of the program and i really appreciate that you want to thank the government as well for their professionalism cooperation in mediating the five writer petitions that were part of this case and so all that's left before the court today is mis s farms petition and we thank you for your pro bono participation that's a very important part of protect the in the immigration area i think it's vital and i think the government would see that the quality of representation is  greatly increased by the wonderful cooperation and volunteer spirit of a number of the firms provided counsel pro bono so we thank you for that percy thank you are given the time constraints today i'm going to focus on the first issue  that we raised in the brief and that's the issue involving the introduction of miss fonds i'll call him a strange husbands out of court statements to prove the marriage fraud in this case and i think because of the voluminous nature of the records in the briefing the essence of this issue gets a little muddy and gets a little lost this is really due process issue it's a broad claim that this evidence that was introduced and relied on by the government to prove its case was so one reliable that ms fall was to deny to due process now there are a couple says subsidiary claims within that bro know the government is arguing that this film failed to exhaust in the b i a one of those subsidiary claims and that's the cross examination claim where she argues that the failure to engage in reasonable efforts to secure mr wins presence denied her the right to cross examine him at the in the in these proceedings it's our contention that the claim is broad enough that was presented to the that that secure the presence of an adverse witness so the alien can cross examine that witness it's not done here what efforts what do you owe rice and the government to have to produce process you want to opt in to cross examine the fact is there was an effort made to produce him government certainly didn't oppose it anyway but at the end of the day don't we end up with an analysis of whether there's substantial evidence even if you assume she was denied this right in the context of immigration hearing that there's still says of stansell evidence that is enough to overwhelm your client's position in this case no i don't think so and so let me address that and i don't want to bog down on this reasonable efforts thing i think the bigger problem here is  own interest i guess and that made it reliable i mean it's hard to understand that somebody who actually was married to their spouse would say no actually i wasn't married because i was fraudulent on the basis interview was that the law enforcement agent was aware that not only the there was this marriage fraud allegation but in addition to that that mr when was potentially committing public benefits fraud statements were reliable because they were sworn declaration zhan authenticated immigration forms it's somewhat a different rationale than the immigration judge found so isn't our review specific to the b i a ruling then yes your i would read it your your review is of the ruling my recollection of what the b i said was that a statement on an authenticated immigration form is reliable absent evidence to the contrary well it's our contention that there was plenty of evidence to the contrary here and what is that evidence well it's what i was explaining so just to set the scene a little bit here i guess mr knew when and miss farm had been married six years previously when this interview took place they'd been separated for a long time i was never that gather that's the problem correctly he was in this country yes that's what i'm wrestling with because as i understand it they were going to do is read third party they get engaged after three days sure they're really not together he's much older than she is he's in the united states she's in vietnam i mean when she does come their apartments not in her their credit cards and i mean basically there are no in that one would normally find in a marriage relationship in this situation which is why i get back to what i said in the beginning even if we totally discount mr wins testimony isn't there substantial evidence upon which to be could rely to a firm ruling here i don't think so i think that's the only evidence of fraud so you take his you take his statements that this was an arranged marriage and then you add what your honor was talking about then you have the case but if you if you cut out his statements there is no other evidence only put to think of this way i've i've seen a lot of these cases where there is no mr wind and we have evidence substantially similar to what we have here and we have affirmed marriage fraud so i guess i'm struggling with why there's a huge difference  start i don't believe so you don't think there's substantial evidence separate and apart from mr wins testimony that would be my position yes your honor can i get to the levy holder issue the maxim falsus and you know falsus and it seems to me that on a whole the credibility determination of the immigration judge also included the statements by your client that she essentially didn't know or had help in filling out these forms and so in my view doesn't that sort of color the entire asylum petition your honor i understand that there is and in the law is if you find an adverse credibility finding that that that can affect the asylum petition you know i might my position your honor in response to your question directly is that i don't think that's sufficient exhausted exhaustion mr action also if it's not exhausted you can't even reach that issue that's correct i was going to jump in starting with that that it's the government's contention that that claim is not exhausted and in fact it's abandoned the issue of lack of cross examination was it was brought up initially before the immigration judge at the outset of the proceedings and after two years of attempting to secure nietzsche's presence in court it was never again raised and it's the government's position that that issue was not raise because it's a tacit agreement by petitioner that reasonable efforts were expounded to secure mr nietzsche's presence in court what about the argument that opposing counsel may his absence goes to reliability of his testimony because he wasn't available for cross examination why isn't that a part of his reliability claim i don't think the first one i believe it's two separate issues whether statements are reliable and whether the government made reasonable efforts to secure the witnesses presence to potentially adamant or not even admit the documents to begin with but i don't think there's can be an inference of unreliability or reliability because we don't know why he didn't come he may have been in the hospital one of the subpoenas was not even served on him so i don't think there can be and i think the point is his testimony was subject to cross examination which we believe in our system makes the test a can't make the testimony and reliable because it's not test i would just reiterate that in immigration proceedings the right to cross examination is not absolute the test is whether it's fundamentally fair to admit a piece of evidence and it's considered fundamentally fair if the government has made efforts to produce a witness and so i don't i don't think i can answer yes or no to that the board and the immigration judge both seem to rely heavily on i statements and finding that she committed marriage fraud and was thus removable but at the same time at the immigration judge did separate and apart from his statements finds petitioner not credible on her testimony alone we're getting relating to the marriage fraud issue so it is a possibility that that her can't say that i don't know what the board what have don across the board and address the issue of whether miss fantasy testimony in isolation from the statements what have been sufficient evidence to find her removal i would argue that it is but the board didn't have the opportunity to address that specific thing it seems to me in the levy holder matter that there is a potential to make a distinction between the the statements of the petitioner with respect to the lawful marriage and then past persecution i mean is that reliable or reasonable to say that these should be lumped together in terms of her credibility determination because aren't they sort of separate and distinct from one another the claims are separate and distinct but under the real i d act an immigration judge may base an adverse credibility finding on any relevant factor and on the totality of circumstances and i'd be hard pressed to say that a fighting of immigration fraud is not a relevant factor i think is very relevant here and that was just one of the factors the agency relied on in finding her not credible and all of her other statements in addition to the fact that she made many inconsistent statements and her claim to asylum and it was proper for the agency t all of those factors into consideration when finding her not credible on almost all the statements that she made those argue and over a minute address the first issue did but we still have to address the issue right i think in between that i think the court would still have to find the affidavit admissible and reliable which the government contends that it is marriage for a claim as well as that is that right i mean that's that's before she's challenging that i think the the crux is the remove ability issue and which is based on marriage fraud correct so so we do have to address the marriage fraud issue and what i heard you say is that the i a e a relied on wins testimony and so under a sort of s c c chain or a type rule we couldn't  r the the agency on a different ground theoretically but i think remained for any additional decision making by the agency would be futile here because the record is replete with in consistencies regarding the asylum claim regarding the marriage fraud claim and the immigration judge although the board didn't specifically analyze each one of the immigration judges findings the immigration judge did make very separate and alternative findings finding i was inconsistent inconsistent statements did not corroborate any of her claims regarding marriage fraud and independently regarding asylum and substantial evidence supports the fighting that she is both removable and  asylum and substantial evidence also supports the conclusion that she's not credible on either or both grounds separately and independently so if i understand you right your ears saying that we could uphold the remove ability to marriage fraud based on mr win this testimony along with other evidence in the record but if we determine that mr wiggins testimony was in a civil so that there was an error in considering that that error was harmless because there is other evidence in the record or overwhelming evidence in the record i'm not sure what are harmless error standard would be in the immigration cont that would say that was allow us define marriage fraud to do i am i understanding that correctly i would say harmless error in regard to if the court were to find that the adverse credibility finding could not extend to the asylum claims i think mr wins statements she did and miss the petitioner did it make it was found not credible on her testimony along with marriage fraud but it's the government's burden to prove by clear and convincing evidence that's a higher standard and i believe that the immigration judge and the board should have the ability to address that in the first instance i just don't know if that would meet that threshold or not ok thank you the other question court view her own statements as to her status of her marriage as evidence of fraud the court can yes but i don't believe that there is enough there to show marriage fraud in let's you have this other individual who says yes i was paid to arrange this marriage you take that's the heart of the case you cut that case out then there is not substantial evidence to support the remainder of it and i wanted to just in the time i have left i want to dress the asylum issue in the in the levy versus holder and my understand i didn't go back and read it while i was sitting here but leave versus holder under the real idea act an adverse credibility is to one asylum claim can bleed over into another asylum claim what we have here is an adverse credibility as to removal leading over into an asylum claim and there was there was no there was no contrary evidence to miss funks claim of persecution in vietnam other than the fact that the immigration judge just thought she wasn't credible