good morning may it please the court my name is sara hammond inger i represent petitioner so me congress saying with the court's permission i'd like to reserve two minutes for a bottle mr khan was saying petitions for review of a final order of the board of immigration appeals denying his application for asylum withholding of removal and relief under the united nations convention against torture the immigration judge in this case based on a review solely of a hold record found that mr kahn was saying failed to establish that he was a credible witness the board of immigration appeals found that the adverse credibility determination was not clearly erroneous the agency's determination however was reached in violation of mr congress things due process rights that you're saying that because of the comment the in the opinion that the i g said i've observed his demeanor when it was a different yes found that statement didn't play any role in the ultimate decision because none of the inconsistency was that were referred to had anything to do with demeanor and except for that passing comment demeanor wasn't relevant and i guess because prejudice is a required element of a due process claim i don't understand where the prejudice from that comment thomasson was prejudiced by this violation because the entire adverse credibility determination determined the outcome in this case and what yes he did but the demeanor didn't determine the adverse credibility they looked at things like you wrote in your declaration that your father died in prison but and then when you testified you said he died five years after he was released from prison i am not in prison and and a whole  he in business with his relatives what did he use weapons on a whole variety of things that were no resemblance to demeanor we would submit that the statement about demeanor at the outset of the opinion does affect the other stated base determination in one way because of the standard of review the reason that the board deferred to the findings in this case and that the government asked this court to defer to the agency's findings is because of the understanding that the i j a took live testimony relevant finding some bout the inconsistency is yes but on the understanding that the the reason for the clear error of you is because in the normal course an i j is in a position w i don't understand how that has any bearing on the fact that you know he said he says my father died in prison that he says when my father didn't die in prison and that's not the same regardless of his demeanor it also is relevant that the i g did not observe make a personal observation because of the particularities of this case but we don't we all know that we know that the i j a didn't make the determination yes or so is in a case in which the idea doesn't make the determination put aside the  your infection argument what's our standard review of the i j s absence of credibility fun in a situation where the i j a hasn't made a personal observation we would submit that the standard i know you you submit it tell me what cite for you where the court noted that in that case there would not be a deferential review of the determination and gave the court an option gave the parties an option to either reman a to make credibility finding in the first instance or said that there wouldn't be deferential review where there can't be a credibility finding here on this record because the i j a who heard the thing is no longer there so are you saying that you must always have an i j who h thing make a credibility find not that it must always be but in the particular circumstances of this case where we have a witness why let's just remove the remove the boilerplate that the i j a stuck in about having observe the demeanor plea different argument yes your honor but the reason but even then so if the court was looking at this to novo the trivial inconsistency is wouldn't support the adverse credibility determination why  interview they're trivial because they relate to events from nearly fifty years ago and this witness was testifying through translator over the course of eight hearings that took place over four years and inconsistency is admittedly there were inconsistencies you have reasons why you believe your client was confused so that these inconsistent but it seems like we're weighing the judgement here the proceedings even if the court case about how to address and i g s findings and this court can look and see whether or not the findings were supported by substantial evidence evidence and whether or not they were so trivial that if if you assume that they were that it would support the i just findings but this is not that case the inconsistency that the government points to here relate to events from the late one nine hundred sixty s and one nine hundred seventy s and one has to consider consider the totality of the circumstances here and in the totality of the circumstances given mr congress things consistent account of persecution and torture and the government has not you saying that the government that the i j must accept that the i j in this case and i think that this is correct in the absence of mr crown was saying testimony there is not much evidence of past persecution it is it's his testimony that establishes it and he says and i don't believe his testimony because it's inconsistent in many respects with with the record so why isn't why isn't that a substantial basis for rejecting for two reasons first because the i has to consider the totality of the circumstances before rejecting his testimony and as we previously mentioned we don't think that those are the reasons that he pointed to for rejecting his testimony were sufficient the i g also erred in rejecting certain of like when was he arrested and he said i didn't and all the many other things that they looked at they looked at it and seventy it's just not convincing enough to and on the particular issue  declarations of his sons the i j a decided to afford them little weight solely because they were consistent and we see that when they were not course they were a consistent course they were in they were virtually identical they were very similar but that is not something that would weigh against whether or not you say he seemed to say they were they seem to be constructed and i give them a little weight he may have been wrong but do we have the ability to say he erred by giving them  little white yes you do they ever feel rejected them if you said i won't consider them i don't understand it but i keep gave them little weight solely because they were consistent and that was erroneous i see here that i've you know you may you may save the rest of your time it please the court generally on behalf of the respondent the attorney general of the united states good morning the court should uphold the agency's denial of mr comma songs protection applications because the record does not compel a conclusion that mr credible for three reasons first mr economist on board the burden of proof which means having a core story is not sufficient he must establish his claim with credible persuasive and specific evidence he had an opportunity to call his daughter as a witness and in fact he provided she provided a waiver to do so if he didn't have the inconsistencies that was found by the i j a would have presented approval klein credible did he present a sufficient care if he was credible then i believe he did present us if i apologize if you know what but if we were to reject if we were agree with your colleague that the inconsistency  found were trivial and not enough to justify an adverse credibility finding then at least on the face of it he would have a reasonable withholding claim would he not accept both modifications correct that is correct ok i think so back to me tell you the two things that trouble this case and see if you can which one is the thing your your colleague argues we have a finding here that is clearly not supported by substantial evidence which is to say that mr khan was on his demeanor was such that there was that there was an adverse credibility finding because the the i j a never song so he made at least one finding that once you process claim lacks merit for many reasons although the immigration judge mistakenly said that he carefully observed mr congress on this demeanor and that didn't happen he can't show prejudice or any not the same one who heard the testimony the regulations specifically provide for such that no we don't no one doubts no one doubts in this case that once somebody retires and the judge has to take over that's easy the sometimes the court carefully observed his demeanor and there's that phrase but i don't see it playing any further role because all the remainder of the discussion on credibility which goes on for many many pages deals with specific inconsistency she testified a but then he testified b testified d but his declaration said x so i guess what i'm trying to sort out is whether that using fact a finding that isn't supported or whether it's a passing comment that turns out not to matter i think your honor i believe that it was a passing statement that doesn't make it doesn't matter because there's nowhere in the mid gratian judge's decision that you argue is that there's no pressure that's correct your honor so let me ask you this second point because i'm not sure you get t his in other words most of her persecution claims seem to be either identical or derivative do we have any inconsistency issues here will you honor the the the benefit that his daughter had was that there was not another application based on remarkably similar facts out there in order to make the comparisons to mr conway songs daughter was his witness and if there was any fallout from in consistencies between his testimony and her application it was on him you know i understand i'm asking a broader question that maybe there's no it's nothing we can do about it his daughter shows up applies for asylum or withholding i forget which of the two and gets granted it based on a set of claims almost identical to mr congress angst and probably less compelling than his claims he shows up and in the in the same administrative tribunal says no you haven't proved your claim stepping back from that case that's what troubles me here i don't know is there anything we can do about that unfortunately that's something left to congress but the the immigration national allows an alien to establish her claim based on her own testimony if it's specific credible and persuasive his other is that her claim should have been denied she was just more persuasive i mean we don't know really we have no way to know unfortunately are we have no way of knowing and mr conway song had the opportunity to call his daughter as his witness and have her clarify the inconsistency the conflict there was between his testimony and her asylum application but he specifically withdrew her and if there are any consequences that fall out from that withdrawal that's on him not on  explanation the second reason that the agency's decision is supported by substantial evidence is that we're looking at the totality of the circumstances we're not looking for one amongst many we're not nit picking each of the agencies adverse credibility  terminations to see if under a light to see if each one holds because that's not how it's done when you're looking at the totality of the circumstances the supreme court stated in a supreme suppression case that was cited and  standard of review we can't just ignore the standard of review because a petitioner wants us to the standard of review is that simply because there's a possibility of trying to inconsistent to inconsistent conclusions from the evidence does not prevent an person's demeanor which is not true we know that's not true if we view that as a finding that it was clearly does that alter the standard of review or how how  the determination so the immigration judge's decision contains incorrect statement serious incorrect statement clear language i'm not sure why that was in there but based on the totality of the circumstances the record supports the agency's determination thank you honors thank you you have some rebuttal timely man i'd just like to return to the question of prejudice mr khan was saying was prejudiced by the lack of live assessment of his credibility and demeanor here the issue with making an adverse credibility determination without live observation is particularly acute here mr khan was saying speaks a regional dialect that made testifying difficult his testimony was taken over the course of eight year ngs over three years and one of the inconsistency is that the government points to is whether or not mr khan was saying worked at a clothing shop or was a business partner in the store and immediately after translating a statement that the government points to maybe because mr sering and me are business partners in the store the interpreter told the judge honor he was saying something but he was saying in a very strong local accent i can't understand what he's saying and the record contains many other similar examples of issues in translation and that actually is not a claim that was made in the briefing as i briefing is instances where there were missed translations but it also goes to show us is asking a different question he's asking a jurisdictional question that is an issue that is not exhaustive before the agency we have no opportunity to rule on it at all and so the question i think a better question and mind as we correct each other's questions is whether this is an argument that was raised to the b i i believe issues with his regional dialect were raised to the b i a but they also form again part of the totality of the circumstances and make up the general circumstances well but in the absence of see that that's there's the difficulty you may well be right  but we're now on review of an agency decision in the absence of something in the agency record where you've made that argument to the agency and say therefore the absence of accurate translation prejudiced him in some way i don't think we have jurisdiction to consider i believe it goes to the issue with a lack of a in person hearing at all and is part and parcel of the same issue of why you live assessment was needed in this case and that certainly was raised so your argument that different from any other case in which i just goes somewhere else for work or dies or whatever and another is charged with making a decision is it your view that there's always a need for a new hearing this case is somewhat unusual in terms of the number of hearings and the length of time over which they took place but in these circumstances where the i g made the explicit statement at the outset that he did carefully how can i j ever make him everest credibility finding if he or she wasn't personally present during the hearing yes are you and so i'm that's that's my question to you is whether you argument is that there always has to be a new hearing some of the i j a writing the opinion is the same person who was physically present earlier i think it would be certainly the  practice in the best way of comporting with what the law requires on this it wouldn't necessarily maybe in every circumstance i understand that i js need to retire but in the circumstances of this case with the length of the record that was so i didn't make any demeter calls but i've read this record and i found the following six in consistencies and to me they gave me make his testimony not credible are you saying that's not permissible in your case in your case you're saying in your case you absolutely as a matter of constitutional law because there's no statutory basis for the claim haven't title into a new i j in oshodi versus holder and the cases cited in a shoddy versus hold made clear the need for live assessment to undertake fact finding in that you can't simply judge somebody is credibility on the basis of a cold record and so that would support the need for a new i j to come in and make a l hearing the rest of the case