all right our third case for this morning we're going to assume because he's haitian it's more or less french are now see larry against the attorney general jeff sessions ensuring that it's legal arguments will be heard and understood this morning and present three issues before this court first that the board of immigration appeals committed legal air appealing to exercise discretion when when you completely ignored arguments presented by m it's one of those arguments i think you might want to start with the government's contention that you have abandoned in this court a challenge to the immigration judges finding that failed to show unwillingness or inability to protect because as i look at the immigration judge's decision that's just an alternative ruling the immigration judge basically saying well in any also other discussion about things so i can actually add a previous question the government takes the position that this is one of those situations in which we review arguments and adopt in firm the decision of the immigration judge c matter of her bonnet oh so so even if the board didn't talk about it it's in here in the immigration judges opinion the immigration judge says moreover mike even if i've been wrong about everything else responded has not shown that the government is unwilling or unable to protect him and so they say in your brief you didn't contest that in your honour legal error that legal error being that the immigration judge ignored evidence that went directly to that issue is that in this court why is it why does that count as legal error it could be that  also a case of a name of iglesias versus mckay c in mansoor we get this standard that in an agency is required to consider all the issues raised and to announce its decision sufficient terms for reviewing court proceedings heard and thought about the issue adverse conclusion please protect him at one point now you may think that's crazy i may even think that's crazy but but to say that they didn't and counter the issue and address it just isn't right the immigration judge addressed the issue ignored the evidence that went to the issue so when we look at the immigration judge reasoning that reason that mr slate did not contact authorities that's one of the reasons why the haitian government able to protect the immigration judge also stated mr salacious testimony as the haitian government has been improving since two thousand and six the immigration judge also stated that the assailants that attacked mr silly revenge we detained however ignored evidence which do exist that went to the issue the country conditions expert he testified that the haitian government is corrupt and ineffectual and that he actually believed violence would continue to occur but again the immigration judge misunderstood that testimony completely also ignored in his testimony how he explained that it's reasonable for someone of mr slate's position not to contact authorities and further the immigration judge ignore the evidence that although the assailants were that were detained they were immediately released from custody that same day and  lies the legal area around her by ignoring this evidence as we've seen from president cases such as the cases i mean i'm not i'm very worried at the by the proposition that any time someone ignores evidence it turns evidentiary conclusion into a legal error that is not the way we for example have looked at the related question in asylum cases whether there's been a change in country circumstances for instance or whether the extraordinary reasons that have prevented somebody from filing for a year i know those are not involved in this case and giving them as examples where maybe somebody is trying to get the immigration judge or the board to look at evidence and through whatever reason the board doesn't happen to talk about referring to actually underscores the fact that it ignored the evidence in its analysis it describes in detail his testimony then in its analysis does not discuss these details and gets his testimony wrong it's stated that you know he he stated details never came out and that's just one error by the immigration judge we also see that the immigration judge erred by denying evidence that he attempted to submit and this goes to the due process portion of the case runners now to prevail on a claim of due process slade must demonstrate that the error prejudices case prejudice being defined as the violation that directly affects the outcome of the case so how can we be sure that the evidence that was subsequently denied directly affect the outcome we look to the immigration judge the decision complaint that she chose not to admit to the late submitted evident i don't think there could be any doubt that it was late because there is a schedule for getting evidence and i think worse she was concerned that mr le gaire is evidence simply went to chain of custody and that there was a dearth of evidence saying yes you know i can verify you know the mr see th was a particular target of the sheen marriage or you know the key pieces of evidence about the persecution and so i i'm not sure that again ignores the right word and she says it's a legitimate point the new stuff that he's he's offering isn't direct evidence of what happened to him in haiti so one such a couple issues you bring up this is this issue of timing this and with the immigration federal rules of civil procedure and whatever the local rules of the northern district of illinois maybe they have standing orders about the format in which they want things submitted about how many days in advance about meat from about electronic discovery all kinds of things that are of the same level of in formality as this manual and yet we say just three judges are entitled to enforce you know orderly procedures so to properly address this issue we looked at the language of the submit additional evidence when the proceedings are already under way and we look to the second prong of that about act it states the evidence must be provided so it puts an applicant in a position that they have to provide this evidence when when it should be when it is require additional your honour's this court has held that there is no specific notice requirement from an immigration judge to tell an applicant we require this information therefore an athlete can only anticipate when evidence is is as i say required so your argument is basically under the real i d act it does contemplate additional evidence and it would be very inefficient to require waiting for a motion to reopen for that new evidence to come in correct or not and as a as an additional point this court  held where evidence is submitted in a motion to reopen agency has a duty to consider that evidence but your your correct in phrasing my argument and you are just to touch on this prejudice point we see that if we look to the trial court record i refer attentions t through to ninety nine the immigration judge question mr silly heavily on these identity documents from eight who obtained them how they were obtained mr slate responded it was his brother in law frankly give it up take these documents the immigration judge was not satisfied with that response he continued the line of questioning it is three zero two two three zero three and again on page three ten three twelve therefore it stands to reason that mr slate would attempt to submit that evidence to explain that issue your honor as the immigration judge did not have the opportunity to submit that evidence then in its decision she stated mr slate and not some evidence from key parties including his brother in law there in lies the prejudice we see how denying the evidence directly affected the outcome of the case but that wasn't the only occasion mr slate also attempted to submit an affidavit from rove's rivera and the interpreter she used to communicate with him that actually david explained some inconsistency is in his statement so this interpretation listen creole ultimately you see a french speaker creole speaker actually french creole and  it explains that there was a communication barrier which did lead to some inconsistency so that's why mr slate attempted to submit those affidavits to explain that consistency but the immigration judge again denied that evidence and then in its decision j page ten stated mr slate did not explain numerous inconsistency when in fact he did try to do just that and lastly your honour's the immigration judge stated he was not is able to offer him protection because the candidate he supported was eventually elected president but the immigration judge denied an article that went directly to this issue explaining that these attacks are still occurring despite the newly elected president so there lies the prejudice she denies the evidence then denied the case in part because of this evidence i do see i am into my rebuttal time a reserve of time for certainly thank as the department of justice website indicates or does he want to be is your brief indicates jefferson the sessions the third jefferson d sessions the third that message is known to litigation what we've come down on as far as every day it's a little unsettling let me tell you i have two concerns about the government's position here first reading mr c lay's briefs as a whole and certainly looking at some of the things he highlights in his reply brief i think it's quite unfair to say that he didn't raise the question whether the haitian government was able and willing to protect him he talks about that he gives many examples you know a token arrest where you let the person loose you know a day or so later is singularly ineffective and this this was one of these situations where the board doesn't say a word about this issue it's all new immigration judges opinion and so so he didn't highlighted and the other thing that worries me use the immigration judge seizes on things that she chooses to call inconsistency some of which seem to me utterly trivial about whether he you know remembers the name of third person for the organization for the integration of vulnerable orphans for example which is not anywhere near the core of his claim and secondly you know this concern about his education sequence where he goes off to the dominican republic for a year or two to be safe and so it's extends i hear how long it is before he gets degrees seems quite straightforward so so i'm very e argument that you're making with respect to the forfeiture argument they just ners opening brief included a separate merits analysis a second section in which they addressed past persecution on the merits that section did not address whether the government was unable or unwilling to protect mr c least and the way they dealt with the issues was to separate them out and so the government did the same in its response brief and said you read it over heading i mean i can't read this brief without understanding that this is part of his his argument why would he be bothering to tell you about the fact that it's not worth going to the police because they're corrupt and they're not going to do anything while if your honor is not convinced by the waiver argument there are plenty of bases here and i'm i thinking i don't really need to call it forfeiture there would be no strategic reason to drop a point like that so i think technically we're not really talking about standing up and saying we here by give up our argument about state action basically ghost forfeiture the manner in which they address state action was within their corroboration analysis not within a section addressing the standards governing when the government is unable or unwilling to protect an applicant i mean that you don't know heading for and that's true and that would be the basis for the way of argument but understanding if your honor has a problem with that there are plenty of bases here which fully support the agency's determination that mr salafis failed to meet its burden of proof and that's really what this case is about as you pointed out they have attempted to frame issues here as ones of legal error but what it boils down to is a quarrel with the weight afforded to the evidence that he did submit and the determination that he simply did not sufficiently corroborate his claims but this is a direct petition for review i mean we can review obviously look these are the arguments as as as judge vaughn pointed out this was a lengthy decision thirteen written pages six full written pages summarizing the evidence here you have pages evidence presented two days before the continued merits hearing was not corroborative of the specific incidents of harm that he alleged that he based his asylum claim on why but it why did it need to be if as mr nature of chain of custody so he looks at that and says ok i've got to nail down the chain of custody and he gets the very person who went and got all of these things his brother in law and tries to fix it it's like you're saying well you know he didn't address problem b but nobody told me he was a problem you know they said it was a problem and that's what he was aggressive but that wasn't the fault that the immigration judge identified soli the immigration judge so i don't know maybe a word but you know the immigration judge does criticize chain of custody well in his just in her decision i'm sorry in her decision she focuses on the absence of evidence to corroborate respondent's individual story yes she references the brother in law but she notes that there were no that that the key parties in the case including the brother in law and currently lives in the u s and he went to retrieve the documents but ultimately she's concerned about the absence of evidence supporting the central events underlying his claim of past persecution yes in the hearing there was some discussion of chain of custody but her altman decision came down on you've told me a story that happened to you in haiti you've given some inconsistent testimony about incidents underlying that story there was a lot about his i mean a number of things would corroborate his election observer id would corroborate that he was an election observer at this thing the political party card would corroborate his participation in the activities of that political party his membership in the charity organization would actually also corroborate so the immigration judge isn't even giving those things not to mention the doctor documents doc temporary news is meaningless well your honor as this court has repeatedly noted this court reviews deferentially under substantial evidence standard and immigration judges determination that the evidence simply did not meet the burden of proof in this case the immigration judge pointed out the absence of statements from coworkers and family that could attest to the specific instance of harm and this was particularly necessary for two reasons one he only submitted one statement of support from a family from a friend and that statement conflicted with his testimony so you throw that out that leaves you with no statements of support the i have a deny and asylum application lets a person know when you're submitting when you're applying for asylum you need statements of support for the when did the brother in law leave haiti the he said two thousand and five which means the brother in law was in haiti at the time of the alleged incidents and yet the letter he provided contained nothing about those incidents it was silent on the  simply addressed chain of custody yeah he may not have known that that was what it was so maybe he just needs a motion immigration judge who was there and able to observe mr salacious demeanor to observe his testimony came down in finding that your the applicant did go back to haiti at one point your honor it's worth noting that the applicant went to the dominican republic after many of the key incidents underlying his claim of past persecution and he went back because he said he h the specifics of his individual claim and the evidence that was submitted in an untimely fashion was another affidavit mr slate's affidavit and the interpretation it was the brother in law's statement which as i've noted was notably lacking in any statements regarding the harm although he was in haiti at the time that it allegedly occurred then rose ribeiro his former attorney who discussed interpretation issues the interpreter who also discussed interpretation issues and one article that discussed an armed robbery of a politician none of these feel that central hole and mr solicits case this court reviews the agency's determination that an applicant has failed to meet his burden of proof because he didn't provide sufficiently credible detailed persuasive testimony and couple that with necessary evidence corroborating his case on this record rejected would have made the difference ok so we look to the trial court record as i was discussing it in my opening argument that the immigration judge question mr sill a specifically on these issues therefore was reasonable for him to t submit these this evidence and then when the immigration judge denied him the opportunity to submit that evidence she reasoned that the lack of evidence was in part reasoning for denying his case and again i referred your attention to the immigration judge page ten or she stated he did not submit affidavit from like frankly care that that the haitian government is willing to able and able to protect him but again ignored the country condition article which describes a recent political attack on an o p l member this despite the newly elected president your honor and then the a loss like to address another issue raised by the by the respondent was that this is the evidence we attempted to submit did not corroborate specific aspects of the klein when we do see that applicants claim more plausible and that is what we have here with the evidence that was denied the chain of custody issue which also included as you correctly stated there's o p l car robbery with some of the general claims to make his claim or false conner's so all right thank you very much then and we appreciate the willingness of paraiso to assist in this case to case will be taken under advi