[00:00:04] Speaker 00: Good morning, everyone. [00:00:09] Speaker 00: Looks like we have visitors from a local classroom. [00:00:14] Speaker 00: Welcome. [00:00:16] Speaker 00: We have two cases on calendar for argument this morning. [00:00:20] Speaker 00: But before I call the cases, Judge Bumate and I are pleased to welcome Judge Wallach from the Federal Circuit, who's traveled quite a ways to sit with us as a visiting judge. [00:00:30] Speaker 00: So thank you, Judge Wallach. [00:00:32] Speaker 02: You bet. [00:00:36] Speaker 00: Several cases have been submitted on the briefs and record. [00:00:39] Speaker 00: And for the record, those cases are Castro-Manjivar versus Garland, Salas versus Garland, Jones versus Price. [00:00:54] Speaker 00: And the first case up for argument this morning is Lee versus Garland. [00:01:00] Speaker 00: When you're ready, counsel. [00:01:07] Speaker 03: Good morning, Your Honors. [00:01:09] Speaker 03: May it please the court, I'm Eric Martin, and I'm representing Ducci Lee, the appellant. [00:01:14] Speaker 03: This case was on remand from the Ninth Circuit of Appeals and was originally heard in 2006. [00:01:18] Speaker 03: The appellant alleges that there were two attacks, one- Can you speak up a little bit, counsel? [00:01:24] Speaker 03: Pardon. [00:01:26] Speaker 03: The appellant alleges that there were two attacks, one in 2001 and one in 2003, and that his wife was forced to have an abortion, excuse me, forced to have two abortions, [00:01:36] Speaker 03: and a tubal ligation procedure that left her sterile. [00:01:41] Speaker 02: Council, why did you not reassert before us the argument you made before the BIA that the I.J., I.J. [00:01:49] Speaker 02: Young, was required to personally observe the testimony of Lee in order to make her responsiveness findings regarding adverse credibility? [00:02:02] Speaker 03: The BIA did not deal with that issue, and so I felt that argument had been made and they had dismissed it or they were not interested in it. [00:02:15] Speaker 00: Well, because it wasn't raised here, so it wasn't preserved, right? [00:02:18] Speaker 00: We can't reach that issue in the first instance, can we? [00:02:22] Speaker 03: It's not in the first instance. [00:02:23] Speaker 03: We dealt with it, and the BIA made an assessment of it. [00:02:29] Speaker 03: So you've abandoned that argument, right? [00:02:32] Speaker 03: No, I don't think I've abandoned the argument. [00:02:36] Speaker 03: I thought it appeared in our brief. [00:02:39] Speaker 02: In the blue brief at 22, you say, the DHS attorney, however, continues questioning Mr. Lee about 2001. [00:02:57] Speaker 02: So, can you explain why in that declaration you write that police beat you in the local police station? [00:03:05] Speaker 02: Can you explain why you think this part of the colloquy between Mr. Lee and the DHS attorney pertains to 2001 rather than 2003? [00:03:14] Speaker 02: I don't see anywhere in the hearing transcript where there appears to be any confusion about the events at the local police station taking place in 2003. [00:03:25] Speaker 02: And I didn't find anything showing that the DHS attorney made that mistake. [00:03:36] Speaker 03: Okay. [00:03:36] Speaker 03: I think I made a mistake in the brief, if that's what you're reading. [00:03:42] Speaker 03: The events as I saw them were that there was an [00:03:47] Speaker 03: According to his statement, there was a fight at the hospital, and then they were beaten again at the police station in 2003. [00:03:59] Speaker 02: At 22 and 23, the same page and over, you say, then the DHS attorney asked another question calculated to confuse Mr. Lee. [00:04:07] Speaker 02: And then you have in quotes. [00:04:10] Speaker 02: So your earlier testimony that you were in the local jail [00:04:15] Speaker 02: that they were trying to sterilize you. [00:04:17] Speaker 02: Was that a mistake when you said that? [00:04:21] Speaker 02: And then you say, in fact, no such testimony appears in the record. [00:04:28] Speaker 02: And it is at this point after the DHS attorney has unfairly misrepresented the record that Mr. Lee confused and he'll go on. [00:04:42] Speaker 02: Why do you say no such testimony appears in the record? [00:04:45] Speaker 02: when at AR 323, lines four to eight, Mr. Lee clearly stated that. [00:04:55] Speaker 02: I'm sorry, I'm not sure what you're talking about, Your Honor. [00:04:57] Speaker 02: You say that the DHS attorney is misleading, a question calculated to confuse Mr. Lee. [00:05:07] Speaker 02: So your earlier testimony that you were in the local jail, that they were trying to sterilize you, was that a mistake when you said it? [00:05:14] Speaker 02: And you say, in fact, no such testimony appears in the record. [00:05:18] Speaker 02: What I'm saying to you is, it sure looks like that testimony appears on page 323 of the record, lines four to eight. [00:05:31] Speaker 03: I think that the testimony in the case was confused, and there are issues with it. [00:05:36] Speaker 03: Translation and things like that. [00:05:38] Speaker 03: Well, you've you've accused Opposing counsel of misconduct before a court I did not mean to I did not mean that That if that's where it came up, okay. [00:05:52] Speaker 00: Well, there are other misstatements So so counsel you're asking for the position be granted. [00:05:58] Speaker 00: What's your best argument? [00:06:00] Speaker 03: I think that the judge [00:06:02] Speaker 03: Our argument is that the two inconsistencies, to the extent that they exist in the record, are trivial and don't go to the heart of the claims. [00:06:15] Speaker 03: The reason they say that it is not trivial is that they do go to the heart of the claims. [00:06:21] Speaker 03: We make a retroactive enforcement argument that I think is all up into this too because in 2006 the arguments that they were making did not go to the heart of the claim because of the change in the change in protocol for the real ID change in protocol for [00:06:42] Speaker 03: credibility findings and therefore they weren't concentrating, they weren't focusing on what happened to Mr. Lee, they were focusing on what happened to his wife. [00:06:55] Speaker 04: Can I ask, your client said that I cannot memorize well what happened but I was beaten and was that in Chinese or is that in English when your client said that? [00:07:07] Speaker 03: He said that in Chinese. [00:07:09] Speaker 04: And then are you disputing that that's the proper translation of the word? [00:07:13] Speaker 03: I'm not sure what I'm, I mean, I was, I don't know what happened. [00:07:18] Speaker 03: I think that the man probably had, the man has a ninth grade education. [00:07:22] Speaker 03: He was being translated and he was under a lot of pressure. [00:07:27] Speaker 03: He may have misspoken. [00:07:28] Speaker 03: I don't know what that actually means. [00:07:30] Speaker 03: I don't know. [00:07:30] Speaker 03: Yeah. [00:07:31] Speaker 00: The problem council said in some languages, maybe in a lot of languages, the word [00:07:36] Speaker 00: remember and memorize, sometimes it's the same word in contextual languages. [00:07:42] Speaker 00: And so it's difficult to know unless you look at the Chinese and you look at the context and you see how it was translated. [00:07:49] Speaker 00: You didn't raise that issue here. [00:07:51] Speaker 00: So I'm aware that that's the case in a lot of languages, but there's no record here to even support that sort of inference because you didn't raise that argument. [00:08:03] Speaker 00: So you're not raising it now, are you? [00:08:05] Speaker 03: I think I thought I did raise that argument in our brief. [00:08:09] Speaker 00: That it was a mistranslation? [00:08:11] Speaker 03: I believe that's what opposing counsel claimed of our argument in the BIA, and I thought I put that in. [00:08:21] Speaker 03: I believe that's in the brief. [00:08:23] Speaker 00: Part of the problem here, counsel, is that on remand from the circuit, counsel, you weren't counsel before the agency, were you? [00:08:34] Speaker 03: I did the BIA appeal, the second one. [00:08:39] Speaker 00: Right. [00:08:39] Speaker 00: The council at the time basically gave up the opportunity to have another rehearing. [00:08:44] Speaker 00: That's how I understand the record, right? [00:08:46] Speaker 00: The parties were content to rest, at least for the credibility, adverse credibility findings rest on the record of what he testified to before. [00:08:57] Speaker 03: Okay. [00:08:58] Speaker 03: I'm not sure what the... Isn't that right? [00:09:01] Speaker 00: Isn't that what the record reflects? [00:09:04] Speaker 03: I think it was on remand and they had a chance to rehear some of the cases and the council did not want to hear it. [00:09:12] Speaker 00: All right. [00:09:13] Speaker 00: Did you want to save the rest of your time for rebuttal? [00:09:15] Speaker 03: Yes, that would be great. [00:09:16] Speaker 03: Thank you. [00:09:34] Speaker 01: Good morning, may it please the court. [00:09:35] Speaker 01: Dan Goldman on behalf of the Attorney General. [00:09:37] Speaker 01: The government asked this court to uphold the agency decision and deny the petition for review. [00:09:41] Speaker 01: The inconsistencies in this case, the discrepancies between Mr. Lee's testimony and the declaration that he wrote just a year before he testified, those inconsistencies were clear, they are irreconcilable, and they are a valid basis for the adverse credibility finding in this case. [00:09:56] Speaker 01: Second, the documentary evidence that was submitted did not independently [00:10:01] Speaker 01: establish his claim for relief. [00:10:03] Speaker 01: I'd like to address just briefly the argument made by Mr. Li's counsel that there was somehow a change in the law. [00:10:09] Speaker 01: He raised this argument a little bit today. [00:10:10] Speaker 01: He raised it in his opening brief. [00:10:12] Speaker 01: He's correct insofar as the fact that the law did change with regard to how an individual from China could establish a population control case. [00:10:22] Speaker 01: But what did not change and what his argument ignores is that [00:10:27] Speaker 01: What has always been required is that the individual, the applicant, has to show that the procedure enforced against the spouse, whether it's an abortion or sterilization, that has to be forced. [00:10:39] Speaker 01: there is no documentation, none, in this record that makes that, that proves that. [00:10:46] Speaker 01: And in fact, there's zero proof, independent documentary proof, that Mrs. Lee actually even had an abortion. [00:10:53] Speaker 01: Mr. Lee is asked that explicitly on the record at page 327. [00:10:57] Speaker 00: I don't know if I agree with your characterization that the inconsistency really that [00:11:04] Speaker 00: that big of a deal. [00:11:05] Speaker 00: The key facts of forced abortion, he was beaten and there's one other fact that he relied on. [00:11:18] Speaker 00: Those facts were all there during both testimony, right? [00:11:23] Speaker 01: The problem, Your Honor, with those arguments is that his entire testimony is deemed not credible based on multiple factors. [00:11:33] Speaker 01: But at this point, the board has taken some of those factors off the table. [00:11:36] Speaker 00: That raises an interesting point that Judge Malik had asked your opposing counsel. [00:11:43] Speaker 00: In this particular case, the adverse credibility findings were made without the IJ personally observing the petitioner. [00:11:52] Speaker 00: So I don't know that that issue was really preserved, because as I understand the record, [00:11:58] Speaker 00: the petitioner could have but didn't ask for another hearing. [00:12:01] Speaker 00: So what sort of deferential review, if at all, do we give the adverse credibility findings? [00:12:07] Speaker 00: Because as I'm sure you know, normally we review adverse credibility findings very deferentially. [00:12:13] Speaker 00: And a lot of that has to do with the trier of facts, ability to observe the demeanor and the manner in which the witness testified. [00:12:23] Speaker 00: And here that didn't happen. [00:12:25] Speaker 02: And when you answer, talk about the systemic implications of that issue. [00:12:32] Speaker 02: That is, you have multiple IJs out there. [00:12:36] Speaker 01: Yes, Your Honor, there's a few points. [00:12:38] Speaker 01: I think it's a multiple-level compound question, so there's multiple points to make in response. [00:12:42] Speaker 01: First, with regard to Your Honor's question about a systemic problem, [00:12:46] Speaker 01: It is not uncommon for one immigration judge to hear a case to preside over what's called the merits hearing, the application where the individual is testifying to support his or her application. [00:12:59] Speaker 01: The hearing is closed. [00:13:01] Speaker 01: For some reason, that immigration judge doesn't render the ultimate decision. [00:13:05] Speaker 01: Maybe the immigration judge leaves the bench for whatever reason. [00:13:09] Speaker 01: or there's a continuance and there's more testimony taken later in front of a different immigration judge. [00:13:14] Speaker 01: That happens. [00:13:15] Speaker 01: The responsibility falls then to the new immigration judge to review all of the old testimony, to review all of the old documents, to familiarize himself or herself with all of that evidence. [00:13:25] Speaker 01: If the immigration judge does not believe that he or she can properly evaluate the claim, then they would have to start again. [00:13:34] Speaker 01: That's not what happened here. [00:13:35] Speaker 01: And this gets to your honor's question. [00:13:37] Speaker 01: In this case, [00:13:39] Speaker 01: The immigration judge in 2019 gave multiple reasons for finding Mr. Lee not credible. [00:13:47] Speaker 01: narrowed things down. [00:13:49] Speaker 01: They took the demeanor finding off the table. [00:13:52] Speaker 01: They took the evasiveness and the non-responsiveness off the table. [00:13:55] Speaker 01: And perhaps, we don't know why, but perhaps it's because of the concerns that you're raising. [00:14:00] Speaker 01: But at the end of the day, Your Honor asked about the deferential standard of review. [00:14:05] Speaker 01: At the end of the day, the inconsistencies that are before this court that support the adverse credibility finding, they're plain on the record. [00:14:13] Speaker 01: Mr. Lee has asked [00:14:15] Speaker 01: or rather his declaration which he wrote and he submitted with his own translator in 2005 says family planning officials threatened to sterilize him in 2003 but he testified that that happened in 2001 and respectfully to petitioners council raising the idea of some confusion [00:14:34] Speaker 01: The government would dispute that. [00:14:35] Speaker 01: Mr. Lee has asked very specifically. [00:14:37] Speaker 01: The only time they threatened to sterilize you was in 2001. [00:14:39] Speaker 01: His answer is yes. [00:14:41] Speaker 01: That's in the record, page 324. [00:14:42] Speaker 01: The other discrepancy with regard to the level of harm, how often he was beaten, he wrote in his declaration that he was beaten by the police both at the hospital and at the police station. [00:14:53] Speaker 01: But he testified very clearly that he was only beaten at the hospital, not at the police station. [00:15:01] Speaker 01: So to Your Honor's question with regard to the deference owed, I think the government would have a much harder argument if we were still relying on the demeanor findings. [00:15:12] Speaker 01: But we are not, and the reason we're not is because the board took those off the table. [00:15:16] Speaker 01: The board said we are upholding this adverse credibility finding based solely on those discrepancies. [00:15:21] Speaker 01: And I would also point out, as Your Honor noted earlier. [00:15:24] Speaker 00: So when we evaluate the discrepancies on this record, do we give that a glass of deference, given that the IJ testimony didn't observe the live testimony? [00:15:34] Speaker 00: There's very little case law on how to look at something like that. [00:15:36] Speaker 00: I mean, if you have a situation where [00:15:38] Speaker 00: you know, someone says the sky is red and it's actually blue, that's pretty obvious on the record, right? [00:15:44] Speaker 00: If somebody says, well, it happened in 2001 and later it happens in 2003, not as big of a deal. [00:15:52] Speaker 01: Respectfully, Your Honor, the government would disagree when there are two incidents here. [00:15:56] Speaker 01: There's an incident in 2001, allegedly. [00:15:58] Speaker 01: There's an incident, allegedly, in 2003. [00:16:00] Speaker 01: Mr. Lee writes his own declaration. [00:16:02] Speaker 01: He provides his own translation. [00:16:04] Speaker 01: He's very clear about when things happen. [00:16:07] Speaker 01: He gets into immigration court a year later, and he testifies inconsistently. [00:16:12] Speaker 01: So this court is not in a position of evaluating his demeanor. [00:16:16] Speaker 01: This court can evaluate, as it does in most adverse credibility cases, can evaluate the plain language on the record. [00:16:24] Speaker 00: I would also point out, Your Honor, that- He indicated that he has some Alzheimer's problem, but that issue was really not developed. [00:16:31] Speaker 00: Any further in the record below? [00:16:33] Speaker 00: Is that right? [00:16:33] Speaker 01: That's correct, Your Honor. [00:16:34] Speaker 01: He said that in 2006 when this case, after this court remanded it, when this case went back and was in immigration court again in 2019, he presented no evidence to support that. [00:16:47] Speaker 01: I would also point out respectfully, Your Honor, that Mr. Lee's opening brief respectfully mischaracterizes the record in this case of pages 9 and 10. [00:16:57] Speaker 01: He says, quote, Mr. Lee had already given testimony on his experiences in China and was not given an opportunity to clarify. [00:17:04] Speaker 01: He's talking about what happened allegedly in 2019. [00:17:08] Speaker 01: That is simply not accurate. [00:17:09] Speaker 01: When this case went back on remand, the immigration judge asked Mr. Lee's counsel and DHS counsel, what are we looking at here? [00:17:17] Speaker 01: Are we taking new testimony? [00:17:18] Speaker 01: Are we bringing in new documents? [00:17:20] Speaker 01: Mr. Lee's counsel expressly said, no. [00:17:23] Speaker 01: We are going to rest, as Your Honor noted earlier, we are going to rest on the testimony and the documents from 2006. [00:17:32] Speaker 01: He had the opportunity, he had every opportunity to testify again, to try and clarify. [00:17:38] Speaker 01: the inconsistencies that were raised. [00:17:39] Speaker 01: To suggest that this adverse credibility finding was unfair, it didn't come out of nowhere. [00:17:46] Speaker 01: This was not some sort of gotcha situation. [00:17:49] Speaker 01: When he testified in 2006, when the immigration judge made her decision in 2006, she identified the exact discrepancies [00:17:57] Speaker 01: the exact discrepancies that are now before this court. [00:18:01] Speaker 01: Mr. Lee went back into immigration court in 2019 and did nothing to address them. [00:18:06] Speaker 01: He also had the opportunity, if he chose, to bring in new declarations. [00:18:11] Speaker 01: He could have brought a declaration from his wife. [00:18:13] Speaker 01: He could have brought a declaration from his cousin who was supposedly an eyewitness. [00:18:17] Speaker 01: He didn't do that. [00:18:17] Speaker 01: He could have brought in an expert to explain about the policy in China. [00:18:22] Speaker 01: He didn't do that. [00:18:23] Speaker 01: So this record is old. [00:18:25] Speaker 01: But it's old because Mr. Lee, through counsel, chose not to update the record, chose not to address the discrepancies that the immigration judge in 2006 very specifically identified. [00:18:37] Speaker 04: Can I ask before you run out of time? [00:18:39] Speaker 04: The document does say that his wife had a ligation. [00:18:41] Speaker 04: Is that a euphemism for abortion in China? [00:18:45] Speaker 04: Do you know? [00:18:47] Speaker 04: What does that mean? [00:18:47] Speaker 04: The problem, Your Honor, is that we don't know. [00:18:49] Speaker 04: That's not in the record anywhere. [00:18:51] Speaker 01: If we take it at its word, literally the language ligation, as opposed to abortion, it means she had a tubal ligation, sterilization, but there's no indication on that document [00:19:03] Speaker 01: that it was a forced procedure. [00:19:05] Speaker 01: That's why his claim fails. [00:19:07] Speaker 01: He needed to bring in additional evidence. [00:19:09] Speaker 01: But in normal English, a ligation is not an abortion, right? [00:19:12] Speaker 01: Correct. [00:19:14] Speaker 01: That's the government's understanding on it. [00:19:15] Speaker 01: But again, where this case fails for Mr. Lee is the lack of credible evidence to support his claim. [00:19:22] Speaker 01: He does have a document. [00:19:24] Speaker 01: but we have no idea what it means because his testimony and his declaration are not credible, and he did not bring in additional evidence. [00:19:33] Speaker 01: He could have asked his wife to send a declaration when she sent that ligation certificate. [00:19:37] Speaker 01: I see my time has expired. [00:19:39] Speaker 01: Go ahead. [00:19:40] Speaker 02: I want you to speculate a little bit for me. [00:19:44] Speaker 02: Because I'm interested in the question of the second IJ taking over. [00:19:49] Speaker 02: Supposing that the initial IJ had [00:19:52] Speaker 02: had done a speaking decision saying, I observed the witness, suddenly his pupils dilated, he began breathing heavily, and he gives a total physical description of somebody who's fabricating. [00:20:08] Speaker 02: Does that make it okay for the second IJ to say, hey, I looked at this, and it informs me of the reasons for this determination, and I can adopt them? [00:20:25] Speaker 01: I think potentially, and obviously, Your Honor, I'm speculating. [00:20:28] Speaker 01: We don't have that in this case. [00:20:30] Speaker 01: We do have an oral decision, and the first immigration judge's decision in 2006 was an oral decision. [00:20:34] Speaker 01: Had the original immigration judge made those kinds of findings, I think it would have given the second immigration judge more [00:20:43] Speaker 02: leeway, more ground to make the kind of finding, Your Honor suggests, but again... I just don't want to... It seems to me it can't always be impossible for that second judge to look at the record and say, hey, based on this, I'm making a determination that that person... So I think there's two points there, Your Honor. [00:21:02] Speaker 01: I don't think it would be impossible in that hypothetical, but in this case, [00:21:07] Speaker 01: This court doesn't have to rule on that. [00:21:09] Speaker 01: Oh, of course not. [00:21:10] Speaker 02: Of course not. [00:21:10] Speaker 01: So I just want to make clear, we're not asking the government to uphold, we're not asking the court to uphold the adverse credibility finding. [00:21:16] Speaker 00: I understand that. [00:21:16] Speaker 01: On that basis. [00:21:18] Speaker 01: Subject to the court's questions. [00:21:20] Speaker 00: Thank you very much. [00:21:20] Speaker 01: We'd ask the court to uphold the agency decision. [00:21:22] Speaker 01: Thank you, Your Honor. [00:21:22] Speaker 00: Thank you, Counsel. [00:21:29] Speaker 03: Okay, so I think the basic, our basic problem with this case is that it's based on the totality of the circumstances and that works both ways. [00:21:39] Speaker 03: All they have left is the fact that there are some, in our opinion, trivial inconsistencies. [00:21:46] Speaker 03: They aren't really dealing with the demeanor issue and they've criticized it and the BIA criticized it in its decision. [00:21:53] Speaker 03: Well, in my opinion they did. [00:21:54] Speaker 03: And so there's just not enough there for an adverse credibility finding. [00:22:01] Speaker 03: As far as the 2001, 2003 issue, that is specifically brought up in Wren that these type of temporal mistakes about when something happened are trivial in nature and they shouldn't be held against him. [00:22:20] Speaker 00: Although whether you're beaten once or twice is much more significant. [00:22:24] Speaker 03: Yeah, but I mean, that was part of the same part of the same incident. [00:22:28] Speaker 03: He started getting beaten at the hospital and he went back. [00:22:31] Speaker 03: Sorry, sorry. [00:22:32] Speaker 03: He didn't get into the hospital and they took him back to the police station. [00:22:36] Speaker 03: It's part of the same day. [00:22:38] Speaker 03: And as I said before, I think that at the time in 2006, the [00:22:42] Speaker 03: the focus of the court, the focus of the inquiry was on whether or not he had, whether or not his wife had been forced to have an abortion or a ligation, sir, a ligation in this situation, in this instance. [00:22:57] Speaker 03: So I don't think that's something I was forced to. [00:22:59] Speaker 03: I think that he relied on the laws that was written in 2006 and therefore, you know, prepared in that way for the hearing. [00:23:12] Speaker 03: As far as Alzheimer's goes, I think I've said the same thing myself. [00:23:16] Speaker 03: I don't remember that. [00:23:18] Speaker 03: I think I came up with Alzheimer's. [00:23:19] Speaker 03: I think that's something he said. [00:23:20] Speaker 03: There were other places where the judge kind of got mad at him for colloquialisms. [00:23:28] Speaker 03: Like he said, there were no buses in Sacramento. [00:23:31] Speaker 03: I believe him. [00:23:32] Speaker 03: I don't think there are that many buses around in Sacramento. [00:23:36] Speaker 03: So I think that they were a little hard on that. [00:23:41] Speaker 00: All right. [00:23:41] Speaker 00: Thank you very much, counsel. [00:23:42] Speaker 03: Thank you, Your Honor. [00:23:43] Speaker 00: Both sides for your argument this morning. [00:23:45] Speaker 00: The matter is submitted.