[00:00:03] Speaker 01:
And on video, you can sit down as well, because we're just, there we go.

[00:00:08] Speaker 01:
Good morning, everyone.

[00:00:09] Speaker 01:
Welcome to the Ninth Circuit.

[00:00:10] Speaker 01:
We have a few matters on calendar today.

[00:00:12] Speaker 01:
The first one will be in part by video and part in person.

[00:00:16] Speaker 01:
Something I always say is on our court, there are no bonus points or extra credit for using all of your time.

[00:00:23] Speaker 01:
So if you make your points and you're not getting a lot of questions back, or maybe no questions back, it's OK to sit down.

[00:00:31] Speaker 01:
There's nothing wrong with that.

[00:00:32] Speaker 01:
And with that, I'll call the first case.

[00:00:35] Speaker 01:
Council, I just want to make sure on video.

[00:00:37] Speaker 01:
Mr. Masucci, can you hear us okay?

[00:00:39] Speaker 04:
I can hear you fine.

[00:00:40] Speaker 01:
All right.

[00:00:41] Speaker 01:
Yeah, go ahead.

[00:00:42] Speaker 01:
So the first case on calendar is Kumar versus Garland.

[00:00:45] Speaker 01:
Mr. Masucci, you may proceed.

[00:00:47] Speaker 04:
Thank you.

[00:00:48] Speaker 04:
May it please the court, Thomas Masucci, representing Mr. Amman Kumar.

[00:00:53] Speaker 04:
First, very briefly, thank you for accommodating my request to appear remotely.

[00:00:57] Speaker 04:
Sure.

[00:00:58] Speaker 04:
This argument below

[00:01:02] Speaker 04:
well, primarily before the BIA, but also in our brief centered on credibility.

[00:01:08] Speaker 04:
I'd like to briefly address some of the points we made, starting with demeanor, which is generally the least assailable aspect of an agency's credibility finding.

[00:01:22] Speaker 04:
I would say, as I argued in the brief, the demeanor finding here is problematic.

[00:01:31] Speaker 04:
characterizes the demeanor issues as my client giving evasive answers and being non-responsive about facts central to his asylum claim.

[00:01:42] Speaker 04:
However, I would say, unfortunately, a review of the record shows Mr. Kamara being confused and unfocused at a lot of different points along the way, even when dealing with basic housekeeping issues at the very beginning of the hearing, administrative work at 99 to 107.

[00:02:01] Speaker 04:
So, unlike many cases where a judge will point out that client was perfectly responsive on direct and then kind of blubbed it when he was challenged on cross or by the IJ, that's certainly not the case here.

[00:02:20] Speaker 04:
I'll also note that the record shows that some of the questioning to which Mr. Kamour was

[00:02:30] Speaker 04:
you know, not answering in a linear way.

[00:02:34] Speaker 04:
Some of the questioning itself was a little confusing.

[00:02:38] Speaker 04:
I'll point to the page 138 of the record where the IJ is asking about the different spellings of the church.

[00:02:51] Speaker 04:
And the respondent says, because he's the pastor,

[00:02:56] Speaker 04:
which seems clearly non-responsive.

[00:02:59] Speaker 04:
But then Mr. Kamara's attorney jumps in and says, well, Your Honor, I don't think he got the question.

[00:03:05] Speaker 04:
And the judge says, well, why not?

[00:03:10] Speaker 04:
And he says, well, because he was asking him about something that was obviously not in his realm of understanding these documents.

[00:03:25] Speaker 04:
The other the other demeanor issue, of course, is eye contact.

[00:03:30] Speaker 04:
That was a lot of that was there was a lot of that stress by by both the IJ and the board.

[00:03:37] Speaker 04:
And the government suggested in its brief that we thought that the judge is questioning him directly.

[00:03:45] Speaker 04:
This is at 117 and the

[00:03:47] Speaker 04:
in the administrative record was inappropriate.

[00:03:50] Speaker 04:
I wouldn't say it was inappropriate.

[00:03:52] Speaker 04:
What I was arguing there was that the kind of direct questioning that the judge was posing to Mr. Kumar about the angle of his eyes and how he looked or didn't look at other people in his life.

[00:04:12] Speaker 04:
probably missed the point.

[00:04:14] Speaker 04:
And I use the term baked in cultural factors that Mr. Kumar probably isn't even really aware of.

[00:04:23] Speaker 04:
And this I think is especially important considering that he was and remains a member of the untouchable caste in India where I think the deference to authority is a very dominant theme.

[00:04:39] Speaker 01:
Counsel, let me jump in here for a moment.

[00:04:42] Speaker 01:
Let's assume the panel, and I have no idea, but let's assume the panel would agree with you that maybe one or two of the reasons provided for adverse credibility don't hold up on appeal.

[00:04:57] Speaker 01:
But let's say the other two do.

[00:04:58] Speaker 01:
I think there were four grounds.

[00:04:59] Speaker 01:
Let's say you're right on two and they're right on two.

[00:05:03] Speaker 01:
What do we do in that situation?

[00:05:10] Speaker 04:
I would suggest remanding it back to get the two issues that the agency was wrong on, give them an opportunity to get it right.

[00:05:21] Speaker 04:
Now, I know there are four issues.

[00:05:25] Speaker 04:
I happen to think that the government, that the agency was, their strongest case had to do with the issue of the timing of his conversion to Christianity.

[00:05:36] Speaker 04:
But with regard to demeanor and regard to these

[00:05:39] Speaker 04:
these documentary issues which are in the record and we can't run away from them, I really don't think those cogently can be tied to credibility.

[00:05:51] Speaker 04:
They can certainly be tied to the reliability of the documents.

[00:05:57] Speaker 04:
But, you know, the agency couched this in terms of these are discrepancies for which he did not provide satisfactory explanations.

[00:06:13] Speaker 04:
What we were really questioning with regard to those three areas was, you know, are those discrepancies really there in any meaningful way?

[00:06:22] Speaker 04:
can they be pinned on Mr. Kumar as an addition of lack of credibility?

[00:06:28] Speaker 01:
I agree with you that on the, I'll call it the spelling issue.

[00:06:33] Speaker 01:
That's not the government's strongest argument, which is why I want to say, so let's say we agree with you on the demeanor and we agree with you on the spelling.

[00:06:41] Speaker 01:
But the other two, maybe the government has a point.

[00:06:42] Speaker 01:
You think the remedy at that point, we would need to send it back for the BIA to reassess whether there's still an adverse credibility finding in light of the fact that we reject one or more of those?

[00:06:56] Speaker 04:
Well, the court would determine that, you know,

[00:07:04] Speaker 04:
the erroneous positions of the agency that the court rejects don't infect the remaining basis, then I guess that the court could conclude that it's marvelous error.

[00:07:21] Speaker 04:
I, however, would urge the court not to do that.

[00:07:25] Speaker 04:
And again, I think the weakest part of the,

[00:07:32] Speaker 04:
of the agency's credibility analysis is the reverend pastor nomenclature.

[00:07:41] Speaker 03:
Council, let's flip to the other side of the coin.

[00:07:44] Speaker 03:
Tell us your best argument to say that this record compels the conclusion that your client is entitled to relief.

[00:08:03] Speaker 04:
I believe that overall the agency's fact finding, particularly with regard to credibility, is seriously flawed.

[00:08:15] Speaker 04:
And in light of that, its assessment of his corroborating evidence as it was dependent upon the finding or assumed the finding of no credibility also is erroneous.

[00:08:33] Speaker 04:
Based upon that, I would argue that the most compelling argument I can come up with is that the agency should consider corroboration and also burden of proof in light of a credibility finding that this court would vacate.

[00:08:58] Speaker 01:
Thank you.

[00:09:00] Speaker 01:
Do you want to reserve your remaining time?

[00:09:02] Speaker 04:
That's fine, Judge.

[00:09:03] Speaker 04:
Thank you.

[00:09:11] Speaker 00:
Good morning.

[00:09:12] Speaker 00:
May it please the Court, Jonathan Needle, Department of Justice, on behalf of the respondent.

[00:09:18] Speaker 00:
We submit that substantial evidence supports the agency's finding that the petitioner was not a credible witness and that he therefore failed to establish his entitlement to asylum and related protection.

[00:09:32] Speaker 00:
The credibility determination was based on clear discrepancies and irregularities in the record, casting significant doubt on the petitioner's claim that he suffered religious persecution after his alleged conversion to Christianity.

[00:09:45] Speaker 03:
Do you think misspelling the name of the church he says he attended is a serious reason for denying her life?

[00:09:53] Speaker 00:
Well, Your Honor, we submit that this is not merely... Can you start with a yes or no?

[00:09:59] Speaker 00:
In this instance, yes.

[00:10:01] Speaker 03:
because this is not merely... So if I were the petitioner and I said I attended St.

[00:10:07] Speaker 03:
Patrick's Church and it turned out I attended St.

[00:10:11] Speaker 03:
Thomas' Church, that alone in the government's view would be enough to deny relief?

[00:10:18] Speaker 00:
Well, I think in that example... Yes or no?

[00:10:20] Speaker 03:
Yes or no?

[00:10:24] Speaker 00:
If the testimony, the oral testimony of the applicant

[00:10:28] Speaker 00:
is to that effect.

[00:10:29] Speaker 00:
I think it may be difficult to defend an adverse credibility determination based entirely on a misstatement of the name of the church.

[00:10:39] Speaker 00:
But that's not what we have here.

[00:10:41] Speaker 00:
We have a letter that's purporting to be from the individual who could vouch for Mr. Kumar's alleged conversion to church.

[00:10:51] Speaker 03:
I put that on the more serious side.

[00:10:54] Speaker 03:
But in addition to the name of the church,

[00:10:57] Speaker 03:
Didn't he refer to the spiritual leader as pastor when it was a reverend?

[00:11:05] Speaker 03:
Is that a serious inconsistency?

[00:11:07] Speaker 00:
That was, I think, not one of the major inconsistencies that the agency pointed out.

[00:11:14] Speaker 03:
So to follow on along my colleague's question to your friend on the other side, what do we do in that circumstance?

[00:11:23] Speaker 03:
Say we determine that those two things you and I just talked about are

[00:11:28] Speaker 03:
minor and not a reason to deny relief, but there are some serious statements in the record which would allow relief.

[00:11:36] Speaker 03:
What should we do?

[00:11:37] Speaker 00:
Well, we would respond to that, that because substantial evidence supports the credibility determination irrespective.

[00:11:43] Speaker 02:
Well, let me ask you more specifically, in the situation my colleagues were talking about, what's the case law say about, you know, if there are a couple of bad

[00:11:58] Speaker 02:
reasons and a couple of good reasons?

[00:12:02] Speaker 02:
Did the case law say that two good ones are good enough to affirm or it should be remanded for reconsideration?

[00:12:12] Speaker 00:
Well, I believe that that issue was most recently addressed in the Kululu decision that came out of, that this court issued a few months ago where it

[00:12:22] Speaker 00:
reaffirmed the principle that an adverse credibility determination is not a matter of balancing the inconsistent aspects of the testimony against the aspects of the testimony that are consistent.

[00:12:35] Speaker 00:
It's not a balancing exercise for the court to reassess, but rather it is subject to the very deferential substantial evidence standard of review, whereas in this case there is clear record support for the

[00:12:51] Speaker 00:
all of the inconsistencies that the agency highlighted in addition to the demeanor findings which are reflected in the record which the agency, the board cited to the specific portions of the hearing transcript where the petitioner was being non-responsive.

[00:13:09] Speaker 00:
And those findings in and of themselves are entitled to significant deference as this court has repeatedly

[00:13:17] Speaker 00:
affirmed the I.J.

[00:13:18] Speaker 00:
is in the best position to evaluate the demeanor and whether the petitioner is testifying truthfully.

[00:13:30] Speaker 00:
So in this particular case, it's not simply a matter of spelling discrepancies.

[00:13:35] Speaker 00:
We would point out that this is not just a matter of pressing the wrong letter on the keyboard, that in the document the letter purporting to be from the pastor

[00:13:44] Speaker 00:
there's the letterhead of the document and the stamp that's affixed to the document contain different spellings of the church.

[00:13:53] Speaker 00:
Now this document doesn't purport to be a translated copy of a document that was issued in another language.

[00:14:04] Speaker 00:
The petitioner argued in his appeal to the board that he shouldn't be held responsible because he doesn't

[00:14:14] Speaker 00:
his English language proficiency is limited.

[00:14:18] Speaker 00:
But ultimately, it's his burden to proffer credible evidence that he's entitled to the relief that he's seeking.

[00:14:28] Speaker 00:
And it's not sufficient for the respondent, for the applicant simply to say,

[00:14:35] Speaker 00:
that, okay, I'm not aware of the contents of my documentary evidence.

[00:14:40] Speaker 00:
And I think if you look at the hearing transcript, Mr. Kumar even denies that there is a discrepancy in the spelling.

[00:14:48] Speaker 00:
So his testimony as a whole betrays a lack of familiarity with his documentary evidence.

[00:14:55] Speaker 00:
There's also the question regarding the timing of his conversion to Christianity, where he said that he received this letter

[00:15:04] Speaker 00:
from Pastor Thomas in early 2017, shortly after he joined the church.

[00:15:10] Speaker 00:
But the letter actually says that the pastor had known Mr. Kumar for a period of two years that he's been a member of the congregation.

[00:15:22] Speaker 00:
And this is at odds with the petitioner's statement on multiple occasions that he was first introduced

[00:15:29] Speaker 00:
to Christianity in early 2017, which would be immediately before this letter was supposedly written.

[00:15:36] Speaker 00:
So the agency properly relied on these discrepancies, which go to the heart of the petitioner's claim of religious persecution, and we submit that this constitutes substantial evidence supporting the credibility of determination.

[00:15:56] Speaker 01:
Thank you.

[00:16:00] Speaker 04:
Your Honor, I don't have anything else unless the court has questions for me.

[00:16:06] Speaker 01:
Nope.

[00:16:08] Speaker 04:
Nope.

[00:16:09] Speaker 01:
Very good.

[00:16:09] Speaker 01:
All right.

[00:16:09] Speaker 01:
Thank you both for your briefing and argument.

[00:16:11] Speaker 01:
This matter is submitted.