for review from a board of immigration appeals an immigration judge decision in a case where the petitioner mr diaz is charged with italian smuggling and it under the act under immigration nationality remand with instructions to grant the motion the turnout so my question is the following if it seems to me that the we are is decision and the i j a is decision are potentially ambiguous but they seem to be relying on the fact that they don't find your client to be credible that is that they don't believe that he really was ignorant  attempt to come into the country illegally and that they were sort of in cahoots is that of a fair reading of the decision and if so is that lack of credibility or adverse finding supported by substantial evidence well i would i would submit this your honor the i think that the adverse credibility finding is a bit of a red herring in the sense that the immigration judge originally found that he was not a credible witness because he he found out because they were friends they had worked together that they had their wives socialized that he should have known more about his immigration status he also talked about the fact that the respondent and again this that there's a question of what president means but the respondent was at the port of entry at the time right we're familiar with the facts and i guess the question is whether the agency made alternative holdings that is he's not  believable in denying that he was part of this attempt to smuggle what they are before he loses and in the alternative even if he's believable he loses and and i'm wondering if that is a fair way to read the decision i think it is a fair way and i think again that's a problem as a court points out it's a problem because the the i j a after making the credibility finding discussing the facts made a legal conclusion that the truth the act of translating the words lying and that he was actually in on the whole thing from the beginning to help his friend not just translate for to help him ok then doesn't that mean that we would have to uphold that decision no i think it's not clear i think that if that's the case if if the court feels that that's the case i think would have to be remanded for clarification because the problem is the i j a the board of immigration appeals in their decision i believe was a two thousand and eight  that they didn't find that the credibility fine it was necessary because the question was whether or not he engaged in alien smuggling and they focus then on the on the question of the law if you look at the immigration judge's decision from  temp two thousand and seven that to ten of the car he just reaffirms his original decision from two thousand and seven which found that the affirmative act was the act of translation and the driving of the vehicle so at that point when the b i makes its final decision in two thousand and twelve they again incorporate by reference if you look at page three of their decision they incorporate it by reference their previous decisions and i think at that point again it comes down to being a legal issue and as the court knows that if there is substantial evidence is the standard if it's a factual finding but if it's a legal question this court has did novo review that the judge made not a factual finding he didn't have to find a fact that the respondent translated there's no contest to that he was translating he didn't have to find the fact that the petitioner mr diaz was driving the vehicle he minute to that that's clear so when the judge made a decision he using that as the affirmative act that was a legal conclusion not a finding of fact so it's not substantial evidence it's the no vote that's part of that that's the whole reason i asked you the question i asked you because if it's a completely alternative ground and the adverse credibility is sufficient to allow a denial of relief then we wouldn't have to reach the legal  issue i understand the court's asking and i wish i had a better answer all i can say is i don't believe number one that the board of immigration appeals i think discarded the credibility fine in a sense that said it was not an issue that they didn't think it was necessary and i don't i don't i don't agree with them i think this is a case where the court here doesn't need to reach the well the let's say let me let me just pose the following let's assume for the sake of this question that we agree with you that if he is credible either it's not sufficient to support removal of the or his questionable but we also know that the b r c a found your client not credible so why wouldn't we re mandate for them to determine what effect that credibility finding him oh i think that would be one option would be remanded for that purpose i think the other option would be to say it doesn't matter whether or not he was credible because the the immigration judge who made the decision here made a legal conclusion that what he did only what he did except that they're if they're independent i mean the problem is that if he's not a ball and what they conclude is that he was in on the whole thing not just translating that it was a plot between the two of them then that surely would suffice as a legal matter and i think at that point you'd be correct that it would need to be remanded for clarification as to whether or not to refine the credibility but you know but so is it possible for your clients mr dia's statement that happened at the secondary inspection before removal proceedings were initiated about something that was really not core to the alien or seems like it's not may not be core t that he didn't he admitted that he didn't tell the truth to the border patrol inspectors about what they had done the night before the purpose for the trip is that is that right yes he admitted that they did not they were not a party he actually drove from los angeles to pick him up and so i guess because it's not clear i mean the adverse credibility determination is very confusing i mean they're referred to it in the asylum pursued this was silent yes and we're looking at now they're looking at it in the removal i'm not quite sure what effect an adverse credibility determination has and whether or not that statement enough to support aliens eighteen in a bathing in aliens and i would agree with the court that would need some clarification from the agency from the board obviously my argument is that it doesn't need to be reached because the legal conclusion can be reached by this court and under aguilar he would not be as mother but i do understand what the court says if i can reserve my last minute for the court john of the robins here on behalf of the attorney general good afternoon to clarify the issue of what's going on with the credibility finding in this case i think i agree that the immigration judge decision is a little bit confusing certainly the immigration judge in proceedings below did make an adverse credibility finding on the basis that petitioner had admitted to fabricating a story once he was referred to after secondary inspection to the interview with the board what's the significance of that  that's all we have to just assume for a minute that that's all we're looking at that would be sufficient to uphold the by the agency's decision because the board did uphold the credibility finding but they didn't make anything of it that's my problem it's very confusing they say they absolutely uphold the ever secret ability funny but they don't reason from that to a conclusion what they do is say  paraphrasing the evers credibility finding is not clearly erroneous but it doesn't matter to us because we're going to go on and find remove ability regardless and so i guess what i'm concerned about is you know we can't supply reasons for the agency that they didn't give us under f c c versus cherry principles so why wouldn't we have to send it back to say ok well why does this well assuming that we don't agree with you on th alternative is this sufficient why does this matter this ever so finding well i think there's a number of things that could put your mind at ease although the immigration judge in his decision didn't articulate that he was making an alternative finding he does make it's march i believe it's march of two thousand decision where they say he's not credible but that's not essential for us because we're going to go off on a different ground so if we don't agree with the alternative ground why wouldn't we have to send it back to say well what will be altered is this just positive that you don't believe well i think the alternative ground is something that the immigration judge did find in his enough but if he's a liar and he was seen on a from the beginning that would be enough but that isn't what the b i actually said that's my problem so you don't agree that they are well i'm just asking you the question and i want you to assume that we don't the case also went back down to the immigration judge and back to the board for a second time around and if there and petitioner did not challenge the credibility finding to the to the i understand that yes he's not credible but so what what does that mean they didn't ever analyze where that takes them as a legal matter if he's not believable then what and i don't read either any of their decisions as really explaining that and i don't think that's a great strategy on your part because it's really confusing there's a lot of disconnects here with respect to adverse credibility determination in the context of this whole removal proceeding and then later somebody makes reference to  the asylum but i'm just wondering i have had to basically kind of did mr martinez argument that the adverse credibility determination is not supported by substantial evidence  and can't by itself supply the basis for aiding and abetting the smuggling charge here i mean there's a reference at least once about twice that were that the i j or the b i we're not relying on that for the basis of their decision well the everest credibility to me what it was what they were saying with with respect to that issue is that you know his defense to the aiding and abetting argument was that he didn't have any awareness or  didn't have any knowledge of the smuggling and they were basically discrediting that saying we don't believe that and to me that i mean but then they say we're not going to use that as a basis i do respectfully honor the language of the well we thought about it but it isn't the main thing or it could mean we're ignoring it and that's what seems clear to me i makes it sound like it was unnecessary and here we're looking at that's would be vital at this point to keep this going but as i read your brief you did you didn't address the adverse credit card bill determination issue well that's because they didn't really address it in their opening brief we were responding to the arguments that the story has taken is true was sufficient on its own to establish evidence of a move ability because their brief focuses makes a lot of hay about evidence that they wanted to suppress specifically the i two thirteen that you want sixty six the record of sworn statement and so our brief is making the point countering their argument which was that the evidence of remove ability well that exists outside of that it deals martina specifically argued in his brief that the fact that petitioner planned on concocting a story as to his motivation for traveling to the united states with sorority does not supply the missing elements of knowledge an active participation by the petitioner you never responded to that so i'm wondering if you haven't waived your ability well i guess you could  guess it could be argued that we waived it but if that is that if the court were to determine if that were the case i think the board's to the board's decision also discusses the alternative ground which is not based on credibility which is crediting the assertions that he made i think been cancelled from the incident two weeks earlier where he had been at the border involved in another incident where he tried to get the couple's baby across he also had admitted he handed over the california identification over to the immigration officer of the border patrol officer rather and and then he also admitted that he told the border officer that he tricked he relayed his friends a false statement that he had been born in the united states when he knew that he was actually born in mexico  that the statement may or may not have been a translation or was it something else a petitioner admitted that he knew him i mean it was according to the testimony the question with respect to that as i understand it yes he knew it was false but he was acting as a translator and that's what he says he says i was just they were asking questions and and they didn't understand each other and i was not a reasonable reading based on this testimony based on this testimony because he goes on to testify that after that translation when he was literally i'm saying that's the translation after the translation one right after the translation he admitted that when they went and were referred to the interview process that he created continued the false story and concocted a false story with his friend to tell the immigration officers so the notion that it was just sort of he continued the false statement from what my own reading  but he admitted that he gave the wrong false statement regarding what they had reason for their trip or the reason why they had gone to they've gone to a party the night before because he scared he did but here's the thing he also said he thought that mr surat had gotten his papers back right but ok but here's the thing he after he testifies that he translated the issue of his of his friend's birth of the united states to mexico at that point he knows that he's transmitting false information because he admits that he knows that that his friend was born in mexico so if you were going to say well he was just acting as a conduit and didn't realize it right away it's honor specifically translating information that you know to be false i would say as an affirmative act well how does not equate how do you distinguish that from she was just present and there were they determine that there was no actual affirmative act here there's the driving of the car he was the driver of the car not just the passenger as those aliens were in those cases and he actively transmitted full information that he knew to be false to the border patrol officer and then explaining right ok there's two possible outcomes it could be either just a translation or he could have known the problem is when you say that you're talking about one sentence or sentence and i have in which he purports to france he says he was just  opening brief i did address a credibility issue and i believe let me ask you the phone in addition to the translation which is you know it's sunny out it's sunny and he's translating set out there is in the passenger seat the officers out the window of the driver might mr d s passes his documents to the window and then the documents are passed by again like a condo well i guess what i'm asking i'm asking is whether there's any difference between translating spoken words and transmitting documents that are known to be house i think the difference here is that the mr d s did not provide the document in question it wasn't like he provided a false five won or a false identification card i know he did and i'm asking you whether there's an analytical distinction between passing along false documents and passing along false testimony i not because of the fact that he didn't provide a documentary only much like in aguilar so it's it's it's ok if somebody gives me for a false passport for me and i hand it coming in the country and i say well gee i didn't do this it was you know was given to me that the defense well but in this case he he again this was a transaction that took place very quickly this was just it wasn't a mr dia didn't have a document it is just because he had lived there i thought we were talking about use of a false false papers no he had it he had he was just simply trying to pass himself off as being a u s citizen because he didn't have any paper but he had a california idea that i believe was was validly obtain because he had lived here mr that i had lived in this country for many years by using his d s one fifty to cross back and forth if the talk you meant was not ford's caliph then what are we talking about we're talking about the claim that he was born on us soil making him a us citizen at birth so him saying i was born at nine i know but you weren't you just talking about passing a document what its impact well i was simply answering the question i was posting right and i interested your answer to be that it wasn't a false document it just didn't prove anything because it was only an idea it was a california id and and again because again my client didn't bring the id even if it was a real id he didn't bring it to the to the incident he  simply again this was not he didn't have in his possession for a longer time it passed right through him like water through a pipe like the the spanish words passed through him and became english on the other side and if the officer i just the very quickly through things if the