[00:00:00] Speaker 01:
Court now resumes its session.

[00:00:04] Speaker 03:
Good morning again.

[00:00:05] Speaker 03:
All right, I'll be calling the cases in the order that they are listed.

[00:00:10] Speaker 03:
The next case for argument is Syed Syad versus Garland.

[00:00:15] Speaker 02:
Good morning.

[00:00:16] Speaker 02:
May it please the court, my name is Cory Hong.

[00:00:19] Speaker 02:
I'm from the Florence Project.

[00:00:20] Speaker 02:
I represent petitioner Hamad Sad Sayyid, whom I will refer to as Mr. Sayyid.

[00:00:26] Speaker 02:
I will reserve two minutes for rebuttal and I will watch my time.

[00:00:30] Speaker 02:
I will talk about due process, credibility, and then cat.

[00:00:36] Speaker 02:
First on the due process claim, the government does not dispute that competent interpretation is fundamental to a full and fair hearing.

[00:00:46] Speaker 02:
The government also did not dispute that both at the hearing and at the asylum interview, this record has indicia that all three types of the Perez-Lassour interpretation problems existed.

[00:01:00] Speaker 02:
First, there were direct errors in the hearing itself.

[00:01:04] Speaker 02:
The father's rank in the military was, although it was a brigadier general, was initially interpreted to be guard.

[00:01:12] Speaker 02:
His stroke was initially interpreted to be blood clot.

[00:01:15] Speaker 02:
And semile was translated to be metal object, large stick, and according to Mr. Jamo's declaration, never the true word semile.

[00:01:25] Speaker 02:
Second, there's evidence that Mr. Saeed did not understand the interpretation at the hearing and at the interview.

[00:01:33] Speaker 04:
Council, can I just ask a question?

[00:01:35] Speaker 04:
Because I think you do point out some translation issues, perhaps.

[00:01:42] Speaker 04:
What I was struggling with is where's the prejudice here?

[00:01:44] Speaker 04:
Did any of these actually impact

[00:01:47] Speaker 04:
Because we have this all the time where there might be some mistranslations or misunderstandings.

[00:01:52] Speaker 04:
But at the end of the day, you need to show that it impacted something.

[00:01:55] Speaker 04:
Is there something in the credibility finding that you think the due process claim came to play?

[00:02:05] Speaker 02:
Yes, and there are two pathways to the prejudice.

[00:02:07] Speaker 02:
The more narrow pathway is by the Nawandinobi case, which is the best pathway for that.

[00:02:15] Speaker 02:
Where there, in that case, there were three reasons to find the Nigerian individual not credible.

[00:02:22] Speaker 02:
The court didn't uphold the adverse credibility, but also in the due process said that only two of those three errors actually were tied to translation problems.

[00:02:33] Speaker 02:
Here, what we have, the first two translation problems are speculation, but the third one was the question about the dates.

[00:02:41] Speaker 02:
And at the hearing, he said it was 2015-2018.

[00:02:44] Speaker 02:
The prejudice comes from the interview, the asylum interview.

[00:02:51] Speaker 02:
because at the asylum interview, he testified that he was gone from 2015 to 2018.

[00:02:58] Speaker 02:
He testified he returned on November 18, and also he testified that he didn't remember.

[00:03:05] Speaker 02:
What we have then is the problem with the asylum transcript.

[00:03:11] Speaker 02:
At 1202, the asylum officer says that there were three different interview dates, December 31st, January 6th, January 14th.

[00:03:22] Speaker 02:
We only have the initial transcript from December 31st, which was just half an hour, and then we only have one transcript from January 14th.

[00:03:31] Speaker 02:
And what's notable, Your Honor, at 1220,

[00:03:35] Speaker 02:
We have notes from the superior directing the asylum officer to ask follow-up questions.

[00:03:41] Speaker 02:
And those follow-up questions were integrated in the entire singular transcript from January 14th.

[00:03:50] Speaker 01:
The BIA and the IJ interpreted him, his testimony before the IJ is saying that he was taken away the day he got back to Yemen.

[00:04:01] Speaker 01:
Was that his testimony?

[00:04:03] Speaker 02:
Never.

[00:04:03] Speaker 02:
That day, the day that he came back was simply from the INS officer's closing testimony.

[00:04:14] Speaker 02:
That closing testimony was at

[00:04:20] Speaker 02:
348, where the DHS attorney says his testimony today was, I think, literally the day that he returned in 2018.

[00:04:29] Speaker 02:
He himself, at 209 and 210, was simply asked the date.

[00:04:35] Speaker 02:
He just said he returned to Yemen.

[00:04:38] Speaker 02:
And on cross-examination, as recited in the government brief, your testimony was that you returned in November 2018.

[00:04:47] Speaker 02:
There is no specificity whether he returned to his family house or returned to Yeaman.

[00:04:54] Speaker 01:
Was he given a chance to try to address this claimed inconsistency?

[00:04:59] Speaker 02:
No, because it wasn't an inconsistency until the DHS closing argument misremembered that testimony to exist.

[00:05:08] Speaker 02:
So it was never identified by the DHS in real time, it was never identified by the IJ in real time, and it only came up in the closing argument and again in the IJ decision.

[00:05:20] Speaker 02:
So that is an issue where Tecla, where there actually is no true inconsistency.

[00:05:27] Speaker 02:
So if the court prefers just to deal with the adverse credibility finding, that is the stickiest point in that there's plenty of case law and plenty of record to show that there was not in fact an inconsistency on his dates.

[00:05:44] Speaker 02:
If the court prefers just to look at the adverse credibility, the other two grounds that were given are pure speculation.

[00:05:50] Speaker 04:
Can I make sure I understand that?

[00:05:52] Speaker 04:
Because I thought there was an inconsistency when, in the credible fear interview, he said he came back in 2017, and then later he said it was November of 2018.

[00:06:06] Speaker 02:
Your Honor, I'd ask that you actually read the transcript because this is where the BIA can't cherry pick dates.

[00:06:15] Speaker 02:
And what happens at 12-14, he identifies the date to be 2014 to 2017, but at 12-17 and 12-18, he twice

[00:06:28] Speaker 02:
says he returned in 2018, and then again in November 2018.

[00:06:34] Speaker 02:
And this is where I think the superior notes, which is a very rare edition at 1220, there the superior, when he's asking, going through the follow-up questions, never had a concern, and the superior assumed that his return date was November

[00:06:49] Speaker 02:
2018.

[00:06:51] Speaker 02:
So this is a situation where the transcript shows that there actually is not a true date and even so.

[00:06:59] Speaker 04:
Well, but I guess I just want to make sure I understand it because it seems to me that he did give two inconsistent statements, but there wasn't, your argument is there wasn't clarification sought

[00:07:11] Speaker 04:
as to, wait, what do you mean?

[00:07:12] Speaker 04:
You said 2017 here, you said 2018 here.

[00:07:16] Speaker 04:
Can you help clarify that?

[00:07:17] Speaker 04:
Exactly.

[00:07:18] Speaker 04:
Because you don't disagree that he said 2017 in one place, and he said 2018 in another place.

[00:07:23] Speaker 02:
Yes.

[00:07:24] Speaker 02:
And under the Real ID Act, the court looks at the totalitarian circumstances.

[00:07:30] Speaker 02:
And the 2014, 2017 is from the reconstructed notes of the asylum office.

[00:07:37] Speaker 02:
And he himself did not have problems with those different dates.

[00:07:41] Speaker 02:
He found him credible.

[00:07:43] Speaker 02:
The superior reviewing and telling him to ask follow-up questions never found that to be a problem.

[00:07:49] Speaker 02:
He assumed it was 2018.

[00:07:50] Speaker 02:
And under Bandari,

[00:07:55] Speaker 02:
This court says we only care about dates if they're material to the timeline of events and persecution.

[00:08:02] Speaker 02:
And the BIA said, of course this is material because it was the day that he attacked.

[00:08:06] Speaker 02:
But that testimony, the day that he came back, is from the DHS closing argument.

[00:08:12] Speaker 02:
There is nothing in the record of Mr. Saeed saying that he was captured on the day he returned.

[00:08:20] Speaker ?:
OK.

[00:08:20] Speaker 01:
How about the piece of this about the agency discrediting his account of having contact with his father?

[00:08:27] Speaker 02:
Yes, on that issue, Karouni is the best case where this court says it is not unreasonable for a person to risk their own safety to see a dying father.

[00:08:38] Speaker 02:
This is particularly true because he fled for Saudi Arabia in 2014 after his father was captured.

[00:08:45] Speaker 02:
He came back to Saudi Arabia in 2018 and after his return, he was then tortured.

[00:08:52] Speaker 02:
Unlike Loho, which is the case that the government cites to, he never went back to Yemen after his torture.

[00:08:59] Speaker 02:
He never left the United States.

[00:09:01] Speaker 02:
So that is pure speculation by the BIA that somehow seeing your dying father undercuts his own fear.

[00:09:08] Speaker 02:
The second reason that the government gave or the final reason that he gave for finding him not credible is that Mr. Saeed should have known how his neighbors learned about his father's stroke.

[00:09:19] Speaker 02:
That is pure speculation.

[00:09:22] Speaker 02:
Mr. Saeed did not lie because he refused to speculate how his neighbors came across that information, which he did not have personal account of.

[00:09:32] Speaker 02:
So this is under Rahimi Vibar and Kumar.

[00:09:36] Speaker 02:
This Ninth Circuit case law says that the BIA is not allowed to base an adverse credibility on speculation alone.

[00:09:44] Speaker 04:
Can I ask about the demeanor?

[00:09:45] Speaker 04:
Because the BIA did, albeit it was thin, but they did uphold the IJ's finding that his demeanor was sort of shifty.

[00:09:58] Speaker 04:
He was looking at his notes and that was one of the four or multiple bases for adverse credibility.

[00:10:05] Speaker 04:
What do we do with that?

[00:10:06] Speaker 02:
Your honor, I did not read the BIA to accept the demeanor credibility.

[00:10:12] Speaker 04:
I thought there was one sentence in there where they sort of commented on, let's see, let me see if I can pull it up.

[00:10:23] Speaker 04:
So you, but you agreed that the IJ relied on.

[00:10:26] Speaker 04:
The IJ did.

[00:10:27] Speaker 02:
Correct.

[00:10:27] Speaker 04:
But you don't think that, your position is the BIA did not rely upon that, the demeanor.

[00:10:34] Speaker 02:
Yes, there were multiple reasons that the IJ gave that the BIA did not accept.

[00:10:38] Speaker 04:
No, I understand that.

[00:10:38] Speaker 04:
I thought there was one sentence in there.

[00:10:40] Speaker 04:
I'll try and pull it out.

[00:10:41] Speaker 01:
I think you're right.

[00:10:42] Speaker 01:
It does say briefly, in discussing the IJ's decision that references the demeanor,

[00:10:50] Speaker 02:
but did not expressly uphold it.

[00:10:52] Speaker 02:
And I think there are a couple reasons why that, again, that would go to the due process argument quite well.

[00:11:00] Speaker 02:
And a nice capture that if, I mean, there were so many problems.

[00:11:04] Speaker 02:
And what's unique about this record is that there was a certified translator in the courtroom who

[00:11:08] Speaker 02:
twice at the beginning of the hearing, interrupted the judge and said that he's speaking a different dialect.

[00:11:15] Speaker 02:
He can't understand the truth.

[00:11:16] Speaker 01:
Can I go back to one other part of the father's story?

[00:11:19] Speaker 01:
There was another line in the BIA decision, an IJ decision, that talks about, well, we are sort of disbelieving that he hasn't had contact with his father since 2014 because there are these documents like the passport and the medical records that he possesses.

[00:11:35] Speaker 01:
Can you address that?

[00:11:36] Speaker 02:
Yes, so that went on the corroboration piece, which if the court agrees with the credibility, that falls out altogether.

[00:11:43] Speaker 02:
But on those two issues of corroboration, the father's passport was issued in 2019, and the IJ said, well, if he didn't have contact, how did he get the passport?

[00:11:54] Speaker 02:
Mr. Saeed testified that his brother paid money

[00:11:57] Speaker 02:
and was able to obtain this.

[00:11:59] Speaker 02:
The expert witness at the hearing, who the IJ found credible on this piece, explained that given the vacuum, power vacuum in Yemen, it is complete practice for if you have money and connections, you can get a passport without the person having to be present.

[00:12:16] Speaker 01:
Did the agency address this explanation?

[00:12:18] Speaker 02:
No, no, no, so that was not, they just said it was implausible, but this court in its case law says you can't just say something's implausible, you have to have factual basis for it.

[00:12:30] Speaker 02:
And when you have an expert evidence under Valesquez-Samayoa, you either have to accept that expert or explain why that expert's testimony is not relevant.

[00:12:40] Speaker 02:
And here the IJ only discounted the expert evidence as related to country conditions.

[00:12:46] Speaker 02:
The IJ or she never addressed the explanation that there's a power vacuum.

[00:12:52] Speaker 02:
The second reason is the father's medical records, where he produced medical records from 2020, which is consistent with his father having a stroke, which is why he went back.

[00:13:04] Speaker 02:
And that's a situation where the DHS attorney never challenged that at the hearing.

[00:13:10] Speaker 01:
What does the record show about how he got the records?

[00:13:13] Speaker 02:
It's never asked, because he was never challenged by it on cross-examination.

[00:13:19] Speaker 02:
There was even an exchange when they were going at the end of the hearing, the IJ said, I don't have any problems, any other problems.

[00:13:26] Speaker 02:
And so it did not come to his attention until the IJ relied upon it in the hearing, which under Soto Olarte, there has to be a reason given.

[00:13:37] Speaker 02:
So on that reason, at a minimum,

[00:13:39] Speaker 02:
There needs to be a remand to allow him to be questioned and provide an explanation.

[00:13:45] Speaker 03:
Did you want to save the remainder of your time?

[00:13:47] Speaker 02:
Yes, Your Honor.

[00:13:47] Speaker 02:
Thank you.

[00:14:03] Speaker 03:
Whenever you're ready, Mr. Cochran.

[00:14:06] Speaker 00:
Thank you, Your Honor.

[00:14:07] Speaker 00:
May it please the court, Todd Cocker on behalf of the attorney general.

[00:14:10] Speaker 00:
The court just heard Ms.

[00:14:11] Speaker 00:
Hong's numerous speculative arguments, trying to convince it of a different way of looking at the agency's adverse credibility determination, in hopes the court will overturn that decision.

[00:14:20] Speaker 00:
But as so forth in the respondent's brief, the agency's adverse credibility determination was based upon Mr. Sayyad's inconsistent and contradictory statements and evidence, not due to any alleged translation errors.

[00:14:32] Speaker 00:
And I'd like to clarify the records related to the due process convention

[00:14:36] Speaker 00:
and addressed by translation is not an issue in this matter.

[00:14:39] Speaker 00:
Mr. Sayot inaccurately claims in his opening brief that a certified interpreter happened to be in the courtroom at the start of the hearing and tried to notify the IJ of competency issues.

[00:14:48] Speaker 01:
Why don't you just maybe move over to the, for my benefit, the adverse credibility piece of this because there's some points that Ms.

[00:14:55] Speaker 01:
Hong raises I think you should respond to in terms of this issue about whether he was attacked on the day he arrived back in Yemen or at the home and also

[00:15:05] Speaker 01:
the agency's findings about his account relating to his father?

[00:15:10] Speaker 00:
Yes, Your Honor.

[00:15:11] Speaker 00:
He did testify that he arrived back in Yemen in November of 2018.

[00:15:18] Speaker 00:
That's in the record at 290 to 91 and 316 to 317.

[00:15:23] Speaker 00:
As Ms.

[00:15:24] Speaker 00:
Hong talked about as well, the Incredible Fear interview, he says he returned in early 2017.

[00:15:30] Speaker 00:
and remained in Yemen for all of 2018.

[00:15:32] Speaker 00:
That was at 462 to 463.

[00:15:34] Speaker 00:
And in fact, when he was being cross-examined, the DHS attorney was asking him when he returned to Yemen, not when he returned to the family home.

[00:15:45] Speaker 00:
And his answer was, the question actually posed at the end of that, the DHS attorney summed that up.

[00:15:51] Speaker 00:
He says, your testimony is that you returned in November of 2018, within a few hours that you returned, who these took you into custody, correct?

[00:15:59] Speaker 00:
Mr. Sayyad, yes.

[00:16:01] Speaker 00:
So there, the diesel's attorney was talking on the page before about when he returned to Yemen, not to the family home, asked a summary question summarizing Mr. Sayyad's testimony, and he responded, yes.

[00:16:11] Speaker 00:
It was within a few hours when he returned back into the country.

[00:16:14] Speaker 04:
So can I ask just a follow-up on that?

[00:16:17] Speaker 04:
Because it does seem like there was some inconsistency between whether it was 2017 or 2018.

[00:16:23] Speaker 04:
and he said both, is there a responsibility for the IJ to try and clarify that on the record and say, hey, because this isn't one thing where he said, I guess my question is, doesn't he get the opportunity, shouldn't he be given the opportunity to clarify what he meant if he misspoke when he said 2017?

[00:16:43] Speaker 00:
Yeah, if he misspoke, yes, of course you have an opportunity to clarify that.

[00:16:48] Speaker 00:
As I started out talking before, Judge Brass had a different question.

[00:16:52] Speaker 00:
he did have the benefit of three lawyers from the internationally recognized law firm and his own personal interpreter assisting him during the I.J.

[00:16:58] Speaker 00:
hearing.

[00:16:59] Speaker 00:
So if he had any issues and needed to clarify his testimony, he still needed to have constipation.

[00:17:05] Speaker 00:
But doesn't the I.J.

[00:17:05] Speaker 04:
bear some responsibility when two different dates are given to say which one are you saying?

[00:17:11] Speaker 04:
Or just once two dates are given, it's game over and you can find adverse credibility?

[00:17:17] Speaker 00:
You know, I think the I.J.

[00:17:18] Speaker 00:
does have

[00:17:19] Speaker 00:
some responsibility to control the courtroom and control the testimony, yes, your honor.

[00:17:23] Speaker 00:
But again, I think Mr. Saad had multiple attorneys at his disposal that if it was unclear about what he was testifying about, redirect.

[00:17:31] Speaker 04:
Wait, this seems like this is a simple question.

[00:17:34] Speaker 04:
If an inconsistency is given, does the IJ have a responsibility to ask for clarification?

[00:17:40] Speaker 04:
And if he doesn't, is that error in the adverse credibility finding?

[00:17:45] Speaker 04:
That is either true or that's not true.

[00:17:48] Speaker 00:
I don't think

[00:17:52] Speaker 00:
I don't think it's error, particularly when the individual is not proceeding pro se.

[00:17:57] Speaker 00:
The IJ has a responsibility to control the courtroom, orderly testimony, but when he has counsel prepping him and preparing him and eliciting his testimony, I think that obligation to present clear testimony would fall upon

[00:18:09] Speaker 00:
his representation, more so than the IJ.

[00:18:12] Speaker 04:
So your position is where that the wash either is or should be that when the immigrant is, when the alien is represented by counsel, it's his burden to clarify the testimony.

[00:18:26] Speaker 04:
It's not the IJ's responsibility to give an opportunity on the record to clarify inconsistencies.

[00:18:33] Speaker 00:
He has the opportunity to clarify yes, he could have corrected the attorney and it is ultimately the non-citizen's burden to prove their eligibility, which in this instance goes to whether he provided credible testimony.

[00:18:44] Speaker 04:
And there must be case law on this.

[00:18:46] Speaker 04:
Do you have case law that supports that position?

[00:18:49] Speaker 00:
I don't know off the top of my head, Your Honor.

[00:18:52] Speaker 00:
I'm certainly happy to submit something after the fact.

[00:18:54] Speaker 03:
I don't find that answer to be really persuasive.

[00:18:59] Speaker 03:
The problem is when you are testifying through the use of interpreters, lots and lots of confusion are created in the record.

[00:19:07] Speaker 03:
And I'm sure you've seen this in many, many, many immigration proceedings where the questions weren't

[00:19:14] Speaker 03:
translated quite properly, the IJ is asking one thing or the government council is asking one thing, but the applicant answers something a little bit different.

[00:19:23] Speaker 03:
And that seems to be the case to me in this particular case, both with regard to the timing of when he returned to Yemen.

[00:19:31] Speaker 03:
It wasn't clear was he then detained within hours of his arrival at his home or hours of his arrival in Yemen.

[00:19:39] Speaker 03:
That part was not clear, and this is where I think the case law is clear that the IJ has to clarify that record before relying on it.

[00:19:46] Speaker 03:
Same for the testimony regarding the father, whether you can obtain a passport without being present, like who got the medical records, when, isn't it incumbent upon the IJ to make sure that the record is clear before relying on it to make an adverse credibility determination?

[00:20:08] Speaker 00:
I mean, yes, I do think the IJ does have an obligation to make sure the testimony is clear.

[00:20:13] Speaker 00:
I think that responsibility is also borne by Mr. Sayyad to prove his ultimate claim and he had representation in that scenario there.

[00:20:20] Speaker 00:
I will point out as far as I agree with your honor that there are always gonna be slight translation errors when you're translating from one language to another.

[00:20:28] Speaker 00:
And you're right, I have seen that in many, many cases.

[00:20:31] Speaker 00:
I think every case probably has that.

[00:20:33] Speaker 00:
But he has to show that any mistranslation

[00:20:36] Speaker 00:
was significant here to the point that he was prejudiced.

[00:20:40] Speaker 00:
And there's many cases from this court showing that, you know, if he has incomplete testimony, unless he has difficulty answering the questions, where it goes to minor details like Ms.

[00:20:52] Speaker 00:
Hong brought up about- He was prejudiced.

[00:20:53] Speaker 03:
He was prejudiced because he was found not credible.

[00:20:57] Speaker 03:
Well, that's- Shouldn't we at least send it back for clarification of the record?

[00:21:03] Speaker 00:
I think

[00:21:04] Speaker 00:
I'm sorry, can you repeat that question?

[00:21:06] Speaker 03:
Shouldn't we at least send it back for clarification of the record?

[00:21:10] Speaker 00:
I don't think the court needs to do that because I don't think he was prejudiced here.

[00:21:14] Speaker 00:
I think he gave testimony at the credible fear interview.

[00:21:16] Speaker 00:
He then gave testimony at the, in this in court hearing immigration judge rightfully compared the two and there were discrepancies.

[00:21:22] Speaker 01:
Yeah, but let's just, I mean, let's walk through them in some granularity because I think when you do that, you do see how the findings that we're talking about were really the linchpins of the BIA decision, right?

[00:21:32] Speaker 01:
So to start with the issue of when he returned to Yemen and when he was apprehended,

[00:21:40] Speaker 01:
There, the IJ and BIA took him to be saying the day he got back to that country, he was taken.

[00:21:47] Speaker 01:
And if true, that does seem like an inconsistency as compared to what he had said before in the sense that he had never presented this dramatic story.

[00:21:56] Speaker 01:
However, if you look at his testimony, that's not at all clear.

[00:21:58] Speaker 01:
That's what he meant.

[00:21:59] Speaker 01:
And there's no effort to try to work through that.

[00:22:03] Speaker 01:
that difference.

[00:22:04] Speaker 01:
The date in and of itself, you know, 2017 versus 2018 is not particular material.

[00:22:09] Speaker 01:
What is material is what allegedly happened in 2018 and that seems somewhat unclear.

[00:22:15] Speaker 00:
I agree, Your Honor, that the state discrepancy isn't a big one, but it was a discrepancy that the immigration judge seized upon as differing testimony from what he said with the credible fear interview where he had interpretation in counsel.

[00:22:30] Speaker 01:
Right, but that is depending on an interpretation of what he meant in the IJ proceedings.

[00:22:34] Speaker 01:
And there, I don't think he's been given the opportunity to explain this, even assuming there is an inconsistency on this point.

[00:22:45] Speaker 00:
Okay.

[00:22:47] Speaker 00:
Again, I point back to 316 to 317, where the DHS attorney was talking about when he returned to Yemen, summarized in one sense his testimony, and he said yes.

[00:22:58] Speaker 00:
That's what we decided to in our brave, and that's what we feel supports that point, Your Honor.

[00:23:03] Speaker 04:
Can I ask about the demeanor issues?

[00:23:07] Speaker 04:
Because I hadn't fully expected the answer that we got from petitioners council that in her opinion, the BIA did not rely on that at all.

[00:23:17] Speaker 04:
Do you agree with that?

[00:23:19] Speaker 04:
As I read it, that interpretation is not implausible.

[00:23:23] Speaker 04:
I mean, it just repeats.

[00:23:25] Speaker 04:
I'm reading from AR5, the immigration judge based her adverse credibility finding on specific and cogent reasons, maybe that's what you'll rely on, including inconsistencies between the respondent's testimony and documentary evidence and plausible testimony, the respondent's demeanor and his vague and evasive responses.

[00:23:47] Speaker 04:
Do you think that that statement is enough

[00:23:50] Speaker 04:
whereby the BIA adopted those reasons from the IJ about demeanor and evasive responses?

[00:23:59] Speaker 00:
Your Honor, I confess I actually concur with Ms.

[00:24:02] Speaker 00:
Hong on that.

[00:24:03] Speaker 00:
We did not read that as a demeanor finding.

[00:24:06] Speaker 00:
We simply relied upon the documentary and testimonial inconsistencies

[00:24:11] Speaker 00:
as the basis for the agency's adverse credibility finding, not so much the demeanor.

[00:24:15] Speaker 00:
The IJA, I agree, made a demeanor finding.

[00:24:17] Speaker 00:
The government did not.

[00:24:18] Speaker 04:
But you don't think the BIA, so you don't, okay, so you don't think we're reviewing the demeanor findings?

[00:24:24] Speaker 00:
No, I do not.

[00:24:24] Speaker 00:
Okay.

[00:24:26] Speaker 01:
How about the finding about how he got his passport at the end?

[00:24:31] Speaker 01:
Is that a finding that's before us?

[00:24:35] Speaker 00:
That was not one that we defended around.

[00:24:37] Speaker 00:
We talked about,

[00:24:38] Speaker 00:
Well, we were not concerned with that one, so no, I didn't see your question directly.

[00:24:42] Speaker 00:
The government, depending on the board decision, looking at when he went to Saudi Arabia and returned to Yemen, when he was detained by the Houthis upon arrival back in Yemen, and then the no contact with his father question, which he, you know, I think your honor talked about, he said he left in 2014 and not seen his father since.

[00:25:00] Speaker 00:
That was a 288 to 89 and 315 to 316.

[00:25:04] Speaker 00:
His father was still in Houthi custody in an unknown location, but he returned in 2018

[00:25:09] Speaker 00:
to see his father, despite not knowing where he was.

[00:25:11] Speaker 00:
And then he had documents in the record.

[00:25:13] Speaker 00:
He had his asylum application from 2021 that was prepared with counsel that said his father was now a farmer.

[00:25:20] Speaker 00:
And that's at page 1148.

[00:25:21] Speaker 00:
We weren't sure how he would know that if he had not had contact.

[00:25:26] Speaker 00:
And then the 2019 passport and 2020 medical records

[00:25:30] Speaker 00:
at 435 and 441.

[00:25:32] Speaker 01:
Was he asked to explain this issue of, you know, how do you have these documents, the passport and the medical record if you claim you have no contact with the father?

[00:25:39] Speaker 00:
I believe he was, Your Honor.

[00:25:41] Speaker 00:
I don't believe he provided an answer to that other than the passport speculation about how his brother might have got it.

[00:25:51] Speaker 01:
How about the medical records?

[00:25:52] Speaker 01:
Was he ever asked how he obtained the medical records or say how he did?

[00:25:56] Speaker 00:
I don't think he was.

[00:25:57] Speaker 00:
I think he was asked generally, how did you get these documents much further?

[00:26:00] Speaker 00:
But there was no answer given as to how he had been.

[00:26:03] Speaker 01:
It doesn't seem again, you know, the idea that just because he has these documents, that means he had contact with the father that that could be true.

[00:26:11] Speaker 01:
But I don't necessarily know what in the record would support that.

[00:26:17] Speaker 00:
Well, your honor, I appreciate that.

[00:26:19] Speaker 00:
We do feel that it does support the average credibility finding, particularly when you look at the substantial evidence in a review that applies in this case.

[00:26:28] Speaker 00:
And unless Mr. Saad can show that the evidence compels a different conclusion with the agency found, the decision must be affirmed.

[00:26:36] Speaker 04:
Can I ask a question?

[00:26:37] Speaker 04:
So the Ollum case, prior to Ollum, as you likely know, in this court, the law was, if there's five bases for the adverse credibility, even if one of them stands, you've got to uphold it.

[00:26:54] Speaker 04:
Here, now post-Ollum,

[00:26:56] Speaker 04:
We've changed that.

[00:26:57] Speaker 04:
We said totality of the circumstances.

[00:26:59] Speaker 04:
If we were to only agree with you that there was some inconsistency between the 2017 and 2018 date, don't you think that under ALLM we'd still need to send it back?

[00:27:11] Speaker 04:
Or you would say that is enough to uphold this even after ALLM as a basis to uphold the adverse credibility finding?

[00:27:22] Speaker 00:
Your Honor, I would say that is enough.

[00:27:24] Speaker 00:
point the court to its Kululu case that we found a 28-J on a couple of months ago.

[00:27:29] Speaker 00:
In that case, I think there were 12 inconsistencies in that case, including a demeanor finding.

[00:27:35] Speaker 00:
The agency upheld four of those, and this court found that that was sufficient to tell you the circumstances to find the average credibility decision to be upheld by the board.

[00:27:46] Speaker 00:
The board's decisions, pardon me.

[00:27:54] Speaker 03:
You've got a little over a minute left.

[00:27:55] Speaker 03:
Would you like to yield the rest of your time?

[00:27:59] Speaker 00:
Unless of course any further questions, the government will rest on its brief.

[00:28:02] Speaker 00:
Thank you, Your Honor.

[00:28:03] Speaker 03:
Thank you.

[00:28:03] Speaker 00:
Thank you.

[00:28:10] Speaker 02:
I have two points.

[00:28:11] Speaker 02:
One, in answer to your question, Judge Nguyen, the two authorities are Soto Alarte, which is at page 32 of Petitioner's Brief, where it says, we remand on an open record to get the agency an opportunity to evaluate his credibility while allowing him to explain as yet unexplained inconsistencies.

[00:28:33] Speaker 02:
And at page 11 of the reply brief, we have Perez Acero-V.

[00:28:38] Speaker 02:
Lynch,

[00:28:38] Speaker 02:
where, quote, the inconsistency with his I-213 cannot support a negative credibility finding because the IJ did not ask Antonio about the inconsistency.

[00:28:53] Speaker 02:
So those are the two precedents.

[00:28:55] Speaker 01:
So you think the proper remedy here is a remand for the adverse credibility issue to be further explored?

[00:29:01] Speaker 02:
Yes, if the court agrees on the adverse credibility and there is no longer a single factor rule, that goes to your question.

[00:29:09] Speaker 02:
If the court agrees that any of them are not held, remand should be on that basis.

[00:29:15] Speaker 02:
The government or the court also agrees.

[00:29:18] Speaker 04:
Our law doesn't demand that though, right?

[00:29:20] Speaker 04:
I mean, you would agree that even if there are four bases and we found only three of them supported, we wouldn't need to remand under that scenario.

[00:29:28] Speaker 02:
Well, without that hypothetical here, Alam says that, I mean, if you scrub one, and I think definitely the two, speculation, it has to be remanded because a single factor rule cannot uphold an adverse credibility to let the IJ, especially on this context, to realize with the interpretation problems that there might be tainted reasons for it, for the other reasons given.

[00:29:52] Speaker 02:
Back to your question, Judge Bress, if the court also agrees on the due process, remand for a new hearing would be required if any of the three errors.

[00:30:04] Speaker 02:
And the Nwanda Nobi case is the best case that gives the pathway for the court to follow on balancing those two issues.

[00:30:16] Speaker 03:
All right.

[00:30:16] Speaker 03:
Thank you very much, counsel, to both sides for your argument.

[00:30:19] Speaker 03:
The matter is submitted.