convention against torture or withholding of removal in the alternative to remain the case to the agency for with instructions to consider applications for relief on the merits of the exercise a stretching of justin status can political asylum and was subject to the so called material support bar for providing material support to a terrorist organization that decision was an error of law and also to the extent that it's mixed lot of fact it also constituted an abuse of discretion secondly the board also wrongly held as a and erred of american law that the immigration judge did not have exclusive jurisdiction in this case you hear in the justice status application filed adverse credibility finding that was not supported by the record when it comes to the material support bar the immigration nationality act has a provision that if someone has provided material support to terrorists or terrorist organizations that they would be barred from certain benefits and in this case political silane worth or admissibility under the act but it's broken down into several components and it depends on what kind of terrorist organization the act is contemplating to make it's part of the history of this case mr job would say who spoke french was him was used to the immigration judges finding specifically sporadically he was not hired he was not a member of the organization did not provide any assistance in anything having to do with any of the aims of the organization but instead sporadically in occasion over a three month time period provided personal interpretation for doctor visits and social calls the government would like to say that this is really an activity that would trigger the material support bar but if the word material is to have any meaning in the act there has to be an element of materiality how how significant is the assistance and the government's case seems to depend solely upon its seventh circuit case law and an allusion in the u s or u s supreme court case that it doesn't necessarily have to be for a terrorist purpose or for a violent purpose it can be to a nonviolent purpose for a terrorist organization that that any activity of material support can be considered terrorist activity however that begs the question and the material question this case is is the support material at all and then if so according to the statute and according to converse is older a seven sixty six alien has the burden to show that they didn't know that the organization or should know that the organization was a terrorist organization in this case we're not arguing about whether he knew or should have now let us assume that he knew or should have known the question here is his providing interpretation for a doctor's visit or two or three considering sufficient material support for terrorists one of the items in the statutory list does sic communications but there has to be an element of significance here and that's something that both congress as holder acknowledges and in re s k there'd be a case twenty three i n n decision one thirty six which was cited by the immigration judge he actually had a very good discussion of this if the government's position were to hold in any communication of any kind to anyone to fill you with a terrorist organization would consider material support to terrorism and constitute terrorist activity then your honor if of the few years back of us some of bin laden were to walk up to your honor and say hey i'd like you to be a part of my terrorist organization and you said no some of them and i will not be a part of a terrorist organization you have communicated with him you have now according to the government you have now provided material support for terrorist organization such a conclusion of course is ludicrous so somewhere between that activity and the activity in this case we have to decide whether providing nominal interpretation services for a doctor's visit and social calls constitutes that there is no question in the record that mr jobs here was not a member of the organization he did nothing to further it's an aims he did provide again he was not employed he provided interpretation services because the board found the material support bar was triggered then mr job he would not be eligible for political asylum or withholding or withholding of removal under the convention against torture or even adjustment of status which is another one of our arguments  what the board did instead is it made it errs marriage as a matter of law because either this is a question of laws to what constitutes material support and they've course they got it wrong this is ludicrous level of activity or if they considered it a question of fact it's the government which is to the standard of review for the board of immigration appeals for an immigration judge this review findings of fact and credibility under a clearly erroneous the board did not engage in any analysis of whether the i j a is finding a fax was clearly erroneous but instead starts to pick apart the findings of fact and try to find new facts that will support its conceived notion that there was material support so in the b a's decision they make a comment that the activities of interpretation is that are they they they provide they they they create a circumstance where the bar may apply they didn't say may apply and then they ask then they hypothetically switch the burden of proof to mr jaba taste to show by clear and convincing evidence that the bar doesn't apply that turns a man's head their job is to decide if  or could i ask you to address one of the alternative grounds for denying relief which use the finding the petitioner failed to show that the danger he faced or believe you faced in liberia  political opinion social group he was a mandingo tried member he was muslim religion he held a government position he was the director of the bureau of national park your image of the general services agency of liberia and so his particular social group the articulated was mending a muslims in haifa and a government official position in the alternative imputed political opinion because mending the muslims distort clee have been under represented in government i  it's legally available but the distance immigration judge found not proven right be in with respect to the motivation of the riaa and i think the judge heard there because what he did was he found that it responds to testimony  but straddling those was the burning out of this house and also the burglary of his office but what the judge didn't do is when the judge discounted he actually said he wasn't credible on nexus for the for the other two incidents other than the phone calls but the phone calls and the nexus for the phone calls are factual occurrences that yes don't rise by themselves the persecution necessarily but they color of the determination of whether there was causation whether there was a nexus  four i think october twenty nine mob again burned out his house and there's a lot behind that we briefed issues of motivation there but it's a lot of unpacking and then finally after it's just the shortly after that his office was ransacked in progress so it did occur at most within a year of the threats and and to respond to use his position as a government official to flee to the united states so we do think that those three things taken in concert your  honor to speak to on account and causation and that one element of them was thrown out merely because that in itself didn't relate to persecution and it was a rising flow of persecution that does go to the reasons why  i don't know if you're the owner if your honour's or i would like to speak to the issue of adjustment status for section thirteen the plain language of the regulation it couldn't be any clearer will there is there is broad language in one regulation yes or no how does it make any sense though to apply section thirteen to it to enable every immigration judge in the country to grand one of these fifty adjustments per  year the certainly sound to me like they ought to be matters of national policy run through the state department there is consultation with a government agency your honor but the numerical limit is done the same way as i would with withholding or other things which is there's a numerical limit that's not available given your cases either continue or are brought back but can you direct this to any prior examples of the section thirteen adjustment of status by an immigration judge there is no n it may have been but all the more reason to side with well take a back and misspoke it may have been but the point of the matter is that the court did make a finding and the court did make a finding that there was specifically review in front of the immigration judge and that of makes our case the congress knows how and the agency knows how to make changes in the law when it's required there is a case in the seventh circuit ironically at the it's eleven say the versus mckay said don't have a citation handy but i was just thinking of it as a us think of argument what's the name in two thousand and six when the amended the regulation they could have said other than arriving aliens section thirteen said it's that they didn't do that their actions are determined to have meaning the prior version of the state of the reg specifically mentioned  can think of where they're going the other right well the one that i'm thinking of is also in a different context was the victim a case although we find if we are gets persuasive the point is everybody's got to be the first one to try it these kinds of adjustments  the limitation of fifty people the languages they're at the government has a bunch of wonderful and nice arguments about why you should give deference to some interpretation of the regs and going into history but you never get to th then the my loop case we say for the proposition that even if you find somehow that he doesn't have it your section that the he does have the ability to review it like anything else just because the regulations for section thirteen were part of the a it doesn't matter the regulations for immigration court procedure and relief are the other regulations that the two forty five point three i'm sorry of of use on a lot of time to finish that thought yes sure thank you the other regulation specific to section thirteen the council may refer to it only really governs the place where you file and lots of things that are considered by the immigration judge are filed with the immigration service or the u s c i s now and they file in a particular way doesn't section thirteen applications and in fact the regulation that applies here to eight c f r two forty five point three which applies to the apartment of homeland security as corollary at eight c f r twelve forty five point three demonstrates that actually section thirteen falls outside of the immigration nationality act ok and the regulation again of the two forty five point three and not a two forty five point to that of this crucial distinction here a bit because this is a different kettle of fish that it is not intended to apply to ryan eight to forty five applications and in fact it does not apply to any do forty five applications isn't it kind of just a special cold war provision to deal with defecting diplomats ye if i can return for a moment to that to the asylum application that substantial evidence readily supports the integration as judges in the boortz and i on the merits of mr de about his claim now in his brief about say deals only with the incidents  involving the communal rioting in the late october two thousand and four months in which is house was destroyed and and mr de botton immigration court submitted a newspaper article in which he himself was quoted as saying the only thing i can is that those who did this to me did not do so on religious grounds so we can take religious grounds right off the table mr de botton himself refuted it at a much more closely in time and when he was not applying for asylum he further described in that article that bet it was done by quote evildoers suggesting that this was as the immigration judge found and as the board determined that this was mass writing and people just took advantage and substantial evidence support are currently or at least when the report was submitted there are members of the judiciary the executive and the legislature in the liberian government who are monday mandingo muscles so the well founded fear of that is supported by substantial evidence as well because that is that asylum denial is supported by substantial evidence that the court need not address them alternate material support determination if your honour's are interested i can certainly go into you know i'm troubled by it frankly and i guess let's let's start with would whether for example if mr come come a guest had gone to a doctor just a doctor providing material support for terrorism from by treating a person who's sick you're honor i'm going to answer that question but if i could step back in so you have that with the board did it with respect to the law and did it correctly under the regulations be that your sport are applied what happens is that the applicants for here asylum has the burden of proving his eligibility for release and then the regulation is clear if the evidence indicates that the person is described in the terrorism bar as the petitioner the applicant also has the burden to prove by preponderance of the evidence that the parties not apply here  that i don't know the answer to that question without more facts ok here theoretically there are there is yes doctors doctors in a small town in africa yes he knows that this these exiled folks from liberia are nearby and that they are engaging in terrorist activities and one of these human beings who's gravely ill and comes to the doctor for treatment must he say no with the risk of being forever barred from the united states the the answer to that lies in the exemption provision at eleven eighty three b and the secretary of homeland security has  applied an exemption tooth very disk scenario that you describe your honor so the answer is he could he would theoretically be barred that doctor would be but he may apply for a discretionary exemption from the department of homeland security the he provided detailed testimony on these points the immigration judge believed them and so that's good enough that he or described it as somewhat vague i sometimes i was paid so there's a real problem though with i mean th the board deciding in the shifting of the burden of proof to get around the standard of review is is an interesting finesse of the issue but it's going to this is this is a pretty troubling conclusion  as applied at least to the efforts to see a doctor i guess with respect to the efforts to see a doctor that is different from this case is i understand it very i'm sorry i read your two to three b the discretionary waiver understanding just how broad the statute that they passed is and why the secretary of homeland security has in fact it provided a specific exemption for medical purposes honour's this is this is an issue where as the board determines if you bought a simply fail to satisfy his her proven by proponents of the evidence that the mystery hero support does not apply to him he failed to offer sufficient specifics because you can have one minute