to make you feel better i was almost late to traffic between birmingham and montgomery was a total nightmare and we were able to get in yesterday and had a nice day thank you very much your honor said may please t court my name is jeremy kreisberg i'm here on behalf of the petitioner in need so i need so it's petition for relief because his asylum hearing was fundamentally unfair when his attorney mr gurrey and received affidavit that flatly contradicted the basis of his claim for past persecution on account of his sexual orientation mr green submitted his affidavits to the court without any communication with mr so or any other inquiry into the reliability of that evidence as a result mr so has been denied asylum solely on the basis of an adverse credibility finding despite the fact that we now know he has consistently told the truth about his persecution in guinea on account of his sexual orientation we haven't arrest warrant that has been issued in guinea that proves that mr so would be detained on account of his sexual orientation if you were turns to his home country and this arrest warrant not only proves that but it also provides further proof of every material elements of his testimony it confirms that mr so is gay or at the very least perceived as gay in guinea it confirms that mr so was found in gauging in sexual relations with his boyfriend in his uncle's home and it confirms that mr so as boyfriend was then beaten burned and killed upon them being found we are asking this court to grant mr so an opportunity for a new fair proceeding  wanted which he would have counsel that didn't affirmatively submit evidence that contradicted his account of the facts that's unreliable and should never have been submitted and a proceeding at which he can provide this new evidence that proves his claim in the strongest was an abuse of discretion in failing to reopen this case in order to consider this new evidence this the rest war that's been issued for him and guinea and it goes back what happens when it goes back that you get a new hearing altogether or the immigration judge just takes the u s war in the consideration there's reconsideration we would ask the immigration court to hold a new hearing both because we think that this evidence again provides the strongest possible corroborating evidence for the account that he's provided consistently shows that the affidavit submitted on his behalf that were consistent with his story are the ones that were accurate and reliable and should provide a new basis for him to testify in a hearing that he's prepared for but we do think there would be some discretion for the court to consider it however they would want to and we would simply make the argument that a new hearing would be warranted if the case were reopened on the basis of again such strong evidence in the arrest warrant provides factual detail that aligns completely with mr so as account of the facts it's really striking evidence when the court has before it and arrest warrant that shows that he would be detained on account of a sexual orientation and fled the country because he was found gaging  sexual relations with his boyfriend and his boyfriend was then burned alive in his home country and so we think that evidence would be surely enough for the immigration judge to find persecution on account of sexual orientation as affidavit submitted to the be i at point to court to pages seventy dollars to seventy three dollars of the record and what it shows is that mr so repeatedly asked his attorney to show him the affidavits that would be submitted on his behalf and mr  consistently refused to provide those affidavits to mr so and consistently failed to secure an interpreter to have a communication with his client in our view when mr gergen came across these affidavits that flatly contradicted mr entirely different story than mr so had consistently maintained he had an obligation at a minimum at that point to have a conversation with his client and figure out whether this evidence was reliable or not mr green failed to do that and as a result submitted evidence that formed the sole basis for the immigration judges finding against mr so and would point out that the immigration judge was quite clear that absent that evidence and absent that inconsistency he would have granted relief in this case it were forty five dollars of the record the immigration judge says this is a case in which he would have granted asylum in a heartbeat so this is a classic case of prejudice as a result of deficient performance but as your honor noted we also have new evidence in this case that provide ground for granting a new hearing and it's arrest warrant to get us quite striking and if the court doesn't agree with any of that we also claim a future persecution on account of country reports that we think we're in this case i think we have the denial of a motion to reopen i think what is undisputed heater is that there was and that bridge credibility finding based on inconsistency is between the respondents excuse me between mr sos testimony and  so so can i just ask you a question because and i'm going to be as nice about this is an out of b but i found your response to a very well considered twenty four dollars page roman one ineffective assistance of counsel claim in the blue brief bizarre i had to sort of search the brief for it and it seemed to be about two pages one after sort of the necessary throat clearing about the standard that just sort of went right back to adverse credibility finding but their point is that how can that finding have ever taken place but for the ineffective assistance this guy didn't read two contradictory affidavits just put the men they lead to this adverse credibility finding and then the guy saying well if you know if i thought he was gay i would have given him asylum but i mean how is that not textbook ineffective assistance and obvious prejudice your honor i would like to refocus the the court on what the board of immigration appeals found and that was a question related to fundamental unfairness based on the actions of counsel and it found that there was no fundamental unfairness below and the government's position and certainly be that it was actually known for a lot of fairness when you look at the course of the proceedings what you have here is you have counsel who was able to muster this evidence he was able to know enough of the claim to steer the testimony in a way that was meaningful and he was able to continuance of the matter although he was not granted that continuance he was asked for a continuance of the matter in order to get new evidence but you may you lead your argument by saying you know sort of adverse credibility determination based on these bad affidavits basically and they say the affidavits were bad because the guy never even read the book and i mean do you have a contrary understanding of the evidence that in fact he did read and conscientiously determined  a drafted as far as i can tell a drafted bar complaint to the florida bar and an e mail communication to mr gergen and turning in which they ask the attorney his position with related to these allegations of an affair systems of counsel we we have it and informal communication from the attorney which indicates that he has no contacts but i would also know in the record that  disagreed with the characterization of his assistance to mr so in the proceedings below indicating that he didn't agree with how mr ibrahim one of mr soros friends who was helping to gather the evidence he didn't the attorney to respond that does not appear to have been done in this case so even though that wasn't a finding of the board below i would note for your honor that we don't actually have the position or the story green before this court so but but again turning back to the the board's finding which was a question of fundamental fairness you had again an attorney that was able to muster all this evidence to it doesn't appear at least to the government that there was anything fundamentally unfair in the case when mr green was able to thank us for all that evidence it just feels a little bit like other than that mrs lincoln how was the play i mean you know other than the adverse credibility determination that is linked to these fatally contradictory affidavit which are linked to a failure to communicate with the client which are linked to the fair to get an interpreter show it until the day of the hearing isn't that a bit substandard i would say that it's substandard now i don't think we can you know a continuance prior to the date of the hearing would be i would think would be we have more favorably looked upon them on the day the hearing when it yes your honor but what i would say is that's not that's not the standard that we're looking at here we're looking at whether or not this the proceeding below is fundamentally unfair and doesn't that interfere with their being fired if the one individual that arguably knows the truth doesn't even get to see the evidence is going to be submitted until the day of the hearing do we do we allow that to happen in any perceiving in this country no your honor and but i will our criminal correction are no but again the standard is not here is not i wouldn't say perfection or or and i wouldn't say that this was the best example of an attorney representing an alien and over proceedings however what i would say is that given what he was able to do in the limited time that he had  in the without the benefit of having being able to speak the aliens language he was able to present to mr so's case in a way that was meaningful but going back to the that when he came to the house and saw the saw the boyfriend of mr mr so he was being beaten by his brother by mr solmes brother specifically violently or aggressively necessarily correct the adverse credibility finding now briefly on the future persecution finding the reason that a future persecution finding was that let me back up the reason it's not necessary for this court to remain and in order to make it in order to order the board and the immigration judge to make a finding on future persecution is that is because that the adverse credibility finding was on the fact of mr sosa homosexuality and not whether these incidents actually happened so if the board and the immigration judge didn't believe that mr so established that he was homosexual then it would be necessary to remand in order to show that he fears future persecution on account of his homosexuality but if there are any further you sign that i'm trying to follow that or are you saying that we can simply orderly  decision be made that he would be persecuted didn't would be experiencing that legitimate figure no know what it apologize if i wasn't clear i don't what i'm trying to say is that there in an asylum claim there's two separate prongs and if you will there's a past persecution which can establish a fear of persecution about a future persecution if you are returned to the home country alternatively you can look in the absence of past persecution you can look and see if there's a well founded fear of future persecution and what what petitioner is attempting is to have this court remain and putting adverse putting the ineffective assistance aside from moment too as they asked this court to remand this case in order to have the board and the immigration judge make an explicit finding as to future persecution on account of homosexuality but if we don't get past the adverse credibility based on the fact of being homosexual then there is no purpose in reminding it to determine if he was persecuted on account of a sexual orientation that the board didn't believe he had if they believe that he is homosexual in the country and if the country has issued a warrant for his arrest are you saying that if the immigration authorities the board the court judge determined that he was less than completely honest when he said that his brothers did not participate in killing his boyfriend that that should somehow or another preclude the consideration that the country could kill him when he returns by still in the war yes yes your honor because it's not do you not have a problem with that i will not comment on what my person i am talking about you represent the united states just does our country not have a problem with that the are we willing to send someone who because back to their country knowing that they would be arrested persecuted if not killed because of their sexual orientation we absolutely would have a problem with sending a person back that the government believes the government a united states believes would be persecuted or tortured and that is not something that that this government wants to do however is there any evidence that the arrest warrant the active prosecution if you will in that country is not valid no because that evidence has not been analyzed as of yet as to as to its authenticity would that be more reason for us to direct it that we consider only if the the court finds that there was such  ineffective assistance such that the hearing was fundamentally unfair to allow the case to be reopened in order to consider this new evidence which was not actually presented below the regulations actually require that new present evidence is presented after th after the an appeal is after the case is in an appeal stage then the new evidence has to be it has to be demonstrated that the new evidence was is material and previously unavailable is it  and should we there send it back to them to decide that only if again the court finds that there was there was ineffective assistance if the court doesn't find that there is ineffective assistance then we can't the court to consider is is to truly consider the record as a whole and to understand that the standard is whether the the hearing was so fundamentally unfair to deprive mr so of the ability to present a case and while it is true that it will it may be true we don't know that mr gouri and fail to take some steps to present a better case i wouldn't say that it was so fundamentally  thank you your honor i want to begin where the argument just concluded which is the new evidence this our motion to reopen based on the arrest warrant is separate and apart from ineffective assistance of counsel claim if the court disagreed entirely with us with respect to ineffective assistance our motion to reopen would operate separately as an independent basis to grant a new hearing and remain in this case the fundamental fairness inquiry relates only to the ineffective assistance of counsel problem the motion to reopen is a sep argument the board rejected that argument on the basis that they did not think that different outcome may be warranted on the basis of the new evidence as your honour's have pointed out that's just completely wrong this is new evidence that shows a basis for persecution on the legitimacy of this warrant with respect to ineffective assistance of counsel like to respond to the argument that there was no fundamental unfairness because of the course of the hearing as your honour's a pointed out once we got to the hearing it was already too late mr green had submitted evidence that flatly contradicted his client's account of the facts without any communication with his client and when we got to the hearing as well mr green's ineffectiveness continued as mr so provided in his affidavit he was allowed to review all of the evidence only a half hour before the hearing he was never told by mr jury and what would happen at this hearing he was never even told there would be a government attorney there to question him so any opportunity for a fair hearing to happen not only was dissipated at the time that this evidence was presented but board never disputed our compliance of matter of luzon to the government has never disputed our compliance with matter of those out until now we would respectfully urge that this issue has been waived time and again even if there were any concerns we completely clearly complied as we you said that he told mr varian about the in consistencies in the affidavits and raise this issue with him and mr green says that never occurred even if we take mr green's word for it which this court doesn't have to because that's not what you do with the stage of the proceedings but even if that's true that doesn't dispute any of the material facts that we've relied on for ineffective assistance of counsel claim that mr green was given these affidavits and submitted it without communication with his client even if  raise this issue to mr gurr and mr green as an attorney had nipped and an obligation to review that evidence i also want to address the issue with respect to the purported inconsistency with respect to his his brother beating his boyfriend  affidavit indicates that mr so was not there at the time that his boyfriend is being beaten he fled after at the time that he was found by his family to his friend pascals home and that was the time that his brother would have been involved or not and this is another indication of a time when effective counsel could have prepared his client to address any issue in this respect this came up during the hearing after mr so didn't have an opportunity to review the evidence meaningfully and he could have explained that he was not there at the time that his boyfriend was being beaten alive to this case pro bono i guess we do good for you that there's nothing further asked the court to