good morning everyone welcome to the th circuit we were delighted to see you here today we will take the cases in the order that they appear on the calendar and the st case is she way versus bar council for that ca how do you the circumstances approach imposes the requirement that an immigration judge cherry pick the facts soley favoring an adverse credibility determination while ignoring is merely focused on petitioners testimony they completely ignored all the documentary evidence that was submitted that supported his credibility and the support of his case they know what the witnesses there were two witnesses to testify for him and there was also a there is also a letter that's in the record from a witness who was there at the time it was a neighbor all of these all of these things work in a way the council there's several in consistencies that i j pointed to could you address those yes your honor there are several in consistencies i'm not going to i'm not going to deny that however what we will what i will address those in that a lot of the inconsistencies number one didn't go to the heart of the clim held that you have to look at the fatality of this at the the totality of the evidence that the witness testimony is just one part of of the evidence when but it seems to me that you're better argument about the the evidence is that the b i in the i j a both suggest that the credibility finding was based on the totality of the circumstances so it seems as if and even they say some may not support a claim on their own re man may be necessary then so it seems to me that if in fact you can succeed on any of these five different that they don't analyze any of the other witness testimony there's they're well now you're getting as to the inconsistency then why you might be right there in all i'm trying to get is if in fact they have any of these in consistencies which are not appropriate for finding inconsistent testimony do i need to remand i think so you are i mean i think that that that if you if you if you want to tally a circumstances finds that the the that petition was in fact believe or his claim is credible that there does have to be additional analysis let's turn to the inconsistency regarding worry was when his sister in law was killed that was certainly an inconsistency he was inconsistent on how they were killed and where he was at the time of the killing right i agree your honor he was however this and therefore it seems to me that that would be a valid inconsistency on which the b i and the i j a could rely is there any reason they shouldn't rely well you're going to have to look at the the whole case and that's well i'm understanding if you look at the whole case but we're not on an inconsistency going to the heart of the disagree with that when i but i don't think it goes to the heart of the claim and i think that in another itself is not enough you know based on the weight of the evidence see the other witness testimony of the many documents that were submitted that are that have to be taken  true that are not that if that were not that were not addressed by the b i or the immigration judge there's you know there's witness testimony when one of one of the witnesses and i i'm going to probably butcher his name charles and and in fact boney a he was a former chief of police in kigali at the time you know at the time of the you know that this was occurring before he left and to testify about what happened you do to one of the other relatives that told him about about the the pastor being killed and the petitioner burying the pastor and then there's there was an eyewitness her name her name is rachel lucas the tare she didn't testify but she wrote a letter that was submitted that was submitted and accepted into the evidence it was completely ignored by the judge and completely ignored by the b i a so what inconsistency are you really talking about with that particular evidence well that was a i mean there i have five inconsistency is generally outlined here ok and i'm just trying to figure out what you're really going after if i i we talked about one of the in consistencies let's take another inconsistency regarding the grenade why he was targeted by the tutsi soldiers the omission regarding worry fled do you think there's a problem with that inconsistency well you know i don't you know i can't imagine how being and that particular situation but i think that's a very the grenade is a understand that but i guess what i'm trying to figure out is if i'm going to weigh this inconsistency on what grounds should i say that the b i and i can't rely they're on other than trivial well i mean i think that's that's really what it is i mean there was a grenade he was attacked was he ever confronted about this inconsistency i believe he was up believe he was and then i believe he said based on my recollection i'm trying to not one who generally understands this on a regular basis but twenty some odd years ago i had to get into this st ball you have to have an inconsistency and then you have to be confronted about the inconsistency and then yeah after a there's has to be an explanation about the inconsistency and then the i j a in the b i have to determine why that explanation is not relevant  so i'm trying to figure out on this particular inconsistency what it is that you're challenging besides it's trivial which i think is kind of gone by the wayside based on it doesn't left on this on the outside of his door or whether they just left the grenade on the also that door i just really you cannot expect witnesses in a particularly i think somebody who's been trying to remember something that's like one thousand five hundred and twenty years ago and going to give the exact same testimony you know every every time and not being his st language and he's gone through you know the genocide in rwanda i mean i just don't when you when you look at that i just don't think that that's you know that that's that's significant whether he was shown a grenade and in a window or whether he you know he wasn't shown a grenade in the grenade was left outside i mean the and he was attacked various times i mean they came to his inconsistency from a from a witness an unknown witness testimony that would that they've sort of extracted out of a total hearing in this international tribunals that was that was in a different they were holding and again just as well all the only difference with there is the difference in the number of the people that were killed and where the bodies were but it doesn't put that particular witness at any place and time that particular witness didn't say anything about the petitioner being there because obviously he came there many many hours later we don't know what happened in between the time that the the pastor was killed and then the the time that that the petitioner arrived there that's that's next you know that's are my explanation facet of his claim well as try the st yes as is the inconsistency with regard to how many people died in addition to pastor ammon and their location let's try that one yes your honor he in a anonymous witness so they match his testimony against this anonymous witness to the ever get a chance to cross examine that witness he did not your honor that is ok so he didn't get to confront the witness witness is unknown as a general rule may i use this hearsay testimony absolutely your honor and what is my best case sanchez versus holder your honor at seven hundred and four of the on where a guy was killed or who how many killed him and they don't even get a chance to cross examine how is that fair your own or is it fair simply because the witness was a written within the international criminal tribunal for a while what if he was the his testimony frankly when i read his testimony even in that anner national tribunals i didn't see any place in that transcript where the witness was ever cross examined as to the number of people that were in the house or their location i believe as i read the transcript that those facts were on challenged he was cross examined certainly while he examined on that night after that and that's exactly why you're now going to argue to me that this particular petitioner who doesn't get a chance to confront him on this evidence ought to be inconsistent and therefore incredible your honor that's fair that that is one aspect your honor of the totality of the circumstances in all right there is one aspect let's go about the inconsistent testimony regarding who killed the pastor yes your honor it's was did was he ever confronted about what he said about that is a very recall he  here he was confronted with st trying to establish his brother's name well i'd like to have yeah i'd like to give you have you give me the place in the transcript that says he was confronted because i don't think it's in there but even if he were let's go to the nd part at that point did they ever explain why his answer to the confrontation was wrong or why it wasn't credible i'm sorry that which confrontation you're honorable i'm talking about the one we're talking about with where who who killed pastor ammon it at st he says he doesn't know then he's presented with a conviction document with his brother who is using an alias which he initially denied he then accepted the fact that he did use that alias when confronted with it with a yearbook with his brother's pictures in it picture in it and then said well ok maybe it was my nephew while well who i it was nobody it was my group but i don't know where whether he's the one that did it but he was in the group which went there i didn't find any confrontation but even if confronted where did the idea consider inconsistency and we don't confront and we don't explain why the explanation isn't any good so therefore i have nothing to examine on appeal and i don't know whether to be able to approve or not disapprove that i've been able to say in those instances that that's some inconsistency that the we i can rely on so we've got number one about how many people died and their location we got number two about who killed witness ok why did he reject the the petitioners explanation because he later denied that he was ever accused during his cross examination but if you read this testimony where in the record cite the reference i'd like to find it where the i j ever stated why he did not accept the explanation thirty two of the record he's confronted with well i was and several i was held answerable in what is answerable mean as it relates to accused and on page seven hundred and thirty two dollars of the record the h s counsel asked him specifically to clarify where there he is accused or rather he is a witness and he says i was accused and i may not be getting it precisely correct but i was accused indeed well my worry about all of this is that that that when we're looking at the procedure for the i j in the b i and what they have to do to make these credibility determinations i've picked the three that i have the most problem  therefore i come to my final question if in fact the b i in the i j both suggest that the credibility finding was based on a totality of the circumstances and that some of these to your you know one about what about doing this whether whether you are unaided correct he was targeted on by the sea soldiers about where he fled yes and about where he was when his sister in law was killed every saying is all of those yes i don't know whether they would do it on that because they said some may not support the claim on their own the they did say that these are major inconsistencies going so they need not go to the heart of the claim but here they do in the court's opinion and srishti i may be mispronouncing that but what the court does is say look in this instance that may not be enough to support the claim but his that determination they have to and they've said some of these might not support this how do i know which ones they think do and which ones they think don't even because your honour's standing alone the reason he was targeted for harm in the st place which he was completely inconsistent about which he was absolutely cross examined about and asked about to reconcile why you were targeted for harm is the fundamental crux of an asylum claim here in they certainly came to some very fundamental aspects of his testimony which were not credible which were contradicted in which he failed to reconcile if the boardin if you honor believes that some of those were not quite up to snuff and not sufficient still under the totality of circumstances those alone suffice and do not do not demand that the court find him not credible or compel the conclusion that he was credible oh just briefly are just one other point that i didn't i didn't make one of the thing one of the factors is the one of the things that the board found and they completely misstated it was that this this anonymous witness testified that the that's that was one of the things that the board found so so that in and of itself i mean that's a that's a major that's a major point they may have used that to tip the scales here to say that this isn't you know that this petition was not credible  there's a lot of mistakes from the board here in the and with the judge and i think this case definitely was not looked at properly and they did not consider all the evidence and what all they did was they they cherry picked these facts that support the negative credibility finding therefore w