he had filed for asylum claim that he had attended an underground christian church in two thousand and twelve and that in two thousand and thirteen public security officials raided to church one person attending the church resisted someone else was beaten and then he was falsely accused of hitting an official and himself was beaten with a baton mr lynn was able to escape to church and fled to a relative's home treatment for the beating stayed at the relative's home for twenty two days and mo relative's home learned that officials had gone to his own home so he left for the united states and then he attended church in new york during the course of the end and literally made a number of inconsistent statements  yet but one of the things book wise and substantial pieces for you just before we before we get to that the immigration judge did make a statement that he generally found lynn's testimony regarding what had happened to him in china to be consistent with his application and to be general plot and generally plausible all almost the entire source of the credibility of determination in this case was based by based upon a department of homeland security question during cross examination where they had asked him whether he had ever left china before two thousand and thirteen and he denied having done that and then the next question was why did the department's records say that you were actually in cuba in mexico in two thousand and nine there was an objection to that question is assuming facts not in evidence the immigration judge overruled and then he subsequently admitted that he had been in mexico in cuba in two thousand inconsistent statements about whether this was his first passport or a second passport and he said that he had answered inconsistently when called on the inconsistency because he didn't think there would be a record of the first passport and i think that also contributed to the bin straight immigration judges at first credit penalty finding which he compelled to find otherwise judge that issue regarding that he did give an explanation for that saying that he thought that the that the officials told him that when he applied for the second one the first one no longer existed but one of the main points i wanted to make here and i believe i made in my preferred was that the immigration judge  found it seems like the lion's share of the credibility determination is based on whether that cutoff an area of inquiry and then the immigration judge made a number of statements saying that he believed that mr lindsey answers in this regard were intended to cut off inquiry as to whether he had attempted to enter the united states before but that was if that was the area of inquiry in the end it didn't wind up cutting off the in everyone asked him a number of questions about that and i don't think it in light and anyone at all as to whether that was a trip into the united states or not mr lindh said that he travel for tourism and the entire basis of the immigration  suspicion that it was a prior smuggling trip to the united states appears to be based on speculation there is no record evidence whatsoever that says that that was a prior smuggling trip to the united states or that it was anything other than what lynn said it was i don't think that the immigration judge made any negative comments about used to test him when you were going to administer it purely based upon speculation and that is my primary concern for that there's also of course mr lynch testimony that  case unless the the court is compelled to accept that explanation and they don't necessarily have to put by but my primary concern here is that the judge uses that as a source of saying he cut off an area of inquiry as to whether he had been smuggled previously and that appears to be a large portion of the adverse credibility determination in this case is that that's why they do immigration judge didn't believe him was because he believed it cut off an area of inquiry now i didn't want to make some some some other notes regarding this in that the respondents brief makes a lot of issues regarding the objection to the question and no doubt pretty much the entire ad for its credibility determination i flows from that one question about what to departments record sad about him having been in china before and that that whole question basically turned the entire tide in the case i had mentioned to the board that the objection should have been saying the entire rules of evidence are not binding in immigration court and the respondent says that as well so it really which number it was wouldn't have mattered because they're saying the entire will is don't go and apply so whether i correctly cited six one one should have cited another rule it wouldn't matter what rule i cited that's the take away from that that they don't apply they're saying yeah that was not right but as far as whether it's so why are you wasting your time because then that leads to the next issue is that the boarded said as long as the questions are relevant and fundamentally fair and that led to my argument that here before the court regarding regarding due process which  before i mean it would be one thing if he continued to deny it and somehow he was found and not be credible because the document a document was never offered but he admits to the lie so i don't understand the due process issue he admits  you're not asserting that it was bad faith i mean you can assert as bad faith because he admitted himself that he had lived but that answer doesn't come until he's asked about material that's inside department records which he's not allowed to see never introduced into evidence wasn't the cost of this that was the cause of them is deciding to tell the truth he does not state the prior trip until that question happen aside i have a hard time get my hands around you do i can understand the federal rules evidence argue that the rules don't apply and i've just agreed to that but i'm tired of having a hard time gaming hands around the due process claim when he admits to it if you continue to press the denial and somehow the government got the benefit without offering a document that they had to work or had mis represented an official record that they didn't have and lied about it then i'm totally with you but but he admits but we have no i don't get it but we have no idea what that record says it was never  client either lied the first time when he said he had or he lied the second time when he said he did it but he was his testimony done became inconsistent right but what if the objection had been sustained but if the judge said no i'm not allowing you to ask that question would he have all the sudden answered questions is that question alone violation to process and i'm not so certain you're right well the entire case depends on the results of what happens to that question because the immigration judge says the rest of his testimony is their right to that so if you're wrong you lose i think looking at this case it's fair to say that they did that because the immigration judge said that this testimony regarding what happened to him in china was generally consistent and plausible and then makes bases the decision based upon the number of trips said he took and what he testified about it was confronted with two answers which were totally may please the court christiane for the united states government grows this this court is is right to point to the inconsistency that were presented before the immigration judge in this case because they are blatant they are material once he admitted the contents of the record then the record the diagram became irrelevant but you know it's been a long time since i tried cases it's been fifty or twenty two years since i was a trial judge but i never saw a question asked on an inconsistent statement where the document from which the inconsistency rose was not marked as accord exhibit prior to the question being asked that if that happened in the role county supreme court sure as hell should happen in the immigration court don't you think you're right i certainly agree that that would be the better practice thank you about you know i don't know that it's this or choir going to the particular facts of this case because because that question and all of the questions there after war were was one admission after another about his those versions is compelled and presented with a record that juxtaposition juxtaposes two separate versions of events travel only one time from trying to thousand and thirteen as opposed to travel actually in two thousand  states your honor i respectfully disagree there was no finding of fact by the immigration judge about motive one way or the or another and this is this is a little bit like the facts in the in the zeeman case where the immigration judge was presented with two duplicate photographs one was an identity document the other was a passport record they're supposed to be six years apart but they could not have been because they were exactly the same and the finding in semen was that where the immigration judge just concludes that one or the other of them is fraudulent he doesn't need to pick which one and so to hear whether he traveled in two thousand and thirteen for religious to flee religious persecution which was his first assertion or in fact whether he traveled in two thousand and nine for tourism  nine for tourism the two can't be reconciled and the immigration judge is not under a requirement to discern which of those is true it is enough under his name and for the immigration judge to simply conclude that because they are irreconcilable and because no persuasive explanation was tendered one of the other was false and that supports the adverse credibility determination responder would take a little time to point out that petitioner mis apprehends the significance of the concealment of his two thousand and nine travel and so there's a lot of reference here about cutting off a lot of inquiry and the immigration judge's decision reflects the immigration judges struggle with the the sort of the convoluted travel sequence you know the immigration judge in the record of page fifty three states that he likes to give the benefit of the doubt to young outlook and such as the one before him and then you know two pages later on the record at fifty five the immigration judge sort of colloquy with counsel for petitioner the immigration judge notes that he has granted applications for people who have converted to christianity once they have arrived in america so not religious persecution in china so so we have an immigration judge that is simply asking for an unfettered an affair presentation of the evidence but that is not the claim that petitioner chose to present that the petitioners initial claim was purely one of religious persecution  and the reason that his passport and his travel arrangements become material in this case is because petitioner by his own choice link those to his own claim and so the right of one of the two we see this question why did you get that passport the two thousand and thirteen his answer because i was persecuted for religious reasons and so once he links the two then then when he left china becomes material how he left china becomes material and the fact that that he then it turns out he's been concealing a prior trip to mexico in two thousand and nine cannot now be reconciled with his initial assertion that he in fact left in two thousand and thirteen and so under she issu neither of those versions is compelled substantial evidence supports the agency's adverse credibility determination and any failure in the factual predicate has to be laid at petitioners feet this was his claim had he done as the immigration judge explicitly would have liked which is to just simply say oh as a matter of fact i was in mexico in two thousand and nine in the immigration judge would have parsed the relevance if any of that travel to his the events of two thousand and thirteen because under the convoluted time one presented to this court the religious persecution did not occur until after he part is two thousand and thirteen passport so where the record evidence doesn't compel either version of events travel in two thousand and thirteen to flee travel in two thousand and thirteen based on a tourism passport which was conveniently served as a means of exodus  tourism the record the substantial evidence supports the agency's adverse credibility determination turning to the due process claim that the responder believes that under the stephen s case the issue the due process issue has not been raised with sufficient specificity in the court should deny that claim for lack of jurisdiction based on the mandatory exact judicially created exhaustion doctrine in this circuit  regardless of the the actual merits of the due process claim responsibly is that it is not necessary to even reach that because this claim appears for the first time in this case before this court and so the board is deprived of a full not and in the record in the record there is there is significantly there is a colloquy between the immigration judge and the counsel where the immigration judge at the conclusion of the applicant's testimony identifies his concern about credibility based on the shifting story about what was there a piece of paper there in the court room the government record evidently the governing council is looking at a piece of paper because the immigration judge an argument based on the document staying in the government counsel's file and before the board before the board the petitioner presented a three alsa could have asked for it to be submitted i suppose yes your  objection should have been sustained based on and the only the sole citation there was federal government six eleven a so we have we have a narrow challenge to just the immigration judge's ruling based soley on the federal government's which petitioner now concede not apply and so so then to shift to substitute for a failed rationale the entirety of due process which you know in contrast to a single federal of evidence arguably is the broadest that one of the broadest legal umbrellas  to be brought to the touches every aspect of an immigration court hearing to gather whatever the record is it's not in our record that's correct your honor it is not but to substitute an entirely different legal rationale  bears a striking correspondence to the issues presented in the stephen as case where the court was presented with an exhausted issue about change country additions but then asked to analyze a relocation finding which had not been presented to the board in the  panel took some pains to note that despite the fact that both issues drew on common facts that the common factual element was not controlling it instead it was that they were separate legal authorities and independently  e which is almost it's almost the same here which instead of a federal of evidence that doesn't apply we have now a request for this court to analyze under due process whether or not an entire series of questions is violates fundamental notions of fairness whereas the board was never presented with the opportunity and it's it's the board's decision on this point cites the board's authority is matter of the page for the eight bottle responding to government counsel's argument i do direct your honour's to page fifty four where the immigration judge said quote unquote i believe the motivation for that was to cut off an important area  as to what his motivation was to leave china unquote so i don't think it's really simply a question of oh you are in control you are inconsistent bingo that's it it appears that the primary source of the immigration judges problem with the testimony he received was based upon the suspicion that he was trying to hide a prior attempt to enter the united states but at the end of at the conclusion of the individual it's still a suspicion even after all the questions are asked it's still based entirely on speculation as the respondent testified it was terrorism and despite the fact that the government had a record that he had left china in a previous occasion they don't have any other records saying that he attempted to enter the united states or that was for any reason other than he said he did now i do know that the government has made a large issue about issue exhaustion however if you look at the board's decision the board's decision said that the questioning was was they were there saying that there that the question the questioning was fair so and that really the argument response to what it is that the board is saying we're guarding that the fact that the judges have the authority to control the scope of the evidence hearing which is also the same thing six one one a says and also says that he did he say he did not mean any record what the government was sane and mr lynch counsel doesn't have the power to force him to submit documents either and even ask the question was did you ask it would i would you could i ask if i don't have the power to force him to submit the document did you