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

[00:00:03] Speaker 00:
Petitioner filed this review petition to review the decision of BIA and immigration judge.

[00:00:13] Speaker 00:
Judge denied the petitioner's application for asylum for credibility, and that applicant petitioner did not meet the burden of proof.

[00:00:27] Speaker 00:
The reason for the denial was

[00:00:30] Speaker 00:
First reason for the denial was credibility, that respondent in the immigration court proceedings did not knew the circumstances under which circumstances the brother came to America.

[00:00:45] Speaker 01:
Counsel, can I just stop you for one moment?

[00:00:47] Speaker 01:
Can you hear me?

[00:00:48] Speaker 00:
Yes.

[00:00:49] Speaker 01:
OK.

[00:00:50] Speaker 01:
I want to just direct your attention because you have limited time to a question that is of some importance to me, which is, if this court were to find that some of the bases that the immigration judge and then the BIA relied on for purposes of the adverse credibility determination are not, in fact, supported by the record, what is your best authority and argument for why this court should

[00:01:16] Speaker 01:
not simply deny relief because the other bases are sufficient to support the adverse credibility finding versus sending it back to determine whether the remaining bases are enough.

[00:01:30] Speaker 01:
Do you understand my question?

[00:01:32] Speaker 00:
Yes, Your Honor, because the threshold matter is credibility.

[00:01:35] Speaker 00:
If the credibility determination was done in error, then every other determination or every other analysis after the credibility was also done in error.

[00:01:45] Speaker 01:
But the ultimate question is whether or not adverse credibility

[00:01:50] Speaker 01:
is supported.

[00:01:51] Speaker 01:
It's a totality of the circumstances, correct?

[00:01:55] Speaker 01:
So how do we parse through of the five bases if, say, two or three are, you know, maybe one or two are not supported, one is sort of on the line, the other two we think are supported by the record, how do we disentangle that ball of bases for purposes of determining whether or not to remand or to deny relief?

[00:02:20] Speaker 00:
That's the question, Your Honor, because the totality of the case, totality of the circumstances, must be looked into when the judge determines whether the respondent is credible or not.

[00:02:33] Speaker 04:
Well, Counsel, I think you're right.

[00:02:34] Speaker 04:
That is the question.

[00:02:35] Speaker 04:
That's the question to you.

[00:02:36] Speaker 04:
So the question is, what's the authority?

[00:02:39] Speaker 04:
to say that, you know, perhaps even if one of the bases may not be supported by the record, what authority do you have to say that we would have to send that back if the others are perhaps sufficient?

[00:02:57] Speaker 00:
The others are not sufficient, Your Honor, because in all the questions that the judge

[00:03:04] Speaker 00:
asked the respondent for the credibility.

[00:03:06] Speaker 00:
Respondent was plausible.

[00:03:08] Speaker 00:
And when just found on two or three different areas where the judge said that you are not credible because of these, and none of those are supported by the record.

[00:03:18] Speaker 01:
So I understand that your argument is that the finding with respect to all five bases was erroneous.

[00:03:26] Speaker 01:
My question really is different, which is if we disagree with you about that and the premise is that some, but not all of them,

[00:03:34] Speaker 01:
were not supported, then what?

[00:03:36] Speaker 01:
And I've asked this question three times now because I'm interested to know what you think is your best argument or the authority to support a remand.

[00:03:46] Speaker 01:
Or if there isn't a citation or legal authority you can provide, although that would be helpful, if you can tell me whether any of the nature of the adverse credibility findings, for example, the determination on the unconsciousness or

[00:04:03] Speaker 01:
on his role, on your client's role in particular in the man party, those findings, whether they go to the core of his claim, if that makes a difference in the Totality of Circumstances analysis.

[00:04:17] Speaker 00:
Yes, Your Honor.

[00:04:18] Speaker 00:
Even if court to find that some of the bases were consistent or some of the bases were supported by the record, still all of the

[00:04:32] Speaker 00:
reasoning that the judge gave for adverse credibility must be met with the totality of the circumstances.

[00:04:41] Speaker 00:
If two or three of them are meeting the requirement but not three, still there is enough reason to send the case back for the judge to determine whether the credibility finding were enough or not.

[00:04:54] Speaker 00:
like Judge, on the first incident when the judge asked the respondent about his brother's physical presence in the US, the respondent testified consistently and plausibly that I'm not 100% sure about why he came to America, which is a plausible explanation.

[00:05:11] Speaker 03:
So can I ask you about that?

[00:05:12] Speaker 03:
Because that's the one that bothers me the most.

[00:05:15] Speaker 03:
If he's living with his brother who came to the U.S.

[00:05:19] Speaker 03:
and applied for asylum, and now your client who came to the U.S.

[00:05:22] Speaker 03:
and is applying for asylum is living with that brother, how is it plausible that he does not know why the brother came to the U.S.

[00:05:28] Speaker 03:
or why he's applying for asylum?

[00:05:31] Speaker 00:
Well, Judge, he testified that, you know, brother came to asylum and he applied for asylum, but he was not

[00:05:37] Speaker 00:
aware about the details of his brother's statement that what were his problems in India, how many times he was harmed in India, who harmed in India.

[00:05:45] Speaker 03:
I don't even think it was details.

[00:05:47] Speaker 03:
He said he didn't know anything, right?

[00:05:50] Speaker 00:
He did say that, Judge.

[00:05:51] Speaker 00:
I'm not sure about why my brother filed asylum and what was the reason for filing asylum, but Judge wanted to know the details of the asylum application and why and how many times he had problems in India.

[00:06:02] Speaker 00:
Respondent testified clearly and

[00:06:05] Speaker 00:
consistently that I'm not sure about the details of his statement that why he applied for asylum and that's a plausible explanation your honor.

[00:06:13] Speaker 03:
I mean it seems like that is okay why do you think that's plausible?

[00:06:19] Speaker 00:
Because, Judge, even if you're living with your family member, you are not supposed to know everything about their cases or about their life.

[00:06:26] Speaker 00:
Sometimes, even siblings, when they live together, they don't discuss with each other about their personal lives.

[00:06:32] Speaker 00:
So very clearly here, they both live together, but they did not discuss about their claims or personal lives with each other.

[00:06:40] Speaker 00:
They were just living together, sharing the expenses.

[00:06:42] Speaker 01:
So even if it were true that his response did not seem plausible,

[00:06:47] Speaker 01:
because to Judge Friedland's point, it may appear to a judge unreasonable to believe that somebody has no knowledge about their brother's similar claim for asylum when they're living with them.

[00:06:59] Speaker 01:
But even if it were true that he seemed uncredible on that point, does the weight of that specific basis somehow, should it be less or the same as the other basis because it doesn't go to Mr. Singh's

[00:07:15] Speaker 01:
claim for asylum.

[00:07:17] Speaker 01:
I'm trying to understand, even within the totality of circumstances, do the various bases carry more weight than others because they either directly go to Mr. Singh's claim or not?

[00:07:29] Speaker 00:
That is correct, Your Honor.

[00:07:30] Speaker 00:
Some of the inconsistencies or omissions does not carry the same weight as other inconsistencies or omissions, because if the inconsistency or omission is not directly related to the case, then they are just trivial inconsistencies which should not be considered.

[00:07:48] Speaker 01:
Well, they can be considered.

[00:07:50] Speaker 01:
I mean, I think that they can be considered, because overall, the IJA is trying to determine the credibility of the petitioner.

[00:07:57] Speaker 01:
But perhaps I think what you're saying is that may not be given the same weight for credibility purposes as say, for example, details relating to persecution.

[00:08:09] Speaker 01:
Yes, Your Honor.

[00:08:10] Speaker 03:
So can you give authority for what your answer was to Judge Desai just now?

[00:08:14] Speaker 03:
Because the real idea got rid of the idea that inconsistencies had to go to the heart of a claim.

[00:08:19] Speaker 03:
It eliminated that part of our doctrine that had existed before.

[00:08:22] Speaker 03:
So what is the authority for this idea that it matters more whether it goes to his own claim or something else about his credibility?

[00:08:32] Speaker 00:
I don't have the authority, Judge, on top of my head at this time.

[00:08:35] Speaker 00:
I can get back to you on that one.

[00:08:40] Speaker 03:
I think maybe you should reserve the rest of your time for rebuttal, and we should hear from the government.

[00:08:45] Speaker 00:
Yes, Your Honor.

[00:08:45] Speaker 00:
I'll reserve the rest of my time for rebuttal.

[00:08:58] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:09:00] Speaker 02:
I'm Lauren Tacklett, representing Merrick Garland, United States Attorney General.

[00:09:04] Speaker 02:
I'd like to first just provide some citations to Judge Desai's question.

[00:09:10] Speaker 02:
Specifically, Lialyn v. Garland, there the adverse credibility determination that this court upheld was based on only three implausibility findings.

[00:09:22] Speaker 02:
Similarly, in Rodriguez Ramirez, which is 11 F4 1091, this court upheld a adverse credibility determination based exclusively on an inconsistency in date of threat.

[00:09:37] Speaker 02:
that was a difference of a month, and then the added presence of a weapon and a demeanor finding.

[00:09:43] Speaker 02:
So three kind of bases for an adverse credibility finding.

[00:09:47] Speaker 03:
And were there other ones in those cases that were not valid?

[00:09:50] Speaker 03:
Because that's really what Josiah is asking about.

[00:09:52] Speaker 03:
Not that there are three, but some of the ones that were relied on are not good.

[00:09:58] Speaker 04:
And therefore, a basis to send it back to analyze whether or not that would be sufficient.

[00:10:03] Speaker 02:
No, all three of those were upholding

[00:10:05] Speaker 02:
the bases that the board relied on.

[00:10:08] Speaker 02:
I believe in Lay Allen, the board hadn't affirmed all aspects of the IJ's finding, but to your point, no, that there was not this kind of picking and choosing at this court's level.

[00:10:20] Speaker 03:
So I don't think that really is responsive to the question then.

[00:10:22] Speaker 03:
So the question was, if there are five bases the agency has relied on and we think, say, only three of them are valid and two were erroneous, what do we do?

[00:10:32] Speaker 02:
Here, I would say that you are still able to conclude that the totality of the circumstances does support the adverse credibility finding specifically thinking about the deference to the agency.

[00:10:43] Speaker 02:
It seems implausible and like putting some amount of form over substance to remand to the agency to reconsider.

[00:10:52] Speaker 02:
and have them come to the same conclusion and bring this case back to you again just with the two implausibilities that you found unsupported?

[00:11:00] Speaker 01:
I don't disagree with you that this may end up being a nothing burger if it goes back and the IJ determines that they continue to believe that there's an adverse credibility finding that's supported by two or three of the bases as opposed to all five.

[00:11:15] Speaker 01:
But I understand your response to mean that we may

[00:11:20] Speaker 01:
do what you're asking us to do, but we also can remand and go through the process of having the IJ do that.

[00:11:27] Speaker 01:
And I want to ask this question, if your view of this changes based on specific language in the IJ's decision, it's at AR 74 where the IJ says, quote,

[00:11:39] Speaker 01:
The court recognizes that the considerations described above do not conclusively demonstrate the respondent's lack of truthfulness.

[00:11:46] Speaker 01:
It is unlikely that any of these factors, when considered in isolation, could suffice to support an adverse credibility finding.

[00:11:54] Speaker 01:
Does that change your view in this case as to whether or not the IJA should be given an opportunity or the BIA should be given an opportunity to decide whether the remaining bases support an adverse credibility finding?

[00:12:07] Speaker 02:
No, Your Honor, I believe there the judge was more deferring to the fact that, or recognizing the fact that some of these are not central to the claim, some of these are perhaps less important in implausibilities, but recognizing that in general petitioners inability to tell a consistent plausible

[00:12:36] Speaker 02:
story, undermine the entire story itself.

[00:12:39] Speaker 01:
And what are the specific bases for the IJ finding that he wasn't high enough in the political party?

[00:12:49] Speaker 01:
Can you point me to the evidence at the IJ sites to support that finding?

[00:12:53] Speaker 02:
Yes.

[00:12:56] Speaker 02:
At AR 130 and AR 160, there is discussion of the petitioner's activity with the man party.

[00:13:07] Speaker 03:
But even if he had that activity, what is the basis for the idea that that wouldn't put him at risk in India?

[00:13:15] Speaker 02:
I believe there is country conditions evidence that would support the conclusion that high level men party members are subject to ongoing persecution.

[00:13:24] Speaker 02:
However, here,

[00:13:26] Speaker 02:
There was not country conditions evidence to support every member of the BJP party as after every man party member.

[00:13:34] Speaker 02:
And also specifically when you look at the most recent alleged action, which was the confrontation with the father, there's the plausible alternative rationale, which is that the father was participating in

[00:13:49] Speaker 02:
protests against the government at that time.

[00:13:52] Speaker 02:
And so there is a reasonable basis for the immigration judge to conclude that the BJP party was after the father for that reason, not for the son's activities three years after he left the country.

[00:14:16] Speaker 02:
I will just add a couple points here, which are that

[00:14:19] Speaker 02:
The burden is on petitioner here to show that he is credible, that no reasonable fact finder could have found the way that the IJ did here, and that aspect of this court's standard of review highly supports affirming the, or denying the petition here, that the inconsistencies and implausibilities in petitioner's testimony undermine the narrative as a whole,

[00:14:46] Speaker 02:
And the immigration judge followed this court's procedures outlined in Leallen of identifying specific and cogent reasons for each finding.

[00:14:55] Speaker 02:
And if the court has no further questions, the government will respectfully request that the court denies the petition in full.

[00:15:07] Speaker 03:
Thank you.

[00:15:07] Speaker 03:
Thank you, counsel.

[00:15:08] Speaker 03:
We have some time for rebuttal.

[00:15:11] Speaker 00:
Thank you, Your Honor.

[00:15:14] Speaker 00:
Council just mentioned that there is, in the country conditions, it's there that only the high-ranking officials are at danger.

[00:15:23] Speaker 00:
But I don't believe, Judge, there is anything in the record which suggests that only the high-ranking officials are harmed or targeted in India.

[00:15:30] Speaker 00:
Even the lower-level workers or the members of the party were harmed and targeted in India.

[00:15:36] Speaker 00:
And that's in the record?

[00:15:38] Speaker 00:
Yes, I believe, Judge.

[00:15:40] Speaker 00:
Where?

[00:15:42] Speaker 00:
The second thing, Council ... Council, where?

[00:15:46] Speaker 00:
others in the country conditions your honor where DHS submitted the documents pertaining to the relocation.

[00:15:54] Speaker 00:
And the second thing which the council just raised that father was targeted only because he was participating in the protest against the government.

[00:16:04] Speaker 00:
The whole case is on the same issue that the Man Party, which supports a separate nation, which supports the idea of a Khalistan, a separate nation for sakes, he was also in the same shoes a couple of years ago when he was targeted.

[00:16:19] Speaker 00:
Later on, his father was targeted for the same reason, who was protesting against the government.

[00:16:22] Speaker 00:
If this respondent goes back to India, he's going to continue his party activities, which he's currently doing in the US as well.

[00:16:30] Speaker 00:
There is very much likely that he will be targeted based on his political opinion as well.

[00:16:43] Speaker 03:
I don't think we have any other questions.

[00:16:44] Speaker 03:
So thank you, counsel.

[00:16:46] Speaker 03:
This case is submitted.

[00:16:47] Speaker 03:
Our next case