if you could move over just so you speaking directly into the microphone of his or her recorded thank you very much i represent the petitioner june lee who is appealing to be a is to nobs application for political asylum one of the central issues in this case is whether s reasons for doubting his credibility it bears emphasis that mr lee's asylum claim raises an additional grounds for relief that was separately analyzed by the b i a e a and which constitutes an independent basis for political  namely his claimed fear so the public security bureau one account of his criticism of the chinese government in private conversation with his coworkers and all the being held that this aspect of mr leask claim also lack aspect of mr leask claim is under mind by spirit of safe residence in china following its life force there is a certain fails to acknowledge that the motivation of the public security conversations with the three coworkers let me go back to the question of the amount of resistance that he claims to have given a certain extent in the hospital because what we're really dealing with here is an adverse embellish them and that is to say there's been no mention of it in the written documents there's been no mention of it in direct examination the first time he ever says anything about it puts anything at all in the record is on cross examination then and so strikes me as a sufficient ground for the b h to conclude that that was not credible how do you respond to that well i respond to that in this way is that the first time he express resistance to his wife's forced abortion was on cross examination in our position is that this was could he confused the resistance he offered in testif and given the law that we now have with respect to for sterilization of the wife giving to the husband the right to asylum requires that the husband do more than just not be happy with what happened to his asylum claim he can claim that i face future persecution because i objected to the authorities but with respect to his just objections constitute sufficient resistance well are they constitute to authorities that your wife will be subjected to one of these procedures and you write back and say i object you shouldn't do that or afterward you write them and say i'm terribly distressed about what happened or either of those evidence of resistance  i would say one is and one is not there's obviously one doesn't need to have a violent or physical altercation to demonstrate resistance because the purpose of this rules is so that you weren't to the procedure that you word but i don't use is that why would that uses the word resistance and so i'm trying to figure out what what can i surely if they if it had a physical confrontation yes but they didn't believe that they are due didn't believe that he had and so i'm now moving to what other forms of resistance here there might be that the i j a didn't find not credible but my position would be generally on on a different fact pattern that is if you if you voiced your verbal opposition to having these procedures that would constitute resistance since the whole purpose of this focus on this case what other forms of resistance are the other then the alleged physical altercation i would say that that part of his claim hinges on the conclusion that the b h finding that he didn't offer resistance in form of a was erroneous and that it failed to appreciate that is his testimony on that was confused rather than manufactured you know even even  there was a fish and resistence evidence to come he's believable before the physical laws baltar cation the question is credibility rather than sufficiency  examination getting better on the problem that we see when they get better really is goes back to ok he's had a number of communications with the authorities before you actually testifies and we this is the first we hear this in part if one reviews the rocker day direct examination was unusually short i think he offered one page of testimony for that so it was inevitable that his cross examination testimony was going to be but my point here is not let's just shows up at cross examination my point is broader now and that is it shows up for the first time in the oral testimony i mean there's been nothing before them well that's correct but prior to the court's decision in there wasn't a requirement of this resistance i don't think it would be intuitive for a solemn applicant to assume that it was necessarily the petitioner acknowledged his testimony between his initial claim that he found out about the first abortion after it happened and it's later claimed that he found out during it went went and had a physical and  of fear of persecution based on family family plan involuntary family planning so because it goes to the heart of the claim that consistency by itself immigration judge's decision i think you're right on that point but i guess what bothers me about the b i it is decision or maybe it's more of the i j s conduct of the hearing is that our cases are pretty clear that if you're going to rely on an inconsistency of th sort you describe you are supposed to give the petitioner an opportunity to explain the inconsistency and that didn't occur here so how do we how would we get around that aspect of our case law if we were to to deny the petition here well i think he was given the opportunity your honor but of course you confronted with it many of us one versus holder says is if you're going to rely on you know his failure to provide certain information you want to say well wait a minute didn't you say this and now that it's one thing for the i j a to say i don't believe the confrontation because you never said anything about it before but it's another thing to say this is inconsistent with something else and that circumstances judge watford says i know you offered is another way to go to a firm but it seems to me if we were going to rely on that we'd have to give him the opportunity to explain it wouldn't well he was twice first he was asked why he didn't mention it in asylum statement because that's the confrontation  you know you were suggesting there was an alternative way for us to uphold the b i was holding which is to say that at one point he said i didn't know about the abortion until after it happened and in other point he said i had a confrontation after i had  that inconsistency right but was he ever confronted with that inconsistency now with the absence from his other papers of the altar cation but with the with the inconsistency it was then asked again why he didn't mention the physical confrontation and his direct and that's not mention the confrontation i'm asking whether or not anybody ever said to him wait a minute you once said you didn't learn about the abortion until after it happened now you're saying you were there and you had a confrontation i don't find that in the record in this case that be enough to uphold the adverse credibility finding but if we're going to do it on the alternate ground that you suggest wouldn't we have to first given the opportunity to be confronted with the inconsistency and try to explain it he was confronted with the up as he's now saying he mixed up the two incidents and that was an inconsistency that was the principal ground the b i gave you never gave the ground that you're trying to advocate now so i just want to come back to the first question i posed do you have so are you going to point us to some particular page of the hearing transcript where he was told wait a minute sir you described that incident and in this way and now you're saying that what's the explanation is there some place where that happened just the two places i mentioned earlier neither of those had anything to do with being confronted with the inconsistency they had something to do with not having mentioned it earlier i grant you that but that's not the ground on which to be relied to to uphold the ideas decision so i don't think under generally we can we can go various complaints he made or intended to make and didn't make or did at first he testified that he had complained to his work he had complained to the government he complained to the higher level family planning authorities later  narrative justice saying you complained at work and later he said he wrote it in the diary those are also examples of other resistance and so those two go to the heart of his claim so those are significant consistencies as well and those are also of the inconsistency you see because i all i saw was very confused testimony that was hard to make heads or tails of so what's the well he said this and now he's saying that what's the give us the stark well for example he initially said that he complained to his work you know the family planning unit office the changing family planning office the higher authority and then later he said and he said he actually didn't saying it made all these complaints to say well ok i just complained at work and then i just wrote it down and i every which was incidentally the first time to mention that at the end of the hearing well i know i know but so was he given an opportunity to try to explain that in in consistency at the hearing i don't remember and him front without either i believe he was your honor ok where were you looking unfortunately i don't have a side of my fingertips ok because it isn't sufficient in this case the i j a found and the b i in affirming you're dismissing it as i'm sorry or i'm sorry reason i find you're not credible is that this incident was not described in your initial application and as i read the b i a decision and we only need to have one reason for adverse credibility correct yes or all there is a go to the heart of the claim yeah i think i started claim all the reasons given out under the real i d act all of them can be considered together as well right this is  ok so it doesn't have to go to the heart of claim does it and no it doesn't but to support a by itself now ok so we're let me go back to my question the i j a says one reason i don't find your credi is you never mentioned this before then the i j a also goes on to say there's some inconsistency between when you say you learned about it but is the fact that the is the first thing that i said the i j a said i find you not credible because you never mentioned this before is that sufficient in and of itself without regard to whether or not he has in consistencies about when he learned about the abortion yes you're out of it and now my question is did it be i am firm on background yes your honor it's because it's a further embellishment of this story because now tell me where the b i a affirmed on that ground i'm looking at what i'm trying to figure out whether that's just at a firm and so the of that alternate ground or with it it's the beginning of a longer explanation i think it is an affront on the ground your honor it's not the best written decision because it doesn't have the concluding sentence we a rm on this ground but it goes through then the paragraph goes on to talk about the inconsistency is that judge watch for it was asking you about you know i'm trying to figure out how to interpret that paragraph if it's if it's reliance on merely the omission i think it's fine if it's a real if it's saying it's omission plus then we get into the issues judge watch we're talking about so that's why i'm asking but what do you think it says yes your honor i think it does rely on the omission and i'm sorry i wasn't clear about that earlier because the next paragraph begins by saying the i j a was not required to accept the respondents explanation for the omission so you know this is this is the source of at least my concern and that's what what had to be a really yes and you think they found among other things that your mission itself supported the adverse medical yes your i think based on the first sentence they did i think what a lot of the time and what do you make of the response from the other side to that very point that well the law changed in the interim and it becomes relevant really only at the time of the testimony is to say the requirement of resistance becomes necessary as part of the cla the testimony happened and he didn't he waited to say these things until later in the hearing that looks like he was starting to embellish it because his attorney was aware before that some time before that well he had but that doesn't work very well because of the attorneys trying to do it in a vets and if your problem is it shows up only in cross examination well if the attorney has any sense at all he puts it in and direct no of the fact that it shows up in cross examination to suggest that he because as a title it's a notification from the judge and an opportunity to explain this is not satisfied by random inquiry by opposing counsel second the  misinterpretation of his testimony the b a a found that he said the only time that he expressed a complaint about what happened to his wife was to his own cross examination to his coworkers what he actually said on cross examination is that the only time he expressed opposition to the government was in his conversation  coworkers so our position is that his testimony was not in fact inconsistent concerning the complaints he made he made one to his work unit he made one to the fan family planning authorities that his neighborhood