opportunity to get it but i would like to give copies to mr wagner if it's appropriate certainly after after your argument ok thank you i'd like to begin by saying something about the kumar case because we think it stands for a legal proposition that should govern the outcome immigration judge below is to fully and fairly develop the record so that when cases from get up to the board of immigration appeals and ultimately to the ninth circuit we can all feel confident that we're dealing with all of the relevant facts particularly due process one yes a discrepancy is deemed by the immigration judge to be serial enough to support an adverse credibility determination that deficiency a discrepancy must be brought to the  m seekers attention the asylum seeker must be given an opportunity to explain the discrepancy and then finally if the immigration judge is going to go ahead with an average credibility determination the explanation must be discussed in either the world ruling or the written ruling that the immigration judge comes out with now why is that important i want to give the court a concrete example from this case as to why i discrepancy here is the discrepancy between what was said in the asylum application and the nature of the injuries that he testified to during the hearing well i nature of the injuries he testif a concern and with regard to the discrepancy between the description contained in the asylum application and his oral testimony about those particular injuries that's correct and that's what i'm and that's what i want to address well let me ask you the follow up question and you can work it into your answer i'm trying to understand where the petitioner actually testifies about that particular act of persecution and the applicant be asylum application is itself admitted as part of the evidence in the case how is this any different from evidence offered in any other kind of an adversary proceeding where the finder of fact compare the evidence that is introduced in written form with the oral testimony of the witness in making a credibility determination as to whether or not the witness testified truthfully about th just thought so didn't she yes but i think but i think that's fair because is it error i'm trying to are you trying to characterize the difference i guess the question i'm struggling with is your due process argument how much process is due where a witness is given an opportunity to testify about the same event that is covered in the written asylum application and the fact finder way is the two pieces of evidence in deciding whether or not the witnesses testify truthfully how is due process of offended by having the opportunity to testify due process is one question mr i watch and there's a discrepancy here do you have an explanation lawyer have the opportunity to do just that in another words the client was there the issue was raised before the immigration judge and a well prepared advocate would certainly have considered asking the court to view the nature of the injury in good conscience i can't disagree with what you just said because my first question when i reviewed the file was what gives there's a discrepancy here between the description in the asylum application and the testimony but we're dealing with a fundamentally different procedure in an immigration proceeding of the under mentally different procedure where the same due process clause well that's the immigration judge has different duties than a judge in a normal that states of the philippines that applies differently in immigration proceedings than it does in a normal trial or a civil jury where an immigration judge has a duty to develop the underlying record and elicit the fact  at when they say that look before the immigration judge is going to base an adverse credibility that your nation on a discrepancy of the record you have to ask one question what was the reason because it could be a very maybe some of the things that you're mentioning a lawyer or perhaps not being as active as he or she should be it is a part of the reason for the record not being properly developed but when the immigration judge also has a duty to develop the record we think mark and due process dictate there needs to be that extra question asked so we're not faced with questions when we get up at this stage as to what may or may not have happened but will affect question had been asked  bench trial to develop the record typically and because the party is represented by a lawyer who has the obligation to to carry its burden of proof text that's that's part of it but also there's a the burn and burned testimony or not lack of burn testimony what the argument is that appears to be on that particular scrap and see is that his asylum application talked about receiving cuts and medical report reference burns and it seems to me that what mr walker was arguing was that his client did not have an opportunity to address that because he did not know that that was a credibility concern of the immigration judge and that's what i understand his ar how do you respond to that well i would say i was spawns that into asia and i think first there was substantial discussion about the immigration judge and then petitioner about the circumstances surrounding adverse credibility finding based on something in the record other than what's apparent that the immigration judge ought to allow the applicant to respond in other words the argument would go that in this case why should it happen as the  judge to say your medical or medical record here references burns and your asylum application says you were cut those seem to be inconsistent to me what is your explanation and i gather you can see that didn't happen though kumar dictates actual confrontation i think his position as i understand it is that in immigration proceedings because of the existence of the regulation the immigration judge has to do more immigration judge has to specifically confront the witness with the discrepancy and give the witness an opportunity to explain before the immigration judge may properly consider that testimony if that were excluded there's still the contradiction between the medical records and the asylum application and we saw my patient when he was cut but that the medical records the void of any treatment for that and in fact discusses burns i think i think we've exhausted i mean the question is what did you tell them at this time did you tell them anything response answer i don't have more than seventeen hundred hours after he's responding to their their questions so where's the inconsistency with inconsistency i would submit joiners in the application where he fails to mention anything about in this application he mentions that he was the one that was been contacted by india to provide the money but it's just the money says they talked to me first and then i called my son required to believe that  violations much as the judge was faced with two letters both poorly from the same individual and the immigration judge gave no weight to the letter and so because the judge did not rely on that document to the extent that it was hearsay it's  the most of the report was provided in at the end of two thousand and three the board's decision came out in february fourth of two thousand and five such that a motion to reopen could have been done at that on that point yes it is i think the question that the immigration judge should have said only direct is this dr i proceed there are two there's a discrepancy in your asylum application versus your testimony here's what it is and what concerns me whatever happened to waiting until all the evidence is in before we weigh it and then try to figure out what the truth is well i think it's a good question because i think it does impose some burdens and challenges for the immigration judge could i guess the concern is they can impose an impossible burden math background or his you might not know until after you've heard all the evidence well after you paying it that there really is a serious problem and it is true that maybe when you're developing your decision you identify a think happened here because i think it would be instructive for the court mistry bhajan in having the asylum application prepared was represented by counsel he speaks only army and it's in the record that he had an acquaintance assist and with the acquaintance that is charged with certainly have a burden to exhaust that issue before he can properly raise it here and he said generally that the immigration judge just seized upon inconsistency is that we're not important in exhaustion of administrative remedies and you want to go back to the due process issue rather to the due process door swings both ways regulation says that he has to present this clearly and squarely in his appeal to the b i am my question is did he and it doesn't sound like he is representing himself at the time i think that what the court should do is read it broadly enough to include the denial of due process has been an issue that you raised that's the best answer that i can give you a question with the actual oral testimony that's given during the proceeding and again it really cameras home why kumar makes so much sense in terms of having a direct question by the immigration judge about the discrepancy a chance to explain and then there's no question when we get up to this stage as to whether or not there's a void in the record and whether or not we have all the facts that we need to know that justice is being served and that we're not have perhaps deferring to the immigration judge in