good morning ladies and gentlemen judges beatty and i welcome our colleague judge was sara from the th circuit sitting with us today thank you for joining us just a few housekeeping matters before we start i will call the cases in the matter that they're listed on the calendar and by each case you have a designation of the time and that means if you are the appellant that's your full time and so your rebuttal is part of that full time and if you are the appellant it's your responsibility to keep track of the time however if you tell me when you approach the podium aspirational how much time you would like to save i am looking at the clock so i will try to remind you when you get to that point that the clock counts down and then it goes up and so when it starts going up it doesn't mean that i gave you extra time it means you've moved into overtime but that being said when you reach the time that you're completed if you're answering a question of the court please feel free to continue to answer the court's question and i may say we have to decide these cases so i want to make sure that my colleagues have an opportunity to ask you any questions and so if we take you over time then that's fine but if you want to go over time and we don't have any more questions then that's not flying but i guess that's sort of the way that it goes the st matter on calendar is colie verses william judge cited exhibit three tab to cite petitioners testimony regarding the timeline specifically regarding the date his unadopted son married prime minister crosses daughter i don't misstate of record page for the and twenty but the timeline entry issue is on administrative record page four hundred and twenty one clearly evidence is that the timeline does not state the petitioner was hotly preparing to return to fiji for the wedding word a misapprehension determination basically says it's just a real i d act right yes ok and so there's like three different instances that are cited as to being problematic yes yes which the real i d act is the more i feel like that there's something going on here that i can't tell what's going on that you're your client clearly was a political individual was very much and fault and all of this and i have and and and the with regard to we have the the factions that are involved in all of this and it seems quite unusual that he wouldn't know whether he was in favor of the coup or against the coup and all of that and so i'm not and then there's long periods of time where nothing happens on this particular case it falls into a hole for about five years or something along those lines and so it's just the the suspicious part of me feels like that there's something that about this individual that that you know and that the immigration judge on administrative record page five clearly confused when she's considering there was a coup in one thousand nine hundred and seventy coup in two thousand and when she was going through and trying to decide whether  supported him but then not that type of activity or i mean it's almost like i can't tell whether he was really involved in a lot of bad things were criminal type of activity or something along those lines that no one wants to talk about or was that aligned with what the united states wanted to be happen in that country or whatever i i just say something just doesn't match i think it's less an issue of war crimes and more an issue of he did have an official position in the party he was really high up in that secretarial role he did give press releases he did talk to the press he did talk to both in a written form to the press and over the radio to the press and so in his official position he made statements that he didn't personally agree with which this court has found doesn't does not what the i am but it could be i'd say think like ok you're talking out of both sides your mouth and i don't believe you here i think you were it were totally involved in that coup and you're lying about it now to gain some sort of advantage and then he also is using all of that it's all meshed together because he doesn't apply for asylum for a very long time afterwards here and he wants to somehow get past the bar because he says well i'm watching it i'm waiting for i want to go back but i'm waiting for it to be safe to go back well he didn't want to go back until  made the announcement that there would be no free and open elections in fiji and it was a mere two months after that announcement to knew that he could no longer safely return to fiji that he did go ahead and file his affirmative asylum application  so it wasn't that there was long periods of time where he could've or not i would like to think that the united states if we really thought that someone would be killed for their political action would consider bad in terms of but then on the other hand if your client is someone that was involved in you know really bad activity i mean we probably wouldn't care as much about returning a nazi to somewhere where people would be you know so i certainly don't think any of his activities in the s b p party had not amounted to anything like being involved in the nazi party there may have been some confusion regarding statements that he made in his official capacity but with regard to the changed circumstances and the timing with which he applied for asylum horas rule is what controls here and the horror merely requires that the change circumstance only directly relevant to what's going on here with change of heart you conditions with commander graner on his announcement to the international community it tracks perfectly with this court's law but can important issue in this case is whether there is substantial evidence that supports the agency's adverse credibility determination and the they made that determination on four bases and the b i a it up to three of them if we were to find that substantial evidence supported some but not all of those reasons what is the result if this court were to find that some but not all were supported then this court would likely have to find that evidence the immigration judge never instructed mr binney of a to provide probably only get there will only get there if each of the other bases for finding him not credible are not supported by substantial evidence and he's been deemed credible and then he should have had the notice not to need you to respond correct yeah all of these things sort of tied together and if we were to find substantial evidence to support a finding that is not credible then he would be entitled to the notice correct here and you are agreeing that we only need to find substantial evidence to support one basis for finding him not credible and some could go out and some could stand and there would be a valid address credibility determination so long as that substantial evidence is because the court is really got all three wouldn't you have to remain for the germination i would agree that remained in this case is the court's best course of action and allowing the board of immigration to apply the proper factors in combination so if the i j a had listed thirty four or five reasons a number of reasons in the be a adopted you know all or some of them and we found one was not supported but others were or that even just one was supported by substantial evidence i don't know of any night circuit case law and i'm asking you do you can you point us to any case law that would say we have to view them in combination and if one fails they al allows the i j a to consider inconsistency his demeanor cooperation all sorts of things in determining whether somebody is credible but that doesn't mean that all of these different reasons for finding somebody not credible have to apologize that's that's fine i'll give you a minute hurry battle i think leon thank you please the court john holt for the attorney general substantial evidence supports the adverse credibility finding the court has no jurisdiction over the asylum claim pursuant to the statutory limitation but the untimely asylum application your honour's correct petitioner came into the united states in two at the facts the commander threatened him in two thousand allegedly and he came to the united states that was a very personal of threat he said he had a gun commander said he had a gun he would kill petitioner so he came to the united states after he came to the united states for your life then now that person is in power after two thousand and six he should have filed his asylum application if that was for a change circumstance there is absolutely nothing personal to petitioner in terms of a threat no with further communication no further contact well with that if he had felt that within the here after when he was threaten to kill him and he got power and all of that would that be the kind of thing that what if qualify him for asylum perhaps if it were credible but in this particular case the agency found of the threat in the year two thousand was not credible if i may i think that the courts focused on the case comes down very simply to the tension between petitioner and the commander in petitioner was a supply posed to the political rise and power of the commander the commander was head of the military forces he then became a public official he then became the lead official in the and so the tension relates to petitioners opposition to the commanders rise to political power if you go to page four hundred and twenty dollars forty two cents in the record petitioner submitted a timeline to support his claim for asylum and withholding of removal what's significant is that timeline focuses the court on really the five critical of events that are the factual puzzle pieces that put this whole complex case together and that is st of all the two thousand coup secondly the marriage of petitioners son to the prime minister of fiji the prime minister's daughter and that was either in two thousand and one or two thousand and six rd the two thousand and two threat th the two thousand and six military coup that commander lead and then finally the last event that he refers to is the two thousand and nine january two thousand and nine declaration there be no more elections so those are really the five of them and they relate their interrelated to both the jurisdictional issue and the merits claim with regard to withholding o so if we find the adverse credibility to be supported then your position is the asylum claim but if we didn't if we found adverse credibility was not supported then what that substantial evidence did not support the adverse credibility determinations when we re mand for the b i a to consider the jurisdictional issue as i understand petitioners argument they're saying there's because there are disputed facts and their basis for saying that is because the cited the multi case which is the wrong standard and so they infer from that that the did not adopt the i js factual findings with respect to jurisdiction or just for the b a to consider the merits of the asylum claim well the critical point is the adverse credibility finding in the adverse credibility finding a stablish is that there are disputed facts regarding the asylum application and in this particular point if there's one thing that's not in dispute that we agree on there are disputed facts regarding the credibility and petitioners claim fear of the commander so  with the adverse credibility finding gone the next question would be whether or not petitioner establishes either exceptional circumstances or special circumstances that justify the untimely finding we would say that the  adverse credibility finding is at the core of those determinations by the agency in this situation well but what about also though the adverse credibility finding was that the petitioner was da for not putting in corroboration and it his position why is that while everyone knows about all of us and then but then he wasn't allowed to submit evidence then he was told he should have submitted corroborating evidence from newspaper articles or the sat in the other and it wasn't allowed an opportunity to do that is that problematic it's that allegedly witnessed this kind that allegedly witnessed the tension between the commander and petitioner and they were allegedly present at this confrontation but they never mentioned the confrontation at all in their affidavits and secondly there were the confrontation that occurred allegedly in the year two thousand in a public forum a political meeting in fiji over five hundred dollars people according to petitioner are present at this confrontation where the commander said if i had a gun i would shoot you and kill you for your the lies you perpetuating about my involvement in the two thousand coup not one affidavit not one piece of evidence not one news article to support that that confrontation ever occurred now petitioner asserts that under written he's entitled cooperation of the threat that might change his credibility finding right that he could have if that is true but there's no reason under the laws presently in terms of room as we explain in our brief is implicated where the is found or the petitioners found not credible so that particular principle of law in terms of come fronting and giving the opportunity to provide corroboration is not implicated rand is not implicated in this case that seems pretty narrow reading of it because it seems if you're found not credible there's a bigger need for corroboration and we're going to change that because everything we know everything here everything comes from that credibility fight the adverse credibility finding that's your pension everything on that and so you're saying that not being given an opportunity to if if not if the adverse credibility fine is based on not rating evidence wouldn't that be important that that is important and the court focused on lack of evidence but there were other factors that the court relied on also st of all the internal inconsistency isn't a statement with regard to whether or not it is each of the judges that pointed out whether or not he supported the two hundred two thousand and two the reason why that's important is that if petitioner was ambivalent or he supported the coup then how could he out the commander for his supporter involvement in the coup he had to be on the other side and he admitted actually to a b c news that he supported the coup he had that news article he admitted that the news article was correct that he did inform the commander was out of the country at the time  convenience right well if the when he was the head of the military and he the question is did he support the coup that was the issue not although he was present in the country at the particular time that he supported the coup and so what's significant is the petitioner's fear relates to his outing the commander for his involvement in the in the coup and because petitioner was embezzling about his involvement the judge necessary question the reliability of that particular point and finally the most important thing said he had an explanation he said i don't know why that's there i think it's a transcription error but clearly the marriage was in two thousand and one well there's no basis on which the immigration judge could said say that it was not responsive it's simply not if i may your honor if it's not responsive in this sense how can for the injury in two thousand and six it specifically says petitioner quote happily prepares to the camp but he says i don't understand where that came from that is certainly was not my testimony in that it has to be he he says i don't know where that came from it was his submission to the court in the court found that that contradicted  his testimony because in the year two thousand and so he was still in teach me happily be preparing to return to fiji when he's still in the country and i understand and so the that's the contradiction and so the court i don't want to extend your argument time well you don't have the totality with respect to one basis i mean there are multiple reasons why you could find somebody not credible which is what the i j a did here yes however the major error that the judge made is that she came to these legal conclusions without providing any explanation and then the board of immigration appeals when discussing the immigration judges findings decided to try and make some inferences on their own that matter g r perhaps it's the board for making those inferences and so if there is further fact finding that needs to be done which we would argue there is more factoring needs to be done then this court must remain in this case for that fact finding to happen well i think i think if we find one reason that supported that's enough i think that's what the case to say like let's say the three reasons are that you have a hangnail and that you said it was one of the two instead of eleven dollars but that you forgot to admit that your whole family was murdered all right ok the st two are pretty trivial and we say ok that doesn't support adverse credibility but the fact that you failed to admit that your whole family was murdered because of your political beliefs and now you suddenly said that that's that's pretty important and that would be enough and ok say if one supported that's enough i think with those facts as your honor presented it that would be the case but i don't believe that here we have a situation such that they holder decided by this court in two thousand and eleven the discrepancy in that case concerned the date of the applicant's arrest which was a key event in her family's suppose a past persecution and the court found that even though that date was given incorrectly during search for their questions we've gone over thank you very much but for your argument this matter will stamp submitted thank you