immigration judges decision is the final agency determination this is a case where the respondent though he testified regarding his case the judge denied  asylum not based on the merits of the kids and without finding any sort of credibility finding but simply because the risk petitioner here refused to sign a waiver of his file from the canadian immigration authorities i don't know why was it in permissible for an immigration judge to draw an adverse credibility adverse and negative inference because you're right i don't think there was an explicit and first that there was an application for album individual with the same name and the saying birth date as the petitioner but your honor again based on the testimony which statements that were in some way inconsistent with those facts and his asylum application that still would not be a basis to deny based on that application alone without hearing the petitioners without even going so far as to state that he found the petition his refusal to be improbable or implausible or that the reasons for not giving the that deserved the negative inference that the other titian is that he did not sign because he was afraid the person who assisted him in leaving the country had threatened him and he was afraid to give his name but the name was known already so that's why the i g said that was kind of implausible to say you're afraid to name a person whose name is already no your honor in this case petitioner was represented by counsel he was here in the united states with counsel this instant and with representations from the government he felt safe here in the united states to state the name of that individual but there were no assurances given to him that the canadian immigration official would in any way protect you know let me ask you this he felt safe here you say but if he loses asylum application he's not going to be able to stay here so obviously the safety is quite contingent and is contingent upon his succeeding in his asylum application or a c a t application or whatever other application he might make so i don't find a sense of ok i'm safe i can reveal it here  can say you know there's something odd going on here when he simply refuses to allow access to a file that has his name on it his birth date on it what what's he to think except that there's something in there he doesn't want me to see because if it's really true that somebody else well why should he care your honor i can't explain it is think of the station or perhaps and number two we didn't want the name to be revealed but of course it was somebody else the name wouldn't be there so that was so it wouldn't reveal the name i think you got to choose one explanation of the other i'm also not clear on your position is your position that the i j a should not have drawn an adverse inference or that having drawn an adverse position it shouldn't have been case dispositive or that having drawn an adverse and fronts he didn't adequately explain what is your position our position and that he did not adequately explain the negative and trends and he didn't make a credibility finding based on the inference number two were arguing that she should not have drawn the inference that that inference was based on speculation and conjecture that he should  may please the court my name is daniel davis from the apartment justice i represent trade journal and solace respondent in this matter i think this case boils down to two very simple points which the immigration judge ruled in our favor the first of which is that the immigration judge was within his discretion when he chose to make an adverse inference from petitioners failure to sign the waiver of the canadian immigration file to the i j a make an adverse credibility finding i think you could say that there was an adverse credibility finding in this case i don't think that's necessary for us to win well let me ask it again not whether that as long as the immigration judge is talking about implausibility in the record that that is sufficient for this court to treat that as an adverse credibility finding we're pretty clear that we were a choir fairly clean statement vialli i j a of an adverse credibility finding rather than sort of stray language that said well you know this seems a little implausible this terrify the standard i understand that language but i would i would point the court to the salaam case w would you point me to the language in the i j a is order or anything else the i j a does or says that in your mind constitutes the adverse credibility finding i think in in the opinion he talks about the advice i've got the record here in front of me and let's read it together point i would start on page fifty three of the record this is page eight of the ideas opinion i guess i should go back a page to page fifty two that's  person who brought petitioner into canada and into united states and says you know how in the last sentence of the second pair of however it appears that the caller already knew the name of this person and merely wanted to know if i'm responding to the respondent knew him and if so whether the respondent knew where he was at the time the call and then the next paragraph talks about even if the court assumes that mr ball want me to threat to the well being of the respondents family in the early ninet assuming further that the phone call that the court had described occurred in the year two thousand or thereabouts the court does not see any connection between the threat and the phone call in the response refusal to sign a waiver that's what i mean that first credibility  then i understand that but then in page fifty three talks about that you know the court petes that it does not see the connection between the execution of the waiver and used in threat or some phone call accordingly the only conclusion the court could draw in this case is that it must making negative inference were guarding the respondents claim to a silence right that's different than an adverse credibility determination and that's the difficulty in this case if the i j a had made an  that the that the adverse determination the adverse inference in and of itself and the way that it in facts the rest of petitioners case is deficient to show that petition a failed to carry his burden of proving his asylum application and his other explicitly i'm tempted to say based on our cases that absent an explicit adverse credibility finding by the i j a we have to send it back not because i don't think we can say well abs credibility signing we believe the story and therefore he is entitled to asylum i think under ventura we probably have to send him back but why don't we have to send it back either to get an adverse credibility finding if that's what the i g wants to make and then he can support of them the ordinary way about i find the inconsistency in this new difficulties and so on board to say well i don't find his story incredible i don't make an adverse credibility find it but nonetheless the story he tells do to the to the to a sufficient level of persecution i think that the reason that that is not necessary in this case is because of the fact that there was readily available evidence that petitioner held the key to with the i j a was within his proper scope of authority to draw never sentence in his position i would have done i think pretty much anyone would have done my problem is that he doesn't then take the inference and say and i therefore find this cases in all the priest there is never the case where petitioner is withholding evidence appears the evidence appears to be material to key questions in the case and that because of the adverse inference finding the the court has to go back to the petitioners burden and because you know there's no the court has to speculate and doesn't know exactly what's in that canadian immigration file he immigration judge is explaining the extent of damage that is done because of the adverse inference this is not a case where you know there's a missing person or to fix it and if you made an adverse inference with respect to the lack of missing birth certificate well the impact of that would be well say must and he's not for a liar he says may and i say he draws an inference i think that's all the immigration judge can say your honor because he doesn't have the immigration fall in front of him he has to assume that because petitioner doesn't found her in this case i would simply argue that the immigration judges findings or statements however you want to characterize on page fifty three are sufficient to show that  person loses on that issue because he or she hasn't sustained its burden of proof with a different approach is that your argument i think it's very similar to the discovery case and i would argue that it's even more powerful than the discovery case because normally in a discovery case where someone refuses to provide information he asserts a privilege and an attorney client privilege a fifth amendment privilege there is been no assertion of any type of a privilege in this  case petitioner said that he didn't provide the file because he was afraid you know that that his family would be harmed because of disclosure he didn't invoke any fifth amendment or attorney client privilege so it is like that discovery tases but it's even stronger than the discovery case birth certificate example if if petitioner had failed to provide a birth certificate and it appeared that the birth certificate would have been readily available and the i j a dismissed the entire case for that reason i don't think that we would argue that that is sufficient we could say well you know the first if it doesn't go to the core of the asylum claim it doesn't show he was persecuted based on you know political or or or another factor we are saying that because the scope of the adver sufficient to go to the heart of the petitioners asylum claim that the immigration judge was within his discretion to rule that the adverse inference went that far no i agree that there will be cases where an adverse inferences drawn and an immigration judge has gone beyond the reasonable scope of the adverse inference and once again going back to the discovery analogy that would be a place where this court could turn to but i don't think judge stated a start of negative inference is that he never wants stated that he found the case improbable or implausible that is not in any of the pages of the decision had he done so you could have him are very strong and his refusal to sign the waiver was not something that would have gone to the heart of the claim because again we don't know whether we know we don't know i understand   explain to the court any discrepancies that opportunity away from the court by refusing to sign that consent but if that file had in there that he tortured the people as part  of a police officer for the government and tortured people while he was there with them via disqualifying probably after making a cogent credibility finally i'd say they might just might find that yes that would be now submitted for decision