[00:00:04] Speaker 04:
I think that the issue in this case is not actually whether the respondent told the truth or not in his immigration hearing which happened

[00:00:36] Speaker 04:
that there might be a frivolous finding was on September 29, 2010.

[00:00:41] Speaker 04:
That was eight and a half years, eight and a quarter years after this case started.

[00:00:49] Speaker 04:
And the case, this decision was made very shortly after that.

[00:00:56] Speaker 04:
admonition was given to the respondent.

[00:00:59] Speaker 04:
In fact, it wasn't really an admonition.

[00:01:03] Speaker 04:
What happened was the case went on and on for years, and then toward the end of the process, the trial attorney did discover more evidence and came to court with it, at which point

[00:01:23] Speaker 04:
in the application and the respondent's testimony.

[00:01:27] Speaker 04:
However, the warning regarding frivolous finding was not given to the respondent at the beginning in 2002 and not given at any of the subsequent hearings, which there was a hearing on May 3, 2010, August 13, 2013.

[00:01:46] Speaker 03:
I thought our opinion in this case that he was given appropriate notice.

[00:01:52] Speaker 04:
Well, very late in the game, Your Honor.

[00:01:55] Speaker 04:
He was not given any kind of notice about frivolous.

[00:01:59] Speaker 04:
And his asylum application was filed, actually, in 2001.

[00:02:04] Speaker 04:
And that asylum application did not have the warning regarding frivolousness on it, as later I-589s do have.

[00:02:14] Speaker 04:
So he was not apprised of the consequences.

[00:02:17] Speaker 03:
Are we bound by our opinion of the law of the case?

[00:02:22] Speaker 03:
Part of the framework was sufficiently complied with.

[00:02:24] Speaker 03:
That is, he did have sufficient notice and was given an ample opportunity to explain discrepancies in his testimony.

[00:02:32] Speaker 03:
But he tried to explain the discrepancies.

[00:02:35] Speaker 04:
Apparently, the immigration judge did not accept his explanation.

[00:02:41] Speaker 04:
It's a complicated situation where he has

[00:02:49] Speaker 04:
Iran, the other lived in Armenia, and then one set of parents actually moved to Glendale, California.

[00:02:56] Speaker 04:
And it's very complicated who were the parents, who were the sisters and brothers, who became all very convoluted during the course of this eight-year testimony.

[00:03:06] Speaker 04:
However, the point is that he was not apprised of the

[00:03:25] Speaker 04:
I mean, this person has lived in this country for more than 20 years.

[00:03:30] Speaker 04:
He has a U.S.

[00:03:31] Speaker 04:
citizen wife and a U.S.

[00:03:32] Speaker 04:
citizen child.

[00:03:34] Speaker 04:
His parents apparently are residents of the United States.

[00:03:38] Speaker 04:
The consequences of a frivolous finding mean that he can't get any relief under the act.

[00:03:44] Speaker 04:
And, moreover,

[00:03:50] Speaker 04:
and he is a practicing Christian, he would likely be subject to severe treatment in Iran and perhaps be tortured in Iran, and therefore the consequences, both the consequences of a frivolous finding and the consequences of removal, perhaps, to Iran are very severe for this person, and that's why we think that he wasn't really apprised of the consequences of a frivolous

[00:04:25] Speaker 01:
Yes, Your Honor.

[00:04:28] Speaker 04:
The main case is, um, is, uh, Katka and also Y.L.

[00:04:34] Speaker 04:
Um, Katka's the main case in this situation because they distinguish between, uh, someone not being credible and someone purposely with an intent to defraud the court.

[00:04:56] Speaker 03:
in Stepanian 1 that that portion of the Katka framework was complied with.

[00:05:01] Speaker 03:
He did have sufficient notice and was given ample opportunity to explain discrepancies in his testimony.

[00:05:09] Speaker 03:
So we're bound by that as the law of the case.

[00:05:13] Speaker 03:
Please explain why we're not bound by that.

[00:05:18] Speaker 04:
When you cite the law of the case, Your Honor, I recently

[00:05:27] Speaker 04:
also a person who claimed to be from Iran, the matter of Etemadi.

[00:05:33] Speaker 04:
But that person became a Christian, he actually converted from Islam to Christianity, and so the court finally, after the law of the case was litigated on a motion for rehearing, that case got remanded for that person to be, and he was found also

[00:06:05] Speaker 04:
in Iran.

[00:06:07] Speaker 04:
In this case, the respondent has not converted to Christianity.

[00:06:10] Speaker 04:
He grew up as a Christian, allegedly in Iran, practiced Christianity in Iran, and allegedly was imprisoned in Iran.

[00:06:19] Speaker 04:
However, there are very confusing facts in this case, because in this case, he has two sets of parents, two in Iran, a mother and father in Iran and a mother and father in Armenia.

[00:06:32] Speaker 04:
The people have raised him, his

[00:06:37] Speaker 04:
father and mother allegedly gave the respondent to the father's brother who did not have a male child and therefore the respondent grew up under the supervision of his uncle whom he regarded as his father which is what caused all the confusion in court because the respondent referred to his

[00:07:27] Speaker 04:
with an Armenian passport, which is another fact that needs to be resolved.

[00:07:33] Speaker 04:
Was he an Armenian citizen or was he an Iranian citizen?

[00:07:37] Speaker 04:
The respondent alleges that he was an Iranian citizen, and that goes to the heart of the matter.

[00:07:42] Speaker 04:
Did he intend or did he simply make a mistake in his rambling through his eight years of testimony?

[00:07:49] Speaker 04:
Did he intend to defraud the court?

[00:07:51] Speaker 04:
It's a question of intent, which the immigration judge upon remand did not actually

[00:08:03] Speaker 04:
decision of the original immigration judge, and that's why we appealed again from the BIA, because the BIA affirmed the decision of the immigration judge, who didn't take one word of testimony – not a syllable of testimony upon remand.

[00:08:23] Speaker 02:
SECRETARY KERRY.

[00:08:24] Speaker 02:
Let me ask you a question.

[00:08:48] Speaker 02:
in Armenia and lived in Armenia.

[00:08:53] Speaker 04:
Yes, Your Honor, that is true.

[00:08:54] Speaker 02:
There is a direct conflict, and that, um... Well... Your input... Doesn't that... Isn't that sufficient basis to find that he made a frivolous claim?

[00:09:05] Speaker 04:
Not necessarily.

[00:09:06] Speaker 04:
The respondent testified that his relatives procured the Armenian passport to effectuate his being able to leave

[00:09:21] Speaker 04:
through Europe and eventually come to the United States.

[00:09:24] Speaker 02:
I'm not concerned with the Armenian passport.

[00:09:26] Speaker 02:
I'm concerned with his application for a non-resident visa to the United States.

[00:09:33] Speaker 02:
He claims he was born in Armenia and he resided in Armenia.

[00:09:38] Speaker 02:
And on the other hand, now he claims he was born in Iran and resided in Iran.

[00:09:54] Speaker 04:
I understand your concern, Your Honor, and I am also concerned about it.

[00:09:58] Speaker 04:
However, the respondent did testify during the course of the eight years of testimony and hearings that he did not apply for that Armenian passport, that in fact his relatives did.

[00:10:12] Speaker 04:
And so he did not have an intent to defraud the court.

[00:10:26] Speaker 02:
out the door.

[00:11:01] Speaker 04:
He'll give me a moment, I'll give you the, I need a moment to find it in the CAR, Your Honor.

[00:11:08] Speaker 02:
Well, perhaps you can come back with your rebuttal and give me that.

[00:11:13] Speaker 04:
Okay.

[00:11:15] Speaker 01:
How old was he when he filed this application in 2001?

[00:11:20] Speaker 04:
He was an adult, Your Honor.

[00:11:21] Speaker 04:
The application, the original I-589, was filed in 2001.

[00:11:32] Speaker 01:
parents did it as their son, but he was an adult, right?

[00:11:38] Speaker 01:
He was an adult when this was filed.

[00:11:40] Speaker 02:
As a former immigrant who has applied for a non-resident visa, I can't imagine how it can be done without the person

[00:12:00] Speaker 02:
for it.

[00:12:01] Speaker 02:
I remember going to the embassy in Madrid and applying for it myself, but through some relatives.

[00:12:08] Speaker 04:
I'm sure you did it correctly, but apparently Mr. Gerasipanian did not and had his relatives to afford it.

[00:12:18] Speaker 04:
I save my time for rebuttal, Your Honor.

[00:12:20] Speaker 03:
All right, we'll hear from the government.

[00:12:29] Speaker 00:
Good morning, Your Honors.

[00:12:30] Speaker 00:
May it please the court nail Kamani for the respondent.

[00:12:35] Speaker 00:
It's interesting that petitioner begins their case with, this is not a matter of whether or not Mr. Stepien lied.

[00:12:43] Speaker 00:
That is, in fact, the primary issue in this case.

[00:12:49] Speaker 00:
As Judge Aikuta pointed out, the prior remand

[00:12:54] Speaker 00:
was a very narrow remand.

[00:12:56] Speaker 00:
It had noted that Mr. Stepanian received proper notice and that he had ample opportunity to resolve the inconsistencies to address them.

[00:13:09] Speaker 00:
so that part of the framework, that part of the matter of why our framework for a frivolous finding was not at stake in this case that had already been determined.

[00:13:18] Speaker 00:
And so on remand, the agency was required to determine whether or not Mr. Stepanian deliberately fabricated a material element of his claim and whether he knowingly filed a frivolous application.

[00:13:33] Speaker 00:
And the record shows that he did.

[00:13:36] Speaker 00:
He fabricated his home country, his country of nationality, which is undeniably a material element that must be proved to establish asylum eligibility.

[00:13:48] Speaker 00:
Here, the record shows that he deliberately fabricated Iran as his home country because he did not have a claim for persecution, religious persecution in Armenia based on Christianity, where the majority of the people there practiced that religion.

[00:14:06] Speaker 00:
The burden was on DHS to show that he filed a frivolous application and they met their burden.

[00:14:16] Speaker 00:
They submitted a forensic examination of the birth certificate that Mr. Stepanian submitted showing it to be a counterfeit.

[00:14:24] Speaker 00:
Why did he ask me?

[00:14:26] Speaker 03:
Why does that matter?

[00:14:27] Speaker 03:
There doesn't seem to be any dispute that he was born in Iran.

[00:14:31] Speaker 03:
Why does it matter whether the birth certificate was fabricated or not?

[00:14:36] Speaker 00:
yes yes yes yes yes yes yes yes yes yes yes yes yes yes

[00:15:09] Speaker 00:
But the record does not show that he's a resident of Iran.

[00:15:15] Speaker 00:
In fact, it shows quite the opposite, that his family and he were residents of Armenia for the last 30 years before they came to this country.

[00:15:24] Speaker 02:
Didn't he have a driver's license in Iran and a high school certificate from Iran?

[00:15:29] Speaker 00:
yes he did those documents were not authenticated more over the affidavit or letter he submitted by his uncle the man that he claims to be his non-biological father the one that supposedly raised him in iraq that letter from that uncle provided no specifics whatsoever it simply stated that

[00:15:55] Speaker 00:
stephanie and did with him for some time without any dates without any details on his upbringing his education his alleged persecution similarly the friend that testified on mister stephanie's behalf stated that she mister stephanie in iraq in may nineteen ninety nine a few times during that month when she was there visiting her grandparents but she too

[00:16:22] Speaker 00:
provided no information on his background, on him having supposedly lived there, his alleged persecution.

[00:16:30] Speaker 00:
Yes, that's right.

[00:16:32] Speaker 03:
Three documents that were introduced into evidence, I think it was a driver's license, a summons, and a high school diploma.

[00:16:39] Speaker 03:
The government is now saying those weren't authenticated.

[00:16:43] Speaker 03:
But they didn't raise that objection during the hearing, right?

[00:16:48] Speaker 03:
Did they forfeit that argument?

[00:16:53] Speaker 00:
you know there was enough other information that showed that mister stephanie was not eight national president of iran uh... those documents

[00:17:06] Speaker 00:
mister stephanie in fact could have had this document authenticated to corroborate his case to help him prove that yes i am in fact a national that is my whole country but he didn't take those steps he also one given the opportunity to address this evidence multiple times both before in the original proceedings and then again on rematch he doesn't

[00:17:36] Speaker 00:
he doesn't undermine dhs' evidence uh... and in fact even now petitioners council is trying to change gears by making it about notice and the record clearly shows that sufficient notice was given to petitioner here and he was given ample opportunity to address it and so it does matter that he lied and his

[00:17:59] Speaker 00:
consistently inconsistent testimony supports that fact too he couldn't provide consistent testimony how he obtained the counterfeit birth certificate he couldn't provide consistent testimony on his parents whereabouts in fact he testified as late as the 2009 hearing that his wife was living with his parents in iraq when in fact his parents were already in this country as well as some of his siblings

[00:18:29] Speaker 00:
he also his claim that he can see used his biological parents with his uncle and also is not supported by the record where he means his biological parents in both his testimony and application whenever asked to detail his parents so this all goes to the adverse credibility determination which we have held how does it show that he deliberately manufactured

[00:18:56] Speaker 03:
aspects of his silent application.

[00:19:02] Speaker 00:
Yes, Your Honor.

[00:19:05] Speaker 00:
It shows that home country as the statute and regulations clearly

[00:19:11] Speaker 00:
make out essential element it is a material element that's the idea put it in her decision it's a big it's the structure of the relief at the basis for relief and so he is he's lying the fabrication of his home country is not merely

[00:19:33] Speaker 00:
an inconsistent factor that shows him to be not credible.

[00:19:39] Speaker 00:
Rather, it goes to the heart of his claim itself, without which, relief cannot be granted.

[00:19:51] Speaker 00:
So it's much more than an adverse credibility determination.

[00:19:54] Speaker 00:
And now, while his case is a pre-Real ID case,

[00:19:59] Speaker 00:
post-religion experts credibility cases don't even need the inconsistency to go to the heart of the claim uh... here here it is it's very much the heart it's not even a factor relating to the heart, it is the heart, it is the material element of his claim without which he doesn't have a basis there's some evidence that uh...

[00:20:26] Speaker 03:
shows that there were discrepancies in the asylum application, like the date of birth that he was fluent in Farsi, the name of his high school.

[00:20:35] Speaker 03:
There was the non-immigrant visa application, which had a completely different story.

[00:20:40] Speaker 03:
Those all undercut his asylum application.

[00:20:44] Speaker 03:
But there was also evidence supporting the asylum application.

[00:20:48] Speaker 03:
There were the declarations from the uncle, the friends, the parents.

[00:20:54] Speaker 03:
So the DHS's obligation is to prove by preponderance of the evidence more than 50% that the asylum application is fabricated.

[00:21:06] Speaker 03:
How do you carry your burden by preponderance given that there's evidence on both sides?

[00:21:16] Speaker 00:
This case isn't like Codca where in that case the court found that the record was replete with other documentary evidence that supported the petitioner's claim in that case.

[00:21:32] Speaker 00:
In this case, in fact, it's actually the

[00:21:35] Speaker 00:
opposite.

[00:21:37] Speaker 00:
I do not recall there being affidavits from the parents, Your Honor, supporting his claim.

[00:21:44] Speaker 00:
As for the affidavit or the letter from the uncle, as I stated before, it was wholly vague.

[00:21:52] Speaker 00:
There was nothing about when he lived in Iran, his upbringing.

[00:21:57] Speaker 00:
He didn't support those other documents that you referred to, the driver's license, the high school diploma, the prosecutor's summons.

[00:22:05] Speaker 00:
None of those items were in the uncle's letter.

[00:22:10] Speaker 00:
And in addition, as I said before, they were not authenticated.

[00:22:13] Speaker 00:
So we're looking only to Mr. Stepien's testimony on those documents.

[00:22:17] Speaker 00:
And his testimony was found to be wholly inconsistent.

[00:22:21] Speaker 00:
Every time an inconsistency was pointed out to him, he failed to resolve it.

[00:22:27] Speaker 00:
Whereas DHS's concrete evidence

[00:22:31] Speaker 00:
shows that Mr. Stepanian lied on his asylum application.

[00:22:36] Speaker 02:
May I ask a question?

[00:22:40] Speaker 02:
As to the summons from the Iranian Ministry of Justice, which was reportedly served on him in March of 2001, one month before he allegedly fled the United States, how would you propose that Mr. Stepanian go about authenticating that?

[00:23:03] Speaker 00:
asylum asylum applicants do it all the time there are uh...

[00:23:08] Speaker 00:
are facilities that could authenticate.

[00:23:11] Speaker 00:
But even if he could not utilize one of those, he could have had his uncle testify.

[00:23:18] Speaker 00:
I mean, sorry, not testify, corroborated with an affidavit.

[00:23:23] Speaker 00:
He could have had any friends or colleagues supposedly in Iran corroborated.

[00:23:30] Speaker 00:
His parents who live here did not testify or write letters on his behalf.

[00:23:38] Speaker 00:
There is nothing in the record other than Mr. Stepanian's testimony found to be incredible to support it.

[00:23:48] Speaker 00:
There's nothing else, no other corroboration.

[00:23:50] Speaker 02:
So the government is taking the position that had he had his uncle in Iran say that the summons from the Ministry of Justice in Iran was authentic, that would be sufficient

[00:24:09] Speaker 02:
without an apostille.

[00:24:13] Speaker 00:
Not necessarily, Your Honor.

[00:24:14] Speaker 00:
I think that's for the fact-finder.

[00:24:16] Speaker 00:
That's for the immigration judge to determine on the basis of the record as a whole whether it would be sufficient or not.

[00:24:23] Speaker 00:
It would have to be based on Mr. Stephanie's testimony as well.

[00:24:27] Speaker 00:
When there's so many other inconsistencies,

[00:24:31] Speaker 00:
The immigration judge does not have to accept an affidavit as true if everything else points to it as not being true.

[00:24:41] Speaker 00:
But here, he didn't even take those steps.

[00:24:43] Speaker 00:
Mr. Stepanian did not take those steps.

[00:25:01] Speaker 00:
Your Honor, from the record, my understanding, the record does not appear that those documents were also sent to the forensic laboratory.

[00:25:20] Speaker 00:
Thank you.

[00:25:20] Speaker 00:
In all, the record clearly supports the agency's frivolous finding here, where

[00:25:28] Speaker 00:
The agency followed the framework, outlined in matter of while, the reason why this case was remanded.

[00:25:37] Speaker 00:
Mr. Stepanian failed to provide persuasive explanations, even though given ample opportunity to do so, both prior to this court's remand and then thereafter again.

[00:25:51] Speaker 00:
The agency provided specific and cogent reasons for its frivolous finding.

[00:25:59] Speaker 00:
The record shows that he was provided with due process throughout death.

[00:26:06] Speaker 00:
As for Ms.

[00:26:08] Speaker 00:
Wood's argument that the case or the hearings took place over eight years, that's not an excuse for inconsistent testimony.

[00:26:19] Speaker 00:
Simply because hearings take place over a long period of time, most asylum hearings do, in fact.

[00:26:25] Speaker 00:
It does not mean that

[00:26:28] Speaker 00:
inconsistency should be excused, especially when there are the number that are present in this case.

[00:26:36] Speaker 00:
So for all those reasons, respondent requests that this court uphold the agency's determination and deny the petition for reveal.

[00:26:57] Speaker 04:
the transcript – I mean, the CAR regarding the Armenian – the Armenian pass or the application for a visa in Armenia.

[00:27:06] Speaker 04:
And I direct your attention to the CAR page 506, where

[00:27:26] Speaker 04:
admitted that he is an Armenian national insofar as he's ethnically Armenian, but it doesn't say anything about Armenian citizenship.

[00:27:36] Speaker 04:
And therefore, the judge actually sustained the objection.

[00:27:43] Speaker 04:
Nevertheless, he actually didn't

[00:27:58] Speaker 04:
So anyway, in conclusion, the onerous effects of a frivolous finding would deprive this person of his ability to live with his wife, to live with his son, who are both US citizens, and would subject him to possible torture in Iran, if in fact he was born in Iran.

[00:28:20] Speaker 04:
And therefore, I submit that he was not given the opportunity

[00:28:29] Speaker 04:
Thank you.

[00:29:04] Speaker 03:
this court for this session.