morning your honour's joshua ferris ackerman for the petitioner mike yashin i'd like to reserve four minutes of my time for a bottle that mr ashton was intitled to a competent translation of his hearing in a language that he spoke fluently if what happened below in this case for the i j a passes for a vindication of that right it's a farce what mr ashton got was an inadequate translation in his rd choice language delivered by an interpreter with whom he struggled to communicate including it keep orson's of the hearing that lead ultimately to be i e s decision to decide that he wasn't credible you know but you never in a circumstance like this flip back and forth between sort of pigeon english and native languages and is that what happened here well your honor in the record there are a few instances and they're marked with bracketed in english where mr ashton intervened in english but that doesn't show that he was capable of conducting his entire hearing english the courts at some point in the hearing so let's let's do this in english he did and at that point that was after two things that happen munoz had said to him that if you didn't proceed in english she was going to deport him then he agreed to proceed in english the nd time it happened was after he had been detained for nearly eleven months and he was essentially begging the i to proceed with this hearing because he had no indication no one ever told him he had a right to a translator he had there was no end in sight for him in this detention and he said look i have a family i can't spend my entire life to taint here and so at that point yes you you acquiesce to proceeding in english a position that you later reversed again when offered the opportunity to proceed in a different language that is not the kind of knowing intelligent waiver of a fundamental right in non responsive at times and that this court is cautioned that when you have a situation where there is a translation and there are questions about the translation it's a very suspect basis to deem someone not credible the government is apparently elected not to defend that ground which is discussed in the briefs at some length and i would encourage the court to read that because i think it's clear on a relatively simple matter of his relationship to his uncle he had just tremendous difficulty explaining himself and so yes roger i do believe that the entire proceeding and we sitting here today on a cold record can't calculate what effect that might have had on the i j a what do we do the decision was fairly expansive and i agree that the whole question over the over the exchange over the nephew was was just ridiculous in that the only person who really understood what was going on was mr ashton and everybody else into the i j a misstated things a couple of times just just misquoted but the guy who doesn't really rely on that and really focuse on the question of the vehicles and then the question of the omissions from the application those are things that mr ashton accept full responsibility for and he didn't say anything about having been hung upside down by boca h found the respondents testimony was vague and non responsive especially when testifying about his knowledge of the english language that was mixed in with the uncle exchange and if you actually look there what omission on the vehicles st of all it's not clear that there is an inconsistency if you actually look carefully at the port of entry statement it's not one hundred percent certain i think it's a big us you could read it as saying that he had repaired multiple vehicles but you could just as easily read it is saying that he saw multiple vehicles and the problem with that is that it's not a verbatim translation or transcription of what mr ashton said so we're splitting hairs about an ambiguous statement and we don't even know if it's what he really said and moreover we know that the port of entry statement itself wasn't translated so here mr ashton's english abilities are obviously subject to serious doubt and this court is held in the sink is that when you are going to attempt to use a port of entry statement to assess the petitioners credibility the i g needs to take into account the circumstances surrounding that statement the i g didn't do that here there's no discussion of whether that is an adequate reflection of what mr ashton said or if he was able to communicate good morning alison i go representing the respondent in this case i'd like to beef before i go to my argument i'd just like to correct something that mr ackerman said he said that mr ashton did not know he had the right to have an attorney rather have an interpreter on page one hundred and ninety five dollars the court specifically notes that he had of a drink is hearing for because he was detained and he waived his right so he was told that he could have an interpreter and he actually waive the right to have an interpreter at his bond hearing which he conducted himself mr ackerman also said that just as easily it doesn't matter whether there was an inconsistency whether he did multiple or single because and that's the point because in this case the board said even assuming credibility we agree with the immigration judge's decision on material support because mr ackerman was found to have provided material support to boko haram he is in eligible he's barred from asylum withholding of removal under the statute and withholding of removal under the convention against torture the only thing that he was eligible for was deferral of removal under the convention against torture and the immigration judge and the and the and the board affirmed he was not eligible because he could not show that the government of nigeria pardon my was acquiesced or consented in this and in fact the record here is  with instances in which the government has fought back but move them out of their territory and while they are moving target the government clearly is advancing against them and so he didn't approve eligibility for the only thing which he no no it would not because there is no exception under the statute and the case law is very very clear for either duress or for a de minimus amount of support the reason for that is because there are waivers of the were credible he would be eligible for one of these waivers unfortunately under due process argument those waivers or in the discretion of the secretary of homeland security or in that in the discretion of the attorney general and  process that does not apply that determination has not been made yet correct would if it were to go back would he not still be potentially eligible for discretionary waiver if it was determined that it happened him he might be yes but under a due process argument it doesn't apply because that is discretionary and he doesn't have a liberty interest in that relief and so when he raises that as a due process argument it doesn't work for him because he can i claim a liberty interest and if you don't have a liberty interest in the relief that you're seeking then you cannot claim a due process violation and that's and that's the the issue here i don't also like to just i'd like to just turn to the issue of the translation and i'd like to put this into context the petitioner in this case sort of these are in january of two thousand and thirteen which he was denied two years later he decided to make his own way into the united states and he came into the port of entry where he was apprehended he was he was in his in that sworn statement he is clearly asked do you speak english do you read write and do you understand english that's a or four hundred and seventy eight he says yes i understand it he's asked multiple times and he in fact says i had six years of english in school he later on tries to walk that back by saying oil only had one day a week but he is asked on multiple occasions in that sworn statement whether he understands english and when you read that statement you realize that his question his answers to the questions are very very clear after that he is sent for a credible fear interview and there is a in the record on page seven hundred and thirty two there is the credible fear interview transcript it's not a direct transcript it's but he is again asked on multiple occasions and the asylum officers who interview are trying to ask them to make sure and at the very end of that transcript you can see he says did you understand everything and he says yes  record here and i wish you here what the what the tone of that was she could have just been saying i'm going to have to deport you if you don't cooperate with me well that's and that's not the same girl you were out as counsel representative whether you say it in a nice way or threatening way the words mean the same the words mean the same thing but i think what was frustrating the judge in this case and in fact she says as he comes in because on on on two thousand and fifteen he's told all the sudden that this is a very serious case for you because you have material support question and issue and you really you know you need to be very clear and the light bulb goes off because after that he's the judge notices oh he was very clear in his prior hearing and if you if you look at in the context everything that he said through his hearing and everything that he said in his credible fear interview all of it  consistent with the exception of how many vehicles hee hee repaired he tries to walk that back in his testimony and then in this omission in his in his asylum application he prepared his asylum of really interesting questions about about about who understood what the transcripts in this case of the hearings really are disaster that the exchanges as to what language is he speaks what variations he's willing to do his complaints about about the interpreter when he does get an interpreter the i j's own misstatements when the idea will repeat back things that she has just heard and she will misstate what the transcript says that i agree with you on and most of that confusion when you when you read this i mean i understand from from your questions that you have i had a regular tragic transcript most of that confusion is in the very beginning part and  this was then transferred to another judge who held the majority of the hearing and the previous exchanges were not taken into account his testimony there is want to cajun where he says in english you know i don't agree with what he says with the way he translates it's a single occasion that he says that he you know petitioners counsel keeps saying oh he doesn't understand this curve and there is not clear evidence when you read this transcript it's all you know there is understanding and that he is responding consistent with his prior credible fear statement and his prior sworn i mean at the border i think we all understand that immigration court is different from district court but my experience in district court was where you had a translator you say the translator is the translator counsel witness no one can argue with what the translator says and you set a firm rule at the start of the proceeding was unclear because all of his testimony when you read his testimony and the cut and the the interpreter was not as credible fear interview and was not at the border when he gave his sworn statement it's consistent with what he says about his family  haven't spoken about is about whether boko haram was active and law goes and then that's cited as an example i believe of none responsiveness or of a sickness but when you read that whole section of the he answered so how do you interpret that segment and that issue i would say i would return to the board's decision which is the vacuum does not deny that he repaired to some vehicles whether it's what i'm saying asking about lagos if you know what may have been some confusion but i think that on his part he was waffling around a little bit because when you look at his his visa application in two thousand and thirteen he gives both as his address and his his home address and his mailing address as a lot of us when he claimed to be in much glory so i think that what was happening with him is that he was trying to w speaking english but i don't think you're quite understanding my question the question had to do with what was going on in law goes and that's kind of cited as well you're not answering the question but he answers the question so here we even have a situation where i'm trying to be clear in english but maybe not as precise as they should be but you're now answering about one other issue i was just focusing on lagos and would appreciate your comments on a summing up the credibility decision in this is not dispositive it is because he is barred he has conceded he does not argue that at some point he repaired he was he was taken for his expertise in repairing vehicles and although he tries to walk it back he repaired some vehicles there's no de minimus or coersion exception to that so he is barred from relief he cannot climb in process violation for denial of a waiver because he doesn't have a liberty interest in that and he is clearly not eligible for deferral of removal into the convention against torture thank you very much thank you might take a look i'm now looking at  you your honor i'd like to just pick up right where miss i go left off on the waiver issue and st of all just so we're all clear if this court holds that except for the material support bar issue mr ashton would be eligible for asylum that he can go apply for this waiver and he can get the waiver either because he any alleged material support he provided was under duress or because it was de minimus and he has not done that yet and as of now the adverse credibility determination is preventing him from applying for that waiver and so what this i go suggest is essentially a catch twenty two for mr ashton we can't use the waiver to evaluate whether the translation and the  the adverse credibility determination hurt him because he's not eligible to apply for the waiver because of the adverse credibility terminations that if that can't possibly be the way that this should work because then someone mr ashton choose could never avail himself of the waiver process and all this nd point i i looked at the record what miss i go side on one hundred and ninety five which i believe was the page where mr ashton was supposedly advised about his right to a translator i didn't see that there but in any event i would submit that whether at some point someone may have told him that he could have a translator he would be more inclined to believe the i j a who told him that he would be deported if he didn't proceed in english and after as you see the length of time that he was detained without having a competent translator i think there's no reason to think that he believed that was available to him the rd point on the credible fear interview important if we were to if we were to send this back what we sent back for the are they going to find somebody need bonk well your honor i think they could yes i mean that it looks like looks like they tried the tried for some time and he was pretty frustrated about that it finally decided that he just as you acknowledged while there so i think it is possible to find any have called around and they are they do they are they will number two i think that in light of the failures of these ads the adverse credibility terminations could deem mr ashton credible and if it does that that's a that's a huge  record ok understood your honor but it is an option this court has done it multiple times before in the alternative yes you could send it back for a new hearing with a competent translator and give mr ashton a fair opportunity to present his  in the briefs and even the i j a at one point recognized after further interaction with him that proceeding in english would likely be a violation of due process that was her assessment of mr english abilities and that's on page two of the record lastly on the vehicle issue the government has come up with this theory that mr ashton changed his story on the vehicles to avoid application the material support bar that's just not plausible there's no evidence of that in the record the page that ms i go referred to a r two hundred where he was warned that it was a serious case because of terrorist involvement has no linkage to the vehicle issue at all the only other thing available to him that mention the material support bar was the form filled out by the credible fear officer that's on a r seven thirty one and that was literally a checkbox that said terrorist and so would have been up to mr ashton to figure out that there was a link between this terrorist concept and the vehicles issue which he didn't do and further i'd submit as just a matter of common sense your honour's if he was trying to avoid the material support bar why would he clearly testify as he did that he repaired one vehicle why not just say he didn't repair any at all if he was trying to la and evade or par i think that's the more likely thing that he would have done so yours and i believe that there i believe that minimum distraction is titled to remain and to do this hearing in a language that you can speak with the comfort interpreter thank you thank your honour's is just argued actually in versus bar is submitted i'd like to thank both counsel for your argument this morning and in the court's pro bono program which we appreciate and i also know the department appreciates having a well done brief on the other side so that it's easier for oral arguments thanks to both