thank you good morning welcome everyone to the th circuit court of appeals it's a pleasure to be here especially on such a beautiful day here in san francisco before we begin i want to just take a moment judge wallace and i would like to thank  judge last nick who sitting here by designation he's here from the western district of washington the district court their trial judge there and we're just very pleased to happen join us here today into assist us with our caseload thank you to last nic thank you so much we have a number of cases on the docket here today but a couple of them have been submitted and i'll just call the cases in the order that they are listed on the docket and the st case this morning is the case of zanny yang chao versus william barr apologize if i misstated the name of your client not sure i could do any better so if you're ready to proceed i think we're ready to proceed thank you very ultimately accountable for all do our best or i can so as i see it this case boils down to one question and that is whether reasonable adjudicator would be compelled to disagree with the agency's decision regarding my client's testimony and whether it was credible so the government argues that there are two inconsistency is in my client's testimony and i will walk through those unless the court has any other questions that you would like me to address st if not i'll start with the government's primary order and so the government asserts that my client testified that he did not apply for a passport until after he was arrested detained interrogated and beaten by the chinese government officials the government then concludes that this testimony must have been false because all of this occurred after the passports issued the problem with the government's theory however is that it's based on a misreading of the record my client was never asked when he applied for  passport he asked when he got the pass and he correctly and accurately testified that he got it after its issuance statement he testified that going to jail was the incident that required him to leave that was but he applied for the passport before obviously if a person applies for a passport they intend to lane why wouldn't a logical person looking at that say that that's sufficient to show that he's not being truthful so your honor i think that the government is really trying to rebut one between the lines here and i think that testimony to be precise was that keep was asked why he applied for asylum that's what the government sites yes and he said because in china i practice christianity and i was detained arrested and fined by the chinese government and i lost my job and i couldn't lead a normal life and so i think the government was something that happened after he applied for the passport that's correct your honor so so did he when he applied for the passport he wasn't planning to come the united states that makes no sense does your honor i think that my client was never asked about this and he never testified about this so we're really talking about a silence in the record now the government had an offer to asylum yes your honor i think that the issue if he is not silent when he applied for the passport it's not silent when he went to jail five or six days after he's not silent that that was the motivating factor he said he had for coming your honor i think let me try a different tack i think that i'm  having trouble with your argument i understand your honor and i think that if the government really did want to lay this trap it should have asked my client les when he applied for the passport but with the government did what that they should have the government should have asked when trap yes the impeachment trap that they're trying to assert was sprung in this case so they should have asked not a vague question why did you apply for asylum they should that said when did you apply for this passport and only then can do you really have a meaningful inconsistency but even if i'm wrong and the court believes that there is an inconsistency the court the immigration court never gave my client an opportunity to reconcile the inconsistency in just two weeks ago in the way in case this court reversed the agency decision for this exact problem because the immigration court never under cases like risk against holder the law the circuit states that an immigration court if it identifies a potential inconsistency again i submit that there is not a meaningful one here but the client needs an opportunity to explain it and the immigration judge needs to provide an explanation why this explanation is not plausible or is under reasonable and so for the exact reasons i think that this court reversed in the case i think that this court should reverse in this case now yes what  i think your client claims it is he's a christian and he was arrested because of his religious beliefs and so the question is how how is his mistake as to whether easter took place before  not significant or significant enough to question his credibility so i think i would have two points in response here on them so just to put in context the government points to a part of the transcript where my client is being peppered on cross examination with questions and q stated incorrectly that he got the timing of easter now in correct now i would like to remind the court that he was talking about an easter that occurred three years prior and easter is what's called a moveable feast it's date shifts with every year technically it falls on the st sunday following the full moon that occurs after march st and so he got it wrong but he candidly explained that he was confused he candidly stated that he was a relatively new convert to the christian faith and at the time of his arrest he was not as familiar with the calendar of christian holidays and so again under cases like risk against holder and the way in case the government was required to determine whether his his explanation that he was confused was implausible and to be frank i think that the government's explanation here is a bit tautological because the b i simply said we do not find this explanation persuasive when he asserted initially that he had been arrested before easter and that's simply a way of stating that there is an inconsistency we don't find the explanation persuasive because there was an inconsistency it was your client that brought up easter but doesn't seem to know anything about the holiday or how it celebrated or what its significance is i mean but he threw out easter there in a way that  was memorable to him and yet he doesn't know what the holiday is you know we say some prayers to the jesus was how he describes christmas you know isn't there a lurking here a belief that this whole christianity thing is not really something very sincerely held by your client so your honor i think that it was actually the government up brought it up st but i do want to address the point and i would just say that those exact same accusations could be leveled against the petitioner in against holder they're the client get far more damage the petitioner get far more damaging testimony he claimed to be christian did not understand the difference between the old testament and the new testament he also gave confused and confusing testimony about whether thanksgiving was a christian holiday people thought that it was now or even those errors were not enough in this court's view to deem the testimony incredible and so i think that this this problem in his testimony is goes less to the heart of the case and is more readily explained and he was candid that he simply got the timing of the holiday correct and again this is something that at this point in time he's testifying about more than one thousand days ago and i submit that it's a difficult task even today if you ask me what the date of easter two thousand and sixteen would be i don't think that i could respond without st looking it up on the calendar and i'm not working through a translator being cross examined by an attorney for the federal government here at your two minute underneath or to thank you if you like to reserve i will thank you very much is finding of no credibility and its determination that petitioner did not meet the requirements for cat i'm if i can start with the wong argument that my friend was discussing they didn't raise in their brief that the inconsistency going to the  passport issuance was one that he had explained and that the b i didn't or the i g didn't give him an additional reason to explain they argued there was no inconsistency in their briefing well they did argue this in a two thousand and twenty eight j is too late to raise that it was there i don't i don't see the inconsistency can you show me where the insist is i mean he says he isn't it a difference of whether or not when he applied versus when he actually received his passport so your honor if i can step back a little bit the so the board adopted the i j a as to that reason and the idea to give a little more explanation the inconsistency is what i believe judge wallace was going to the process and the timing of he stated he chose to fully china because he had been arrested which was april th and he stated that he got his passport and i understand the question was got and not applied for but there was no explanation for why he would have applied for a passport just before the alleged persecution if he didn't have any desire to leave china why he would need a passport there was no discussion of why that timing occurred that he had applied for a passport he did explain he applied for the visa solely to flee but  plied for a passport after his arrest and it seems like you're extending that argument for the b i a and that's not exactly what the b i stated so i'm just trying to figure out you know how can a non existant discrepancy form the basis of an adverse credibility ruling so your honor i think what i'm trying to say is that the b i a did say you know the i j a made an adverse credibility finding we affirm that or we find substantial evidence supports that and again they're applying just the substantial evidence and then they stated they were going to give two examples and i understand as you point out that they use the language applied for a passport but what they are doing there is affirming  j s finding of a discrepancy they could have said that and they didn't i mean what they focused on was the language on the inconsistency and i understand the argument you're making now but i think we have to rely on state again there's they so do cite to the transcript i appreciate that they used the applied for but the i j was talking about a consistency in the timeline and it fits similarly with the inconsistency regarding easter which judge last night was talking with my friend about she brought up easter it's all about let's talk about the easter because it seems that and i don't think you dispute that the petitioner did consistently refer to the correct date a number of times or to the one certain date and it was only once that he said it was before the easter is our correct yeah there were a number of times where he was consistent with what he was saying correct so yes so i  guess i'm just trying to figure out in light of our case law which says we shouldn't be focusing on dates when we're looking at substantial evidence supporting and i think you're familiar with that case law why isn't why doesn't that get within the parameter of our case law so if i can step back a little bit of the case law talks about not being focused on a mistake of a specific date the easter statement went to his whole testimony that he had been attending church regularly and that he then was arrested on april  he brought up easter they asked him did you attend services on easter and he placed easter after his arrest in the time when it goes to the credibility of his explanation it's sort of his explanation for again practicing faith because of the alleged incident of persecution choosing that he decided he needed to flee and i guess i'm trying to figure out if in i appreciate your arguments how that support fits into substantial evidence when in context he had just recently become christian he was a knowledge that he was you know what he was learning and how it was you know you could tell that he was struggling with the old testament in the new testament and there was also seemed to be a big time difference between his recollection of the date so i don't i just not sure if it's within the substantial evidence when we're talking about how he consistently talked about the date on which he was arrested and then made a statement about the east so again i think the i j a and the b i am affirming was looking at the broader timeline his story his story hinges upon that april th date and his discussion of other things occurring before or after that date and on substantial evidence review here to reverse you would need to find that the record compels the conclusion that the these were not and consistencies that would rise to the level of a credibility finding and this court in the  case which we cited discusses how the there was a dissenting opinion from judge baier and the majority opinion by district judge navarro discusses how judge beta has one possible explanation for the petitioners description of some advance that occurred but r because as you know the case law says a minor error cost you know whether or not it can stick constitute substantial evidence and i'm just trying to figure out given that he consistently  testified that he was arrested on april th isn't this within the line of cases of ren and some of the other cases that followed read no your honor you know the one of the date mistakes that he did make was about when he about the credibility just trying to figure out if that comported the basis of an adverse credibility finding that's what the in that case we said indeed we have frequently characterized discrepancies in dates which reveal nothing about this and the applications for fear of his safety to be minor inconsistencies that cannot form the basis of an adverse credibility finding so i guess you and i understand you take issue that this doesn't fall inconsistency of the other dates goes to the consistency of his story what when and why he chose to leave for the united states and when this persecution some of the other pieces of his story before your time is up if i could just ask you a question denied based on whether or not the b i sufficiently considered the country split ports because it appears that a denied the claim in one sentence without mentioning the reports or the record is that sufficient yes your honor we believe it's sufficient and i think we saw it in our brief cases like cole i would acknowledge that cole does say they said there's nothing in the record here the  respondent has not established i would think that when he has not established that would be with the evidence he put in the record the government didn't put any country reports or evidence in the record on that and so while they didn't use the phrase record there i read the respondent has not established or our position is that statement at the respond is not established it has not established he's more left of the not to be torture in china is stating that in light of the country reports and all of the other i think there were some other u in the record as well but in light of all of that evidence but i would concede that they didn't use the phrase record but we think that means the same thing and the only other thing i would say is if you have no further questions questions if there is anything on the court's mind but if not i would point just to what i think what i think is really key here and that's the explanation about this purported inconsistency about when he applied for the passport so on  page four of the administrative record this is what the b i said the respondent testified that he had applied for his passport after his arrest and what it cites to there is the portion of the transcript where he's talking about when he got the passport and when he physically picked it up now after the fact in the government's briefs the government tries to cobble it together from other questions why did you apply for asylum and i agree judge wallace i think it's very easy to imagine a version of the invents in which somebody in this situation made that more precise statement oh i applied after all of the events occurred the problem however is that my client never actually gave this testimony and i think that the standard of review here really just asked whether the government's decision is supported by substantial evidence and what the government is pointing to here is imagined evidence even if it's plausible there just nothing in this record now if this court thinks that it's a close factual question i would submit that the answer would be to remain and so that the government can more fully pursue this on in further in further administrative proceedings just like this court did in the one case and i would submit that there was a very similar discrepancy in the way in case yet for similar reasons it was based on clumsy cross examination and confusion and i see that my time is up so i would just let me just ask question does this fall within the within the rule that we've had that we have to feel compelled that there should be a different factual finding that was found by the board i think that it does you're on to the standard simply asks the government all that it asks is that the government's decision be supported by substantial evidence and i think that here i think the court resumes the word compelled and i i suspect  reason for it i hope that the person who's looking at the end of it you know has a much much her view as a judge of whether the person is being accurate being for some reason we give a far more deference to a district court judge than we do to to an i j but we do indicate that we have to feel compelled what is what is what is the key this says they would say to us you're compel i think there isn't enough there that you can just go ahead with the board and with the i j a who are much closer to the case i think the key your honor is that the i a e a said he testified that he applied to apply for a passport on the state and it cites to two pages of the administrative record and in those two pages you will not find that testimony that is my argument and that is why the court should be compelled to reverse