rd forty six and eight circuit cases that have held that i'm just very challenged to find the and prove their case in this case they were given this r o i would choose one page lists for bullet points and the the petitioners because they also thought they were really upsetting asylum did everything they could really it relieves the government of their burden to show terminations they would have never had to have shown that they were entitled again for asylum if the term a nation had never been determination had been properly hadn't been improperly done and so the seems like there's a lot of confusion and conflating by the government the the status similar to that of the gregorian that they are afforded the due process rights that's what all the circuit says so the burden is on the government but you just said that the government did not produce any witness is that correct right they got did not produce any example are is that correct that's christe relied on the four corners of the of the document and just because the  made this extra effort to try to to try to address those allegations but it seems like there's fundamentally a due process issue that occurred here but i wanted to hear from you alleviate that documents that they said that the petitioner submitted were fraudulent the dissolution letter and the charter right and if those if the if the if the only evidence of that is the report is that correct right but the court it never entered the country and therefore didn't have to process rights grech yes yes and therefore they were not making a due process decision they were only making a decision based on the on every day whether there was an abuse of discretion by the i j a and in looking for can be made here due process decision for somebody who has no due process rights and then the report was a little bit different than this  don't you admit it was a letter from the state department and it was a bunch but there were other things there were there was other evidence in the record photographs and and things like that and the court was very careful to say when you put all these together they meet the statutory requirements of reliability what we're trying to focus on with these questions is not whether and gough says that hearsay is sometimes admissible reports or sometimes in miscible we're trying to figure out with this particular report which mr little says i asked somebody to investigate and they reported back to me with no details about what they did that the exemplars don't match is enough so did focus on this report why doesn't that deprive because it's a central allegation in the case why doesn't that deprive the other side of the ability to to put on a fair defense because they as they did they sought other documents from armenia and they produce and they did overcome some of the evidence of fraud but not all and they did not explain or we but but those to find out how would the petitioners how are they supposed to rebut  report if it did not have a fair opportunity to ask questions of the people who made the reports about the investigation or compare the documents and we could say the same thing about country condition reports nobody gets to question who made the report what kundra condition reports have great detail they're prepared by people with firsthand knowledge who are least to deal with firsthand knowledge of the circumstance here i mean i know that's not this report but let me just give you a hypothetical let's say question it just goes on and on and on what would that reported i just i prophesied for you be admissible to terminate asylum it would be admissible but as to the way to get in in light of all the other evidence and here there were so many inconsistency where you know i mean off by a year where with respect to let's see his his membership card when he joined the p p a well this case went on over a long period of time my view but that's another story for another day and you see there were many inconsistency and really only a few and of them are quite minor frankly lie doesn't establish fraud or doesn't it if the r o is not is defective in some way you don't have a fraud case no if the government hasn't met its burden with respect to the our his terminations was not progress that's the point i kind of wanted to draw out here a little bit today i know you refer to the country ports and say the country ports are different country ports are what petitioners present when they have the burden to show that they shouldn't be deported back to a country so i'm not sure that that's the proper you know the best response to compare that to the our oh i let me ask you because you are here in your brief that the d h s doesn't have to show th petitioner knew the documents were fraudulent and i just want to press you a little bit on that because i'm just wondering you know is that true or can can we say that when the plain language of the regulation says the government has to show fraud i mean there's a fraud always involved a mens rea element fraud does involve the mens rea element but but here fifty eight dollars d c six says if the attorney general determines that an alien has knowingly made a frivolous application for asylum the alien shall be permanently in eligible for benefits of any benefits under this chapter and then  and fifty eight b two says the attorney general may by regulation establish additional limitations and conditions consistent with this section if you mention further lists but they didn't make a frivolous finding here  stand that but presumably these two pretty provisions gover the regulation at issue here involving the term a nation of asylum because of fraud but you tell me if you disagree i'm just trying to figure out how can you say the regulations do not require d h ass to prove knowledge when the i in a provision require the individual to have knowingly submitted  the fraud application and we have to read the regulation in light of the eye in the language well the immigration judge did find that based on his adverse credibility also his inconsisten of our circuit in this area is that mere existence of fraudulent documents is not enough to deny asylum correct so my question is then how can existence of fraudulent documents be enough to terminate asylum because the petitioners shown the fudging the documents and given an opportunity to get evidence to re and he did rebut some of the fraud but not all of it so but we were ask a different question we're asking whether or not let's assume i innocently get a bunch of wrong your dog which i send back to the embassy in my home country and i say i need the following and they send me a bunch of fraudulent documents i don't know they're fraudulent i said miss them and get asylum in your view and let's assume the government stipulates that i don't know they're fraudulent the government terminate asylum under the circumstances oh if the documents that support the asylum are turned out to be fraudulent but i had no idea they were fraudulent yes then but but his whole granted asylum is based on fr that you are so your position is that the regulation allows the government to terminate asylum even when the petitioner has himself done nothing wrong to get the asylum in the th circuit say no you can't do that you have to show that he knew fraud means that he knew correct yes that's that so it would just what judge reveres asking you is how can you defend that position in light of delineate some of the arguments that they are now this is a different rule for finding an adverse adverse credibility based on documents i mean that's the one that the judge applied the st time i can't find you that you don't have credibility based on a document and my site also find that you have knowledge of the of the false document that's a separate issue we're just talking about terminations right now your position is that that asylum may be terminated because the petitioner obtained it by a by submitting documents that later turned out to be fraudulent in the absence of any fault by the petitioner is that is that the government's position and we didn't see it exactly like that because he's given an opportunity to overcome the fraud with with new documents it's not like now but let's assume that he can't because when he goes back to the agency they say you're right well you asked for and we sent you fraudulent documents your position is that even in the absence of his knowledge at the time to documents were submitted that they were fraudulent he's perfectly innocent you nonetheless get to terminate asylum if that asylum was based on those documents if i  re those documents it would matter that the cylon then yes yes my question is yes yes ok so your position is that you can deny someone asylum when they know they've committed something fraudulent right in their application but you don't require that same level of knowledge or fraud when you're terminating asylum because some documents are not to be false and they didn't know about that i say that right opportunity to petitioner knowingly submitted false documents but when you're terminating asylum you don't need to have that full finding like you do with denial you can terminate he had knowledge of the fragile and document the efforts were focused on the fact that the documents were fraudulent and i think that's where the people are where the department of homeland security's argument fails we're just doesn't feel good lead we may to have to confront it in this case but i'm interested in let's assume somebody comes in and seeks asylum and presents fraudulent documents yes your honor he doesn't know they're fraudulent but in the absence of those documents he has no claim to asylum whatsoever yet the truth is that he would not be entitled to asylum why can't the government years later when he discovers the documents are fraudulent say you know you may not have been at fault but the conditions that lead us to give you asylum didn't exist now you may apply for asylum and do like we want you know there's no reason for us to continue to grant you asylum based on that original application at this point you can show a new that you're entitled to asylum but why should why should we continue to live in a fraud well you don't i think that that argument is a little complicated in this case because this case predates the real id act and so the petitioner was able to stand on in the absence of document he would have been able to stand on have been granted asylum because of credibility issues your honor not because of the facts that he presented i did write it so and then that goes to the minor inconsistencies but i'm not asking you and i understand in this case you have all the arguments and just say the question of whether knowledge is needed it strikes me as a little bit difficult because what if later we discover that he never really needed to be granted asylum there weren't he wasn't persecuted there weren't of these problems in the country because the documents that he original asylum has gone away apply for a new one and that may be the case if asylum was granted simply on the documents that petition or an asylum seeker submit but that's not the case there's an interview process and then in this case there was also testimony before an immigration judge so if it was found was granted just simply on documents that are submitted i can see your point and i agree that the asylum claim needs to be revisited but in this case because there's also testimony even if the documents are fraudulent there's still testimony that lends itself to support the finding of asylum and so in this case whether ultimately this court decides how or this court decides but if terminations is appropriate or if this case a setback for the immigration judge to