is here in court today i plan on reserving three minutes rebuttal i'll try to help you to keep your eye on the clock ok yes or there are five separate agency decisions involved in this case in three separate b i e holdings up for review clear of these errors is the board's reversal of the i j s grant of the waiver in which the board completely failed to discuss any of the significant equities and hardships that the immigration judge delineated in his twenty page analysis and grant well what is our jurisdiction to review the denial of the way for a reason if you agree that if the board denied it as a discretionary matter we can't review that exercise of discretion that that that would be true if it if it completely did the proper analysis but while not having any is something that's my question let's assume that it just simply said in the exercise of our discretion we choose not to grant this that the board must discuss the relevant factors balance a positive the next equities show that it's done that consideration explain why just tell me why the board didn't meet that standard here when it said we you know it more briefly than a to be sure but it did discuss why it was exercising its discretion not to grant it discussed it discuss the negative factors but it didn't discuss at all any of the significant hardship to the  husband or the children and that is a factor that's laid out in in meditation and this court's decision in jang actually controls this was very analogous in jane which was a discretionary two twelve c decision the board had failed to consider at all the community ties in the importance to the community of mr james even though i had a very significant negative record been present for with a case with respect i i don't understand you to have answered my calling question to twelve c involves the discretion of the attorney general and his designate as we don't have jurisdiction to review those cases doing yes you do your honor and this is what i'm trying to explain and maybe not well that the court this court in jane which was a discretionary if you have a discretionary denial in in of to twelve c said we have jurisdiction to review whether the board has properly done its analysis we can substitute but we have to review whether they considered all of the factors and properly considered them that were laid out by the board and here in matter of teaching him one of the seven factors that is listed as that must be considered by the agency is a significant hardship if there is to optician or and their family well but see here's where i'm having difficulty with that the board says while the respondents equitable considerations are significant so it did give credit to the to the equitable side to to your client and her family but nonetheless found that they were outweighed by many negative factors so i take it your argument must be that it's not enough to lump them together in a board must separate out each of these factors and and delineate how much weight it gives to each of them it has to be the says that our results says that yes it doesn't really say you must you must independently treat each factor as opposed to saying where soon all these equitable factors are in her favor but we have such negative factors here that we're not going to grant yes your honor the court's opinion is to say that  like i said is the most obvious one because in jang the board had considered certain factors but it left out one of the civic factors set forth in well i guess i'm asking let me and just try this one more time and i'll stop on it is it not ok for the board to say on all the positive factors we agreed that there are significant in her favor if we've we're giving her credit for all those we don't need to go down one by one she wins on all of them but we think the negative ones that we are talking about are so great that the positive factors are out they don't mention at all that it would not they say don't mention i say i agree they don't mention it at all that's not my question is that consistent with the case law can you say there's a positive the analogy of why this is just like in jenkins said they didn't consider the community ties involvement here if we do what you're saying we end up reviewing the discretionary decision of the attorney general's designates and giving ourselves jurisdiction to review whether they did it correctly is that the very thing that bars us from jurisdiction and under to  because the board has to show it considered the relevant factors i mean we have said this in a brief and if you look at jang i don't i don't read it the same way you do this is like a thirty five fifty three a in a criminal setting because the court has to consider it with all due respect they did say there were many positive things to say they didn't take them all off individually but they did consider them do you have and you're saying they have to lay out every single one and my question is if you do that and you're asking then we review whether they did it accurately they with this court has held is they have to look at the precedent decisions which is a matter of th om in this lists seven factors for them to consider one of them in particular is a significant hardship to petitioner and family that has to be discussed it was not discussed the had none of the issues regarding the testimony of the husband of this any of the children of the psychologists of the psychiatrist talking about suicidal it is a sions about the separation the family the inability of the kids to go home all of that is significant hardship that wasn't mentioned at all and yes all the court's decisions yang ready she are result all confirm that they have to be explained and have to be  stated if the board had done you know maybe six or seven discussions and eliminated one insignificant one that would be different here that was not a single iota in six lines six lines  eight seventy two the board says something about equities but never discusses the hardship you may want to move on to different topics problematic you one last question on this one you agree i take it you don't think the i j a is decision on this point is review and here they do a dyno view and in a didn't over review they have to show they considered all the factors and the main factor here that wasn't considered every pete is that nothing about the hardship to the spouse or the  taipei corps the tax statements came from the national tax administration of taipei why aren't those documents reliable they're certified public documents from an authorized court or administrati why why are they here say well the what was hearsay and unreliable with the what was relied on by the immigration judge and the board which was the withholding statements and the tax records those were only quote unquote authenticated by this agent sacramento who spoke to somebody at the consulate and said and his  testimony was based on my discuss with somebody the consulate i understand what these things say and they have a stamp on them that they were from the you know from the only the court stuff at a stamp on it is going to the court that correct correct did you did you question my question is did you dispute the accuracy of these documents we we did yes or no what your client said that's not true i actually paid withholding on mike my earnings from when  absolutely and yes not but i couldn't i did that late and i didn't see that in the record did you did she present evidence that she actually paid taxes on earnings from wynnewood yes she did and she submitted i'm sorry and i just got my i asked the wrong question to answer at the time in one nine hundred ninety four ninety ninety five she didn't submit any evidence that you paid taxes on the earnings when we're right in ninety six when things which made it she submitted these withholding statements and those what but the issue was whether in ninety six after she paid the taxes in january ninety six and fifty we see the income with those ninety four ninety five returns for dylan or not and those were not properly authentic it let me just also address if i say  judge relied on the fact of the conviction and the facts established in the proceeding in taiwan to find respondent culpable twelve different times in within five pages of the discussion the immigration judge the fir to the findings of the taiwanese court if that was a different part of her brother nothing doing with her different interests different motives and you can't use the findings of another court to find someone culpable in this more sort of the ten percent probability standard and it's got to be reversed on that basis alone and always reserve my minute and a half now after thanksgiving i trust the government is not going to read that i hope not  the court jonathan robbins here on behalf of william barr the attorney general good morning teach you there are several issues in this case i'll focus on the three primary issues subject of course of course of course questioning  first is why the record doesn't compel reversal of the immigration judge and board's finding that d h s met its burden of demonstrating that petitioner acquired her status in the united states through fraud or willful misrepresentation of the second issue relates to the court's lack of jurisdiction as has discussed with respect to the discretionary denial of petitioners request for a waiver of that fraud and the third issue if we have time to get to it deals with the applications for asylum withholding removed on the first issue on remove ability to help me understand the framework that  applies when the allegedly fraudulent statement is not made by the petitioner herself but rather made by a company i guess sort of on her behalf so what is the what do you what does the government have to prove in that context because the ground for room for move ability it seems like it's predicated on the petitioner herself having made some kind of a fraudulent statement right but that's not technically what happened here or help me understand how that works lying on her behalf well there's a number of that would there be at her behest i suppose is the better way to look at well the first way the fraud was revealed in this case was through the court proceedings that happen in taiwan so the first thing that d h as did was to submit the all the court documents that it had out of taiwan because that's where it was revealed that petitioner didn't actually have a job prior to coming to work two four went for c y international in florida and so those documents demonstrated that her brother and brother in law and husband had to fabricate these documents in order to demonstrate that she had supposedly worked as a in a managing capacity for when when at that time now when petition was offered an opportunity to rebut that evidence the first thing she did was she pled the fifth amendment now that's not hearsay evidence  the court documents are hearsay evidence putting aside the fact that hearsay is admissible in immigration court but the very first thing that she did is refused to testify in an in an opportunity to rebut those documents that the immigration judge noted is he is permitted to make an adverse inference in that regard and certainly you know the standard here is the record has to compel a country conclusion to be blunt i don't think any fact finder who saw that evidence where you have court documents showing one thing and then a refusal to testify about the details of potential criminal activity i don't know if effect under the wouldn't raise an eyebrow at that particular at the veracity of the claim in that regard now there it's worth pointing out that the court documents in this case were specifically substantiated because petitioner at the end of the day does not dispute thought that her husband and brother in law were subject to trial in taiwan and d h is of course substantiated that with other documents like the criminal booklets that showed that they they had been convicted so in terms of what a reasonable fact finder can infer from this evidence i think it's perfectly reasonable for an immigration judge to infer fraud on petitioners behalf and the inference you're drawing is that she knew that the documents that the company submitted to get her i can't remember it's a submitted she didn't submit anything right not not herself personally and so the inference you say is is reasonable here is that she must have known what the company was doing on on her behalf and that the documents it submitted to the government were fraudulent well it's not just those documents as well petitioner also did eventually decide to give up her opportunity to plead the fifth it actually did ultimately testify as to some of the things when she was questioned about her of her work and in what  was working at when when and she was had real problems on the stand she wasn't able to name clients for c y international she wasn't able to remember the names and titles of people that she had worked for all of that but that that may demonstrate that the that the information supported on behalf of the i one forty was fraudulent but how does that demonstrate that she was complicit in that fraudulent activity well that's something that i think that is made by inference i agree that i mean that's ultimately a decision of whether you can persuade a fact finder because the nature of an i one forty petition is always going to be that the petition is filed on behalf of someone else you're right if you couldn't in for fraud to the beneficiary of the petition you would never be able to show fraud he would never have been able to revoke that because of fraud and fact the immigration judge discussed this a little bit that it would not i get that i'm not questioning that part of it but if tom if i'm remembering the facts right the two documents the critical documents that were submitted to the government by the company were these withholding statements for ninety four ninety five yes right reflecting the salary she earned it when when yes so she when she eventually does address this she says no i did work you know managerial capacity during those years what's and i'm not contesting i guess that those documents are fraudulent because i didn't actually get the money until ninety six or sometime later but she's saying i did work there now i didn't know anything about these documents that the company submitted on my behalf maybe those turned out to be fraudulent i don't know but how if you prove that somehow i mean i mean do you think you've proved that she in fact did not work in a manager capacity or and in addition that she somehow knew that these documents that were submitted to the u s government were fraudulent well i think when you combine that with the fact that the excuse that she gave for these if she did testify as to what these documents were and why they didn't show salary and her claim was that her accountant forgot to file taxes which of course brings in the relevance of the d h as is submission of the tax statements that shows she did she did actually report taxes during those years so when you combine her lack of credibility about testifying about the details of this it does lead to the inference that she actually did know what was filed now i mean i take it at the end of the day it's a question for a fact finder determine is there enough evidence to demonstrate that the burden of proof was met i would say that under the circumstances the record doesn't compel a conclusion that the that a reasonable fact finder would have to say that the burden of proof wasn't met here i agree that it's possible that maybe a more lenient factfinder could say maybe this is not enough but if the evidence could go either way the court should defer to the decision of the immigration judge and this is a pretty well reasoned decision by the immigration judge she did go through really in great detail his problems with petitioners credibility and petitions are somehow suggesting that the credibility is not evidence that can be used against her that that to me just runs afoul of just sort of commonly accepted results of what happens when you take the stand when you take the stand your credibility is always an issue and it's commonly recognized that if you're not credible your lack of credibility can be used against you in beating the other side's burden of proof is one of the primary reasons that for example in criminal proceedings lawyers don't put their clients on the stand so yes a lack of credibility in your testimony when you're testifying about a major type of fraud like this i think that can be used to the government's burden of proof and as a practical matter when we're dealing with these cases in immigration proceedings it's the way it works is it does the immigration judge doesn't doesn't say ok d h as you have the first burden to meet so now you present your evidence rebuttal but the immigration judge is allowed to use the petitioners testimony to help meet the government's burden of proof and i can ask you about the not the court documents but i guess are they the tax documents that in sacramento purported to  yes tell me why you think that he was able to do that because of my sense was that he really was not he had no personal knowledge of where these documents even came from the immigration said exactly that in fact if you look at page thirty four ninety two for the record the immigration judge said i'm not crediting in sacramento the details of these untranslated documents but the documents after the fact were did end up getting translated and the immigration judge said look i'm not going to credit would agent sacramento set about them but i am going about the accuracy of the translation and talking about the source of the documents if he doesn't have personal knowledge as to where they even came from and that's my understanding the record they he just as well they were already in the fall when i took over the case i have no idea who got these where they came from right if those documents were the only documents in the record maybe there might be an issue with the sufficiency of the evidence and whether it was reliable but this is remember also in conjunction with a whole bunch of other documents which were certified in accordance with a regulation the t court documents and i think it's perfectly reasonable for the immigration judge to say look there's all these other documents that are certified there are these other documents i don't think they're fraudulent or i don't think the government is differ is trying to defraud the court with by bringing these documents  if they'd been relied on by themself maybe there'd be a problem but in conjunction with all the other certified documents and those documents by the way they don't purport to show what d h s s needed to meet its burden with right that the h s needed to show that the documents that were submitted with the i want forty were fraudulent those documents they they don't speak directly to that question and they do address petitioners argument that her account forgot to file taxes and they expose that for what it is but that is sort of a secondary issue to the primary issue which the government did support the fabrication of those documents with certified evidence so i would say that you said the fabrication of those documents yeah the fabrication of this of the withholding of the withholding documents that petitioner submitted in support of i one forty application the two do we know that the board considered all favorable factors well first of all the board said that it did and that's number one and i would point this court to the binding precedent in laredo martinez against ins in which this court expressly held that the board is presumed to have considered all the evidence unless it express said the otherwise now i would concede that there have been cases in the past where the court has expressed concern of situations where the board has missed something of extreme importance so for example we've seen some time quite often in immigration proceedings is the alien will attach will file a motion to open an attached just a basically a document dump just hundreds of pages of state reports letters reports things of that nature and sometimes buried in those reports of something very important in the court as expressed concern that the board overlooks the evidence but here that's not really relevant here in order for the board to have looked to the positive factors it would have had to have that remember this is a three member panel of the board that made this decision all three members of the board would have had a not read the i just decision that they were overturning b would have had to have not considered all the arguments that had been advanced on appeal and the board specifically explained that had considered the arguments advanced on appeal and would have also had to ignore the fact that there was all this testimony from all these with a b and c are true without regard to whether they said they did those are true in every case we review there's always three members there's always an r j decision does not mean there's always and there's always documents so i mean we start out with you know you start out with the notion that they should have done that but our case you seem to say they need to show us their homework respectfully i disagree lida martinez is binding precedent the case is that the there are cases that say that the board does have to consider all the evidence but it doesn't say that it has to expressly mention all the evidence and short one will do and the board explained look and the board did consider hardship the board considered the value of petitioner to her community and the problems that would the hardship is what would happen to her family when we're talking about hardship and we're i mean a lot of these issues are interrelated when you're talking about the children and the separation those all go to the issue of hardship because removal is always a hardship when somebody is in a situation like this but this isn't a situation where the board overlooked the evidence i mean i'm sure your honour's have seen cases where the board could be accused of being too cursory or going too fast this is not one of those cases they didn't see this case had agencies full attention there was no overlooking of evidence in this case i think you can feel confident that the board considered the issues mean she no i believe she got a green card based off of that base you get is based simply on the granting of the i would forty that's my understanding and that's what i couldn't tell from this record sometimes you need to do more and we know that she did have a green card because during the testimony it ended up not being an issue in before this court but at one point he just was arguing that she had entered with the inspection and it was an issue because she would they were talking about whether she would present her green card at the border that's well that's what had me confused ok ok well the question my colleague so just briefly because it's all i have i think you're going to hit on the major issue here which we discussed in our in our opening brief which was the fraud was not by petitioner there is a two step process and  process and there was no allegation and nothing in the immigration judges and just said that there was fraud in that by the ok so that that leads to the question i was going to ask your contact is it sufficient then for purposes of the finding one remove ability have to worry about the rest of the rest of the process for obtaining but what should have happened this in the would have been a procedure for the immigration service to do it i just want to briefly explain what they should have done is we vote the i one forty for it having been a pain by fraud and then she couldn't have obtained a permanent residency but they didn't do that and there would have been a procedure for them to have done that and that would have been the argument but they failed to do that they tried to impute the fraud alleged fraud of the