[00:00:00] Speaker 04:
Good morning, Your Honours.

[00:00:02] Speaker 04:
My name is Manpreet Kaur, and I'm appearing here on behalf of the petitioner, Mr. Gopara Singh.

[00:00:07] Speaker 04:
Mr. Singh is a native citizen of India who last entered the United States without inspection on or about April 15, 2018.

[00:00:15] Speaker 04:
Upon entry, he was placed in proceedings.

[00:00:18] Speaker 04:
And in lieu of removal, Mr. Singh submitted his application for asylum, withholding removal, and protection under the Tajik Convention.

[00:00:27] Speaker 04:
On June 27, 2019,

[00:00:29] Speaker 04:
At the conclusion of the individual hearing by an immigration judge in Oregon, Mr. Singh's applications were denied.

[00:00:37] Speaker 04:
In doing so, the judge found Mr. Singh to be not credible.

[00:00:42] Speaker 04:
In addition, the judge made a frivolous, assiling finding against Mr. Singh and ordered that he be removed to India.

[00:00:50] Speaker 04:
Mr. Singh timely appealed the decision to the Board of Immigration Appeals.

[00:00:54] Speaker 04:
On May 23, the board dismissed Mr. Singh's appeal.

[00:00:57] Speaker 04:
And in doing so, the board basically affirmed the decision of the immigration judge.

[00:01:03] Speaker 04:
In arriving at this decision and finding that the petitioner was not credible, the immigration judge relied heavily on the matter of RKK, which is a board decision in 2015.

[00:01:16] Speaker 04:
And in addition, relied on the matter of IL, again a board decision, which lays down the ground rules for

[00:01:24] Speaker 04:
finding for a judge to find a case to be frivolous.

[00:01:30] Speaker 04:
However, in doing so, the immigration judge did not adhere to the procedural outlines that have been outlined by the board in both these cases.

[00:01:42] Speaker 04:
In RKK, the board set forth a three-part framework for the immigration judges to use when relying on similarity between two cases.

[00:01:52] Speaker 04:
In making

[00:01:53] Speaker 04:
the adverse credibility finding.

[00:01:56] Speaker 04:
The board laid down that the immigration judge should give the applicant meaningful notice of the similarities that are considered to be significant, give the applicant a reasonable opportunity to explain the similarities, and three, consider the totality of the circumstances in making a credible... I guess I'm having a hard time seeing what the problem is with the process.

[00:02:17] Speaker 02:
There was actually extensive process in front of the IJ

[00:02:21] Speaker 02:
on all these issues, right?

[00:02:23] Speaker 04:
That is correct, Your Honor.

[00:02:24] Speaker 04:
There is.

[00:02:24] Speaker 04:
But in this case, the immigration judge did not follow those.

[00:02:29] Speaker 04:
The immigration judge did not give a meaningful notice of the similarities that are considered to be significant, and that would have affected the immigration judge's decision.

[00:02:39] Speaker 04:
And he was not given an opportunity to explain those similarities, nor did the immigration judge consider the totality of the circumstances in this case.

[00:02:51] Speaker 04:
Now, this Court, and unfortunately there are no published decisions on this matter in this circuit.

[00:03:01] Speaker 04:
However, it has been time and time again in unpublished decisions, this Court has said, and even in RKK,

[00:03:10] Speaker 04:
It has been very clearly mentioned that each of the three steps that I just read out to the court, each of the steps must be done on the record in a manner that will allow not only the board, but any reviewing court to ensure that the procedures have been followed.

[00:03:27] Speaker 04:
And it has not been done in this case.

[00:03:30] Speaker 04:
In this matter, at the conclusion of the testimony,

[00:03:35] Speaker 04:
The government attorney presented a motion to the judge, an RKK motion, as it's commonly called.

[00:03:43] Speaker 04:
And based on that, the judge didn't even review that motion on the record, did not address those similarities or the concerns that the department was raising with the respondent, but just went on and continued the matter.

[00:04:01] Speaker 04:
And when the court reconvened, again, there was no discussion with or an opportunity given to the respondent.

[00:04:09] Speaker 04:
The judge basically went on to hear the closing.

[00:04:12] Speaker 02:
I thought the government came forward with a whole exhibit that showed that they had declarations that were very similar to the declaration your client filed.

[00:04:22] Speaker 02:
And you were in your client.

[00:04:23] Speaker 02:
I'm not sure if you represented this client below.

[00:04:25] Speaker 02:
But your client was given notice of this.

[00:04:28] Speaker 02:
And then there was a hearing in which

[00:04:30] Speaker 02:
your client's counsel was allowed to explain all this.

[00:04:35] Speaker 02:
What was lacking in terms of process?

[00:04:37] Speaker 04:
In terms of process, that was a motion of the Department of Homeland Security.

[00:04:42] Speaker 04:
Under RKK, the judge is charged with the duty of basically informing the respondent on the record of the requirements, of the similarities.

[00:04:56] Speaker 04:
And that did not happen.

[00:04:58] Speaker 04:
So procedurally,

[00:04:59] Speaker 04:
our position is proceeding that the immigration judge did not follow what has been laid out by the board.

[00:05:05] Speaker 02:
Well, I mean, the similarities are fairly glaring.

[00:05:08] Speaker 02:
And I can appreciate why the immigration judge was concerned here because, and frankly, we've seen many cases that involve almost this identical

[00:05:18] Speaker 02:
fact pattern where somebody is putting up posters, and then they're attacked by four people, and then later they're riding a motorcycle from a blood drive or a wedding, and they're attacked again and threatened.

[00:05:28] Speaker 02:
I mean, I do wonder what the explanation is for this as to why there's so many cases that have almost identical allegations.

[00:05:37] Speaker 02:
Can you explain that?

[00:05:38] Speaker 04:
Sure, Yana.

[00:05:39] Speaker 04:
Yana, what the court is referring to as identical, I think we like to call those commonalities.

[00:05:47] Speaker 04:
Those are very, that's the common way a person from two opposing parties would react.

[00:05:55] Speaker 04:
And what I mean to say is that if, Mr. Singh is a member of the Somni Kalidulman Party, and he was targeted by the BJP, BJP being the Bhakti Janta Party, which is the ruling party in India.

[00:06:13] Speaker 04:
And they are the controlling party, they control the entire country.

[00:06:17] Speaker 04:
That is the modus operandi that the workers of BJP use to basically suppress any opposition.

[00:06:23] Speaker 04:
And that is what all these declarations are talking about.

[00:06:28] Speaker 04:
And in the matter of RKK, I think so when inter-proceeding similarities are being discussed, the key phrase is whether they're almost identical, and almost identical in language, details, and grammar.

[00:06:45] Speaker 03:
So I hear your point on that.

[00:06:47] Speaker 03:
I mean, the other fact that I feel like I've seen myself in some of these cases repeatedly is in the second attack, they're always rescued by farmers.

[00:06:57] Speaker 03:
That's a little bit harder to point to as like, did the farmers just wait there because they just like have to rescue these people all the time or?

[00:07:08] Speaker 04:
Sure, Iyana.

[00:07:09] Speaker 04:
Iyana, if you look at the demographics of where the petitioner is, the petitioner belongs to the state of Haryana, which is a northern state.

[00:07:18] Speaker 04:
And right above the state of Haryana is the state of Punjab.

[00:07:21] Speaker 04:
Both these states are heavily agricultural states.

[00:07:25] Speaker 04:
And all these incidents that are being taken place are taking place in the rural area.

[00:07:30] Speaker 04:
And so it won't be uncommon that the people who are coming forward

[00:07:36] Speaker 04:
would be the farmers who are either working the farmlands or who are folks who are just walking the streets at that time.

[00:07:44] Speaker 04:
So that's why I think it's very common to see that repeatedly in all these cases that the applicant or the petitioners are saying that, you know,

[00:07:55] Speaker 04:
There were farmers who came to our rescue.

[00:07:57] Speaker 02:
But it's more than that, right?

[00:07:59] Speaker 02:
I mean, that's one piece of it.

[00:08:00] Speaker 02:
But I'm putting up posters.

[00:08:03] Speaker 02:
Four people come in a car.

[00:08:04] Speaker 02:
The car has BJP logo.

[00:08:07] Speaker 02:
They threaten me.

[00:08:08] Speaker 02:
Then I'm returning from a blood drive or from some other kind of community event.

[00:08:13] Speaker 02:
I'm on a motorcycle.

[00:08:15] Speaker 02:
They come again.

[00:08:17] Speaker 02:
They attack me with sticks.

[00:08:19] Speaker 02:
I think I've personally considered maybe 20 or 30 cases involving this exact same fact pattern.

[00:08:28] Speaker 04:
If I'm a worker of a political party, as a worker, what are my duties?

[00:08:33] Speaker 04:
I would be promoting the party, I would be attending rallies, I would be putting up posters in order to propagate the beliefs of my party, and so those are common things that

[00:08:43] Speaker 04:
any worker would do.

[00:08:45] Speaker 04:
Interestingly, and I'm not trying to be political here, Your Honor, yesterday I was watching the TV and I was looking at the DNC convention.

[00:08:52] Speaker 04:
Each and every attendee out there had a placard in his hand.

[00:08:55] Speaker 04:
What are they doing?

[00:08:56] Speaker 04:
And there were people who were working the floor.

[00:08:58] Speaker 04:
What are they doing?

[00:08:58] Speaker 04:
They all were probably workers or supporters who were trying to support the party.

[00:09:04] Speaker 04:
And this situation is no different.

[00:09:06] Speaker 04:
Any work that a worker is doing, it is too

[00:09:09] Speaker 03:
promote his party, and that's why you see the- To be clear, I don't think you're hearing any credulity or whatever from the panel about the fact that there's a political differences and all that.

[00:09:23] Speaker 03:
It's just that this process is always the same.

[00:09:28] Speaker 03:
It feels formulaic.

[00:09:30] Speaker 03:
It's always four people that attack them.

[00:09:33] Speaker 03:
Second time, they're almost always riding a motorcycle.

[00:09:36] Speaker 03:
Somehow they get stopped, even though they're on a motorcycle.

[00:09:40] Speaker 03:
And then it's always farmers to save them.

[00:09:42] Speaker 03:
You understand?

[00:09:44] Speaker 04:
Yes, sir.

[00:09:44] Speaker 04:
If you're from that part of the world, motorcycles and scooters are very common modes of transportation.

[00:09:52] Speaker 03:
But they can't outrun people, it sounds like.

[00:09:55] Speaker 03:
They're not very good at outrunning people.

[00:09:56] Speaker 03:
Because I would hope that I was on a motorcycle and get away occasionally.

[00:10:00] Speaker 04:
Sure, Anna.

[00:10:01] Speaker 04:
But again, you know, and those streets are pretty narrow.

[00:10:05] Speaker 04:
And they're pretty crowded.

[00:10:06] Speaker 04:
So yes, it might be.

[00:10:09] Speaker 03:
Which is the funny thing.

[00:10:09] Speaker 03:
I mean, I understand the idea that you might have a MO, a motor cycle, of like how you attack your opposition people.

[00:10:17] Speaker 03:
But it's always they're at some blood drive the second time, and then they're on a motorcycle.

[00:10:22] Speaker 03:
Oftentimes that's miles away.

[00:10:24] Speaker 03:
But somehow they know.

[00:10:25] Speaker 03:
I mean, it's almost like they're spying on them at all times.

[00:10:27] Speaker 03:
They know that they're at this blood drive, and then they catch them on the motorcycle.

[00:10:31] Speaker 03:
coming home.

[00:10:32] Speaker 04:
I mean, can you understand that, like, it just seems... Yes, sir, I do get your point, but I think, sir, at the same time, I think, sir, I think, sir, our position is, and, you know, somebody who hails from that part of the world, too, you know, that's the way

[00:10:49] Speaker 04:
It is.

[00:10:50] Speaker 04:
It's very easy, because if you're part of the ruling party, the government machinery is with you, and you have all the resources to do that.

[00:11:00] Speaker 04:
And you have to understand that petitioners, folks like the petitioners, are a minority.

[00:11:07] Speaker 04:
And they are the ones who are basically seeking separation from India.

[00:11:12] Speaker 04:
And so it's a minority community.

[00:11:13] Speaker 04:
It's a minority set of people.

[00:11:15] Speaker 04:
it would be very different if there were two large national parties going at each other.

[00:11:21] Speaker 04:
So, being a minority, belonging to a minority party, it's very easy, you're easily identifiable based on your political beliefs.

[00:11:30] Speaker 04:
And that's why it's easy to track anybody who is supporting Khalistan or

[00:11:37] Speaker 04:
is basically part of the Mon Party, which most of these individuals are.

[00:11:42] Speaker 02:
We're not deciding this de novo.

[00:11:44] Speaker 02:
We have the immigration judge perhaps could have heard these arguments and reached a different conclusion than he or she did, but they reached the conclusion that the

[00:11:54] Speaker 02:
that the allegations here in the declaration were essentially very similar to other ones, and that undermined the petitioner's credibility and caused the immigration judge in this case to conclude that the application was frivolous.

[00:12:06] Speaker 02:
Perhaps somebody could have reached a different conclusion, but that's the conclusion we have, and we give some deference to what the IJ found.

[00:12:13] Speaker 02:
In light of that, where do you see the error here?

[00:12:16] Speaker 02:
Is the error a process error, or is the error that even if you had a great process, this was still wrong?

[00:12:23] Speaker 04:
It's an error in the process, because the immigration judge did not give the petitioner an opportunity to explain the similarities.

[00:12:36] Speaker 04:
And as laid on in RKK, and even as held by this court in an unpublished decision of Vang versus Garland, decided on February 28, 2022.

[00:12:48] Speaker 04:
And this was exactly what this court came up with, too.

[00:12:53] Speaker 04:
These were the processes that were laid by the board, and the board and the immigration judge did not follow those.

[00:13:01] Speaker 04:
And that is the similar situation that is here and is present in this case, too.

[00:13:06] Speaker 04:
Yes, it would have been a very different scenario if the judge had explained

[00:13:12] Speaker 04:
to the petitioner, this is the motion that is being filed.

[00:13:16] Speaker 04:
These are the similarities that I'm seeing in this case.

[00:13:19] Speaker 04:
And based on the similarities, unless you're able to explain it to me, I would be bound to find you to be not credible, and I'm going to deny your case.

[00:13:29] Speaker 04:
Now, yes, now at this point, the petitioner would have been noticed.

[00:13:33] Speaker 04:
And thereafter, if it was being denied, yes, that would be pretty fair play at that point.

[00:13:39] Speaker 04:
That thing never happened yet.

[00:13:41] Speaker 04:
The motion gets filed.

[00:13:42] Speaker 04:
There's no discussion on the record.

[00:13:46] Speaker 04:
The IJ does not take any step to explain it to the petitioner.

[00:13:49] Speaker 04:
And at the end of the conclusion of the oral arguments, he denies it.

[00:13:56] Speaker 04:
And not only based on RKK, and he also goes out and finds his claim to be frivolous.

[00:14:03] Speaker 04:
Again, there's a motion that gets filed by DHS, but no sort of the immigration judge, again, fails to give an opportunity and explain to the petitioner that he would be inclined to find his claim to be frivolous on these basis and seek some kind of,

[00:14:26] Speaker 04:
a response from him.

[00:14:28] Speaker 04:
And so our humble summation is that because of these procedural issues that the court should remand this case back to the board and with guidance to the board to follow the procedures as set forth in our case.

[00:14:46] Speaker 02:
Okay.

[00:14:46] Speaker 02:
Thank you.

[00:14:46] Speaker 02:
We'll put two minutes on the clock for rebuttal, so we'll see you shortly.

[00:14:51] Speaker 02:
Ms.

[00:14:51] Speaker 02:
Roberts.

[00:15:11] Speaker 00:
Good morning, your honors.

[00:15:12] Speaker 00:
May it please the court, Roberta Roberts, on behalf of the Attorney General of the United States of America.

[00:15:18] Speaker 00:
This case is about upholding the integrity of asylum proceedings while complying with procedural protections for the applicant, which is what the agency did here.

[00:15:31] Speaker 00:
The immigration judge followed the procedural requirements of matter of RKK to the T, and I would like to

[00:15:41] Speaker 00:
provide you with some examples of how that was done.

[00:15:46] Speaker 00:
At the conclusion of the first hearing on June 4th, 2019, after DHS submitted its rebuttal evidence, the immigration judge specifically said at AR 161 that I want to let Mr. Sandu, petitioner's counsel at that time,

[00:16:10] Speaker 00:
investigate and consider some of the points.

[00:16:13] Speaker 02:
Was this the motion that you're referring to, the rebuttal evidence, or is this something else?

[00:16:17] Speaker 00:
Yes, the motion with the rebuttal evidence to consider the inter-proceeding similarities.

[00:16:23] Speaker 02:
That motion was filed when exactly?

[00:16:27] Speaker 02:
In the spring of 2019?

[00:16:29] Speaker 00:
Yes, June 4, 2019.

[00:16:30] Speaker 02:
And then walk through, I think, carefully the chronology here for us.

[00:16:36] Speaker 00:
Sure, Your Honor.

[00:16:37] Speaker 00:
So at that first hearing, June 4th, 2019, DHS provides the rebuttal evidence, the motion that Petitioner's Council mentioned.

[00:16:48] Speaker 02:
And does that have all the exhibits?

[00:16:50] Speaker 00:
Yes, that includes the chart, the DHS prepared showing the similarities, the nine different similarities between six different declarations and the petitioners declaration.

[00:17:02] Speaker 00:
And that was included in the record as well with that motion at AR 281.

[00:17:12] Speaker 00:
So DHS provides these redacted declarations, a chart showing all of the different similarities.

[00:17:19] Speaker 00:
And the immigration judge says, I want to let Petitioners' Council investigate and consider some of the points.

[00:17:26] Speaker 00:
This is at AR-161.

[00:17:28] Speaker 00:
And then the immigration judge says at AR-162 that

[00:17:38] Speaker 00:
that he has been seeing these same sort of claims happening over and over again, and lays out on the record some of the similarities that cause concern.

[00:17:48] Speaker 00:
He says they involve the same, frequently same number of attacks, vehicles bearing logos, and he mentions some other similarities there.

[00:17:59] Speaker 00:
And this is at AR 162.

[00:18:01] Speaker 00:
And then at AR

[00:18:07] Speaker 00:
163.

[00:18:09] Speaker 00:
Again, he says that, you know, at the next hearing, that Petitioner's Council could consider DHS's points, and the hearing is then continued for an additional hearing that does not happen until three weeks later on June 27, 2019.

[00:18:31] Speaker 00:
So this

[00:18:34] Speaker 00:
This layout of events shows that the petitioner Mr. Singh did in fact have meaningful notice in a variety of ways.

[00:18:45] Speaker 00:
Not only did he have meaningful notice of the significant similarities,

[00:18:49] Speaker 00:
by the submission that DHS provided, including a chart and the redacted declarations.

[00:18:57] Speaker 00:
But the immigration judge also stated some of the similarities that were concerning to him as well on the record before continuing proceedings.

[00:19:07] Speaker 03:
So it appears to me, and I guess we'll let opposing counsel see if I'm correct.

[00:19:13] Speaker 03:
It seems like you're saying, in addition to all that,

[00:19:16] Speaker 03:
In order to comply with RKK, the immigration judge needs to sort of maybe do all the stuff that was done in this case and then have a

[00:19:25] Speaker 03:
another here, where you sort of, you know, kind of a formalized, almost like, I guess, in the, you're doing a plea bargain, you know, in a plea context, you know, where you say, okay, I am about to find that you are not credible, that this was frivolous, and then lay out, I suppose, everything again, and then, that seems to me what he's saying was missing in that case, and maybe I'm, what is your response to that?

[00:19:48] Speaker 00:
Matter of RKK does not require that.

[00:19:53] Speaker 00:
It does require that the petitioner is provided with a reasonable opportunity to respond, which can involve providing a continuance for the petitioner to do some investigation, perhaps submit additional evidence to explain why there are these significant similarities.

[00:20:13] Speaker 00:
And that was done here in this case.

[00:20:16] Speaker 02:
Can I ask, you know, one curiosity of this case is that this motion was brought in this case, whereas I've seen many cases that, and I'm aware of other cases, that involve similar allegations, and it's not apparent that this motion was brought.

[00:20:31] Speaker 02:
So why was the motion brought here and not in other cases?

[00:20:34] Speaker 00:
That I am not sure, Your Honor.

[00:20:38] Speaker 00:
I'm not sure what DHS's, you know, reasonings would have been in other cases versus this case.

[00:20:46] Speaker 00:
But in this case, we have a prime example of matter of RKK being followed to the T and petitioner being provided with the procedural protection.

[00:20:54] Speaker 00:
Right.

[00:20:54] Speaker 02:
But I mean, one concern one could have is whether people are being dealt with equally at the IJ level here, because it seems to me that if this motion could be filed here, it probably could have been filed in lots of other cases that I'm aware of.

[00:21:12] Speaker 02:
It has been filed in other cases.

[00:21:26] Speaker 02:
It says, while Kumar was hanging man party posters for an organized rally, four BJP members approached in a vehicle and stopped him.

[00:21:34] Speaker 02:
They asked him to sell drugs.

[00:21:37] Speaker 02:
He said no.

[00:21:38] Speaker 02:
They held wooden sticks and were ready to beat him, but he escaped.

[00:21:41] Speaker 02:
It's awfully similar allegations to what we have here.

[00:21:43] Speaker 02:
And yet, the petitioner in that case actually prevailed in this court, whereas in this case, we're being told that the same allegations are frivolous.

[00:21:53] Speaker 02:
Yes, Your Honor, you know, we... I'm just trying to understand the government's approach to these cases, because that doesn't seem especially consistent.

[00:22:01] Speaker 00:
Well, we are taking it a case-by-case basis, which is what the law requires, taking each case on a case-by-case basis, and step three of the Matter of RKK framework, making the credibility determination... What's different about this case than so many of these other cases?

[00:22:21] Speaker 00:
I unfortunately cannot speak to the other cases because I'm not aware of what was in the record in those other cases.

[00:22:27] Speaker 00:
I can only speak to this case that we have before us.

[00:22:31] Speaker 00:
But here in this case, the decision was come to by

[00:22:38] Speaker 00:
looking at the totality of the circumstances of the evidence that was provided in this record.

[00:22:44] Speaker 00:
And in this record, the Petitioner's Council did not provide a sufficient explanation for the similarities, although they were provided with a reasonable opportunity to do so.

[00:22:56] Speaker 02:
Are you aware of any other man party case in which this kind of motion was filed, like it was here?

[00:23:03] Speaker 00:
Not in particular, I'm not able to provide a specific, you know, a number or case number for those other cases.

[00:23:14] Speaker 00:
However, here, when the petitioner was provided with three weeks continuance to address these similarities,

[00:23:24] Speaker 00:
The petitioner provided evidence about cow killings and how in those cases there were similarities of multiple people saying that the police said that they would falsify charges against them.

[00:23:40] Speaker 00:
While that could perhaps go to one aspect of the similarities here that all seven

[00:23:45] Speaker 00:
of the Declarance Petitioner and the six others all said the police told them the same thing, that explanation did not address why are there so many unnecessary minute details that are included in each of these declarations that did not need to be included.

[00:24:03] Speaker 00:
And both Matter of RKK citing the Second Circuit seminal decision, Mai Che Ye, both of those cases say that an indicator of

[00:24:14] Speaker 00:
a falsity or something that would make the court ask about credibility concerns is when there are unnecessary details that are included that do not have to be.

[00:24:27] Speaker 00:
For example, the fact that, as your honors have mentioned, that they're always rescued by farmers.

[00:24:35] Speaker 00:
Another example is that they said that they were hanging up posters in a nearby village or a neighboring village.

[00:24:43] Speaker 00:
It would have just been enough for them to say they were hanging up posters for their party.

[00:24:48] Speaker 00:
But for each of these to say, specifically, and I can read them out to you here, in petitioner's declaration, AR 385,

[00:24:57] Speaker 00:
I was placing posters in a neighboring village for my party.

[00:25:00] Speaker 00:
Declaration 1, AR-259, I was putting up posters in a nearby village for the redacted party's upcoming health care service.

[00:25:08] Speaker 00:
Declaration 2, AR-262, I was putting up posters in a nearby village relating to an upcoming blood donation camp.

[00:25:15] Speaker 00:
Declaration 3, AR-266, I was putting up posters for the party in a nearby village.

[00:25:20] Speaker 00:
Declaration 4, AR-270, I was putting up posters for an event in a nearby village.

[00:25:25] Speaker 00:
Declaration 5, AR-275, I was putting up posters in the neighboring village.

[00:25:31] Speaker 00:
Declaration 6, AR-278, I was placing posters in neighboring villages for the upcoming blood donation camp organized by my party.

[00:25:40] Speaker 01:
ask you to go back about 62 years or so.

[00:25:45] Speaker 01:
And let's say we were in Mississippi, and an African-American couple goes to the registrar's office to try to register to vote.

[00:25:57] Speaker 01:
And they're accosted out front by white supremacists who say, we don't want your type voting here in this town, and you better get the hell out of here.

[00:26:09] Speaker 01:
And later that day, the hooded people show up at their home and burn a cross on their yard.

[00:26:17] Speaker 01:
And when the father, husband comes out, he's told, we don't want your kind here.

[00:26:24] Speaker 01:
And if you try to do that again, we're going to kill you.

[00:26:27] Speaker 01:
Would it be a big surprise to see the same fact pattern

[00:26:32] Speaker 01:
repeated for different people in that context?

[00:26:36] Speaker 01:
And wouldn't it be quite possible that there might be eight, 10, 12, 20 African-American couples treated exactly the same going through that scenario?

[00:26:49] Speaker 00:
Yes, Your Honor, it would be possible.

[00:26:51] Speaker 00:
However, there is a difference between similar claims and virtually identical claims, which is what we have.

[00:26:57] Speaker 01:
And how much of that has to do with the fact that a lot of these individuals may not speak great English, don't understand the legal system, and they get to lawyers who use a boilerplate

[00:27:11] Speaker 01:
uh, kind of pleading to, uh, that emphasizes similarities because they don't want to take the time to get the details exactly right.

[00:27:21] Speaker 00:
Uh, petitioners council in this case did say that, uh, before the immigration judge did say that there was another client that he represented and that was why some of those two declarations between this petition or another one had verbatim language because they were provided with a template.

[00:27:38] Speaker 00:
was taken into consideration.

[00:27:40] Speaker 00:
And the immigration judge did say, OK, well, that's understandable that there was some boilerplate language or some structural similarities because of the template that you provided your clients.

[00:27:50] Speaker 00:
But what about these other declarations that were prepared by other attorneys who are not your clients that also include these unnecessary to include minute details?

[00:28:03] Speaker 02:
And that is where... But the immigration judge did question the petitioner, right?

[00:28:08] Speaker 02:
I mean, the petitioner testified.

[00:28:10] Speaker 02:
But I don't see the IJ having made findings saying, well, I've listened to the testimony, and I just don't think the testimony is credible.

[00:28:18] Speaker 02:
Was that found here?

[00:28:20] Speaker 00:
Not about the specific verbal testimony that was provided.

[00:28:25] Speaker 00:
However, the verbal testimony, for the most part, matches what was included in the written declaration, which has the same details as the other six declarations.

[00:28:33] Speaker 02:
Right, but you might think that if someone filed what we're being told is a frivolous asylum application that some questioning would reveal that fairly quickly, no?

[00:28:41] Speaker 02:
That the petitioner would not be able to keep the story going once more details were asked.

[00:28:49] Speaker 00:
I'm sorry, Your Honor, could you please repeat?

[00:28:51] Speaker 02:
What I'm saying is, you know, the adverse credibility finding, a lot of times we get an adverse credibility finding, and it's because the IJ listens to the petitioner and says, I just don't find this credible for whatever reason.

[00:29:01] Speaker 02:
Sometimes there's inconsistencies, sometimes the petitioner lacks details, sometimes their demeanor reveals that they may not be telling the truth.

[00:29:09] Speaker 02:
Here, the IJ does not appear to have made any of those findings, even though the petitioner testified to his account.

[00:29:15] Speaker 02:
So what do we make of that?

[00:29:18] Speaker 02:
petition the request for relief were being told is frivolous notwithstanding that the petitioner evidently It's not found that he in the course of his testimony lied or was unable to carry on to keep the story going Your honor the immigration judge complied with the four steps a matter of yl that's required to make a frivolous asylum application finding and there is substantial evidence that

[00:29:44] Speaker 00:
supports the immigration judge making this finding.

[00:29:48] Speaker 00:
As we have seen, the written declarations is also a form of testimony and evidence in this case.

[00:29:58] Speaker 00:
And so looking at the evidence that was submitted, including country conditions evidence, which did not corroborate what was written or stated orally at the hearing,

[00:30:09] Speaker 00:
Those all support this frivolous asylum application finding as well, Your Honors.

[00:30:15] Speaker 00:
And I see that I am running out of time.

[00:30:20] Speaker 00:
The respondent would request that the petition for review is denied.

[00:30:26] Speaker 00:
Thank you, Your Honors.

[00:30:27] Speaker 02:
Thank you, Counselor.

[00:30:28] Speaker 02:
Thank you.

[00:30:30] Speaker 02:
Mr. Garrah?

[00:30:39] Speaker 04:
Your Honour, the only question that gets asked to the respondent is, and that's by the DHS Council is, and this is on year 157, if it were true that many, many, many other people tell exactly the same story that you're telling today, what would you think about that?

[00:30:59] Speaker 04:
In the entire record, that is the only

[00:31:02] Speaker 04:
Question is being asked to the respondent.

[00:31:05] Speaker 03:
So you heard my question to the government's counsel.

[00:31:08] Speaker 03:
It does seem to me that you are saying you want a more formalized process here.

[00:31:15] Speaker 03:
Because what you did have is you have the government files this thing.

[00:31:21] Speaker 03:
And so you're on notice.

[00:31:22] Speaker 03:
Usually that's what happens in litigation is you get the other side's.

[00:31:25] Speaker 03:
And it's a little bit like saying the other side is asked for sanctions.

[00:31:30] Speaker 03:
The other side filed a motion for sanctions, but I didn't know, Your Honor, that you were considering sanctioning us.

[00:31:36] Speaker 03:
But it seems to me you're kind of on notice just from that alone.

[00:31:38] Speaker 03:
And then you do have the judge saying, well, what do you think of this motion?

[00:31:43] Speaker 03:
But you're saying there just needs to be a more formalized, I think.

[00:31:48] Speaker 03:
And if so, why does it have to be a more formalized?

[00:31:52] Speaker 03:
Why is there not enough notice here?

[00:31:55] Speaker 04:
It has formalized because that's how it has been laid down in the matter of RKK.

[00:32:01] Speaker 04:
RKK says that.

[00:32:02] Speaker 04:
RKK says that the judge is- It says they have to be aware of it.

[00:32:07] Speaker 03:
The judge has to give them an opportunity to respond, which he did.

[00:32:10] Speaker 03:
I mean, he actually asked a question.

[00:32:13] Speaker 03:
He didn't do something more formalized, but he did say, what do you think of this?

[00:32:18] Speaker 04:
Right.

[00:32:18] Speaker 04:
I think so.

[00:32:19] Speaker 04:
If I may on it.

[00:32:26] Speaker 04:
Since RKK on it clearly lays on three steps, that the immigration judge should give the applicant a meaningful notice of the similarities that are considered to be significant.

[00:32:37] Speaker 03:
And that seems to have happened here because the DOJ created this great chart and everything and the IJ said, and then the second thing is they have to give the applicant a reasonable opportunity to explain the similarities.

[00:32:49] Speaker 03:
Yes.

[00:32:49] Speaker 03:
Which the IJ did at least two things here.

[00:32:52] Speaker 03:
He asked the question and then he gave them time, you know, recognizing that.

[00:32:57] Speaker 03:
But you're saying it needs to be something more than that.

[00:32:59] Speaker 03:
And I guess you're saying that it needs to have like a complete separate hearing dedicated.

[00:33:04] Speaker 03:
Is that your position?

[00:33:05] Speaker 04:
I respectfully disagree with you, Your Honor.

[00:33:11] Speaker 04:
Here, the judge did not address any of these issues directly with the applicant.

[00:33:17] Speaker 04:
They were not addressed.

[00:33:18] Speaker 04:
It was more of a conversation between the judge, Petitioner's Council, and the DHS.

[00:33:24] Speaker 03:
But what I'm saying is the DHS has

[00:33:28] Speaker 03:
here's a whole bunch of similar things here.

[00:33:31] Speaker 03:
And so you have that.

[00:33:34] Speaker 03:
And the IJ refers to that.

[00:33:37] Speaker 03:
So that's why you heard me in a plea.

[00:33:39] Speaker 03:
I guess some of our plea jurisprudence, you have to actually say it.

[00:33:43] Speaker 03:
Even though you could give it to them in paper, you have to actually say it.

[00:33:45] Speaker 03:
Is that what you're saying?

[00:33:46] Speaker 03:
Is that the judge had to orally say each thing line by line?

[00:33:50] Speaker 03:
Is that what you're saying?

[00:33:51] Speaker 03:
That is correct.

[00:33:51] Speaker 04:
And he should have, the judge should have done that, should have given that.

[00:33:55] Speaker 03:
opportunity to explain to the... It's insufficient as a matter of law to have just referred to a document where it's all written.

[00:34:02] Speaker 04:
That is correct, because that document was coming from DHS and it came at a point at the conclusion of the testimony.

[00:34:10] Speaker 02:
Just to make sure I understand.

[00:34:12] Speaker 02:
So do you believe that the law required the IJ to more specifically question Mr. Singh about these issues?

[00:34:21] Speaker 02:
Because I think you're right that a lot of the discussion was done council to council.

[00:34:27] Speaker 02:
And do you think the IJ, it was required to ask Mr. Singh more directly about some of these issues?

[00:34:34] Speaker 02:
That is correct, yeah.

[00:34:35] Speaker 04:
In accordance with RKK, I think.

[00:34:36] Speaker 04:
So that's where RKK laid down.

[00:34:38] Speaker 02:
You think RKK requires that?

[00:34:40] Speaker 04:
Yes, Your Honor, it does.

[00:34:45] Speaker 04:
It says immigration judge should give the epic and meaningful notice and explain the similarities.

[00:34:52] Speaker 02:
You interpret that to mean to give the actual petitioner here the opportunity to explain more about this?

[00:34:58] Speaker 03:
That is correct, Your Honor, and not the council.

[00:35:01] Speaker 03:
So they would need to have a procedure where they bring them up on stand or something and ask them sort of issue by issue.

[00:35:08] Speaker 03:
How do you explain why this is?

[00:35:12] Speaker 04:
You know, mostly, and I'm here in San Francisco, Yana.

[00:35:16] Speaker 04:
When a motion of RKK gets filed, I think so most of the immigration judges, they go through all the points that are in the motion and they explain it to the respondent.

[00:35:27] Speaker 04:
And then thereafter, give him or her an opportunity to explain those.

[00:35:32] Speaker 04:
And that would be in accordance with our KK.

[00:35:36] Speaker 02:
And that's not being followed.

[00:35:37] Speaker 02:
I think we have your argument.

[00:35:38] Speaker 02:
We've taken you over your time.

[00:35:40] Speaker 02:
Thank you, Mr. Ghara.

[00:35:42] Speaker 02:
Thank you, Ms.

[00:35:42] Speaker 02:
Roberts.

[00:35:43] Speaker 02:
This matter is submitted.

[00:35:44] Speaker 02:
The court is going to take a five minute recess between cases.