resident of this country who with the government claims its removal but to remove him the government must meet the most demanding standard of flexible and removal proceedings that of clearing convincing evidence specifically in this case the government was required to show by clear and convincing evidence that mr mohammad made a knowing voluntary and material misrepresentation during his refugee processing but rather but in concluding that the h s met that standard in  the agency relied on unfounded speculation and unreliable in untested evidence but simply can't meet the h f s burden now at the outset i want to stress that as a lawful permanent resident of this country mr muhammad is entitled to a host of protections that don't apply to many other people in removal proceedings specifically congress is made clear in the eye and say that the clear and convincing evidence standard of size when the government tries to take some of what someone away from the place that is permanently admitted and then the place that they call their home now that mr mohammed unlike so many others that come before this court in which and those cases in which the petitioner bears the burden of proof unlike those cases mr moon made earlier the government bears the burden of proof in this case and not only that but if there is a clear and convincing evidence now despite paying lip service to that standard at the agenc conclusion it's not frighted by clear and convincing evidence and that's st of all true with respect to whether mr mohammed made and knowing involuntary misrepresentation during paid refugee processing in turkey now t muhammad misrepresented to a part of his family because he didn't list the people who lived outside of the home who didn't live with him but mr muhammad provided credible and consistent testimony that he understood u maybe the government counsel said that in reality you actually have a number of other brothers who are not as close correct and he said i am for and about them all of them he said something similar a few minutes later a few pages later on the transcript so it's not really true that he was consistent he started by saying i disclose them all and then i think he switched over to the narrative that day and he was consistent after that but i think he's switched over to that different narrative later your honor i think that mr mohammed there it is my understanding of it is that he is saying he provided the information again that he thought was asked if and and and i would take issue with the fact that he that he changed  mr muhammad actually provided the same explanation early in pro se proceedings for the immigration judgment the removal proceedings for half happening and then again throughout the proceedings he was consistent in this declaration in his testimony that's instance that he he provided again the information that he thought was asked of him that's his family unit the people that were living with him and and i think that mr is asking about but that's not the question is you have these other brothers he didn't disclose correct and he says i informed about them all of them and actually says you do what you do out of the brothers correct yes i informed about them so i don't know i don't think i can read it that way well your honor i guess two points of her sect that st of all the immigration judge in her decision did did say that mr muhammad had provided a credible testimony and she did say that like his explanation was that  he understood that his he was only needed to have i information about his family you know that was certainly the immigration judge is understanding and again i agree that this is maybe a little bit confusing but other than this one instance mr muhammad's testimony was very consistent about that repeatedly throughout his testimony and also in his declarations also in proceed sayso proceedings before the immigration judge and not only that but when the as to the credibility thing think i run into this quite a bit it seems like in the immigration cases i gree that the judge found credible but there you could you would agree that you can have credible testimony which i find the credit adverse credibility thing it seems that speccy the judge saying you're a liar  use the average credibility to say you said things are wrong here so i'm going to i'm going to find that other stuff you said i'm not going to believe other stuff he said but here you can say you know he's a credible witness but there's still inconsistency said his testimony and use that to give a question by question placing a check mark as he reviewed information there's no checkmarks by the family information that would have cleared up mr muhammad's misunderstanding about who he needed to put on the application and the government has never and to that point either would like you to respond on two points one the that i j noted a very distinct change in demeanor and found that he was credible except on certain points so there was not a clean bill of health on red ability and then noted a real shift in demeanor and i know you attack the use of the f b i testimony even though there was cross examination but it seems to me that really goes to the heart of the collision between the parties in this case deliberate your comments on that certainly your honor st of all  as we are getting our brief that it doesn't form a specific encoding basis to find mr mohammad not credible with respect to this one issue when the only reason for that was a reaction to a someone else on the stand and nd this issue of whether mr muhammad was not credible with respect to this one issue only goes to whether he is eligible for a waiver of the alleged misrepresentation he weighed someone else in iraq so it doesn't actually go to the question of provability now now on that question of criminal what what do you think is the relevance then that finding your i don't actually think it's  it's relevant to solve this appeal and that because because it wasn't necessary for the judges for movability finding in this case we did challenge it because i realize it can be damning in some ways but  it wasn't and didn't form part of the remove ability finding in this case because it went to a separate thing about another interaction and only to whether mr mohamed is eligible for a waiver to the misrepresentation  misrepresentation he made but i want to stress to whatever let me ask you that let's assume just for purposes that there was a misrepresentation but then you would need a waiver of that but if this goes to the respect to that one specific issue so let me just try to get this straight procedurally the b m i you have to respect correct to be a address the credibility function that's correct with respect to this waiver issue with respect to the waiver issue only and and is the the i a e a is credited on that point that doesn't really make this underlying have the burden of proof to show that he's eligible for the waiver so the negative credibility finding there which would count against him significant whereas with respect to whether or not once his brothers was involved in quote terrorism related activity the government there the burden of proof is not a negative credibility finding with respect to that issue and and there are other many other issues with the government's evidence just to briefly how i like it so i just want to stop you design wanting to make sure i understand your procedure room process so i understand that there's a dispute over the misrepresentation and you know either there's clear and convincing evidence or there's no but even if there were not clear and convincing evidence you would still need a ringback waiver correct if there was not clear and convincing if there was sorry if there was not clear and convincing evidence as to piggyback it that's right on this question about about that f b i reports i think it's really important here and i've been reading through that i think you guys did as good a job as you can of discrediting those reports but then today i'm left reading it and wondering i we suppose you just assume the f b i are a bunch of liars because it because you're basically saying like the reports are completely what's in there just completely not true and if that's correct well what was going on  certainly so to answer your question judge and i think that what we're not saying that the f b i at our last what we are saying is that mr mohammed or that they asked that there is confusion over what mr mohammed communicated to them and that the f b i agents themselves very well could have been confused about what was communicated and that we have never had a chance to adequately and i guess that's true for a couple reasons st mr mohammed mohammed has never had a good chance to cross examine the agents that that testified against him he was only allowed to to cross examine one agent with respect to two reports he wasn't allowed to ask about whether or not there mr muhammad might have made other inconsistent statements in other interactions or exonerating statements he wasn't allowed to ask whether the agents had made any any of the things that mr muhammad said and all that goes to credibility and beachfront and the basic purposes that cross examination serves so there hasn't been a chance to test the adequacy of the government's evidence especially when you have these other did three brothers whom the government had identified and being connected to terrorist organizations now in his removal proceedings when asked about the questions that he had to respond to you about his family court that he was asked about his brothers and sisters or his siblings now opposing counsel and has turned this into a question of who his family is made up of but during his proceeding his attorney asked him about the refugee officers questions and he the question was did the officer ask you how many brothers and sisters you had and mohamed replied he asked me and i answered him but he answered him with a document supposedly that does not actually list all of it it lays it lists one sibling then in regard to the family tree report a document that was completed on a different occasion and these were not all done at once mr mohammed testified that he had three to four interviews about this he he was asked in the forum they ask you to list your siblings isn't that true sir and he said yes i inform them and then it went on to say and you gave them the identification slash ration card because they wanted to know about who your brothers and sisters were and provided that document to answer the question and he said yes so this notion that there is consistent testimony that mr muhammad understood the question to be asking about his family generally or who he lived with or his household members is not in line with the testimony that he gave integration court now the end and in contrast to what was presented during the sea conditions argument today the immigration judge did in fact reject mr muhammad's contention they simply misunderstood the question on and the board agreed with that determination pointing to the fact that mr muhammad never claimed that he had there were a specific question that he did not understand during those interviews and again that lines up with his testimony that he was in fact asked about his brothers and sisters or his siblings and he officer did not specifically ask about would be the members of his family and i would point again to a r four hundred and sixty two to sixty four where his attorney is asking him about the refugee application and ask him about the refugee officer and that is where he said that the officer asked him how many brothers and sisters he had me pointed out in our brief that there is a difference between mr muhammad who had this one interview on his actual refugee application and god help over the top i keep or the numerous interviews over the course of his is tore out as a refugee officer in that his brother's terrorism related activities we also agree with the immigration judge that the misrepresentation was material i responded in this case to simply pointing out that in the records that the never sought to suppress give evidence that the time that mr mohamed applied for refugee to our department of defense the united states government was aware of his brother's involvement with and  misrepresented here much as i think about it you know if you know murder case you can say the person had motive and that is some evidence that they may you can give to a jury that they may have murdered somebody and so it seems to me that that th the misrepresentation fine oh that i know you argue they support the materiality but do they support the misrepresentation in that it's evidence that that a person with this sort of background and family would have a motive to  to miss willfully mislead is that your position or is it not yet saveth that is that would be included in our position and this is the reason why this is it should all be considered in the context of the if department of defense report and the f b i required to gather which all show that swirling about what is an underlying notion that mr muhamm admissibility process but we don't care of them or try to remove something that doesn't make any sense to me but there is sort of a textural problem for you that for the government i think  about national security information in opposition to the aliens admission to the united states and the information that we're using here is all related to opposition to the petition granted him refugee status and invited him to countries he didn't use a little bit as the did this to build the deportation charges that are based on it in this ability basically take us back to what what occurred outside of the united states for someone i am sure i understand your give a go ahead so it's i do want to go to the question then they also challenge the limited cross examination to these reports and his agent so even assuming there is missable under the grounds that you indicate there's been a challenge to you know his inability meaning the petitioners inability to look at the underlying statements made by the f b i what is the government's response to that or human oh additionally this is not a situation where the government produced some report based on x turn all evidence where there was an independent investigation that was made these records are summaries of interviews that mr actually participated and he should know full well what occurred during those interviews and some of the things that he wanted mr excuse me agent barney to testify to he was actually able to test to himself one of them that he explained that a lot of times he wasn't providing and narrative answer that the f b i was asking what are basically like information relating to national security is pretty significant and there are cases where there have been overseas investigations i guess obvious bench as an example the least in terms of a statutory pages of the true unscratched the individual who prepared the two most relevant interview requests that are in the record when he did that she was able to get information that was crucial to him about whether an interpreter was president there were questions about how the f b i agent had compiled information regarding to a b b i e d and the petitioner and questioned whether he would have been able to use that type of meeting car bombs and there were quite there were questions that how special agent hardy was able to identify that mr muhammad was comfortable with the interpreter eventually the different for the arguments that the petitioner made about the iraqi dialect of arabic there are other portions of the record of it that she was ninety two dollars to nine dollars wine and where the point out that he listened to the news and watched movies in standard error of a key did not need to be translated into iraqi arabic in order to understand and the interpreter did have the highest level of proficiency in the arabic language  so i would request that the court denied this petition for review because if mr mohammad had in fact missed it all of his siblings on his refugee application to the united states government would not have permitted him to enter our country thank you your honor briefly with respect to the department of defense document that i think the record makes clear that the agency didn't rely on that in the materiality determination mr muhammad also contested a submission below writ with respect to judge bendix question about national security information and remove ability proceedings i just want to point the court to to to a u s c section one thousand five hundred and thirty four which does provide for specialized proceedings when there are national security concerns classified information or for removal proceedings so the government in this case chose to seek to remove mr muhammad under the regular removal proceedings and as a result mystery how that has a right iraqi intelligence already knows about mosul if you didn't you didn't raise you can raise that argument that you're about to talk about in front of the raise the they didn't make that argument in front of the i j a it arguably say one sentence in that mr mohammed will face torture from iraqi intelligence a side dish let me just ask you just i understand you're saying that the focus in the decision on isis is mutually exclusive from the iraqi concluding that it was unlikely that anyone and iraq would find out about mr mohammed suspected ties to terrorism because in fact d h s s own evidence shows that the iraqi intelligence who has a demonstrated record of