[00:00:22] Speaker 03:
under the supervision of Katherine Iveman on behalf of petitioner Marissa Prosper along with my co-counsel David Kim.

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I'll be addressing the adverse credibility determination and my co-counsel will be addressing the merits of Ms.

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Prosper's cat claim and we'd like to reserve two minutes for rebuttal.

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Thank you.

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At issue in this appeal is a negative credibility determination supported by nothing more than two alleged inconsistencies.

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The first

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ambiguity in translation, which respondent does not refute, and the second of which was a trivial inconsistency that had no bearing on Miss Prosper's credibility.

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Alone or together, these two inconsistencies are insufficient to support an adverse credibility finding, and remand is required.

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The first inconsistency identified by the BIA concerned to pose an inconsistent statement about the type of weapons her attackers used.

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a narrative account of the attack, she stated that they had rocks, arms, and bottles.

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This is not an inconsistency at all because the term arms encompasses knives and machetes.

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In Kumar v. Garland, this court held that one recounting that might simply be more detailed than another does not mean that the statements are inconsistent.

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On cross-examination, government counsel asked Ms.

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Cross-Spare if the assailants had any weapons in addition

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they had other weapons like arms to shoot.

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Was your translation issue raised to the BIA?

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The translation issue was not raised to the BIA.

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So can we consider it or was it forfeited?

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This court can consider it because any kind of discrepancy that results from a mistranslation or a miscommunication cannot support an adverse credibility finding.

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And we said that we could consider it.

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concluded that a mistranslation cannot support it.

[00:03:12] Speaker 01:
But it doesn't answer the question about whether it first has to be raised to the BIA.

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So your citation of the case is interesting but not determinative.

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So when the IG concluded from that specific response that she had a failure to remember that her attackers also had knives and machine

[00:03:42] Speaker 04:
I guess the government lawyer says, why didn't you tell the court that they also had knives and machetes?

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Her answer isn't, well, I thought that's what arms meant.

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She says, I wasn't asked if they had knives or machetes.

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Correct.

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So she believed that she was being asked specifically whether they had guns or firearms.

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She didn't believe that she was being asked whether they had any knives in addition to rocks and bottles because she

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question the way that government counsel intended to ask because the because of the ambiguous translation because the term that means weapons can also mean more specifically weapons that are capable of shooting in response to the question did they have any other weapons she said I'm not sure because I didn't verify whether they had other weapons like arms

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there's an inconsistency.

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So when asked again, the government council followed up and asked, she said,

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stated previously in her narrative, which was rocks, bottles, and arms, and arms here would encompass.

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It would be consistent with the fact that they were armed with knives and machetes.

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And if I could just quickly address the second inconsistency identified by the BIA.

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This was a trivial inconsistency that is insufficient to form the substantial evidence

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Well, in trust to beholder, the inconsistency that was actually found trivial was the petitioner stated that he had been staying with his uncle before coming to the US.

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But in his application for relief, he wrote down his parents' address when asked for the address of where he had stayed prior to coming to the US.

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And this court held that that could have been a simple error that he included on his application.

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Similarly here, it could have been a simple error that on her application she stated that

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that it was in fact her neighbors who came to her.

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And if I may, I'd like to turn it over to my co-counsel.

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Thank you.

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or other administrative record.

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This Catapeel asks this court to decide on two core issues.

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The first is whether the board's threadbare opinion gives this court a sufficient basis for it to actually conduct this review, or excuse me, give this court a sufficient basis of the board's decision so that this court can conduct this review.

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And the second is whether the board consider all evidence, including country conditions evidence as required by CAF's implementing regulations and this court's jurisprudence.

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the board's one paragraph cat section is a threadbare boilerplate opinion that is devoid of any actual application of the facts and ij's reasoning and this that doesn't give this court a basis of his decision an opinion is boilerplate and threadbare when it contains a general recitation of the legal standards but doesn't contain reference to any facts in the record or parts of the ij's reasoning that the board relied on here the board's section yes your honor

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Oh, do you have a question?

[00:08:25] Speaker 02:
Oh, yes, thank you, Your Honor.

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Here the board's CAT section is a single paragraph that starts and ends with a sentence that states that it agreed with the IJ's decision, followed by general legal standards pertaining to CAT, but there is no mention of any facts or parts of the IJ's reasoning to indicate what the board relied on and how it got to its decision.

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of what happened and for this reason the board's opinion should be amended with instructions to consider all evidence.

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You want to save some time for rebuttal?

[00:09:53] Speaker 02:
Yes, Your Honor.

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We'll reserve the remaining time for rebuttal.

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Thank you.

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We'll hear from the government.

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Morning, Your Honors.

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My name is Linda Doe and I represent the U.S.

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Attorney General.

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Here substantial evidence supports the agency's

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The specifically petitioner claimed that she had been hired by two persons, Mr. Raphael and Mr. Joseph, due to her failure to join the Haiti inaction political party.

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She further alleged that the government was unable and willing to protect her, despite the complaint that she had lodged.

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However, as the agency held, her claim was not credible,

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declaration and written application, she specified that the odds came upon her with rocks, bottles, machetes, and knives.

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In her testimony for the immigration judge, she claimed that they came upon her with arms, rocks, and bottles.

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On cross-examination,

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knives and machetes as material in this instance that she substituted bladed weapons for firearms, which enhances her claim when it includes weapons that elicit greater fear.

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the danger or the increased her claim by supplanting blade weapons such as knives and machetes or firearms.

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She was contentioned that she believed the following question about other weapons doesn't account for their original omission of knives and machetes from her own narrative as to why she fled Haiti.

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application or declaration.

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The firearms was raised for the first time in her testimony.

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Accordingly, this is a material inconsistency which supports the agency's adverse credibility determination, and her explanation, while plausible, does not compel a finding of veracity.

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Did I misunderstand that?

[00:13:13] Speaker 05:
Your Honour, the offer of multiple possible translations was not set forth before the Board of Immigration Appeals.

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However, a petitioner did claim that she believed the question about other weapons to be in regards to firearms.

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But again, this does not account for her initial omission of knives

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does not account or explain why she admitted it in her original testimony.

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So, you know, again, in soliciting and trying to find out why she had admitted that, you know, admitted such details, she claimed that, you know, she believed the following questions were about guns and knives, but, you know, about guns and

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knives and machetes.

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I apologize for that.

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Petitioner did not make that argument or claim before the immigration judge or in her appeal to the board.

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Second, Petitioner did not testify consistently as to the events that followed.

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In her written declaration, she claimed that she fled and facilitated her own rescue by fleeing to her neighbor's home.

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However, in her testimony,

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in the opening brief to the court.

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She claimed that the consistency was trivial, again, stemming from improper memory, human error, or possibly a language barrier.

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However, she did not exhaust these arguments to the board in her appeal to the board.

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Additionally, in her appeal, the practitioner claimed that the trauma was so great that she was able to recall details, including the exact date of the incident nine years later,

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an opening brief.

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Additionally, this court has held that minor inconsistencies which bear upon a petitioner's veracity can be the basis of an adverse credibility determination.

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And in this instance, the inconsistency is not trivial where it pertains to her reason for departing Haiti and the sole incident of harm she claims had occurred.

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Finally, the agency also noted that there was another inconsistency

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supported by her or contravened her evidence of support.

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While the board did not expressly mention this third inconsistency, it held that the immigration judge's overall credibility, adverse credibility determination was supported by the evidence and was not clearly erroneous.

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This is reflected in the board's decision at page three, citing pages 51 through 55 of the immigration judge's decision, which includes this third inconsistency.

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She claimed that officials did not take her complaint seriously and made no effort to locate the perpetrators.

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However, she later testified that officials came to her home, followed up with paperwork, and heard her complaint.

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In support, she provided an extract of minutes, revealing that not only were Mr. Rafael and Joseph located, they had been questioned and denied the charges against them.

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When asked to explain the

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age range citation, is that right?

[00:17:34] Speaker 04:
Well, the board upheld the IJ's adverse credibility determination.

[00:17:38] Speaker 04:
Right, but we have said that we will only look at the issues the BIA specifically relied on.

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Your honors, this court recently held in Kululu versus Garland, 94 F4 at 1100 to 1101, that an IJ's adverse credibility determinations and

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reviews all those facts regardless of whether the board relies on it in its substantial evidence review.

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We recently filed a 28-J letter citing this new decision on Friday, April 5th, 2024.

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Finally, substantial evidence supports the agency's denial of cap protection because, as the agency held, Petitioner was not credible and did not provide independent objective evidence to sustain her burden of proof.

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Whereas here, she was not credible, she did not show past torture or that anyone shows that she currently possesses an interest in her.

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presented evidence that the government had investigated her claim and heard her complaint against the persons that she had feared.

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In light of the foregoing substantial evidence, the record supports the agency's denial of asylum withholding and removal and cap protection.

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And the court should deny the petition for review.

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Are there any other additional questions, Your Honors?

[00:19:43] Speaker 05:
Apparently not.

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The governor will respond as brief.

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Thank you.

[00:19:48] Speaker 04:
Thank you for your argument.

[00:19:49] Speaker 04:
You have a few seconds left for rebuttal.

[00:19:57] Speaker 03:
Thank you.

[00:19:58] Speaker 03:
I'd like to start by saying that, so she did raise to the BIA that the statement about arms was not inconsistent with the second statement and the statements are not

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how the ambiguous testimony occurred.

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And so it's not, it's not really a separate argument.

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It's simply meant to bolster the argument that the two statements are not inconsistent.

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And also this assumption that government council makes that arms must be synonymous with firearms is incorrect.

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She never stated that they have firearms or guns.

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is submitted.

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We thank the law school for taking on this case and we'll next hear our argument.