decide among yourself that individual to a country or his life or freedom would be threatened or he would be tortured whether that exception applies this court read the man did last time for a determination others whether mr use of public is a danger to the us using that you suppose had misled investigators when he was arrested in two thousand and four a factor which there's utterly no support record it's the board decision states that he misled  the arresting officers with regard to his roommates the roommates presumably being sam a dog and zakharova when in fact he was living in virginia at the time not in philadelphia not residing with the roommates and they place some particular emphasis on  believe are correct that's the application of lot of facts they get to make it an over determination i think this court made that clear and kaplan that and who won but they don't get to trample the fact finding made by the immigration judge as the dissenting board member said when you really can't reconcile finding you supposed credible and finding that he's a danger neither if you accept his explanations about the facts raised by the claims made by the government it's really impossible to find him a danger to the u s in the the fundamental problem with the government's theory in this case is there's no there there the they cite cases involving known terrorists people who associate with al  that as well there's two things first is the testimony of use a pov and secondly more importantly there is testimony in the record there is of it documents in the record including state department  it is by jury opinion which was given which basically says that these kinds of claims of extremism are really pretextual but it's clear that now is in no way a terrorist there's no action the evidence in the record that he in any way supports terrorism or than any of these individual supported terrorism use a pup testified at length about his beliefs and that he doesn't believe in violent change doesn't believe in extremism of any kind there's no evidence that na supports terrorism against any country let alone the united states the the board seems to they try to piece together some facts equivocal facts and try to turn not clear which side was the turns to specially at that time there are certainly different views on chechnya and and for use a pub to be interested in what was going on in chechnya hardly bears the weight of the conclusion that he was that he  sympathy for terrorist groups in the whole characterization of the video by the board is directly contradicted by the immigration judge who found that use a pub had credibly explained his interest in them didn't find the images didn't find them the interest security in this country and we should be but that there is no evidence that this individual shares in any propensity for terrorist acts there is no showing that he believes in terrorism of the  concludes that there's a fair probability that he will either act or assist others in turn risen and it's a battle finding there's just nothing in the record that supports that finding other th reasonable grounds with some probable cause that the individual believes in and will act on terrorist beliefs and in this instance the records really barren of that there's just no no showing of what the conspiracy is i mean there's sort of this insinuation that there's these three guys who are conspiring to do something but the facts just don't bear it out there were you suppose consented to searches of two computers there was nothing found on these computers other than the big jihadi e mail which there is no evidence that you suppose even for that matter samad of ever saw they were ever discussed and of course there's some controversy in scotia about whether what does that really mean and might i think in the context that e mail can be read very differently than the way the board doesn't affect this court thought so and in the footnote seven of use a pov one instructed the board to go back and consider their well events and wait to be given to the big jihad email o do the following i presume that your point is on credibility determinations there should be appropriate deference and that appropriate deference is that the court to simply reverse the board and instruct that the that my client is entitled to withholding under both the statute here that i thought you might say that  we really in the position to tell the board to withhold the move all it would be an extraordinary circumstance and i think the ninth circuit in one case and ventura the only one we could find ends with instructions if we found it to be extremely clear in your in and numb quote you just used we would in that circumstance we would order them to or hear yes your honor we don't agree with the credibility of terminations we think it's reasonable and further we think even if you were to agree with the credibility of terminations you should still reverse inconsistency in the testimony she simply found implausible his consistent testimony that he failed to remember giving money to his brother and we should stress that even if you were to credit that implausibility finding that is not affirmative evidence of dangerous was based on detailed findings in the record first of all but also went to the core of his defense that his conduct was innocent here of this this this possibility germination is immaterial  claim and one cannot take one credibility terminations and take it across to find other testimony not not credible and then even as we detail in our brief we think the credibility of terminations on reasonable is clear from the record that he was confused he's being asked initially about money he's given to a mom nazarov and charity and he answers that set of questions thirteen pages later after a number of topic changes the government comes back and asked another question about wiring money and he's to anyone else and he said no he's still thinking about charitable donations then he very quickly says if i gave money to any one it would have been to my brother i don't remember it would have been to my brother later he attempts to clarify his testimony the i j a cut some off and then in the intervening period between this this hearing and the next hearing he affirmatively attempts to clarify his own testimony by calling his brother and brings to the hearing proof that he in fact gave money to his brother via a wire transfer and contrary to the governor's characterization that he was confronted with this evidence he himself took it upon himself to find the evidence and brought it to the hearing before he knew the government was going to confront him with it he was a candid as he can be  repayment of a loan but those that those are not in the record i believe there's evidence in the record demonstrating a wire transfer to his brother's account and tashkent and respect as they have respect to the explanation  repayment of a debt owed the the evidence for that is mr sam but also own testimony i think there would there what would be no other document or evidence to prove that because the initial loan was given in and there's no there's no evidence in the record that the brother is in any way associated with any kind of the earth story nation that's very important are absolutely not the only evidence in the records this brother is a non practicing failed to identify how mr salmon of is a danger as opposed to merely maybe a danger and as a part of that they fail to identify how he's a danger to this country the b i a to the extent we can ascertain what it they they believe their theory of dangerousness is it seems to be that he supported muslim extremists it was backus them but the statute and the case law particularly cheema are very clear that you have to establish a nexus between supporting so called extremists which we would not concede as in fact the case in light of the corruption of the extradition warrant you would have to show a nexus between that extremism and harm to the united states the refugee protocol anticipates people are seeking refugee status from a country that presumes them dangerous and so to to without evidence that the the individual harmful to the united states we would be turning the refugee convention on its hat so that was one error of law another error of law is that it failed to identify any individualized probable cause in the particular  that the suspicion be particularized to an individual as opposed to merely association and setting aside the fundamentally corrupt back extradition requests all of the evidence in this case relates to person other than mr sam it off and there's a clear line of authority including a case cited by the government burton which says that mere propre quitting is is not enough simply in the burton case cited by the government simply knowing notorious drug dealers does not establish probable cause as to the individual for suspicion of drug crimes and there's a series of child pornography cases involving computer crimes  evidence to support a number of the inference that i mean i'm going to undermine everything that i see the issue is whether this substantial evidence to support the b o h determination which is our usual santa didn't hear what you're on i should clarify i mean i think the question of whether the evidence taken together and perhaps even assumed to be true rises to the level of either probable cause or that is a danger determination is a mixed question subjected to know for a few factual findings by the b i a and the i j a are subject to the substantial evidence standard factual findings and inferences about those findings so so for example the cia's presumption that it was becky warrant makes our client dangerous that would need to be supported by substantial evidence and our position is from from the briefs it clearly is not so there so you would evaluate the accuracy of the findings under substantial evidence but whether or not that evidence rises to a subset of legal standard is a mix question subject  belligerent and a lot of the heightens findings depending on his demeanor your are actually the demeanor finding was simply not supported by any actual findings on the actually says demeanor findings and evasiveness findings are potentially more prejudicial than any other kind of finding so it's very important that the the i j a identify why she believed he was the face of a not rd and i think it's the i came needs to substantiate these kinds of credibility findings  where you would expect the same result to occur on remand and to the extent that factual development is concluded so if in this case that the b i has twice rendered identical decision despite this court instruction to change the standard review i think leads should leave the score to a prediction if they're going to issue the exact same decision there's a case also offered by trying to keep from this this year kang vs attorney general six eleven f thirty one fifty seven where the where there's a rematch and with instructions to grant withholding and i think the best evidence that you can expect the same result is how much of the contrary evidence to be i ignored in th detained in custody in your county prison how can how can the v a come to that kind of conclusion in light of obvious facts of the contrary your best example on that point and no our best example is that a would would implicitly credit the extradition notice which the overwhelming record evidence that they do not take into account demonstrates manufactured pretextual in this really has no basis in reality  under the federal it may be a little bit easier on the deferral of the to reopen it but in all three cases the individual cannot be sent back to the country where he has to be persecuted or tortured ok let's get down to the fact a very poor civil rights record with respect to his back a stone and yet the b i l s reliance on the interpol request and the request for extradition based on request by that very same was baucus government and how can you do one and the other at the same  time we don't we don't believe there's an inconsistency around the statute specifically provides congress is given you turn in general the authority here is the one who's empowered to determine if somebody injured to this country whatever inconsistency there might have been was resolved by the fact that i take on the talking louder was resolved by the fact that we're not sending this person back but everything has to be looked at in the full context of what was before the i j a is in the the board of immigration appeals that's what reasonable causes and of course is chords are really held that reasonable belief is is a kin to probable cause it's a balancing of the factors in this case the board looked at all the factors now the factors that we have or we have an extradition request we have  inconsistency between relying on that very government where there's also a finding i think that now maybe another agency with the state department s charges you know for political dissidents for religious dissidents there's no dispute about that what's interesting here is these people were not in news pakistan and yet the song reason who's back to stand wanted them back know if we give them back you on of course they'd be put in jail i mean even government which or even a government would admit that to be i s o found the point is it was better to stand these people in the states the only reason or the only way they can harm sent two hundred dollars to some people families of people who were in prison i think and then the three thousand dollars to his his brother is that is that the evidence  he sent money back although we don't have it how much it wasn't that meant you have to let you have to prove your case for if you were in your case to provide the end this is not this is not criminal this is national security is the supreme court we have to prove a non trivial risk to national security by looking at all the evidence the attorney general has to assess everything you run and he's got to make a reasoned decision based on everything the fact of i guess what's going to sell me to interrupt you for a second because you want you to answer the judge's question which is is there any evidence in the record with regard to the money being sent to the brother or the family members from which we can deduce that they were sent either in aid of terrorism to terrorists or or from which we can deduce that there was a terrorist source here that was the question and i understand the totality of the circumstances analysis you're about to go through but i'd like an answer before you go to the major evidence of that would be that for whatever reason samad of categorically lied about the three thousand he sent back when you to get here you have to look at all the factors but when you go through the questions very carefully that were asked of sam and of he was not asked did you send back the charitable causes he was asked did you send money back immediately turned around in his first day after two charitable causes then as the the government counsel starts to focus in any of the money no no other money i don't remember now again this we heard here that he tried to correct himself it's kind of hard to correct itself and you say i don't remember i don't know then say oh i do remember that's a big difference plus the fact will see that although that is what some of us counsel is claiming that is not what happened here ok what pages i have i have the entire record i'd have to i had my last part spring possibly at the end i can write him down for you so we can go on ok i know it's for thirty eight but there's a whole bunch in the brief twice we go in the facts and then in the findings that in the uk and you can test  that it was he that came forward with the evidence of the western union receipt with regard to the three thousand dollars to his brother we the trial counsel folks in very strong are you sure that's all you did yes yes yes ok fine we would like a continuance they come back on continuance in a couple of weeks trial coun is the question raised in the papers and that is with regard to credibility determinations now it's very easy to say the b i a gave due deference and applied a clearly erroneous standard but doesn't applying a clearly erroneous standard requires that the credibility determinations of the i j a be deemed to be true and then you go to the next step from there  illegal activity while he was in his back is that now how can you if you're valued by a credibility determination that that has them only is true how can you r the documents from a smacker stand to mind that he's a danger well we do is we consider it as one factor in the context of all the other factors now would include it taste and two years to go through the computer to find out a limited amount because all of the files are encrypted they find the stuff they put that together with the fact it was back to stan says these guys are terrorists and agreed use determination when he said do i believe this man when he sits here and he details his life peaceful life and his devotion for the mon who is completely nonviolent really on a factual determination that the testimony was true and the attorney general's regulations say that the b i is bound by off factual determinations quote including credibility determinations unless they're clearly erroneous my question to you is how you can accept as you're bound to do i think the credibility finding that mr us wife was telling the truth and still say well these things are not just persecutions as we happen to find them to be persecutions when we were deciding another issue but how can you say that they stand to show that he was an gaged and violent activity or some other subversive terrorist activity we say they are one factor the board has it's not a matter of whether they credit the testimony because they did they said it's not clearly erroneous we've got but reasonable cause reasonable belief is a different creature that's the way that is the r j points for far things and provision in the criminal code eighteen u s c section two three three nine b which prohibits providing material support or resources to certain that would be applicable if the attorney general really believed that these two people were providing material support to foreign to the terrorists activities i do agree with you have thought that i would have thought and would have hoped that eternal general would have used the charge that's precisely for that but we would say the twelve thirty one before be for all that country that authority goes to him and the actual building is a non trivial risk to the national security that's much different you are the only real evidence is there any evidence that they were in contact with a terrorist organization no no no such no there are any evidence either in news pakistan or here right there's no such evidence there's no evidence i'm aware of you don't know so i have a question about that if in one thousand thirty nine if there were computers if i were somebody in my family and wanted to hear what hitler was saying in germany and you got videos which were presumably if we if we were today would be one on the radio if they were watching was hitler was saying with that made them  that they are a danger to this country and that's precisely the point it doesn't prove you support the highlight why this is what's take a look also at the rest of the evidence which everything has to be looked in cont conclude the name on the confusion after hand now when you put that together with this this jihad thing and again what jihad thing the e mail and again this court said we don't know what it nonstarter but the point is how was it a nonstarter when the email was the you know you you read this this e mail what does it mean in this context you know struggle of warfare i mean it has the word itself has many different meanings that aeration how are we to determine really what it means or what reasonable inference can be drawn from well there are two things first of all the big in its opinion specifically cited documents sounded up and submitted that the fine be jihads violence struck but i'd also ask you if you read again what becomes very clear from that aren't there other aren't there other references or instances where there are there are in the record different meanings inferences that can that are drawn from that or they could be they could be but the be i found this court in its first decision as to be i if you look into that they found the lack page exact reference and they found that supports us net the record does not compel contrary conclusion but the next thing to look at when you read that e mail that you are is not working for himself someone else's control they're telling him you can't come back we need you to stay there now again because everything has  it what's the evidence that they went quote underground their own testimony they disappeared they did not go to their embassy and both said at least seven of says nothing to fear at the time they did not he did not contact his brother in this letter from his brother which would says he never contact them samovar claims i had to drop out of school because my brother went bankrupt samovar comes here in february he goes to school in march the brother claims he doesn't have financial difficulties till two thousand a year later somehow there's a disconnect there which is never explained that ties in with zack are up to because they come together sa well all right i'm going to get to ten it comes if you are mine when you read this is use the use of power when you review these videos was it by yourself or your roommates there were you part of some group effort or what answer i believe that after the events of nine eleven and the whole world the entire world is interested in watching and listening to what it says about in this annabelle and likewise we also need watching or viewing or listening and listening i'm not sure that the fact i think what zacharia and some of them in the entire world is affirmative testimony that he recalls that they were watching these and why were you watching it everybody was watching it because everybody was interested and was happy and that's about all right that's a pretty slim really to hear on the rely on in fairness and was due respect i national he i think the i j a said well he didn't provide the names of the occupants of his right can the government point to anywhere in the record where and testifying about funds sent to the brother is there any has anybody suggested a motivation why he made the i j drew the inference that he must be hiding something but if there's no reason there's no evidence to believe that the brother is involved in any kind of the various activity of any kind what is there is that a reasonable inference to draw that he's hiding something in the absence of any evidence of as to reason to believe the funds were going to support something we believe there is before i answer that i just wish to the question then becomes personal in light of these warrants and the extradition which says he's sending money and in light of the directness of the question why did he lie about this now remember the attorney general that he this is not a criminal case proved beyond a probable cause this is protection of the country you have to put you being in turn in general has to put the pieces together d to the government had come with evidence that they but it's also clear from what you've said and what counsel said that some of them came with evidence that day so obviously both parties came to the hearing that day with the help of the sloth of the other side that there was evidence that this happened so well if that's so then why are we to in for conclude whatever verb you want to use that he was lying wh because the first time when i get on this is the biggest amount of money he had sent iran and he was asked did you ever wire in mine this is the first hearing so just to be clear he was asked a very specific questions no no no then he starts backing off why i don't remember i don't know but he never admits that he sent me thousands it's clear from the questioning that that i'm sorry the trial coun had something that was very obvious and it was clear that sam it up understood the locus remind me because i don't remember in the first hearing was there reference to three thousand dollars there was just the reference to money as i recall come up to the second hearing the two instances that we're talking when you say he was confronted and then when you say both the government and he came with evidence of three thousand dollars ok not that the first time money  question our money my question to you is did the government specifically question him on three thousand dollars at that time i presume the answer is no that is correct ok so from that hearing you want us to conclude that he knew he must have got caught he quote caught in a lie and that that that's why he came with this evidence the next time the hearing was adjourned to the government had evidence that at that point of the three thousand dollars and he came forward with evidence of three thousand dollars and we are to infer that he was lying the first time when he respect i believe you are as confused as to the record the first i'm not confused as to the record i'm only repeating what you've said if i may you on the first hearing he's granted withholding of removal subsequent to that testifies seminar that that time is asked did you send any money that's when all this question comes up then as i understand you once and my question to you was at that hearing which he has about three thousand dollars and i'm saying i'm asking you i think i think what the board was getting at iran was that based on their connections that these babies were charged with terrorism along with the videos that were found on the computer along with the map of the pennsylvania state barracks and along with the jihad later that the boys conclusion was they were a danger to this country but i would also note that national security is defined to include our foreign affairs interest and we have a treaty with his back a stance i don't think though that's where the border is going you mean if somebody who is in this country doing things that a statute needs national security is defined that way i don't think that's the way the board and i think that was the gist of the board's decision oh so you think that just what was a danger to this country based on based on the fact that they did that they were at host to the pakistan government based on that plus the dangerous media was the fact that the videos were found not on one computer but on  second computer that that use a pov used based on the fact that use a car repeatedly evaded the immigration authorities to include when he was put out on bond and when he had an asylum hearing scheduled he just left  so he could not be found he states that on the record so it's based on all of that let me put it this way maybe this is a good way to what why the substance we can stay out of it what evidence is there that either of these men either engaged in at some point or planned to engage at some point and conduct against the interests of the united states or that they were associated in any way with an organization that has conducted conduct or plan to conduct conduct that is against the interests of the united states  there is no direct evidence i think that's probably the answer you're looking for there's no direct answer evidence but i would state again and maybe this is a direct usually no direct evidence but what does the circumstantial evidence lead one to conclude was conduct or plans or association with a group that had conduct or plans as opposed to watching t v i guess what the with the question and we don't have to show a smoking gun is the supreme court it stated the government when seeking to prevent imminent harms in the context of international affairs national security is not required to conclusively link all the pieces in the puzzle before the court  dust and none is the answer to my question not we know we have the evidence that we've already talked about no nothing beyond that but that's worse what were the acts were plans or intent now does all the circumstantial evidence leads you to conclude they had we don't have we don't know that but we don't have to show that not under the test oh ok if you knew i could understand your but ok thank you thank you  all they are it's outside the record is course i understand he's in sweden under protection of the united nations but it is the issue that the government began by making what i thought was a peculiar argument that well it really doesn't assurances from the government was back a stand that is an extrajudicial extra regulatory agency procedure provided by regulation that would allow you supposed to be removed from the united states without a hearing up any kind  if the if the question is if the government can move to reopen deferral proceedings before and i j but they do not have to they can use this other extra judicial extra regulatory power to remove some several points your honor i would underscore that the government still hasn't answer the principle question here which is how mr semenov is a danger to the united states and judge slover you brought up the example of the nazis and asked what a more recent example would be and one b is under the government's theory the current nobel laureate would not be entitled to withholding in the united states simply because the chinese government considers him to be a threat to that country and that cannot be the law and judge stapleton you asked a series of questions asking whether or not there's any evidence about conduct membership or support and i think that's an important question because i think we've read every immigration national security case in the federal porter and not one has concluded that someone is a danger to national security without finding some say that one of those three things  absent one of those three things i think we'd have a serious constitutional question and certainly that would undermine our obligations under the refugee conventions and leave us as an outlier among sister nations the government says all that they have to demonstrate is a non trivial risk of danger that's not correct the part of the use of pov opinion in which the term non trivial is used goes to the level of seriousness of the danger they must