good morning may please the court i'm vanessa marty have to me i will address the inadmissibility finding my colleague harlan same doll will address issues related to exemptions to inadmissibility our client a sixty one year old ethiopian woman fled can t thousand and four after being tortured and brutally interrogated for four months by the police due to her involvement with a pro democracy political opposition group the aroma liberation front were alive and involvement which largely of making spaces for bake sales and attending meetings to help disadvantaged women the government so what's the justification to proceeding under initials in your honor  to our client fled ethiopia in two thousand and four the police when they were unable to locate her imprisoned and tortured her sister the government continues to oppress support havea life we are quite a few asylum cases and not our policy so i'm trying to figure out whether there's a special reason for your conduct i notice i notice that the board's opinion used your client's name your honor we believe it's important to protect the safety of our client and we ok so you're just repeating the assertion all asylum cases should be anonymous that's not going anywhere is there some reason for a difference with your client's case respectfully your honor in this case the immigration judge expressly found it was more likely than not that our client would be tortured upon return to ethiopia a possibility that  unless that's no longer true that if conditions change such that it no longer meets the more likely than not standard while that might warrant return it could still pose a risk to her safety were the worst she to come back and  perhaps we were slightly off in our analysis is there anything that is true about your client's claim that would not be true i don't think every asylum claim satisfies the standard under the convention against torture whether there is something unique about it although usually satisfy that standard if the alien it's credited in some circumstances but it is a different standard it's a higher standard of more likely than not tortured upon return to that country it is certainly possible there are other applications that would satisfy both asylum and the convention against torture standard and in those circumstances those those applicants as well very well  might be entitled to the the additional protection of an anonymous acronym in perceiving such is the terrorist organization relying on the accusations of the same government that tortured her and murdered her family instead of qualified expert testimony discrediting those claims a finding that the government contends should continue to bar a client from relief though the secretary of homeland security has stated that supporters of the overlaps should be exempt from the terrorism bars this is not the case for which the terrorism bars were intended to apply i will address two issues the tier three finding and the knowledge exception to the terrorism bar the judge's finding that the o l that satisfied the statutory definition was premised on application of illegally incorrect evidentiary standard the government acknowledges at page fifty two of its brief that the judge did not rely on attacks that the o f denied involvement with or even result of factually whether the o l f had involvement with those incidents instead of his opinion it was based on the uncorroborated and unattributed claim in one publication jeanne's world that the o l f took responsibility for three attacks the judge rejected the expert testimony refuting that claim and discrediting that source soley because the expert did not provide satisfy the statutory definition based on the judge's application of an improper evidentiary standard as well as the argument that even if we're saying there's no evidence have the evidence that the judge chose to rely on the single source which was discredited and refuted by the expert did not support the finding that the tier three designation had been satisfied because the judge concluded he could not consider the expert evidence refuting that because of an a legal standard that that the expert needed to have direct evidence to corroborate his own testimony testimony that included that the expert had personally spoken with left representatives that reside in washington d c who disclaimed any involvement with the three specific incidents discussed in the jeans world report requiring such additional evidence beyond what the preponderance standard requires is legal error as this court held in law reverses lidge in addition in the government's effort to defend it here three finding here the government repeatedly violates the chantry doctrine by relying on facts and evidence that were not the basis for the judge's decision including sources outside of the record such as other judicial decisions discussing o l f activities that occurred nearly a decade before our client's involvement as well as facts for instance that the judge did not even rely upon for instance the government claims in its brief that the o l f took responsibility for a bombing in two thousand and two at the t great hotel but the judge himself found in his opinion that government sources the what the judge relied on the specific claim of responsibility but the old left had taken credit for three particular attacks that was the focus of the judge's opinion and schafer's testimony was that those particular claims in jane's world were unverified unsubstantiated and that the o l f in fact a night involvement how those who know as much as dr shafer testified he spoke with the left representatives and he had extensive experience in ethiopia residing there or had worked for amnesty international indeed the judge found him to be a well credentialed expert including on this very issue whether the o l f in gauged in the violent activities that the government accused it of your honor i see that i good morning to me please the court my name is current single as my colleague noted i will be addressing the portions of this appeal regarding errors in the united states citizenship and immigration services exemptions as this court noted and at the h t congress was concerned that the breath of the definition of terrorism an eight u s c eleven eighty two might sweep too broadly effectively denying asylum to otherwise deserving out's a chance for this reason congress authorized the secretary of state and department of homeland security d h s to issue exemptions this exemption authority was designed to prevent if that are the problem we are faced with today someone deserving of asylum but has been unable to receive it da just has issued more than a dozen group exemptions primarily to evidence but i just read you have substantial evidence on both sides what do you do must weigh the evidence i thought was well really that's not realistic and anyway if weighing the evidence is is what has to be done do we have to give some weight to what the immigration judge to the weight of the immigration judge attaches to the competing evidence i presume that my colleague will address some of these questions i'm a bottle no you you really need to be prepared to address your client's case you need to raise your voice cheney oh i'm sorry can you please repeat your question your honor could you will i so just reading from the immigration judges  opinion which just say you have several sources including u s department of state and so on reports that and then you have shafer not saying they don't engage in violence but saying he doesn't have personal knowledge that they've engaged violence that's sounds like the weight of the evidence is in favor of a finding of butlins i i believe some of what dr shafer was criticizing was that some of the reports especially in the jane's world articles were not necessarily corroborate it can be contradicted certainly if you corroboration for everything the state department says is suppose it's subject to contradiction but as i say this passage in the administrative  is contrary to law as it conflicts with congressional wing which is intact the statute broadly defines exemption eligibility to include any alien and except those who support it you're one into your two terrorist groups and you supported terrorist that target civilians the statute does not hinge eligibility for the exemptions on the status of removal proceedings in fact the statute suggests two ways that aliens in removal proceedings may be considered for exemptions first the statute provides a mechanism for early ins in removal proceedings to be considered for exemptions by the d h s s as opposed to the secretary of state in addition congress made exemption determinations reviewable only and final orders of removal which  presupposes removal proceedings but the o l f policy redefined the eligibility in a manner that conflicts with that statute because it exempts as a blanket all o l f members in removal proceedings the relevant case law instructs that redefining eligibility is inherently different from enumerating factors to consider when deciding whether or not to grant discretionary relief the former is impermissible when done in a manner that conflicts with a staff two for example i ashcroft the first circuit how that a regulation promulgated by the attorney general was contrary to law because it redefined eligibility for adjustment of status to carve out the role of the aliens in removal proceedings because the statute allowed all paroled aliens to seek adjustment of status and carved out specific categories of individuals that were precluded but did not include paroled aliens in removal proceedings and those carve up the same is true here just as in suits our congress made other groups  wanted to include individuals in removal proceedings that could have done so but the opposite is true the statute authorizes do you just to consider aliens in removal proceedings for these exemptions and i'm not sure the analogy works here because adjustment of status a statutory right there's or there's a statutory right to apply for adjustment of status and we don't have a corresponding statutory right to an exemption here correct it is a matter of discretion however once the agency exercised its discretion to grant the oh well after group exemption generally it should not as our position be free to redefine how congress defined eligibility but it also did it created an exception to the exemption for those with pending removal proceedings and that's the category that your client finds herself in that's why she can't get the exemption members differently without a reasonable basis for that distinction i see my time is up if you have any further questions i'd be happy to answer them otherwise i'll turn it over ok and please the court even canter on behalf of the respondent attorney general in response to counsel's argument particularly related to note that the critical fact upon which the immigration judge relied for his conclusion was three claims of responsibility for attacks by o l f contained in the chain's world report however this is not so this is not the critical fact on which the immigration judge lived it was a subsidiary fact it was an additional consideration what the immigration judge relied on as i think your honor referred to was broader it was a broader conclusion based on a broader range of evidence so it's really a straw man two to say that the i relied on this narrower ground when in fact it was much broader indeed a claim of responsibility for a terrorist attack is is not the sole evidentiary test for whether that attack occurred any more than petitioners asserted complete faith in the o l f leadership's denials of responsibility is a reasonable basis upon which to that council made i'd like to respond to that as well the immigration court in this case held five substantive hearings to board appeals that comprising three decisions very detailed decision twenty six pages single spaced and discussed a lot of  evidence examination of the record in relation to those decisions i think there's out that the government's argument the arguments in our brief discussing that evidence and the immigration judge its reliance on that evidence fall squarely within the channel re guidelines of this court and because counsel manson mentioned it i just want to take one example where i think that the petitioner overreached and it was mentioned again here today that the government suggested that the o l f took responsibility for the bombing of the tikrit hotel in two thousand and two and they cite to page fifty six of our brief in fact we did cite from the record a b b c news report which is an independent news agency that the immigration judge noted in his decision and listed as an exhibit and in fact that's true the o f did not take responsibility for the t great hotel bombing but we did not suggest that it had we listed a number of incidents  in which and i'll quote from our brief the o l f had claimed responsibility been suspected been attributed responsibility or denied involvement so this is unfair characterization of our argument and it relates to this i think effort to narrow the issue to the exclusion of what really shows a substantial basis for the immigration judges conclusions in this case the let me address in in the time that i have remaining two additional issues that arise in this case one the and also mentioned by by counsel relating to the equal protection claim we have discussed for there are four hurdles that have to be overcome to even consider whether there is an equal protection violation because as as petitioner concedes this is unfettered discretion and there are many decisions of this court that hold their no due process liberty interest and discretionary relief the equal protection interest in the federal context derives from the due process clause without a due process liberty in truth there is no federal related equal protection interest secondly the justice  belittle petitioner's argument as well there is jurisdiction there is legal and constitutional jurisdiction however it is well established that subject matter jurisdiction and justice  distinct thirdly supreme court cases that a stablish categorical exclusions from discretionary relief deciding who among those who are eligible for what the court described as an grace or a part or is is authorized under the supreme court's precedent and finally if you get to the equal protection  reno that was an equal protection case it was about selective prosecution who would be put into deportation proceedings and who would not that was what the case was about so really it has both of the elements at play in this matter and exclusion based on you know who's in removal and who isn't and terrorism and there the court concluded in  penalty mitt holding that when an alien's continuing presence in this country is in violation of the immigration laws the government does not offend the constitution by to porting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity five twenty five us at four ninety one ninety two in other words the secretary's categor eligibility respecting aliens who are in removal proceedings is precisely the same thing it's a rational distinction to regarding who among  there's been a request or there or there is some evidence in the record related to after she left that there were questions about her but nothing on that enormous if she's me she's harmless she it falls into the category of an individual who provided material support solicited with aren't government that interest i think there's a a conundrum if you will which is the notion that we're dealing with this matter as terrorism and yet the law has decided that it will travel very far down the chain of cause ation for terrorism to reach those who provide it but i don't understand this is terrorism in a foreign country and there's no american interest and the foreign country doesn't care about her and she behaves herself with the united states so what's the benefit to us to porton or this individual has been granted the asylum but i think to to your point your are to your question your honor it's really about a broad congressional scheme that applies immigration terrorism bars very broad deferred it will be deferred until conditions change as such that there is no longer and it's no longer more probable than not that she would be  tortured and that would depend on the the agency commencing a new in effect a new proceeding against the petition the new person yes that conditions have changed such that there is have no knowledge of any interest to commence or question the cat really indeed as i said the government did not challenge it below in the appeal to the board and the government does  issue legally authorized to work in the united states i thought that's one of the differences between different from google and asylum somebody who receives asylum gets authorization to work in the united states somebody who gets to f pose no i think your honor is correct however during the pendency of a perp proceeding related to asylum there may be counsel would know precisely whether there's work authorization wasn't an issue in is something for the months yes because i address the o l f exception i just wanted to address there were two other exemption authorities one being certain limited material support that they don't challenge they don't challenge that deny then there's in significant material support where the petitioners argument was insufficient analysis and determination by the agency i think the analysis and determination is  more than sufficient the exemption authority sets out the factors to consider being a relative value fungibility of the support quantity and volume duration and frequency and in a paragraph two paragraphs in the decision the the agency reviews the monetary and sustained efforts in recruitment of members  volunteer activities the collection of dues and other activities activities in support of the o l f which grounded its conclusion that her the board's order in this case as well as the decision by the department of homeland security denying the petitioner an exemption just just for clarification of your first argument on the statute provides legal constitutional review our argument our position is that they have failed petitioners failed to state a cognize a bull legal or constitutional cl authority to work she does have work authorization yes and it is renewed annually under the convention against torture which is different than under a grant of asylum which also differs from relief under the convention against torture and in several ways including allowing for adjustment of status the ability to petition for family members the path to citizenship this court has previously recognized that the convention against torture protection is is not synonymous with in any fashion the the protection that the more permanent protection she would be entitled to with asylum in addition the question came up about shapers lack of personal knowledge this ties directly to the legal error the judge committed a single unsupported claim in one article would be sufficient to satisfy the statutory definition essentially would be impossible to rebut that claim under the direct evidence standard that the judge applied in addition even if this court credits the tier three determination the judge's finding that our client lacked knowledge of the group's activities is soundly supported by this court's decision in congress as holder in acknowledged that low level members of a group such as our client who is undisputed least involvement was limited to bake sales and women groups meetings and who credibly testified she had no knowledge of violence argument presented to the agency the argument that she did not have knowledge was certainly how could that be i believe on decision to have you know newspapers and radios and saw out of the you know learn that there were these radio words surely your honor her work to do her work here connected with an organization and it turns out that it's regarded as terrorist organisation goes around killing professor timber diligently investigates on the radio presumably the radio period must have radio and she did have access to radio that was where she heard two reports and only two is which it was i made up  saper testified and the record crime rates including for instance the human rights watch report that the government relies heavily on me now for the first time in its brief corroborate that the government accuses the o l f of violence as a means to justify its repression of a political opposition group as well as early on in its origins this is a group that began in one nine hundred seventy three the group was involved in armed struggle during the civil conflict in the early one nine hundred ninety s dr shafer himself conceded that in in again it's it's a way in which the government tries to rope in all evidence of any activity the elect has ever engaged when in any time period the relevant issue is what she knew of in this time period and that was to reports on the radio which she was she heard the government accusing it she investigated with the local leaders as precisely described in the conversation they denied any involvement everyone around her that she knew who had involvement with the l f the night that testimony was credible are a minority ethnic group within ethiopia although a very sizable one explaining why the government is so focused on ensuring that this group cannot come to power