ok when you're ready thank you good afternoon and may it please the court as you go to more than a junior for the petitioner ball when you're seeing substantial evidence does not support the agency's adverse credibility finding and thus this court must reverse and remap and in this case the transcript that was later made reveals that the i j a different got remain or what do you think we should remain for background checks your honor immigration judge forgot what occurred during mr seems testimony which was at least five months prior to her decision and caused her decision to be riddled with errors that are abundantly clear and require a reversal under the substantial evidence standard identity is a clear example of this the i j a identity finding was based entirely on her failure to remember that mr singh provided in the original indian driver's license and that the d h s s subsequently withdrew its objection to the admission of that license since the i j s decision on identity is entirely premised on her faulty memory and the transcript proves that mr singh established his identity that finding cannot support the adverse credibility finding now a review of the transcript here also compels reversal of the i g s demeanor finding and i g s demeanor finding in a decision is not evidence and for this court to determine if a decision is supported by substantial evidence that demeanor finding must be supported by the just observations of how the witness testified yes your honor and the petitioners point is that those oral observations by the immigration judge in her decision must then be supported by the transcript and in well hesitating for five seconds to answer the question absolutely your honor an immigration judge in removal proceedings mention nonverbal actions nonverbal actions for the record all the time and this makes sense not only to allow review by by this court but also to allow either attorney to dispute if they believe that the immigration just identified something incorrectly for example in removal proceedings an immigration judge constantly can say may the record reflect that the respondent is gesturing to his left shoulder to indicate an injury or may the record reflect that the responded is holding up his hands one foot apart to describe the length of an object or in the demeanor context immigration judges regularly state may the record reflect that the respondent keeps looking at his attorney each time a question is asked or may the record reflect that the responding the sweating profusely is fidgety or looking up at the ceiling for a long period of time before answering each question and this is when the record reflect that the petitioner has pause for five seconds before answering and it and it would your your honor and this court in jan beholder and weighing beholder illustrated how that demeanor how an immigration judge demeanor finding must be supported so in your view we can't he speeds up at times when he gets involved in this i mean we have a very clear finding your demeanor is just as not in the transcript you would require the i j a is harder running than the actual test want to enter into or up to each time she sees that there is something that may be a demeanor problem yes your honor and that is not the law and i don't think it should be the war your honor and this court has held as much implicitly in weighing in lynn for example in weighing the immigration judge specifically identified areas of history of there are applicants has testimony in that case that she found that the person just did not give any audible response and was has a tense and just non responsive in an audible way and the court held in that case and the transcript supports that because they specifically listed areas yes or fact that might have happened in a particular case where the i j a does comment during the during the actual testimony and we might in reviewing that point to the fact that it occurred during that time in no way means that there's only way the i j a me appropriately take into account demeanor evidence you're under the petitioners unable to find a single case by this court where the court says simply because they specifically the immigration judge specifically identified in their decision where the person testified to me i'm about to get one well your honor and let me there  another way in which you are court looks at demeanor findings and that is that the way that the i j a is demeanor finding is to is not specific enough so like they just make a general statement well the witness was just not was nervous the whole time or whatever and that's just too general that is and we have said that that doesn't cut it there has to be specific you know there's one instance here where i think for i recall correctly the  a noted that he was nervous when he spoke about what he did for the man party in india but he spoke about the man party several times and so you can't tell from the record what she's referring to that if that is advance an instance maybe where a demeanor finding like witness was nervous is not specific enough but there are other instances here where she's quite specific where example i think it's the one where where the passport incident where she says he was extremely nervous when he when there was this testimony about the passport the state certificates on the passport your honor if this court were to hold that simply by a judge stating with specificity that during his testimony regarding his passport he seemed nervous without it being supported in the transcript or anywhere else in the record in essence insulates the immigration judge's decision from review by this not reversible but five or six other credibility findings were wrong yes will you the result be will your honor then the others with the demeanor finding along be sufficient to find lack of credibility or would the other examples play into the result is it would not your your honor if the court were to reverse the others accept demeanor finding then the court would have to re man for a reassessment and there's a tally of the circumstances whether the adverse credibility finding can honor so on page sixty eight and sixty nine on page sixty nine the immigration judge specifically says that the respondent summited only a copy of his driver's license he indicated that the original where you on the page the door towards the bottom of your honor it's in the final curds ok and the response made only a copy of his driver's license however the record makes clear on page one sixty that his attorney indicated to the judge that the original was so and that's very crucially important because the immigration judge in her address credibility finding specifically stated that the most important i'm concerned that the judge had was that mr singh did not corroborate his identity but the only reason she found that is because she believed mistakenly that he didn't provide an original identity document issued in india but he did that was the only reason with respect to the driver's license she had very strong suspicion about for example the  singh was never inconsistent about how that copy was provided to the court mr singh testified that it that he might not have been telling the truth but he was consistent he was definitely consistent he made the copy after the passport was issued and then his family members he does didn't you know if his family members provided that copy or if a copy was made of that copy and he specifically explained that the marriage certificate was registered late because he was known that he had no need for the registration of the marriage until he had come to the united states and that's a mr singh were credible that he would have established both past persecution and likelihood of future persecution the b s a didn't address that point if we were to reverse would we have to to address the question of past persecution or would that be serve with but the fact that it wasn't raised before the b a a by the government well the government never appealed to the immigration judge a decision on that respect so no your honor it would just be remanded for background checks if the court completely reverses that perscribe ability finding however if the court finds that one aspect of the address credibility finding does support but the rest do not then they would need to redetermination of credibility under the taliban of the circumstances thank you and we'll do the same for you as we did previously we will give you a chance to respond but let's hear from the government could you answer that same question first as to what would happen the question of the i j a having found past persecution as a back up finding yes judge john of the robins here on behalf of the government with respect to the question of waiver no the government and likelihood of future prosecution right but there's no law that says that the government has to appeal an advisory comment like that by an immigration judge this didn't end up with any form of alternative really so for example if the if the immigration judge had for example denied asylum it granted withholding removal in that circumstance then yes the government would have to would have to cross appeal for if they wanted to challenge the grant of relief there was no grant of relief here to challenge in the case law specifically the supreme court has said that parties don't have to challenge unless they've actually lost something that you don't have to change just to you don't have to appeal just to change the reason for a decision or sauce appeal or raise in the very thing exactly you know i think the supreme court case is northwest airlines against county of kent michigan i think it is in the supreme it's not an immigration case but it's but it's the party doesn't have to unless you unless you lose on a remedy and some way there's no need for an appeal if it's obvious that is to say assuming for the moment their position is credible i don't ask you to concede that say that that's something that the agency would have to find in the first instance you may be right if the in if the in but if that is what the immigration judge was really saying here i think that's probably what would happen but i don't think the court can say that it would have to remain for to the agency for well there were a decision consistent with this and other cases of the like with respect to that in the your inquiry if that answers your inquiry with the with respect to the remedy that they're asking for and whether it's allowed with respect to the adverse credibility finding certainly i don't think the record compels a reversal of the agency's determination that petitioners failed to credibly establish their claim here your honor is have already spoken at length about the demeanor finding and the government would wholeheartedly reject the notion that there has to be some sort of rule made that an immigration judge has to preserve demeanor findings as though there were objections or something along not even just the specific discussion of the actual problems with demeanor but the immigration judge tied them to particular problems so for example there was the issue with the passport with the very questionable stamps that were very questionable looking document on its face and the immigration judge tied that to the saying when he was asked about that particular issue he had a panicked look on his face and he said was extremely nervous so under the totality of the circumstances here and we're not really even looking at the demeanor so much in isolation it's tied to the different problems that he had in his in his claim with respect to the various forms of various claims that he was making particular with the problematic claims and it's not even just of their demeanor funny's the immigration judge all of also compared the fact that he had demeanor problems with respect to the various in can when he was testifying about certain inconsistency s but at other times when he was testifying he was more comfortable and there were an inconsistency as there were there was a lack of hesitation there was a sort of ordinary type of testimony so this may alter a virus acts of a notary reflect on his credibility maybe this is a minor point but i can understand the be sure but that really brings into question the credibility of the document as to whether it's actually a valid document or questions the veracity of the document if it has something like that on it and that does go to credibility i mean i don't envy immigration judges in asylum cases very hard to determine what's true and what's not some cases are totally fraudulent some cases are actually true there are cases in the middle that just have simply embellished claims it's very difficult to sort through what's real and what's not i mean it's it almost impossible chopped but when you have a  document it's questionable on its face and you ask the person about it and they say well it was a notary that was to put those stamps on but you can see very clearly that notaries wouldn't do that brings into question the documents and it also when you combine that with the fact that his demeanor became extremely nervous seemed like he wasn't didn't realize he was going to be confronted about this document and that he had a panicked look on his face according to the to the immigration judge you know the question is does the record compel a conclusion is there isn't is there no possible way an immigration judge could have come to the decision determination und and here the immigration judge again very specific demeanor findings that are completely in compliance with the law there's also the problems for example with the date of petitioners marriage he mixed up the date of marriage is one point his application said two thousand and five and but he testified that was two thousand and four you combine that with the fact that the marriage certificate was questionable on its face because it was issued in two thousand and twelve many years after this fact he didn't remember his own wife birthday during the during the proceedings i mean these are things that you know how could it be said the record compels a conclusion that he was credible with those kind of problems in the record so unless there are any other specific questions about the do the specific details of the of the problems in this case i think the record amply support is the  landowner versus government yeah that was one well i don't think petition actually raised his brief to the board that he didn't have an opportunity to raise that they did file actually emotionally open in a in a suburb just to review that they've actually conceded now it's gone they did try to challenge the translation of that document in the motion to reopen but in the in the primary appeal to the board i don't recall them saying that they didn't have an opportunity to respond and so i mean even look even if you were to overturn that one for a specific credibility funny i do dispute something that my colleague said here about having to remain at this court has said that even if this court finds a single discrepancy that sufficient to uphold a credibility finding it doesn't have to remain and even if some other  the demeanor finding combined with the problems about the marriage though those considerations are amply enough you supporting region the birthday those things well they might be important to the wife may be grounds for divorce i don't know but certificate had a photo of him and his life on it right the marriage to that was created after the fact yes in two thousand and twelve but here's the problem it may seem trivial at first ok but remember that the immigration judge is trying to sort through is this you know a fake claim that's being brought to me there's a lot of fraudulent documents in these in the and so when you ask so when somebody claims they're being married and you ask them what was your wife's birthday and they don't know the answer alarm bells start to go off you know is this a real is this real claim it may seem like a trivial and consistency but it's those details were claims oftentimes fall apart so and under the real i d act at the the the inconsistency doesn't have to go to the heart of the claim and it's specifically because of these types of problems in claims that tend to arise yes usually we call on you not the other way around to two of the  argument about the affidavits from the father and the village elder describing an incident that neither of them saw being made in the same type of language strikes me as the sort of thing that lawyers do all the time someone doesn't know something a lawyer has to write what they were told about it to demonstrate that there was contemporaneous reporting and naturally they're both going to say the same thing because the same person reported the same thing to both of them so the notion that those two witness reports are lacking credibility because they both said the same thing strikes me as as problematic and that the b i itself disclaim it on that one either so they didn't speak to it i would also know that they were actually talking about three letters there are two letters that were considered but there's actually a wife that also mirrors the exact same language but i think i see my amount of time i just finish answering your question the petitioner testified as to the creation of these documents and he claimed that they had told an interpreter and interpreter was writing down what they were saying so the fact that the language was exactly the same as the in the way the petitioner describe them being created that's what sort of lent  that's what sort of gave credence to the notion that this was a somewhat suspicious because of the way he claims that they were created that the individuals for each letter had been speaking to a job interpreter and the interpreter was what was interpreted what they were saying that is thank you your honor i upheld a consistency finding based on five reasons first was an alleged inconsistency with the passport which doesn't exist mr singh testified consistently about that and the court is correct the argument well he testified consistently that stamps were not on there when he made the copy that was left there in his home and then he said that he when he was confronted with a document he didn't know where the stamps came from and then just speculated that maybe it was his brother the guard on there  with the other five he quickly corrected the day when he joined the party and a candidate that he campaigned for in two thousand and nine so then that just leaves the mistake about the date of marriage but he does singh was he said that he was a vice president of the party which actually would lend credibility to do is claim that he knew who that person was and then additionally again regarding the date of marriage he testify consistently with this  in two thousand and four and then the d h just asked the confusing question saying but it's inconsistent in your statement but his date of marriage is not in the statements actually in this i five eighty nine and he reasonably explained that he just did that it was a mistake and he just did interpretation error and the and responded to tourney at trial who is also a native punjabi speaker immediately objected and said that they disagreed with the way that that line was specifically interpreted in all the evidence they submitted and when he described what he did in detail that was that the government did indeed tell and why it was unjust that that's what caused them to join because he was a landowner himself many he described in detail why he waited fifteen years was because by that time he had workers working for him and then he had more time to dedicate to party activities ok good thank you very much thank you i think both sides we're saying versus national submitted for decision