it please the court time bryant sutherland for petitioner keang damien chambers i've reserved two minutes for a bottle please be a aired as a matter of law in determining the petitioner was not bisexual on the ground that he did not present evidence of past same sex conduct from past same sex partners in doing so the agency failed to distinguish between orientation and conduct totally overlooked the fact that the same sex evidence that demanded was unavailable and as a matter of due process denied his application for deferral of removal without giving him fair notice that the application would be denied if he did not present the evidence that was demanded the b a s order  both demonstrate that what we're dressing here is a question of law they set out criteria that they wanted mr chambers to meet in order to establish that he was bisexual we see that in the order where it says he did not present evidence of same sex relationships which is different from sexual orientation is that is that what happened here is this essentially an adverse credibility determination i mean the i j a says the court is exam the testimony of the respondent and that of his three witnesses finds that the credibility of the witnesses is doubtful in this court's assessment and in the petitioner was attempting to prove his the basis for his cat claim by establishing that he was bisexual in part by reference to testimony about his past relationships would be logical that the i j a would explore the credibility of that testimony the i j a did not find that mr chambers himself was not credible as i am not persuaded isn't that an adverse at least implicitly adverse credibility find no your honor and here's here's why it's because the i j a applied the wrong legal criteria for assessing whether someone  bisexual or not the reason why they i j was not fully persuaded was because mr chambers did not present evidence of past same sex conduct in so holding the i j a applied the wrong legal well i rely on this course decision able versus united states and that decision draws a clear demarcation between sexual orientation and conduct so if the question is what are the criteria the question for determining whether someone is bisexual that's a question of and immutable characteristic or propensity to engage in same sex conduct but does not require evidence of past same sex could there be a likelihood of future torture who would know about it if it hasn't happened in the past the well there's the statements of the declaration of homosexuality itself are a in two thousand and two thousand and one he testified that people in jamaica knew about his sexual orientation and identify any such people he didn't identify them by name they were made known to him when people approached his mother when she returned to jamaica he also testified a believe that has periodic telephone calls with people in jamaica and the country reports for jamaica indicate that it's a country in which government officials acquiesce or even participate in torture of individuals with declared by sexual orientation something that the be overlooked here there's a connection between not just conduct but also declared orientation and torture or even and this is not our case but even just the appearance of bisexuality or homosexuality and torture that's a critical point and the reason why we're here  avoid harm to mr chambers and if there is that connection between declared orientation even the absence of conduct and possible torture in jamaica more likely than not then that's a question of law that this court should examine in particular and this is a point i want to stress it's important for words like bisexuality to have shared meaning under the rule of law so that the b i a doesn't fill those terms up with its own arbitrary meaning or meaning  didn't explicitly state a definition but it made clear that past same sex conduct was required in order to establish bisexuality that again departs both from precedent and the common understanding of that word given  in support of the final determination correct once once credit once testimony has been called into question the i j a properly relies on the absence of corroborating evidence in taking testimony that's already doubtful and making an adverse credibility determination well two points there there's no adverse credibility finding with respect to mr chambers the b i said adverse credibility determination as to respondents witnesses not as to the respondent himself i think the  pretty clear there even if evidence of past same sex conduct were required and we submit that it is not the i j a totally overlooked mr chambers testimony that it was unavailable in this case did not address that he chambers testified that he ended his relationship with damien curry back in two thousand and one and with mr hall after his son washington was born and so if that expressly declined to adopt it and in light of the b i use determination not to adopt that portion of the i j a opinion it's not part of this court's purview good morning your honor is may it please the court my name is jennifer singer and i represent the united states attorney general the respondent in this matter petitioners counsel spent much of the time arguing that n b a erred in requiring evidence of past sexual relationships all to start on that point first of all that issue was not raised to the board and thus its not exhausted and for that reason the courts are declined to consider it now in any event petition himself premised his claim on being bisexual and during testimony claimed that he had multiple homosexual relationships and those relationships spanned over a period of ten years petitioner him self put that issue and the immigration judge was reasonable in developing and asking him questions on those points and then requiring or asking for the other witnesses to corroborate those claims and he simply failed to do so so i don't think there's any  errors in that regard this is not a case where petitioner just claimed to have just be bisexual with no past conduct in that he was very involved in the l g b t q community or participated in rallies his testimony was that he engaged in these past relationships and that's what the questioning and corroboration focus focussed on because of that testimony so in that regard the government sees no legal error the petitioner also argue that the immigration judge overlooked his testimony regarding an availability of corroborating evidence from his past partners while the immigration judge did not expressly discuss his testimony in that regard it's equally possible that the i j a didn't because his testimony was inconsistent and that point and this should be the petitioner testified that he was on and off with my call until now which at the time of proceedings was twenty sixteen and then a couple suddens was later testified that he hasn't really spoken to my call since two thousand and eleven so given that i think the explanation for being on availability perhaps the immigration judge wasn't persuaded even if there was error for the immigration judge not to express lee discussed that aspect of the petitioners testimony any error was rectified by the board the board didn't focus on the petitioners lack of corroborat past partners the board's decision in a whole reflects that it fell to the petitioner from not providing any credible corroborating evidence from anyone he presented three witnesses his mother his sister in the sister's boyfriend the mother was not credible and not reliable the sister was not credible and not reliable and the third witness testified that he did not know petitioner to engage in any homosexual relationship so there was no and given that those witnesses were available and did testify there was no need to go into any further explanation on an availability because the witnesses were available is the board making a determination that there is an adverse credibility finding with regard to witnesses and i believe it presumed the petitioners credibility but fell to them for not corroborating and therefore not satisfying as burden of proof and then petitioners other argument is that his back to do w anyone credible to corroborate his claims again he brought in three witnesses he presented letters and then generally as immigration proceedings it's quite rare to have that many witnesses come in and testify on behalf of the applicant for asylum and the homophobe i mean the immigration judge did fault him for not bringing in past same sex partners to corroborate that claim but i guess the bottom line is that he did bring in witnesses who he claimed to have personal knowledge of his background his homosexuality and his partners and they could not testify reliably or credibly on any of those aspects and based upon those three witnesses he presented that's the case you presented and they were unreliable and incredible and he could not satisfy his burden of proof based upon the evidence he put forth before the immigration judge and the board petitioner also argues that his due price due process by rights were violated because the immigration judge did not provide him with advanced notice of crabbe aeration but there is no requirement that advanced notice be given for corroboration the general rule is that the notice requirement doesn't apply at all when there is an adverse credibility determination and that's usually in the circumstances where the applicant him self is found not credible if that's extended to witnesses which we argue in our opening brief then the rule doesn't apply at all if it didn't extend to cover adverse credibility situations where the witnesses were found not credible then petitioner still has no merit to his argument because even if credible there is still no requirement that the applicant be given advanced notice of corroboration so long as the immigration judge discusses the need for corroboration in his decision then that's been found to be sufficient to satisfy the notice requirement relationships do you do you think you if you haven't yes if you haven't been is there something that might happen in the future ok has religion then if the if that's found credible then there might be a start i mean those are all hypotheticals and not the facts here i realised then that might go to the merits and still the burden of proof just because someone is credible still doesn't mean that they've met their burden of proof on all aspects of their claim upon the facts here the petitioner claim that these three witnesses would have personal knowledge of his background and they didn't and he failed to meet his brother and mother testified that he told her that he was bisexual when he was nineteen and her testimony was impeached because in the letter and in when she testified to that effect she said he told me was in one thousand it was like being hit by a truck and there are two pages of testimony on that in the letters that had submitted earlier she said she found out from others right found that testimony to be inconsistent correct in in he testified with regard to his ten year relationship w hall correct but couldn't provide details about that really or that he wasn't providing details about the relationship that is correct is that a proper basis for assessing the credibility of the testimony yes i mean based upon the statute i don't have eight u s c eleven fifty eight the adverse credibility statue an immigration judge is permitted to look at make adverse credit adverse credibility determinations on a witness and on the but he never told her personally but she testified that he told her personally is it the government's position that the petitioner in this situation must present testimony from evidence was missing correct i believe it in the absence of the credibility of the mother in the sister i think it was reasonable to look to something else to corroborate his claim and that would be one area which would be reasonable to find corroboration and he did not present any time an applicant credibly testifies that he or she has a bi sexual orientation and shows that more likely than not he would be tortured because of that orientation he's met his burden of proof and i want to be crystal clear here that there's been no adverse credibility finding with respect to this petition or i think the government's conceded that in the b i a makes it pretty clear in his order that it is not affirming an adverse  moyes statement under oath that i'm sure is enough in and of itself yes and if that were all that the petitioner offered maybe the i j a would have made an adverse credibility finding with respect  but the i j a didn't make that adverse credibility finding so we are at least within the situation explicitly said he wasn't making an address credibility finding diddy he did not say that explicitly when i look at his opinion and he says i've reaching the there is the petitioners testimony last and when he reaches that testimony he says he testified to this relationship be able to reduce any specific details regarding the length of the relationship whether they ever side together the court must find that it is unpersuaded by the respondents claim of his sexual orientation that may not be a specific adverse credibility determination because i'm having a difficult time reading this and not concluding that the i g did not believe his testimony in my missing something i think the testimony that you're focusing on has only to do with the same sex relationships and so it's clear that the i g is calling into question whether the relationship with mikey hall existed or was homosexual in nature but as to the rest of the testimony a made no credibility finding the government said at the hearing that his testimony appears sincere that's on page three hundred thirty one of the administrative record and the b i a referred only to the witnesses so we are at least in the situation where the b a is adopting only a portion of the findings or at a minimum the b i a unlike potentially this court understood the i j a to be making an adverse credibility finding with respect to the witnesses only and not with respect to mr chambers and so this court would have to make a different credibility determination than did the b i a in order to affirm on the ground that mr chambers was not credible i think that brings us within the situation that  contemplated where you have no explicit adverse credibility finding you have no explanation for why more crab orating evidence would have been required and no analysis of whether that evidence was available and more than that you