when it's read it means just what stops i mean you know as the issues in this case arise from the forty one year old chinese nationals claims to the one child opposition to the one child planning policy and with past persecution the two issues that i would like this court to address or take a look at is a lack of opportunity to examine the evidence which is with fundamental fairness and due process the second is if we move on beyond that was that there was no substantial evidence to support the adverse credibility finding or counsel let me ask the question that this is a pose a real id case why should we give deference to the average credibility finding when it's mostly even though it is mostly police or trivial inconsistency we're supposed to give her are we not you are but and this is going to and i was if i could start with the reason why it should have even gotten to the point where it was considered seven regarding possibility of chinese officials you know whether chinese officials would or wouldn't allow in regards to an insertion of an i u d ring i believe we have a case that says you not allowed to make assumptions or make her own have for her to even guess as to what the chinese official would or wouldn't  do the second is that if we take a look at the cia or so sixty nine the assumption that both parties had to be present in exam for request a marriage certificate again this is another assumption that the i j a shouldn't  me she's making the assumption that both the parties had to have been there but clearly this is not what the petitioner stated what can i ask a more fundamental question and that is large parts of the adverse credibility finding are based on the fact that her application and testimony differed from that of her husband correct yes your honor so would you and lightness as to the timing because i thought he left in two thousand and one is that correct he left behind in two thousand and one yes yes around and so when was his affidavit and testimony filed when is it dated that i believe was and i believe that was the vid in two thousand  thousand and one it may have not been may have been filed not too long after his entry into the united states and although i understand that you know although his recollections of of the events may have been a lot according to the government is a lot more accurate as opposed to the petitioners however these events occur it's like that's my question why why do we make that assumption at all and i'm not and i'm saying that is saying it seemed to me that the ira was kind of assuming if he said x and she said why then she was not credible as opposed to thinking well one of them may be next misremembering but what is the basis to your understanding of why they're the i a e a basically gives him the upper hand in his testimony you know i mean that and my point today is that the petitioners when she testified she's testifying as to her account to accuracy she's not saying that she's not trying to testify and say that ok i need to match up the facts of what happened with what he testified to what she's saying that these are my accounts of the event and this is what is accurate this is what you should look and so the i g immigration judge made a mistake by trying to compare the petitioners testimony with with the husband's testimony and you know you could take a look at one event two people could take a look at one of them and describe it in completely different ways and they could have both been there  and i don't think that this is a political in this case and the stand that this is you know an interview proceeding similarity in this case completely the petitioners saying that well this is my account of the case and may differ it doesn't need to be similar and i was hoping to move on because i was hoping to really because it impresses on the court because i was unable to address this in my in my brief that this should have even been saying is that this transcription not have even been considered before the petitioner had an opportunity to take a look at it this is significant because if we take a look at it you see top twenty nine eighty four as a whole you'll notice that he is the right to have an attorney see is the right to have that the whole entire proceedings recorded and transcribed and preserved for appeal if you take away a and c even with and i understand that the trial attorney in this case did not object to the husband's transcripts being introduced and even regardless of that it's not necessary to have to object or present some type to preserve this right of you know having to examine the exhibit right but he was not given the a reasonable opportunity to take a look at i believe there was a recess if this court thinks that a recess a brief recess is a reasonable opportunity to preserve to take a look at examine the evidence  is to what you would have done if you had had the opportunity to look at that he would have been able to at least the husband was available and the husband could have been provided declaration could have been brought in as a witness but that he wasn't given the opportunity so it was at the very least the part to me at least preserve that argument do you want to reserve the wrestling i guess ron thank you it please the court rebecca hofburg phillips on behalf of the united states attorney general this court started to touch on the fact that there is a lot of exhaustion and way of her principles at issue in this case and the court should dismiss this case on that basis alone the arguments that are being raised in terms of the due process arguments and the opportunity to review the transcripts and vance of that hearing were not only not raised to be i j as petitioners counsel specifically agreed to admit them into evidence they were not raised to the board at all as petitioners counsel at that point only said i just want to make clear for the record that the i j a asked me to turn in the husband's asylum application no mention of the transcripts whatsoever in the appeal to the board now for the first time and this is new counsel so i understand that he was not the attorney before the board and before the i j a but for the first time we got new arguments about the admission of those transcripts part of that hearing now petitioners counsel never asked for a continu to review those transcripts and petitioners counsel should have had every access to those transcripts opposing counsel makes it seem as though the government was trying to hide the ball here not true petitioners counsel was the one who submitted  petitioners husband's application into evidence in the first instance and i want to make clear petitioner's first hearing before the i j a were her husband's application was mentioned was on september twenty ninth two thousand and eight and a ctually she knew september sixth two thousand and two when the board denied her husband's application that his application was denied ok so that here is my difficulty and maybe you can help me work my way out of this  application and testimony and with various issues about how or when they paid the fine when the id was in around or whatever and then we have her testimony my difficulty is it seems that that because there was some discrepancy between the two that that was the foundation for the i j a to say she's not credible and i don't see why that is he didn't get affirmative relief either but i don't see why the fact that her testimony she who have the i u d she whose personal health was an issue why the finding is against her a few things about that your honor at the i j a is level it wasn't only based on the inconsistency between her and her husband's application there were some implausibility findings and about the birth certificate that age twenty three age might remember that those were not adopted by the board and so i do want to make right before the i j so you're right what we had before the board was just the inconsistency between the two applications and that's where i'm having the difficulty i mean why don't we say he's not credible much you know she has but they went the o that was not her give me your honor i don't want to argument was has to be substantial evidence to say or the ultimate determination well your honor they gave conflicting accounts on information that would have been equally available to both of them so for example with respect to who picked up the marriage certificate and who paid the fine and i understand maybe things related to an i u d insertion would have been within her knowledge she had an obligation to explain why her husband would provide different information with respect to the exact same claim as middle east china in two thousand and one how is she supposed to be in position to say well he differ because of max i mean who knows sometimes people are clueless about dates and that sort of thing and i'm just having trouble why just because he said one thing and she said something different that the adverse credibility tips against her do you have some kind of case that we would look to to help support that proposition where you have two parallel applications and i don't i have the same problem because the i v never had a chance to assess the husband's credibility in this case and  confused but that was never your honor that's because the entire time before the i j a and even to a large degree before the board the position that was taken by petition on her counsel was that they were just minor inconsistencies and that his application supported hers not that she should say well of course they're different because i'm telling the truth and he wasn't right those are two different argument here's a great one ok her husband testified she stopped going to her i u d checkups after he left china and that she was in hiding from family planning officials she says well that's not true i went to these are you d i was having trouble with that i want got him to take it out but that is used as an example and here to tip the scales against her it just seems improbable to me that he's not even in china when all this is going on and she was there with her body her doctor's appointment i'm just having him on her standing why the wait should go against her that that's really that difficult i am having it's a very odd transcript i'm sure you'll agree it's a very odd proceed absolutely your honor no question about that what i would say is that it only takes one inconsistency in the post real id act any inconsistency and it goes to the heart of it it doesn't have to go to the heart that is relevant right that's relevant what one would you point to what you think is the best one ok for example her husband said that his father went to get their marriage certificate she says i went to get the marriage certificate when confronted with the fact that her husband said something different she didn't say oh well he wasn't found credible i'm the one who's credible she said oh well he probably said that because i was writing on the bike with his father she tried to reconcile her testimony with his right as if it corroborates her story because in her mind she wrote of the back of he by by somebody else her husband said that it was only his father that picked up the marriage certificate now that's something a marriage certificate is equally important to both spouses so unlike the i aspect most of these people don't even have a marriage certificate in a lot of these cases so this is kind of remarkable that we've been a marriage certificate to talk about so is it i was on the back of a bicycle with my father he says the father picked up the certificate and i'm sure that that is a conflict testimony what he said that she had been living with him in who i apologize for pronunciations i believe it had the time and so that was why the wasn't in that town to pick up the marriage certificate she was in her back directly conflicting with her story is i was there to go get my marriage certificate and then she adds on when confronted with that inconsistency i rode with my father in law that doesn't explain why her husband said she wasn't even in that location to pick it up and that neither of them were there to pick up america's reworking of the husband when they're testifying but we have basically point out in the record that first she said that he was not available because he was a daughter's doctor's appointment this is one eighty one and then she said on page one sixty four he was taking care of the children she then later said he was absolutely unwilling to come to the immigration in court for fear of deportation and that's on pages to a and to thirteen and so what you have here is not you have unable and unwilling for lack of a better set of words of a witness to come to the court to testify however that's not to say is our brief points out she could have gotten telephonic testimony she could have arranged a personal statement now who was in the better position to obtain a statement from her husband the government who  doesn't want to be deported or her as his wife who's been living with him since she entered the us since two thousand and seven she has a good point on that we'll ask ounces yes your i mean the fact of the matter is is that in this case unlike and i would like to point out and cite b n and quinn and i apologize again for pronunciations by posing counsel tried to make it seem as though she was not given the opportunity to confront these statements and i want to make very clear that it was her who introduced her husband's application and i would like to point out that she didn't didn't the court ask her to obtain the court said is anyone going to submit the husband's application and what's her counsel said was that yes yes actually i was going to yes that was your client that was the question posed to him and so the immigration judge said great well can you submit it he said well i have to make a copy immigration judge said no problem we're going to continue this anyway and it was continued for a year so you know he submitted it in and it was in two thousand and nine october two thousand and nine this is on page eighty two of the record and so then when they finally appeared before the i j a in october twenty seventh two thousand and ten page eighty six you can see that a whole year went by and he basically photocopied portions of the husband's application submitted in support of her application i can give you a bunch of page numbers one twenty seven and wrap your honor as i mentioned at the very beginning exhaustion and waiver are key because the agency never had the opportunity to weigh in on the claims that are being made now no continuance was requested no due process claim was made the transcript was not objected to and at this point in the game counsel cannot reasonably argue that there was error by the agency for an argument not racist thank you so much so where's the husband why didn't he testify and isn't that within her control at least to get a statement or phone call it is and i don't want to speculate as to what was the reason why she didn't ask the husband and i'm sure it was probably because it was it was a fear of deportation just to be you know genuine about this but regardless was it necessary because she's testifying as you've pointed out she's testifying as to her own accounts of the events and like to point out you know honors that it's not necessary to request a continuance to preserve this right it is something that is automatically the judge should have considered this you've had it takes a while to get the transcripts and they've had to have had it for a while which presented at the prior hearing at the october twenty seventh hearing but no consul waited till the last day of the continued trial hearing to present knowing that this is going to be the last day how is the petitioner going to now at this point request for a telephonic appearance ask for a declaration from the husband house when it's the last day of the hearing the other or on of the other thing that i'd like to address is that the problem with this transcript isn't th evidence and just actually say you know what she met her burden i actually she made a lot of mistakes with regards to her reasoning as to making the adverse credibility finding if this court says you know well maybe not maybe we need to address this then i'm asking the remand this case give her the opportunity to address what the i g found wrong in this case and you know and she can go ahead and take a look at it and say ok you provide i've given you the opportunity i'm not satisfied