may please the court honorable judges eighty of our twelve eight point six confidentiality guarantee is a contract with the asylum applicant that the government shall not disclose information contained in or pertaining to an asylum claim without the express written consent of the of the applicant or an exercise of discretion by the attorney general this confidentiality guarantee has been interpreted in the legacy i and ass's june two thousand and one cooper memorandum and in this court's a wino vs holder in both of those interpretations where the applicant's identity can be linked to specific facts or allegations from the asylum claim so overweight point six a confidentiality is  violated in what we know versus holder where such confidentiality is violated a remount becomes necessary then to explore the possibility of a further asylum claim arising out of the confidentiality people who mistreated l t m found out about the disclosure was there any evidence that that information was shared with anybody there need not be evidence honor because if you consider the very reason for the confidentiality guarantee and why it has been interpreted in the way it has it presupposes that when you give the impression that it has applied for asylum in another country it can engender the fury of people in the home country so i think it is implied within the confidentiality violation when when that confidence is violated then we have to presume that the process flowing out of that violation is poisoning no we don't have evidence yet to the best of my knowledge that that that  happened but this is the very purpose of eight c f r twelve away point six and so you know what we saw was a conclusion arising out of the confidentiality here is why dr maneuver letter contained both the identity of the applicant her name and it also contained a specific allegation from her asylum cl to understand that the applicant is making an argument about an f g m attacking it's pretty obvious that she's applying for asylum your honor that the government would have you ignore  the facts in the record in favor of boilerplate language at the bottom of the dock of investigator or use investigative memorandum to the effect that the u s c i s nairobi aware of the confidentiality obligation and that they did not disclose or imply that an asylum application had been made however that is dispelled by the very four mentioned that the petitioner's name if you look at the maneuver the letter that was also faxed a document again it's got those allegations in that and it's got the name of the petition so it's like it's like giving you a white sheet of paper with a disclaimer that says this sheet of paper is not white the sheet of paper is obviously white so we wouldn't want to know now you moody's letter was particularly strong my administrative notice request and the b i i simply this this missed it saying that it should have been raised at the merits hearing but that's not the basis of a very odd indeed your honor my whole argument with regard to the fruit of the poison tree analysis was simply ignored by the board of immigration appeals they said something to the a fact that  the petitioners our arguments were based on speculation and conjecture no they weren't they they specifically pointed out the problem with disclosing her identity and allegations from  i believe in her sincerity i believe in her honesty and integrity wasn't her evidence it was a forgery there were findings that it was a forgery from d whom the petitioners name was disclosed and facts of her asylum claim were disclosed and so the ability as a matter of letters could have figured out that that she was applying for asylum and may have been annoyed i don't claim potentially arising out of the violation of her confidentiality and she also has to be able to pursue withholding of removal because remember the frivolous finding does not bar withholding of section i believe it's eight c f r one zero zero three point three before the lower case roman numeral i that prevents motions to reopen so let's say in the future she discovered some horrible thing arose out of this confidentiality violation the frivolous finding would prevent her from even making a motion to reopen so it and then and then it was interesting how they dealt with withholding o her removal because they stated the i stated we did not base our denial of withholding of removal on the frivolous finding well i don't know how they can do that because a frivolous finding is such a powerful statement of adverse credibility in the itself but let's give them the benefit of the doubt if in fact they did that it then we're dealing with residual credibility we're going to have to throw out the entire immigration judge found it difficult to believe that she that she of she avoided eye contact they said that her calm demeanor was inconsistent  rape the they said the fierce dogs were chasing her when she never testified to fear stops were chasing her she testified that she heard dogs barking in the distance they made the judge made comments about what a strange things for someone in kenya to put in a medical report will how would he know what is strange or what isn't strange for a kenyan official or doctor to put in the medical report  scars they they took to task a scar that she had that she claimed was made a certain way with i believe a hot knife and i believe it was in sin thera link um the ins that this court had a problem with that in that case it was cigarette burns it was a characterization of cigarette burns the there are so many of these your honors they're well briefed in my opening brief i think you will find overall that the residual credibility finding on which they base their withholding denial does not stand it in reference to the authority of this circuit and i will if i have a little time good morning greg pennington on behalf of the acting attorney general i'll start with adverse credibility excuse my voice and if i can a little cold here i'll start with adverse credibility because that's where the immigration judge started with her first decision in two thousand  now the frivolous finding was kind of at the end of her decision her forty page citizen but she started by saying that she did not find it miss l t m presented a credible claim of past persecution so she initially denied the asylum application on adverse credibility grounds and then only later did she find that the application was also frivolous based on her materially fabricating the hospital stay and there were many parts to that finding on the hospital stay it wasn't just the investigative report from overseas so as for adverse credibility and the immigration judge recognized this not any one of these things would have been grounds for an adverse credibility finding but she said that the t circumstances just the sum total of all the testimony and the evidence presented led her to find that this was just a total totally fabricated claim she started with demeanor obviously and it wasn't just on holland rape victims should act i wouldn't be here defending that it was that she found that the testimony of the expert who miss l t m went in for all these visits i heard she told us this expert that she was afraid of talking about these incidents and she was fearful and and then when she came into court she was confident in the immigration judge found that it was just well rehearsed and then it just kind of went all the testimony from there she just didn't believe it and i recognize are the harder credibility determinations to defend and for this court to review because so there's a lot of things that are quite problematic to me one of them is that the pictures of her physical scarring and the two experts what do you mean took issue well the immigration judge found then the scars that she visibly witnessed in the courtroom were inconsistent with a three month hospital stay she inferred that might basis did the immigration w and i don't know if she spent a lot of time with the program for torture victims that's a reputable program and i mean and they came in support of her story of torture right and that i do things now that it didn't happen there's pictures of cats there were things well that he says that i don't believe that happen the idea surmised that that could have happened from anything in again all this kind of flowed from her just not believing the story and i'll start with kind of where the idea started which led her to the hospital visit that the more teaching referral hospital is that she said that she escaped these four men that came in her house  she went through a barbed wire fence being chased by these men and fierce dogs and contrary to my my colleague's assertion that's that's from her declaration she submitted in support of her asylum application she said that she was chased by fierce dogs into the night so she climbed climbed through these barbed wire fences and ran barefoot for three hours only to climb up into a tree and sleep in a tree overnight and then a herdsman comes by and loaded onto a donkey cart pays for her travels to a clinic and then she gets transferred to another clinic where she has a three month hospital stay for injury see she says she recovered from with no medical care previously and that's kind of where all this comes into focus is that three month hospital stay you know she testified that she again didn't need medical care prior but she needed three months of hospital care this time and then there was the the letter which she submitted a document in her hospital stay and the letter is suspicious on its face it's addressed to whom it may concern if you look at and compare it to the letter submitted by dr nye ability it has a different telephone know why would any doctor put that in patient history so again that the letter itself is suspicious on its face and that's what prompted the government to conduct this overseas investigation mr pennington did did the jury discredit d bertold if i'm saying that correct shoe store ninety one times the way i got the discrediting was solely based upon the fact that the visits to players after her application reserve any other reason that he was that she was discredited the only other reason i could point to and i do remember remember she the immigration judge took issue with you know she didn't see anybody until after her application was denied but she said  that this expert witness did not have evidence that she submitted a fraudulent record in support of her application and when asked about that dr bird told said that you know that's something that she would take into account in determining whether  one of her patients was mulling going but there was nothing you know that she could really discredit an expert witness on i mean the expert had but she did she said that the expert witnesses testimony could not supplant say that is based on the three month hospital stay i would say that is the sum total of the testimony and evidence presented on that hospital stay this standard for frivolous is that you have to put crime i would say that it would be one element of an asylum claim as demonstrating past persecution in this goes to whether she suffered past persecution she said that she well it's all right and i don't think the immigration judge would have needed the hospital record not at all to find what is all right right but she did and then we have the investigators report well if she she did and it's an odd thing right but what we have it and we also have the deputy director of the hospital where she allegedly stayed saying that she was never a patient there and the doctor that she alleged treated her was not a physician there and that the document just was a forgery again i think that's a good term but then her expert says well they didn't even keep electronic records they didn't really keep the records and in order and  know i work there they have no record that i work there well he said that this witness that she presented also as the agency found undercut several aspects of that alleged hospital stay again he offered to personally verify her stay there he says i'm going to kenya i teach at this hospital i do rounds at this hospital if you want me to check it out i can verify that you were actually seen there i can take the letter with me and verify that it's authentic and she did not take him up on that offer i think that's pretty telling but then this witness of hers went on in her testimony his testimony rather to say that this letter is odd written discharge letters  rarely given and if they were they would be handwritten not typed they almost certainly would not be addressed to whom it may concern the records would have a reference number a medical id number which her record denied that there are paper records but as doing research there he was able to collect medical records he also established that dr nye ability was a reputable individual at this hospital that should be trusted to look at these records and verify whether a doctor did or didn't work or treat patients there so counsel before you were out of time i'd like to use a question if we find the disclosure of the medical letter under confidentiality provisions but the government would urge the court to distinguish what we know in several respects first the embassy employee you know we know took the jail records directly to police officers government officials in kenya and that was in my view factored into the we know decision that you're taking these documents and given them to people that you allege persecuted you here it was sent to you know this point and traditionally when the court finds a regulatory violation if it's not mandated by the constitution then the moving party still has to show prejudice and i think this kind of follows my last statement is where was where would the she was coming to the united states to attend college and would bring such a letter it was clear that she was coming to the united states from the record  flight from persecution and i just wanted to make that point about that letter i think i think some of some of the characterization of like why she brought the letter with her i think was misc rice also had she been at had she gone to cal state fullerton previously and then returned to kenya there was something in the record about how having gotten some education and her dowry would be greater and and and i think the immigration judge a cameraman whether it's the immigration judge or the board found that she had given no reasonable explanation as to why she wasn't circumcised by age nineteen she testified that  it had been decided in her family that if she was allowed to finish school before circumcision she would fetch a higher dowry and the that in in the mungiki culture it women are often circumcised before marriage that was part of the record so the claim that she gave no reasonable explanation even there was just factually incorrect your honour's i'll rest and thank you for your time today