her india he was a member of the indian national locked up party which represented the poor farmers and poor individuals in hari ana he was persecuted twice he was badly beaten with fists and sticks on two occasions by the congress party in india he was severely beaten which required hospitalization the second time with three days with ten days rest on his own wasn't found to be not credible based on that that the only credibility finding that the judge made was with respect to the fact that he added an additional fact at the hearing did but he said he would give it limited way he seemed to give it no weight but that wasn't the basis for his denial i mean actually the respondent testified in very very detailed credible clear consistent manner and in immigration court that's sufficient to carry the burden of proof i mean it's credible the question is whether the immigration judge for credit but in order for the judge to make a negative credibility finding order to say that he did he has to point to specific things in the record or he has to say that certain proof should have been submitted to support it he didn't do any of those things the only thing that the judge found incredible in this case and the  responding to added a new fear at the time of his hearing that he was afraid of b j p and in fact b j p had just come into power in the elections in the last few months before responding in the last was hostile to people to sikhs who have less there were to a new way but there's nothing to indicate that your client having land so it sounds like whoever is in power i'm going to be persecuted this is india this is the largest democracy in the world just by way of context the congress party that persecuted him has long persecuted the sikhs which he is here would all guess what that this individual represented farmers in the northern region of india and all of the country ports for all of these years and india by the way the congress part has been in power in india for seven years they are still in power even though b j p one a majority a national majority in the election in two thousand and fourteen they certainly don't have well the power there congress has tremendous power and authority b j p is a conservative fundamentalist hindu party and there's all kinds of evidence in the record that they persecute the sikhs that they want to get rid of minorities mr modi has been guilty of human rights violations  wasn't allowed into the united states for many years judge walker's observation that you are speaking from you are generalizing and therefore any seek it's a large population could get asylum in the united states i think that i think that's completely untrue i know that they can't it's the sikhs who are politically active in the punjab and haryana who are very religious in punjab in this case it was the sikhs who supported the sikh farmers in hari ana and in the punjab and it's those individuals who are persecuted members of parties that are that go against the ruling party which is in this case the congress party and the b j p party and those parties are against these particular sikhs who are active and don't want to blend in with the population in the for example in the punjab there are sikhs who want to separate state color start and there is also sikhs who want more land where i'd small water rights not to fix crop prices that's the problem in this case a n b i i misunderstood the record the respondent continues to fear the congress party they are very powerful b j p also came and it was a new fear it was it just happened it happened three weeks before his his hearing it was free well it was a well founded fear and not he was persecuted in the past by the congress party who continues to be in power the judge tried to ignore that and try to say well now that your party is out of power you're not in danger and responded said no i think i am i may very well be persecuted by them and in fact objectively all of the country reports and even around the country purports at the time that the b a a was making this decision a poll the fact that the congress party continued to persecute the sikhs and continue to have power and be j p content and very strongly is against minorities so this was a very realistic fear that you respond in hand and he was very badly persecuted in the past but the main point is that this credibility decision really falls apart because he's allowed to add a new fear the election of taking place three weeks before we weeks before his hearing and he gave an all a new proof i mean he gave the best evidence he could possibly give you know the  immigration judge says that it was spawning failed in his argument a future persecution because it was speculative but that's the nature of anything that happens in the future it hasn't occurred you know a number so i'm saying how good morning here on ars may i please the court my name is evan schultz i represent the government this is this case involves a straightforward application of how the immigration statute deals with the credibility of witnesses and removal proceedings persecution he had suffered at the hands of a specific political party in india the congress party two years later he testified in immigration court and he changed his story he basically said if you want to get the records page one fifty he said that he wasn't sure anymore whether he feared the congress party and he also went on to say that he had a fear of a political party he had not mentioned before the b j p that's an omission if you look in light of his tw asylum application he admitted from that any fear of the b j p it's also important to talk about how he also said in the record of pages one forty four one forty seven one forty eight that he knew at the time when he was in india before he's his asylum application he knew that there was a risk of sikhs in india taking having their land taken by the b j p so that could have been included in the two thousand and twelve asylum application the a provisions that anticipate this sort of situation and credibility it's a us c one one five eight b one b three it says that when there is that that in determining credibility the immigration judge can look at the consistency between the witnesses written statements and oral statements well that's what the agency did here and that was the basis for them finding the changed circumstances he was in power for  hearing in twenty fourteen talk about a specific fear of land of land being confiscated that is something he knew about that's really the bulk of what he mentioned more generally i would say there are procedures in immigration court for dealing with this he could have filed a new application for think was one forty pages one forty four then one forty seven one forty eight if i remember right so that is what the agency did here and then looked at the inconsistency between the two thousand and twelve and twenty fourteen statements and  use that as a basis to determine that there was a lack of credibility by mr saying now this court when it reviews as jacobs indicated a few minutes ago doesn't generally review it reviews for substantial evidence it basically looks at whether or not if the court might itself view the case differently what it comes back to as is whether or not the immigration judges whether or not the immigration judges and the agencies determinations are what is your point credibility he was too vague about his injuries i'm sorry i missed the first part of that from the inconsistency between two thousand and twelve and two thousand and fourteen i take it that you're relying on other aspects that go which credibility such as  time it went to the board in my not so much was there to my memory that there was not your honor are you suggesting we we can't rely on the fact that the immigration judge pointed out that the medical record  wasn't that it that it wasn't contemporaneous you're saying that's that's not what we can rely on because it was all about consistency what the immigration judge told the immigration judge talked about the medical records in the context of burden of proof rather than for credibility if i remember how the immigration judge structured its opinion and there is another issue here which didn't come up but it's worth talking about question just be very clear is that the substantial evidence of lack of credibility that he relied on and that you're lying on is the discrepancy between the statements two thousand and twelve and fourteen yes your honor and so really you that was down to mistakes by the lawyers you said that you said he could have done something something about his lawyers could have done something about that in its current posture your honour's that hasn't been talked about by the agency per se and i have nothing to change in power right yes your honor but i have no idea what discussions may or may not have taken place between counsel and client i wouldn't presume to say that without anything a lot more of the record of that in our regardless we're stuck with the inconsistency that's honor i would also like to add something are you going to talk about what the evidence is that he was persecuted in the first place well either out of this was the decision again went off on the grounds of credibility it have to accept and did not accept unless there was cooperation he had two years to come up with crime or issue the corroboration he came up with is a letter that was an authenticated an unsworn and non contemporaneous so my reading of what happened is that the there was a there was a finding that he was not credible as to his persecution and that it was not corroborated and that he was willing to swear to anything that would give him asylum whether it was persecution by one party or another party or any other party that came in that i think that's a fair summary of  inconsistency go to the heart of the matter that was done away with in two thousand and five amendments when something does go to the heart of the matter as it does here it is still significant and has that much more power the second point i'd like to make just very quickly as i see my time is ticking twelve documents didn't come in until after that deadline had passed and both the immigration court practice manual and also the regulations specifically eight c f r one thousand and three thirty one see are very clear about the consequences  immigration judge can impose and for instance the regulation i just cited says quote that the opportunity to file that application or document shall be deemed waived that's all that happened here as a straightforward application of that regulation i have nothing further it was a it it is a problem it's a problem in the fact that respondents often have a lot of difficulty in getting their relatives back home to produce corroborative background material in a foreign language in a foreign country and there was a lot of violence in the months before his hearing language we're talking about india in india right his relatives speak well actually his relatives speak actually they speak  relatives more difficult when you have more time to do it does it get more different now i'm saying he had less time he had less time but at any rate he did get it ok he was normally a fifteen day deadline and this judge expanded it to sixty i think he was the only immigration judge who was doing it in sixty days he was the only him but the respondent would normally try to get it in the few months before the hearing and the event but none of this was addressed to the judge never pointed to anything anything in his decision that showed that he didn't believe the respondent except the change and the additional fear he didn't hear and it was not only consistency it was an additional new fear and respondent by the way said that he was terrified that we wanted to rid sikh india of sikhs that they wanted to kill sikhs they committed atrocities against sikhs the idea about the land here his fear wasn't that they were going to just grab his land his fear was that they were cruel to the sikhs in with throwing them out of another region of india and this is not something that he would mention in this asylum application because at that time it's a state that's far off from his and b j p wasn't a national power so he wouldn't be in danger of that at the time and it wasn't about land this was just by way of example of the kind of actions that the b j p took to persecute the sikhs but in any event the judge also in his statement and his credibility decision mischaracterized misunderstood the testimony even talking about what the prosecution was the judge said it was three or four punches that's completely untrue  s suspect based upon persecution by somebody that's what i think is so limited in what the judge says and i think i think he knows that india is a complex land with many parties ruling just because one party gets in my job a majority for a small amount of time doesn't mean that all of the sudden they control all of the agencies and the police take advantage in a claim of persecution or fear of persecution by the b p of the fact that he was actually persecuted by some other person i actually i agree with you but i truly believe he was not taking advantage b j p was really a party they had killed all of these muslims in gujarat in two thousand and two all of this was in the new evidence that we put in all of the persecution by b j no but the b j p is a conservative fundamentalist hindu party and the fear