[00:00:01] Speaker 00:
Good morning, Your Honors.

[00:00:02] Speaker 00:
My name's Eric Martin.

[00:00:04] Speaker 00:
I'm representing Jin Xue Liu in the case of Liu V. Garland.

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May I please the court?

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The government claims that Mr. Liu's testimony lacked candor, consistency, and plausibility, but there is no basis for these findings in the records, and this should compel this court to overrule the IJ's credibility determination.

[00:00:29] Speaker 00:
For candor, the government points to visa fraud that Mr. Liu used in order to escape from China.

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There's a bright line rule against using this type of evidence.

[00:00:44] Speaker 02:
But the agency in this case said that it was so many years after

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the alleged persecution, and that that was a factor that mitigates him.

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Plus, he had gone back to China from Singapore.

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And so therefore, given that, the bright line rule you're referring to isn't applicable as a bright line rule.

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Well, we would disagree with that.

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The time that he spent in China was from, well, the first part was from like 1990 after, from the time that he was attacked to about 2000, 2001 when he started trying to get out of China, get to the United States actually.

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That period of time, it was hard for anybody to get out of China.

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I hoped that the court would take some kind of notice of that.

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When I was young, that was a well-known fact that it was hard to get out of a communist country like that.

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About 2000, he started, he tried to get six, on six separate occasions, he tried to get out of China to get a visa.

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He did visa applications.

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And so he was trying to get out of China at that point.

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It was impossible for him to.

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As far as going to Singapore, he spent 40 days in Singapore and then he got sick.

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And so he had to come back.

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Singapore is not the kind of place that you can kind of stick around and be an illegal alien for the rest of your life.

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And I don't think they have much of a silo.

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I think the agency said that he left Singapore because he didn't like the climate.

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Right.

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He said he was sick because he got sick all the time because he didn't like the climate.

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He didn't like it.

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But I mean, he testified that he got sick.

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And so he had to leave Singapore.

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I don't think he had any kind of, there's no evidence of any kind of, anything beyond a temporary work permit in Singapore anyway.

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So I don't think he had any kind of an opportunity to stay there for longer than he might have.

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I don't know how much longer he could have stayed there legally anyway.

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To continue, for inconsistencies, the government contends that Mr. Liu testified that he experienced no consequences related to the birth of his first child.

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I don't think that's an accurate reading of the record.

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I think at one point he said that he didn't have much problem with that.

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That was the first time that his first child, when he was just underage, he was involved in an underage marriage, and that was why they were after him.

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He says that he didn't

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experienced much problem, and then he goes on to talk about his wife's next child, well, next child, and he'd gotten hit in the head with a brick.

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They tried to, you know, forcefully sterilize him.

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So I think when he's talking about it and how much problem means like compared to getting hit in the head with a brick and forced to

[00:03:46] Speaker 02:
Isn't this just a situation where there's kind of, I mean, these are good arguments for a trier of fact, but we have a substantial evidence standard of review and is this a situation where the record compels that we have to agree with your assessment of the evidence?

[00:04:02] Speaker 00:
Well, I think it is because there's ambiguity there and you shouldn't base an adverse credibility determination on

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ambiguous statements like that.

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At another point, he says that he had a lot of problems.

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He couldn't get his child immunized and he couldn't get jobs.

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He had problems with his other, his next birth.

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So he doesn't, he's, what he does is he says, I didn't have as much, I didn't have, in my opinion, what he's saying is, I didn't have as much problem as, you know, the next time my wife got pregnant.

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And then later on during Cross, he forgets about a fine that he had.

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The rest of the time he's talking, he says several things that are kind of negative consequences for his first birth.

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So I think that they're misreading the record on that.

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And the next thing, he talks about his loss of potency.

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I think that there's evidence in the record that this was kind of a mistake that the translator made or something like that.

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We'll see, he's talking about, where it happens in his statement is the second to the last paragraph, he's talking about what happened to him in the hospital at that point of time.

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The immigration judge says, well, he wrote this when he was in America, so he must, he should have been speaking in the past tense.

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And again, I believe that's a translation problem.

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I noticed the problem with my brief was that I cited to a bunch of second circuit cases for the translation issue.

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During prep for this, I noticed that the government cited to Cower v. Gonzalez, and at page 1065, there are several Ninth Circuit cases that discuss mistranslation and how mistranslation should not be used as a basis for adverse credibility determination.

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The third issue is implausibility.

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This is about when he goes to get forced sterilization procedure performed on him, the judge seems to think that his friend goes to

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bribe the doctor into giving him a botched operation so that he can retain his, I guess, potency is the word we're using.

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So he's taken in the morning.

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He's taken, like, say 10 o'clock in the morning.

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It doesn't say what time.

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And he says he gets home at 8.

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And he says the procedure happened at 7 o'clock.

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And the judge seems to think that it's impossible for his friend to have talked to his wife and gotten to the

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clinic after making a mistake and going to the hospital.

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But we're talking about 10 or 12 hours and an indeterminate amount of space.

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We don't know how far it is from the hospital to the clinic that they're talking about.

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So I don't see the implausibility there.

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It seems totally plausible to me that his friend could get from his house to the hospital and then to the clinic within

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the 10 hours between when he's taken and when he supposedly had this operation.

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The other, so, okay, I'd like to reserve the rest of my time.

[00:07:51] Speaker 02:
All right, thank you, Council.

[00:07:53] Speaker 02:
We'll hear next from Ms.

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Pinot.

[00:08:01] Speaker 01:
Good morning, Your Honors.

[00:08:03] Speaker 01:
May it please the court, Tatiana Pino for the Attorney General.

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The court should deny this petition for review because this court must accept the agency's dispositive adverse credibility determination as conclusive and can reverse only if it finds that every other immigration judge in the United States who reviewed the same evidence in the totality of the circumstances and observed petitioner testify

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would have found him to be credible.

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By virtue of their expertise and ability to directly observe the petitioner, immigration judges are uniquely qualified to discern their credibility.

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Indeed, this court has held that only the most extraordinary circumstances will suffice to overturn an agency's adverse credibility determination, and none exist here.

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Here the agency provided numerous specific and cogent reasons for why considering the totality of the circumstances and all relevant evidence, petitioners' claims were not credible.

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The agency reasonably found that although he repeatedly swore under oath that his testimony and the documentary evidence were true and complete,

[00:09:12] Speaker 01:
He attempted to mislead the immigration judge during proceedings, just like he misled other US immigration authorities when he admittedly lied to successfully obtain his last tourist visa to come to the United States.

[00:09:23] Speaker 02:
But his explanation for that is that he was lying in order to escape conditions in China.

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And our case law has said that that's an area where there has to be some caution on the part of the agency.

[00:09:36] Speaker 01:
Yes, Your Honor, it is true and the board recognized that in Akinmade versus INS case from 1999, there is that rule that I believe petitioner characterized it as a bright line rule that genuine refugees may lie

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to escape immediate danger and gain entry into the United States because there's a sense of desperation as they're fleeing.

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However, the agency acknowledged that and found that that is not the circumstance.

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In this, in petitioner circumstances, he was not fleeing immediate danger.

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And the immigration judge identifies three facts that prove that.

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The first is that although he claims to have been persecuted in 1990, he waited 11 years to seek his first visa.

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The second is he continued to live in China for 24 years after the alleged persecution

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to leave China, and as Judge Collins pointed out, he repeatedly traveled to and from China for work, not to escape, but for work, and he went to Singapore, and he went to South Korea.

[00:10:42] Speaker 01:
As Judge Collins correctly pointed out, when he claims to have left Singapore after being there for 40 days in 2013, and this is a quote from Petitioner at 187, quote, he was not adapting to the local weather very well.

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And where did he go?

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He went back to China.

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And from there, he went to South Korea for three years.

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He departed South Korea in 2012.

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And where did he go?

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Back to China.

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He didn't leave China until 2014.

[00:11:10] Speaker 01:
So all of that undermined the notion that he is fleeing immediate danger.

[00:11:14] Speaker 01:
There is no immediate danger.

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And under this court's precedent in Loho v. Mukasey of 2008,

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This court held that voluntary returns to home countries support an adverse credibility determination because it, quote, inherently undermines petitioner's testimony that she experienced past suffering or that she feared returning home.

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The immigration judge's decision here isn't wholly consistent with that precedent, and the record does not compel reversal of that agency's determination.

[00:11:47] Speaker 01:
Turning to the issue of the inconsistency that petitioner discussed with the court.

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Contrary to his assessment, there is no ambiguity here as to whether there is an inconsistency.

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The immigration judge reasonably summarized petitioner's testimony to be admitting that he did not suffer any consequences

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at the hands of the family planning office as a result of an unregistered marriage or the birth of his first child.

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And let's go through petitioners exact statements because that's important and it shows why the immigration judge correctly found he testified as to no consequence.

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The first that I'm quoting from is from page 166 of the record at Petitioners on Direct Testimony.

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In response to whether the birth of his first child before his legal marriage caused any problems, petitioner replied, it didn't cause much problem.

[00:12:38] Speaker 01:
Then again, at 173 of the record, petitioner on cross, in response to whether he, quote, suffered from any consequences for failing to register his first marriage, he replies, quote, at the time, no.

[00:12:52] Speaker 01:
Again, at page 174 of the record, he's on cross responding to whether he had, quote, any issues with the family planning office with regards to his first child.

[00:13:02] Speaker 01:
He replies, no, we did not have any issues with the family planning office regarding our first child.

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And then lastly, at 174, again on cross, he affirms he did not, quote, have any issues with the family planning office until after his second child was born on August 18, 1990.

[00:13:20] Speaker 01:
All of that is properly summarized by the immigration judge as having testified he suffered no consequences as a result of the first child or his unregistered marriage, which directly contradicts his declaration at page 317 that says, because our son did not have a birth permission and we did not have a marriage license, the family planning office fined us.

[00:13:46] Speaker 01:
So that is a clear, direct contradiction.

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The record does not compel.

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reversal of the agency's findings.

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Moreover, petitioner today, like in his brief, continues to raise post-hoc assertions that are unsupported by the record.

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He even said today, in my opinion, this is how the testimony should be read.

[00:14:03] Speaker 01:
That is total post-hoc assertion by counsel and it's not evidence.

[00:14:08] Speaker 03:
Counsel, may I ask a question?

[00:14:09] Speaker 03:
Absolutely.

[00:14:10] Speaker 03:
Thank you.

[00:14:11] Speaker 03:
I'm just out of curiosity.

[00:14:13] Speaker 03:
I'm wondering if the United States is actually

[00:14:16] Speaker 03:
deporting people to China these days?

[00:14:21] Speaker 01:
I can't speak as a matter of policy, if there is a policy as to that.

[00:14:25] Speaker 01:
I do know that at this moment, as of today, there's no current plans to remove this petitioner.

[00:14:32] Speaker 03:
I was just wondering if that was the case.

[00:14:37] Speaker 03:
Anyway, thank you.

[00:14:38] Speaker 03:
Sure.

[00:14:40] Speaker 01:
And I'd like to also touch on this notion of a translation error.

[00:14:47] Speaker 01:
This is, again, another post-talk assertion by council.

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Council is merely trying to throw this alleged translation error at the court and see if it sticks.

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What we do know is that he said in his declaration at 318, quote, I hope my potency can be restored.

[00:15:05] Speaker 01:
And we also know that in the record at page 233,

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Translation certification by a paralegal at his attorney's office that says that the paralegal translated his, quote, English language asylum statement to petitioner in Chinese, and he affirmed it was, quote, correct and complete.

[00:15:27] Speaker 01:
So this notion that there is a translation error in that statement is unfounded by the record, and in fact, the record substantially supports the immigration judge's reliance on petitioner's exact words.

[00:15:39] Speaker 01:
And as the immigration judge reasonably found, this statement, I hope my potency can be restored, was an attempt to misguide the court as to the severity of his alleged vasectomy.

[00:15:54] Speaker 01:
And lastly, talking about the implausibility issue, petitioner today says,

[00:16:01] Speaker 01:
that his testimony was plausible because we're talking about a span of 10 to 12 hours and a certain distance.

[00:16:11] Speaker 01:
But that was Petitioner's burden to prove at the hearing or before the immigration judge, and he never put forth any of that evidence.

[00:16:17] Speaker 01:
The agency's implausibility finding is entirely reasonable, and the immigration judge highlights just one example for why that's true.

[00:16:27] Speaker 01:
In Petitioner's story,

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He, as he was being led by family planning officials taken away, he told his wife, call my friend Mr. Knee, he's gonna help, he can help me get out of this.

[00:16:40] Speaker 01:
Well, we're talking about an era before cell phones, as the immigration judge points out.

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There's no text messages available, there's no email, there's no cell phones.

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Meanwhile, somehow, his wife, I guess a landline, I presume, called Mr. Knee, and Mr. Knee went back and forth to all these various locations all before

[00:16:58] Speaker 01:
what the petitioner could arrive at the clinic and have a simple procedure done.

[00:17:03] Speaker 01:
The immigration judge looked at this totality of the evidence and found, I just don't quite believe it.

[00:17:08] Speaker 01:
And so with that, your honors, if there are no further questions, the respondent would respectfully request that you deny this petition for review.

[00:17:18] Speaker 01:
Thank you.

[00:17:19] Speaker 02:
Thank you, counsel.

[00:17:20] Speaker 02:
We'll hear rebuttal.

[00:17:33] Speaker 00:
OK, so the government says that this has to be based on the totality of the circumstances.

[00:17:42] Speaker 00:
And this is something we agree with.

[00:17:43] Speaker 00:
Our position is that the immigration judge didn't ascertain what the totality of the circumstances were.

[00:17:52] Speaker 00:
She didn't ask for confirmation on.

[00:17:56] Speaker 00:
you know, several of the facts that she made her ruling based on and there were a lot of issues that I think probably should have gone, they should have gone into a court.

[00:18:12] Speaker 00:
As for immediate danger, I mean,

[00:18:16] Speaker 00:
He is in China.

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He can be picked up by the Chinese police at any time.

[00:18:20] Speaker 00:
These are things that are in the country conditions reports that were submitted.

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The Chinese police are a very scary group of people.

[00:18:30] Speaker 00:
As for going back and forth to China, he was deported once from Korea after spending three years there.

[00:18:39] Speaker 00:
That, to me, shows that he did not want to go back to China and that he wanted to spend some time

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any place outside of China.

[00:18:48] Speaker 00:
And again, as far as Singapore goes, he said he had a work permit.

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And I think that most of the countries around China do not want to be inundated with a bunch of Chinese immigrants, so they have very strict asylum rules.

[00:19:12] Speaker 00:
As for Loho, that illustrates what's going on.

[00:19:15] Speaker 00:
That was a situation where the woman was going back and forth between the United States and Indonesia.

[00:19:20] Speaker 00:
She found out about asylum, and yet she still returned to Indonesia.

[00:19:25] Speaker 00:
She didn't pursue her claim when she was here, and then she came back and went back and forth.

[00:19:30] Speaker 00:
Mr. Liu went to countries that do not really have an asylum.

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don't have asylum programs.

[00:19:40] Speaker 00:
Therefore, it's distinguishable.

[00:19:42] Speaker 00:
The translation, as counsel said, the paralegal did it, not the translator.

[00:19:48] Speaker 00:
A few grammatical errors are to be expected.

[00:19:54] Speaker 00:
And that's my time.

[00:19:56] Speaker 02:
All right.

[00:19:56] Speaker 02:
Thank you, counsel.

[00:19:57] Speaker 02:
The case just argued will be submitted.