good morning your honor as my name is morgan russell i represent petitioner satnam singh the court should grant the petition for review because the adverse credibility determination is not supported by substantial evidence but instead i supported only by mischaracterizations of the record in this case the b i held only one of the i js bases for his address credibility determination the low and the b a's sole basis for upholding the adverse credibility determination was that there was an inconsistency between mr singh's testimony on direct and cross  regarding the gender of a head physician who treated him for injuries after his arrests and beatings in india however each factual premise of the board's reasoning mischaracterize the testimony under wrecked and is not supported by the record the b s a stated that on direct mr singh described the doctor as a male that's just not true at the pages cited by the board there is no description or statement that the doctor is a male the only did you argue for them to the board that that in fact there were translation errors that that because of this error in credibility determinations so the the brief to the board was done wasn't done by my office and it doesn't really raise that issue i don't think exhaustion is a problem here though  board the board's reasoning is clearly before this court as this court has held of the board in the grounds relied upon by the board are before the court and are exhausted i think also if we were trying to raise now for the first time an independent due process claim based on that interpretation or problems in the interpretation there could be an exemption problem there and i think the issues with interpretation that we raise in our brief to this court is just sort of a was there and and had the translator there correct yes so wouldn't the credibility determination actually include an assessment of the translators performance well it doesn't and said the i j a ignored the various instances of problematic translation and i think that you know we said in the brief a number of instances and a number of instances of problematic translation occur in the very sort of key passages that the board relies on in support of its advice credibility determination i think you know there's a number of statements even by the interpreter sort of purportedly translating into english that i think at best could fairly be described as broken english including for example sort of first instance where on cross examination he does actually describe the doctor as a female which is the first time a specific statement as to her gender comes up instead of just the interpreter's use of the pronoun he or she that's at page one fifty four of the record the interpreter states speaking for mr singh the men had the men had is a female sewer  current and other people work under her i think the transcript is full of sort of translations like this into very broken english that i think under this court's president  support being especially dubious of the address credibility determination here so she writes based on such a weak and in fact nonexistent inconsistency that really just miss characterizes the interpreter's use of a pronoun as if it were mr singh stating at some point on direct examination this was a male doctor you know it's not as if when asked to scribe the doctor he said oh he's a man he has a beard it's better etc he wears a turban in fact he says the opposite sex doesn't wear a turban to decide that there was some sort of exhaustion issue in terms of that i mean we raise about looking at other aspects of the record for interpretation problems i think even specifically on this you know issue of gender which is certainly before the court  i think grave concerns that that back about argument are raised by the fact that even after mr singh has specifically testified that it's a woman and clarified that the interpreter then goes back to using he and she interchangeably which i think  you know makes clear that makes clear the fact that on the director there is no description of him as a male and so the board's assertion that he stated that or described the dr as a male on direct is just not true  and because you know it's a misstatement of the records and the statement is testimony and that's not substantial evidence under the skirts of this court's precedent i think you know the only other i think really the gender issue is the only actual basis   that's also just a misstatement of the record he mentions the fact that there is that there was one head doctor with people working below her both on direct and on cross even if we get past the credibility determinations and and  statements this court has made about the ideas being in the best position to make credibility determinations so we get past that issue how do we deal with the fact that there was an alternative finding that there were many places in the country where there would not likely that adopted or affirmed that i understand i guess i'm just trying to determine whether or not this is this is an exercise in futility if we send it back and it's likely to end up in the same place well i don't i don't think we can speculate as to what's likely if it goes back then there will have to be a new analysis by the agency the board can remain to the i j a for further finding on that issue if it you know it may well we just don't know the board may well have felt that there wasn't substantial  there wasn't a basis for the edges alternative finding we don't know whether they declined to reach that just because they didn't want to take the time or because they thought it was problematic on the merits and that either way that's something for the agency to sort out on remand thank you c supported by substantial evidence substantial evidence being inconsistent season go to the heart of his particular claim for asylum it's probably not about the board petition it was unable to provide a consistent account of who provided his medical treatment because this inconsistency called into question petitions alleged mistreatment and india it alone is sufficient to provide substantial evidence to support his adverse credibility finding i don't really understand your waiver argument or exhaustion argument i mean the board it's precisely said that that he pointed out that during the course of the transcript he said i think maybe i'm not being understood or maybe i'm not understanding you wasn't there at least consideration by the board of this possible misunderstanding yes there i mean there is consideration if you look at the full strength transcript and not just the sections that pows and council refers to which is during cross during direct but it was specifically asked who treated him when he went to the clinic he specifically said i was treated by dr dr qur'an g a on cross examination when he was asked who treated him he said i was not treated by her i was treated by another particular p n when he was given x but when he was given an opportunity to explain this discrepancy he actually said well initially his response was that the mis understood he initially said that he thought he was asked who treated him the fact that he said he thought he was actually treated him suggests that he was not he understood the question because that's exactly the question i was presented to him his own counsel if you refer to pages one twenty two one twenty nine to one thirty three and we want thirty one twenty because it's not exhausted or and i think the question was the board did reference the fact that he hadn't understood what the immigration judge said so given the fact that the board had treated that issue i think it's probably proper before so i  board on appeal and and although the board made a reference to the transcript he wasn't essentially putting its full weight on whether or not there were translation errors in the document so we have some case law that says that you have in terms of adverse credibility that  the agency must be sensitive to the possibility of mistranslation and we've raised that those issues have been raised in the context of an adverse credibility review  so generally speaking those that type of issue may or may not need to be exhausted i will grant you that if this were a procedural due process question it's an exhaust so i just want to give you an opportunity to tap afai your exhaustion diameter during the same same series of questions what he wrote what he did but he did the feminine references during cross examination there were no feminine references during the direct examination the actual recess took place doctor at the clinic and that there were other people who assisted her who were male i mean so that the with the question is you know you've been to a lot of doctors offices that the question is who treated you it could be multiple answers it could be but he was adamant that it was dr karen g a during direct examination there was no there was no hesitation he clearly said that that was a person treated him he spelled the doctor's name i was treated by karen g a k j he said that he only saw guarantee it because he knew them because he knew him and because his office was in paki like where the area was so there was some level of familiarity he was expressing is a reason why he attended his clinic and he was treated by this  the direct examination shows is that he was directly asked the first name of the doctor who treated him and he said he did not know factor carriages name on cross examination the first thing he did after recess was blurt out her first name so during the course of his testimony he goes in and he says i don't know who this person is i don't know the person's first name now all of a sudden the person is female and i know her name the presumption that look at that time was it during recess he must  that is evidence and during cross examination he was just trying to change his testimony to reckon with out his was a sandwich the evidence was he asked how he remembered her name you know he was not asked but he did say he didn't know her name clearly during direct examination and as soon as he came back he was able to produce senator himself on the launch or whatever and i can't remember any so i would suggest that that in addition to the fact that there's no other evidence in a record aside from the the letter that has been raised is questionable that his mistreatment or his treatment with the by the doctor is not credible you agree that if we were if we reversed the credibility determination that we would need to remain forward for further consideration if you reverse the credibility yes i believe that you would have to be a man for further consideration because if the board kind of hung his hat on one credibility issue and if that has been that is overturned then i would assume that there would be further consideration for other matters but personally based on the record i don't see how it would have actually changed the the end result i mean petitioner found a declaration of harm in india he didn't say that he was treated at a hospital the affidavits that he supported to send to substantiate or supporters saying that he was  mistreated and i does it did not include any mention of having gone to the actors the only thing that he had was this one single document and i don't see how that's actually going to change anything because that document has been called into question due to the anomalies in the letterhead but the board didn't make any findings on that you know the board did not make any findings on that but if the if it goes back to the immigration judge based on this record they  could ultimately make that finding it would just come back up through with the same result that being said getting to patricia's cat claim the cat claim fails because she sure has  to any evidence aside from his discredit testimony to show that he would be likely to be harmed if he's returned to india based on his participation in the man party the specific evidence in a record that petitioner has pointed to with regard to his cat  claim actually shows that part man party members are ill treated any more based on our political activities but rather if they engage in terroristic activity but the board made no findings on that right while the board agreed with the immigration judge finding that there's no independent evidence outside of petitioners discredited testimony to demonstrate that he's likely to be tortured but upon his return to india he says no this is the movie but if we find parts of the direct examination that show clearly he knew who he was referring to and that was the only position physician he saw was on pages one twenty nine and three thirty three i believe and page one twenty two thank you cou similarly of the document issues with the letter of the doctor's letterhead that i did rely on but the b i did not and so that's also not before the court to be identity that basis probably for good reason because for him there is employed are they also doctors like you say call them nurses or doctors that description of there being a head doctor and other staff where he was treated as consistent with with his testimony on cross thank you thank you coun