[00:00:02] Speaker 04:
Good morning and welcome to the Ninth Circuit Court of Appeals.

[00:00:05] Speaker 04:
My name is Morgan Christen.

[00:00:07] Speaker 04:
I'm one of the judges on the circuit court.

[00:00:10] Speaker 04:
I'm delighted to be sitting this week with my colleagues, also circuit court colleagues, Judge Fletcher, whose chambers are in San Francisco, and Judge Van Dyke, who's joining us from Reno, Nevada.

[00:00:23] Speaker 04:
We have a couple of cases submitted on the briefs today.

[00:00:26] Speaker 04:
They are case number 23-55666, Rosengren v. SF Markets, and 23-55748 Halverson v. Kosmala.

[00:00:43] Speaker 04:
With that, we'll go on to the first case on the oral argument calendar.

[00:00:47] Speaker 04:
It is 20-72437 Nawaz v. Garland.

[00:00:54] Speaker 04:
We're ready for your argument, counsel.

[00:01:10] Speaker 04:
The right hand.

[00:01:11] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:01:13] Speaker 00:
My name is Elizabeth Bowman, pro bono counsel for petitioner Mr. Ahmed Nawaz.

[00:01:17] Speaker 00:
I would like to reserve two minutes of my time for rebuttal, please.

[00:01:19] Speaker 00:
Sure.

[00:01:20] Speaker 00:
Just keep an eye on the clock.

[00:01:22] Speaker 00:
Your Honors, this case is about fairness to asylum applicants.

[00:01:25] Speaker 00:
And there are two issues I would like to address on that point.

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First, the agency's adverse credibility determination was made an error.

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And second, Mr. Nawaz has demonstrated a well-founded fear of future persecution.

[00:01:37] Speaker 00:
To my first point.

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As this court knows and as this court has followed, mere omissions are insufficient to uphold an adverse credibility determination.

[00:01:46] Speaker 00:
The agency's finding here was not based on inconsistencies in Mr. Nawaz's testimony, but simply Mr. Nawaz providing more details about his asylum claim when he was asked by the judges or by the- That's the point, right?

[00:02:01] Speaker 04:
There's omissions and then there's omissions, right?

[00:02:03] Speaker 04:
And the problem we have here, I think the general proposition you stated is exactly right.

[00:02:08] Speaker 04:
And what we're trying to grapple with is the IJ here decided that this story was embellished over time with the addition of additional details.

[00:02:19] Speaker 04:
That's my paraphrase.

[00:02:20] Speaker 04:
Could you speak to that?

[00:02:21] Speaker 00:
Yes, Your Honor.

[00:02:22] Speaker 00:
And I take your point that there's a line between one type of omission and another type of omission.

[00:02:29] Speaker 00:
But the way that this court has illustrated omissions that are not sufficient to uphold an adverse credibility determination is when the omissions do not actually change the underlying story.

[00:02:39] Speaker 00:
So here we have Mr. Nuwaz.

[00:02:41] Speaker 00:
He came into the United States.

[00:02:43] Speaker 00:
And during his credible fear screening interview, he said that he was attacked at his Shia prayer group.

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And then afterwards, he faced

[00:02:51] Speaker 00:
he faced threats, continued threats, and that's why he left Pakistan.

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So Your Honor, during Mr. Nawaz's credible fear screening interview, Mr. Nawaz was asked, other than the Shia prayer group, what did he face?

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And he responded, they continued to threaten me and my mother was concerned.

[00:03:11] Speaker 00:
And at that point, the asylum officer asked no follow-up questions about the threats or why Mr. Nawaz's mother would be concerned for Mr. Nawaz's safety.

[00:03:18] Speaker 00:
And this is completely different than the immigration hearing, where the immigration judge did ask those follow-up questions specifically to elicit more information from Mr. Nawaz.

[00:03:26] Speaker 00:
So for example, during the immigration court hearing,

[00:03:29] Speaker 00:
The immigration judge asked follow-up questions like, what did they say to you?

[00:03:33] Speaker 00:
How did they know you were the leader of the Shia prayer group?

[00:03:35] Speaker 00:
When did these threats occur?

[00:03:36] Speaker 05:
Let me do it with a little more pointed question.

[00:03:41] Speaker 05:
Also in that initial interview, he says, after three or four days, they threatened to kill us if we continued to report to the police that they would kill us.

[00:03:51] Speaker 05:
So he does say things about, it wasn't just that episode where they were beaten and chased out of that area.

[00:03:58] Speaker 05:
Something that's not in the Credit Pouffier interview is that he continued to put up posters and was being threatened because of his membership and contribution to the group that continued to put up posters.

[00:04:11] Speaker 05:
Does that matter?

[00:04:13] Speaker 00:
Judge Fletcher, I believe that isn't necessarily an inconsistency, as you pointed out.

[00:04:18] Speaker 05:
It's not inconsistent, it's quite just an addition.

[00:04:20] Speaker 05:
Does it matter that that's an addition?

[00:04:23] Speaker 05:
Is that an important enough addition that we should hold it against them and say, wait a minute, your story is just getting too much better?

[00:04:29] Speaker 00:
No, Your Honor.

[00:04:30] Speaker 00:
There's two reasons for that.

[00:04:31] Speaker 00:
First, during the immigration court hearing, the immigration judge asked different types of follow-up questions.

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And as this court has illustrated before in Singh versus INS, it makes sense that someone would have different details about their story because you were asked different things at different points of your asylum case.

[00:04:48] Speaker 00:
Another case that is very- Wait, wait, wait.

[00:04:50] Speaker 04:
Before you leave the posters, at some point, the inconsistencies start to pile up.

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And it doesn't take much under the real idea.

[00:04:57] Speaker 04:
I have a problem with the posters because-

[00:04:59] Speaker 04:
He originally said, as Judge Fletcher indicated, there's this bit about the posters.

[00:05:03] Speaker 04:
The I.J., by the time he got to the I.J., said, well, why did they even let you put up the posters?

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And he said, your client responded, well, they didn't respond to me.

[00:05:12] Speaker 04:
They just didn't talk to me at that point.

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But then later, before the I.J., he said they did talk to him, and they tore down the posters.

[00:05:22] Speaker 04:
They hadn't just let him put them up.

[00:05:25] Speaker 00:
Your honor, I think there is any perceived non-credible testimony from Mr. Noyes based off of that can be attributed to the fact that he could have been confused on the stand.

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He hadn't been consulting his lawyer.

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And there's different timelines.

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He was putting up posters before the Shia prayer group, before the first attack, and he had consistently said that before the Shia attack he hadn't received threats.

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And it wasn't until after the Shia attack when they knew that he was part of this group and they had seen him putting up the posters that they then continued to threaten him.

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And I think another case that's really illustrative of this point is Arlen Plum versus Ashcroft, where this court held that, where the asylum seeker in that case, he saw asylum at his credible fear interview.

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He just said that he was being hit by his government and he needed to seek asylum.

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Whereas when he was on the stand in front of the immigration court, he gave very horrific details of the torture he was facing by his government, such as being

[00:06:29] Speaker 00:
choked, gasoline poured on his head.

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And even in that case, this court said that those really crucial and memorable details to your asylum claim are not enough to uphold an adverse credibility determination.

[00:06:41] Speaker 04:
So he was inconsistent about the gun being fired.

[00:06:44] Speaker 04:
I think he's always said seven or eight men came to this outdoor prayer meeting and broke it up, basically, and that they had guns.

[00:06:51] Speaker 04:
I think that he always said they had guns and fired guns in the air.

[00:06:55] Speaker 04:
At one point, he said they fired into the crowd.

[00:06:58] Speaker 04:
And then after the hearing, in his September 7, 2017 declaration that he filed after the hearing, that's actually the bit of the timeline that I have the biggest part of the problem with.

[00:07:09] Speaker 04:
At that point he said, he went back to saying they fired the gun in the air, but he also said they tortured us for half an hour.

[00:07:16] Speaker 04:
What about that?

[00:07:17] Speaker 00:
Your Honor, I believe that's consistent with what he said during his credible fear screening interview where he talked about how he was tortured and how they were there for about half an hour.

[00:07:26] Speaker 00:
I believe the asylum officer had asked follow-up questions like how long were they there and to where he responded with that information.

[00:07:33] Speaker 00:
And again, it's really about the questions he's being posed on the stand and how he's responding to them.

[00:07:40] Speaker 04:
It's the end of all of the after the credible interview and the asylum application and the hearing right he at that point I there's a couple places where where that he is asked you know did anything else happen and he makes reference to a threat conveyed to him through his mom and sister.

[00:07:57] Speaker 04:
Mom and wife?

[00:07:58] Speaker 04:
Through his father.

[00:07:59] Speaker 04:
Oh, that's different.

[00:08:00] Speaker 04:
Through the father was when they went to his shop.

[00:08:02] Speaker 04:
There's another threat conveyed through his mother and either wife or sister.

[00:08:06] Speaker 04:
And there's mentions of that earlier, right?

[00:08:09] Speaker 04:
At the end of that process, of that hearing, he's asked, is there anything else?

[00:08:15] Speaker 04:
Did you have any specifically, did you have any other problems between that time and the time you left a couple of months later?

[00:08:21] Speaker 04:
And he doesn't.

[00:08:25] Speaker 04:
respond that there was anything else.

[00:08:26] Speaker 04:
But in the declaration again, the declaration he filed in September of 2017, that's the first time we see this other episode that he was stopped on the street by three people on August 14, 2015 and personally threatened again.

[00:08:39] Speaker 04:
So what do we do about that?

[00:08:41] Speaker 04:
Because again, what the IJ found was that his story was embellished.

[00:08:45] Speaker 04:
So I'm concerned about these additions.

[00:08:47] Speaker 00:
Your honor, I think that those later revealed omissions can be chopped up to the fact that Mr. Nawaz simply did not know what he needed to talk about during his credible fear screening interview.

[00:08:59] Speaker 00:
He was asked questions, answered them truthfully.

[00:09:02] Speaker 00:
At the time, he didn't think there was anything else, because at the time, he was just thinking about the fact that he was attacked during the Shia prayer group.

[00:09:08] Speaker 00:
And it wasn't until later when he got an opportunity to consult

[00:09:11] Speaker 00:
asylum law and lawyer that he realized that these threats were also important to his claim.

[00:09:17] Speaker 04:
He didn't mention this other threat personal threat to him on the street even during his hearing.

[00:09:22] Speaker 04:
This only came out after the hearing.

[00:09:24] Speaker 00:
Well, Your Honor, the same is true.

[00:09:27] Speaker 00:
The immigration judge was asking questions aimed at the threats, and Mr. Nawaz realized that these threats were important to his claim.

[00:09:33] Speaker 00:
And it makes sense that an asylum applicant wouldn't give all the details of their claim at that particular time, or at the credible fear screening interview, because that's not the purpose of the credible fear screening interview.

[00:09:44] Speaker 00:
It's just simply a mechanism in order to determine if someone is eligible to apply for asylum.

[00:09:49] Speaker 00:
Whereas the actual court, where there's live testimony and the asylum applicant gets to tell their full story, that allows the judge to determine if the person is actually eligible for asylum.

[00:10:00] Speaker 00:
And it's incongruous for an asylum judge, an immigration judge, to be able to ask questions aimed specifically at eliciting more details from the asylum applicant and then punish that asylum applicant

[00:10:11] Speaker 00:
when they give those additional details, especially when those details do not contradict the underlying core story.

[00:10:18] Speaker 00:
The underlying core story here being that he was attacked at the Shia prayer group, he continued to receive threats, he filed a police report and the police did nothing for two months and his family was scared for him and told him that he needed to leave this country and seek asylum.

[00:10:31] Speaker 04:
Let me just see if my colleagues have other questions.

[00:10:34] Speaker 05:
I think that's it for now.

[00:10:36] Speaker 04:
OK.

[00:10:36] Speaker 04:
When you come back for planning purposes, we'll put two minutes on the clock.

[00:10:39] Speaker 04:
Thank you, Your Honors.

[00:10:40] Speaker 04:
You're welcome.

[00:10:41] Speaker 04:
Thank you.

[00:10:41] Speaker 04:
We'll hear from opposing counsel, please.

[00:10:53] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:10:55] Speaker 01:
Michael Heiss on behalf of the Respondent, the Attorney General of the United States.

[00:10:58] Speaker 01:
Something that was not discussed at all in Patricia's affirmative argument is a critical threshold issue here, and that's exhaustion.

[00:11:06] Speaker 01:
None of these questions were presented to the board.

[00:11:09] Speaker 01:
He filed a notice of appeal that challenged, quote, the application of incorrect standards, says nothing about credibility, says nothing about corroboration.

[00:11:19] Speaker 05:
Did the board address credibility?

[00:11:22] Speaker 01:
It did not.

[00:11:23] Speaker 01:
The board reviewed the immigration judge's decision and provided

[00:11:27] Speaker 01:
Apparently, as a courtesy, the board could have summarily denied.

[00:11:30] Speaker 04:
But they didn't.

[00:11:31] Speaker 04:
They didn't.

[00:11:32] Speaker 01:
They provided a single paragraph at the conclusion that doesn't get into any of these issues because none of the issues were put before the board.

[00:11:42] Speaker 04:
If I decide that they're exhausted, well, then what's your fallback argument?

[00:11:45] Speaker 04:
I think these were teed up to the board and they chose not to engage.

[00:11:48] Speaker 04:
That's my take on it.

[00:11:50] Speaker 04:
So I'm just inviting you to perhaps pivot to that.

[00:11:52] Speaker 01:
Your Honor, I'm not sure how incorrect standards includes

[00:11:57] Speaker 01:
the words credibility or corroboration or even could get to that point because those are very different things.

[00:12:02] Speaker 01:
This court's case law is very generous in terms of pro se filings when it comes to exhausting issues.

[00:12:11] Speaker 01:
But not this generous.

[00:12:12] Speaker 04:
Counsel, are you going to pivot?

[00:12:13] Speaker 01:
I will.

[00:12:14] Speaker 01:
I will.

[00:12:14] Speaker 01:
I just want to be clear on that.

[00:12:15] Speaker 04:
I think you have been, and I appreciate that.

[00:12:17] Speaker 01:
This is stretching exhaustion beyond its conceivable limit.

[00:12:20] Speaker 01:
Nonetheless, substantial... Excuse me?

[00:12:22] Speaker 05:
I'm reading from the... There is no clear error in the MIJ's finding of fact, including those related to credibility.

[00:12:29] Speaker 05:
Sounds as though the BIA did address credibility.

[00:12:32] Speaker 01:
Not the questions petitioners are raising now.

[00:12:34] Speaker 01:
there's a whole slate of questions that are before this court that the agency hasn't been asked to address.

[00:12:39] Speaker 05:
As I read that, the BIA addressed credibility and said, we agree with the IJ's credibility.

[00:12:47] Speaker 01:
And in that case, substantial evidence supports the agency's decision regarding credibility.

[00:12:51] Speaker 04:
I didn't hear your other comment just a minute ago.

[00:12:54] Speaker 01:
Just that if this notice of appeal is enough to put the board on notice as is required for exhaustion, this would be stretching exhaustion beyond

[00:13:04] Speaker 04:
We'd be relying on our case law to the effect that since the board reached the question, the issue is exhausted.

[00:13:10] Speaker 04:
So I'm going to invite you to go on to the next argument.

[00:13:12] Speaker 01:
OK.

[00:13:12] Speaker 01:
With respect to the credibility and cooperation findings, nonetheless, substantial evidence supports the agency's finding.

[00:13:19] Speaker 01:
Your honor pointed out numerous inconsistencies, omissions, and petitioners attempting to downplay them, including by citing pre-Real ID Act case law, which your honor noted

[00:13:32] Speaker 01:
Now the real ID act is a lot different in terms of what is required to be proven or what is needed to substantiate an adverse credibility finding.

[00:13:42] Speaker 01:
This court recently in Emon stated that, quote, omissions are probative of credibility to the extent that later disclosures, if credited, would bolster an earlier, typically weaker, asylum application.

[00:13:53] Speaker 01:
And that's precisely what happened here.

[00:13:55] Speaker 01:
As the immigration judge pointed out, petitioner's story evolved.

[00:14:00] Speaker 01:
It expanded.

[00:14:01] Speaker 01:
That's embellishment.

[00:14:02] Speaker 01:
And that is absolutely a valid basis for an adverse credibility finding.

[00:14:06] Speaker 04:
It might be.

[00:14:07] Speaker 04:
Opposing counsel argues that he shouldn't be faulted for responding to the additional questions the IJ asked to elicit additional details.

[00:14:14] Speaker 04:
What is your response to that, please?

[00:14:16] Speaker 01:
There's a difference between responding to questions and providing some details.

[00:14:21] Speaker 01:
And what we have here is him previously claiming that his group was threatened.

[00:14:25] Speaker 01:
He said that twice in his credible fear interview as well as his asylum application, that the group was threatened.

[00:14:33] Speaker 01:
Before the immigration judge, he's now claiming that he was singled out, that he was targeted, that he had been spotted before.

[00:14:39] Speaker 01:
He hadn't said that previously.

[00:14:41] Speaker 01:
Now he's saying, well, they saw me putting up posters.

[00:14:44] Speaker 01:
And then when questioned about that, did they talk to you?

[00:14:47] Speaker 01:
Yes, no.

[00:14:48] Speaker 01:
It's unclear whether they talked to him at that point.

[00:14:50] Speaker 01:
Did they tear down the posters?

[00:14:52] Speaker 01:
Did he continue putting up posters afterwards?

[00:14:54] Speaker 01:
But the critical point here is that he newly claimed to have been special, claimed to have been singled out, and that matters.

[00:15:00] Speaker 01:
That absolutely matters in terms of this.

[00:15:01] Speaker 04:
He's claiming to be a leader, essentially.

[00:15:02] Speaker 04:
I think in context, he's claiming to be a leader, right?

[00:15:05] Speaker 01:
Right.

[00:15:06] Speaker 01:
And organizer.

[00:15:07] Speaker 01:
That's a fundamentally different situation than being part of a group, being a parishioner.

[00:15:13] Speaker 04:
Some of this nuance, of course, the other, it's a little hard to sift, isn't it?

[00:15:20] Speaker 04:
Some of it was pro se, some of it was not.

[00:15:22] Speaker 04:
And I think all of it was through an interpreter.

[00:15:24] Speaker 04:
Is that right?

[00:15:26] Speaker 01:
I believe so, yes.

[00:15:29] Speaker 01:
Again, that's another unexhausted claim.

[00:15:32] Speaker 01:
He claimed to have issues with the interpreter.

[00:15:35] Speaker 01:
He's now claiming to have had interpretation problems.

[00:15:37] Speaker 01:
He's claiming today for the first time to have potentially been confused during the immigration court proceedings or during the credible fear proceedings.

[00:15:45] Speaker 01:
None of this has been previously presented.

[00:15:47] Speaker 05:
One of the things he says during his credible fear interview is, they continue to threaten me.

[00:15:54] Speaker 05:
Up until that point, he's talking about the group.

[00:15:56] Speaker 01:
Right.

[00:15:56] Speaker 05:
But he does say me.

[00:15:59] Speaker 01:
He does.

[00:16:00] Speaker 01:
He could have provided more on that, and he was given that opportunity.

[00:16:03] Speaker 01:
He was given the opportunity to provide corroboration and the immigration judge.

[00:16:08] Speaker 05:
He was given the opportunity, but I'm not sure how many pointed questions there were that said, could you give me some detail?

[00:16:14] Speaker 05:
He was never asked, can you give me some detail about that?

[00:16:17] Speaker 01:
I believe Your Honor pointed out that he was given the opportunity to offer anything else he had to say.

[00:16:23] Speaker 05:
That's right, but in the sense of there was no question, well, they continued to threaten me.

[00:16:28] Speaker 05:
Well, tell me about the threats.

[00:16:30] Speaker 05:
That question was not asked.

[00:16:32] Speaker 01:
Certainly.

[00:16:32] Speaker 05:
I mean, we have a person testifying through a translator without a lawyer, and the follow-up question's not asked.

[00:16:43] Speaker 05:
It's a very general follow-up question at the end.

[00:16:45] Speaker 05:
Do you have any other problems in addition to what you told me?

[00:16:48] Speaker 05:
And he says no.

[00:16:49] Speaker 05:
But when he says, they continue to threaten me, he's not asked, well, tell me what you mean.

[00:16:55] Speaker 01:
Certainly.

[00:16:58] Speaker 01:
Again, this is all a series of proceedings.

[00:17:02] Speaker 01:
He had his asylum application subsequent to that, his declaration with that.

[00:17:06] Speaker 01:
Didn't mention these things.

[00:17:07] Speaker 05:
He could have said- When you say these things, what things didn't he mention?

[00:17:10] Speaker 01:
The subsequent threats were not mentioned in his asylum application declaration.

[00:17:15] Speaker 05:
These last subsequent threats weren't even mentioned at the hearing.

[00:17:19] Speaker 01:
Correct.

[00:17:20] Speaker 01:
Those were added, I believe the August threats were not mentioned at the hearing.

[00:17:23] Speaker 01:
Those were added in the subsequent declaration.

[00:17:25] Speaker 04:
But the IJ didn't rely on that.

[00:17:27] Speaker 04:
For me, that's the largest discrepancy here.

[00:17:29] Speaker 04:
That's an entirely new episode, I think.

[00:17:31] Speaker 04:
And the IJ doesn't rely on it.

[00:17:33] Speaker 01:
Post-hearing declaration, not necessarily the most useful.

[00:17:37] Speaker 01:
Again, he was given the opportunity.

[00:17:40] Speaker 04:
But then there was another hearing.

[00:17:41] Speaker 04:
She got them together last time.

[00:17:42] Speaker 01:
Right.

[00:17:42] Speaker 04:
And said, OK, the record, excuse me, I wasn't done.

[00:17:44] Speaker 04:
And said, the record is complete.

[00:17:46] Speaker 04:
And then proceeds.

[00:17:48] Speaker 04:
So she had it all.

[00:17:49] Speaker 04:
Right?

[00:17:50] Speaker 04:
And didn't call out the discrepancy we're talking about in the August of 2015 record in the declaration.

[00:17:58] Speaker 04:
Would you like to speak to that?

[00:18:00] Speaker 01:
At worst, that's harmless error, given the other substantial credibility problems present in this case.

[00:18:05] Speaker 04:
It's not a question of harmless error.

[00:18:06] Speaker 04:
I'm wondering whether we can rely on it, is what I'm trying to say.

[00:18:09] Speaker 01:
And the court rely on it.

[00:18:10] Speaker 01:
I'm trying to ask.

[00:18:11] Speaker 01:
If the immigration judge.

[00:18:12] Speaker 04:
I'll just finish, if I could.

[00:18:13] Speaker 04:
I'm wondering if we could rely on it, because the IG didn't.

[00:18:16] Speaker 04:
What's your response to that, please?

[00:18:19] Speaker 01:
If the immigration judge did not make a finding of fact on that point, probably not a good idea to rely on that.

[00:18:25] Speaker 04:
So what are your strongest omissions or inconsistencies, please?

[00:18:28] Speaker 01:
His newly claiming to have been singled out.

[00:18:31] Speaker 01:
That is of critical importance in this court's case law in terms of asylum eligibility.

[00:18:37] Speaker 05:
And how do you get away from his saying at the asylum credible fear interview, they continue to threaten me?

[00:18:45] Speaker 01:
Specific to the July, I believe it's July 10th,

[00:18:49] Speaker 01:
incident, he claimed he was singled out there.

[00:18:56] Speaker 01:
He newly claimed that he was the one they were going after at that time.

[00:19:02] Speaker 04:
When you say he claimed he was singled out, are you now speaking about his testimony before the IJ?

[00:19:09] Speaker 01:
Yes.

[00:19:11] Speaker 01:
He newly claimed to have been singled out.

[00:19:14] Speaker 01:
corroboration findings here, that the petitioner doesn't deny that the corroboration he provided contained identical language, three out of the four.

[00:19:23] Speaker 01:
And then the fourth mentioned this threat to his father's shop, provided a different date than the petitioner provided for it.

[00:19:31] Speaker 05:
So again... You know, sometimes a different date in a circumstance like that tells me that there's been no coordination.

[00:19:38] Speaker 01:
Maybe.

[00:19:40] Speaker 01:
That could be an error.

[00:19:41] Speaker 01:
But again, these are all issues that the agency needs the opportunity to discuss and was not put on notice as to these very specific points.

[00:19:50] Speaker 01:
The petitioner didn't raise these arguments before the board.

[00:19:52] Speaker 04:
The opposing counsel argues, I think Wren at one point, and says that when they gathered back for the hearing, the very last hearing, and the IJ recognized and went on to make the adverse credibility determination.

[00:20:05] Speaker 04:
and called out several of the inconsistencies.

[00:20:07] Speaker 04:
Certainly said that she thought that the story had been embellished, which is my word, but I think that's right.

[00:20:15] Speaker 04:
The opposing counsel, I think, argues that there should have been an opportunity for him to explain the inconsistencies.

[00:20:21] Speaker 04:
What is your response?

[00:20:23] Speaker 01:
He was given that opportunity.

[00:20:25] Speaker 01:
Specific to this incident, to being singled out and about the posters, I believe that's administrative record, page one, pages

[00:20:34] Speaker 01:
134 to 136.

[00:20:35] Speaker 01:
That's off the top of my head.

[00:20:36] Speaker 04:
But that's during the hearing before the IJ, as opposed to the very final round.

[00:20:39] Speaker 01:
The very final?

[00:20:40] Speaker 01:
Yeah.

[00:20:41] Speaker 01:
So suggesting that he should be given a subsequent opportunity to explain errors.

[00:20:47] Speaker 01:
Again, it's his burden of proof.

[00:20:52] Speaker 01:
If he had more to offer, he could have.

[00:20:55] Speaker 01:
He was told he needed to corroborate his story because he was providing inconsistent claims.

[00:21:04] Speaker 01:
I believe he had counsel withdraw because he failed to provide these documents to him.

[00:21:10] Speaker 01:
And counsel essentially is saying, I can't help you if you don't help yourself.

[00:21:14] Speaker 01:
So he was given these opportunities.

[00:21:16] Speaker 01:
There's no suggestion here that he was denied due process or didn't have an opportunity to put on his best case.

[00:21:22] Speaker 01:
He simply failed to do so.

[00:21:25] Speaker 03:
Judge, do you have questions?

[00:21:26] Speaker 03:
Any other questions?

[00:21:27] Speaker 04:
Thank you for your patience with our questions.

[00:21:30] Speaker 04:
We'll have an opposing counsel.

[00:21:44] Speaker 00:
Your Honors, there are two points I would like to address on rebuttal.

[00:21:47] Speaker 00:
First, the adverse credibility determination.

[00:21:49] Speaker 00:
As Judge Fletcher pointed out, Mr. Nawaz did not newly bring claims that Mr. Nawaz himself was threatened.

[00:21:55] Speaker 00:
He's been saying that the whole time, the core of his story is the same.

[00:21:59] Speaker 00:
And as Judge Christen pointed out, if the IJ had specific issues with alleged inconsistencies or perceived inconsistencies, then Mr. Nawaz should have been afforded an opportunity to discuss those inconsistencies.

[00:22:11] Speaker 02:
Last to that.

[00:22:13] Speaker 02:
You know, we have, I think, our case law about exhaustion is very generous to you.

[00:22:21] Speaker 02:
But there is like this tension between saying, you know, the IJ never gave me an opportunity to explain the inconsistencies, and then your client never took advantage of the opportunity to tell the BIA about why these would be inconsistent.

[00:22:39] Speaker 02:
You see the challenge there.

[00:22:42] Speaker 00:
I recognize, Judge Van Dyke, the struggle between those two points in Mr. Nuaz's case.

[00:22:51] Speaker 00:
But at the time of the BIA appeal, Mr. Nuaz was representing himself.

[00:22:57] Speaker 00:
And he did try to file a brief with the BIA.

[00:23:02] Speaker 00:
It was untimely.

[00:23:03] Speaker 00:
Again, he was representing himself.

[00:23:05] Speaker 00:
And because it was three days late,

[00:23:06] Speaker 00:
the BIA did not consider that brief.

[00:23:08] Speaker 02:
Because it's three days late and do I recall correctly that he didn't ask for an extent, he never asked for that to be forgiven, right?

[00:23:16] Speaker 00:
Correct.

[00:23:16] Speaker 02:
And the BIA specifically pointed that out?

[00:23:19] Speaker 00:
Yes, correct, your honor.

[00:23:21] Speaker 00:
Mr. Nawaz is not part of the legal profession.

[00:23:27] Speaker 00:
I think it's fair that he made this mistake with not being able to file his brief.

[00:23:33] Speaker 00:
But at the time of the IJ, he was represented by counsel who did not, well, I'm not going to bring an ineffective assistance of counsel claim before this court, because I recognize that that is exhausted, whereas the other claims that the BIA addressed were not.

[00:23:46] Speaker 00:
And I see that I'm out of time.

[00:23:49] Speaker 04:
Yes, you are.

[00:23:49] Speaker 04:
I don't think there's any other questions from the panel.

[00:23:51] Speaker 04:
Thank you so much for your argument, both of you.

[00:23:54] Speaker 04:
And thank you for your participation in our pro bono program.

[00:23:57] Speaker 04:
We appreciate it very much.

[00:24:00] Speaker 04:
Thank you.