morning your honour's take two minutes for a bottle my name is saad ahmed and i represent the petitioner in this case who seeking review of the board of immigration appeals final order of removal denying his applications for asylum and withholding  on the basis of the so called prosecutor bore this petition for of you should be granted because there was insufficient evidence in the record to raise the inference that the petitioner was a persecutor in the context of in the context of a persecutor for analysis the government must first make the threshold evidentiary showing that each element of the persecutor bar as has been metal could be met in this case the the the evidence failed to establish that the government rely primarily on the asylum in tribunal it's as well as the assessment to refer to make its initial evidentiary burden and the asylum officers notes were not meaningfully clear or reliable to raise the inference and we believe that he was testifying right mr panto's was testifying and refreshing his recollection and reading out loud the notes and i thought that   written summary of the the asylum officers now it's as they had said previously the council went along with it for that reason however even the testimony of the asylum officer was a big at  best it was too generalized for example the asylum officer said when he was he when he questioned the petitioner whether he ever was in the police the petitioner answer was but the work of the party supported the police  the asylum officer asked the petitioner whether he ever ordered and whether he whether he ever ordered anybody arrested the answer was my rank was much higher than the police when he was asked questions about  guess let me just make it to make it clear that two questions one is was the mr panto's is testimony as a simple was it and we have a lower standard for the immigration hearing it's not like a trial court so it's relevant reliable and issue of reliability the second question which you seem to be moving to now is was it sufficient to be substantial evidence of the persecutor bar m i with a inadmissibility issue where the alien did not disclose his prior service in the military i mean that was yes we agree in that case materiality was the issue whether that was a material misrepresentation but let me go on a matter of d r to discuss assistance or otherwise participated in which is the same language as the persecutor bar though it's in acts of extra judicial killing and they include a footnote saying the same thing applies  believe that the asylum officers notes and the assessment to refer did not provide enough evidence to raise the inference and we believe that it's clear there were so many holes in this testimony as general most of the i mean for example it says petitioner talked about were general question general answers like you know we know both north yemen and south yemen both of them persecuted it doesn't really address the clear cut in many asylum cases where the persecutor bar is raise there's a lot more evidence than what was presented in this case and your honor even if this court were to conclude that the government made the threshold of attention showing in this case even then substantial evidence does not support the immigration judges adverse credibility determination with respect to the persecutor bar here for starters the immigration judge mischaracterized the evidence he kept saying that the petition was the secretary general of the yemen socialist party whereas there's no evidence that he testified to that he kept saying that the petitioner was you know was a member of the communist party whereas there is no such thing as a communist party in yemen so he has right first of all the record is clear there was no communist party in either north or south yemen so that must have been a typo and he explained all of that but he testified that there were similarities between the communist party and the socialist party but he also said that it's not the same size communist party that existed in the soviet union and so we believe that that was you know that was the answer the thing in this case is your honor that there was too much weight given to the asylum officers no it's despite their unreliability and too little weight given to the petitioners statements and testimony and the other evidence in the record so we believe that the the  inference the persecutor bar was not rate was not sufficiently raised and the burden should never have shifted to the petitioner to begin with if the burden hadn't shifted to the petitioner then his testimony that the judge found not credible would not have satisfied the persecutor bar standard your honor we we hope that the court with would look at that the record as a whole in coming to the conclusion that excuse me morning or honors geoffrey all men can the united states department of justice for the attorney general turning to the point that counsel open with about the evidence  admissions and his asylum interview most certainly crossed the very low threshold of indicating that he assisted in persecution and i can go through at least eight or nine things that he said during that that did so from saying that he some sometimes ordered the arrest of opposition party members that he guided interrogations a few times during which the suspects were physically hurt he said that we interrogated political opponents but then so it wasn't his main function his attorney asked does that mean that you persecuted and he said well they did and we did too he talked about methods of interrogation which were known including physical hurting in yemen is known for that  said both sides use the same methods methods of torture are available were used and i can go on he said that as far as guiding he said it was part of a natural process his words that he would take the results interrogation and then decide who should be arrested next so he orders arrests interrogations and that that that gets him in the box that puts the burden on him to show that he was not subject to the  went through line by line he had every opportunity to ask any question he wished there's no showing of what he would have done had some other procedure been followed and so on what that means then is that th that process basically complied with our caseload correct yes it it right yes it did he said that the i j just can't rely on the on notes by themselves no that is exactly the case law is the the notes weren't turned in he  was there the officer testified mr dollar dari was was represented he had an interpreter of his own choosing he had an opportunity to give a closing statement he had an opportunity to testify after the officer testified and to give his account which which he he more or less tried to do there was another basis i did in the b i appeal than that with the adverse credibility determination yes that's that's really what i think the case turns on because the  the admissions during the interview get him in the persecutor bar then it turns on whether his denials that he ever said any of that stuff or he ever did any of that stuff was credible and i think the agency's decision that there's no record evidence th compels a reversal of the agency's decision that he failed to meet its burden their specific inconsistency is we're going to fight to the very premise of his asylum claim was i was a high ranking officer in the government the socialist party and he did say the communist party twice and because of that i am going to be persecuted the asylum officer then finds him subject to the persecutor bar and so of course when he comes in immigration court is this story changes this is not unusual i wasn't that important i had no authority i had nobody followed my i just did political things and then he never quite identifies what political things are so it really comes down to i'll be incredible what about the bias issue with some of the comments made by the i j i don't think there's anything to that your honor he learned let's put that one in context oath being using a very demonstrative gesture that the immigration judge characterized as a salute like we would see in newsreels you think that that's what it was intended to be or well that it happened twice the second time it happened the i j a asked what's that about i think he's entitled to do that i think any judge would want to know if someone is being is sassing the court frankly and mr eldar has a productive isn't that well i don't know but he asked him to explain he explained i didn't mean anything by it and they moved on he didn't he wasn't ruled against because he thought he was hitler though that's that's that's hardly anything that happened that's the it's a way of describing for the record a gesture that i will if you don't mind reproduce sort of a dramatic way of describing it we all understand what the gesture was nobody there was no denial that he made the  gesture it's one incident in a proceeding that went on arguably far too long so that it's to say that that had any color on the decision i don't think is supported by the record as far as  any other allegations of of bias there's no incident there's no showing of prejudice i don't know what else is your honor would be referring to but there's no shit showing a book courting the court standards and vargas of of deep seated favoritism or antagonism that would make fair judgment impossible when he called he called him a communist no but that's part of his is first of all it's in his asylum application twice i was a member of the communist party he admits during examination that the communist party was it was sort of the same thing they had the same ideals he says i was sent to moscow which is something only high party officials got to do and then when he was cross examined after a one month recess he took that one back to it he said i don't know anybody kicked up so it's a question of he says i'm a high official i'm a highly placed official that's why i'm going to be persecuted and then he runs away from it when when he gets in trouble with it so i think that's that's  where that element came and obviously the there's no notion that the i j a ruled against him because he was a communist that i don't think that the record would support that funny it certainly would compel it so that there in the course of a long proceeding really the threshold is crossed the burden is on mr al douri he didn't meet that burden it turns that turns largely on the credibility issue no evidence record and it's a compel a finding that he was indeed credible  your honour's in this case the asylum officer notes and the assessment to refer are highly unreliable the petitioner just not contend that the asylum officer was  lying about anything but only is indicating that the the evidence was highly unreliable interpretor was used in this court has regularly reversed cases on adverse credibility determination when interpreters were used because of the interpretation issues in this case let me just give you an example in the assessment to refer the officer said that the petitioner was a credible witness and he said the petitioner testified that he never harmed anybody in the very next page of the assessment to refer he said that the petitioner was involved in two cases where he was physically present where people were physically or harmed and he was the interrogator these are inconsistent statements how do you reconcile that i can i can point the court exhibit the administrative record it ninety nine in eight nineteen and on but if you can see that desk just one example when officer panto's was questioned in court on cross examination he was asked where did it say in this notes that they were he was present at two interrogations when people were physically harmed he said well those notes were not verbatim and a lot of a lot of things are not that he stated in the in the assessment notice were not in the notes in whenever the court looks at the credibility of the asylum officer notes they make sure that it's a meaningfully clear and credible and reliable summary of what transpired i've never seen an asylum case where the notes were so unreliable yet the judge relied on them so heavily in making bought the the government's in court he was unable to answer or resolve discrepancies or contradictions when on cross examination in fact this was a case where he crossed it where the testimony officer took place almost ten years asylum notes he had no recollection of what transpired independent off the notes that were in the record and for that reason your honor we believe that the government did not meet its burden that they respon ok thank you counsel thank you we appreciate your arguments on this case the matter submitted and thank you very much