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

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

[00:00:01] Speaker 03:
May it please the court.

[00:00:02] Speaker 03:
My name is Cory Hong.

[00:00:04] Speaker 03:
I'm from the Florence Project.

[00:00:05] Speaker 03:
I'm appointed pro bono counsel and I represent petitioner Heber Rodolfo Waterhouse, whom I'll refer to as Mr. Waterhouse.

[00:00:13] Speaker 03:
I will save two minutes for rebuttal and I will watch my time.

[00:00:17] Speaker 03:
I will talk about remand, adverse credibility, and then cat.

[00:00:23] Speaker 03:
On remand, to the government's credit, after I filed my opening brief, the government presented to this court 49 pages of documents that the BIA and IJ had not considered when evaluating Mr. Waterhouse's claim.

[00:00:40] Speaker 03:
Under Chenery,

[00:00:42] Speaker 03:
It is the agency that must have the first opportunity to consider the relevance.

[00:00:46] Speaker 02:
Well, I mean, isn't this fairly typical in reinstated order cases that there are two administrative records?

[00:00:53] Speaker 02:
There's the administrative record for the reinstatement.

[00:00:57] Speaker 02:
and then for the withholding only proceedings before the IJ that go up to the BIA.

[00:01:04] Speaker 02:
So what's unusual about this that would warrant a remand?

[00:01:07] Speaker 03:
What is unusual is that on the supplemental page 24, there is a notation from 2020, which is two years after the removal order.

[00:01:19] Speaker 03:
stating that even then the Honduras consulate had no record of Mr. Waterhouse's true identity.

[00:01:28] Speaker 03:
This was after we have in the record that his special authorization document was in his true name.

[00:01:34] Speaker 03:
And that directly goes to the adverse credibility in the cat claim and corroborates and rebuts the IJ's concern.

[00:01:42] Speaker 02:
Well, if you've now found a new document in that

[00:01:45] Speaker 02:
you know, portion of the record that you think should have been considered by the IJ and the BIA.

[00:01:50] Speaker 02:
Isn't the proper procedure to file a motion to reopen before the BIA to ask it to consider that?

[00:01:56] Speaker 03:
well your honor in in twenty as an officer of the court after twenty years of doing this type of work there's never been anything that relevant that's been in that separate record before that's been segregated from the record uh... so i would ask given the unusual circumstances you haven't answered my question why isn't the proper procedural vehicle if you think there's a new document that's come to your attention that's in the other record for

[00:02:22] Speaker 02:
the reinstatement that you think is relevant to the withholding only proceeding.

[00:02:27] Speaker 02:
The procedure is to go to the BIA and say, here's a new document, which I've discovered, and you should reopen proceedings and reevaluate it.

[00:02:34] Speaker 03:
That is an alternative remedy.

[00:02:36] Speaker 03:
But given that it was presented to the court on appeal, it is in a different, unique posture that the government presented to it.

[00:02:44] Speaker 03:
Now, if the court disagrees, I'd like to turn to the adverse credibility of finding based on the BIA's reasoning.

[00:02:52] Speaker 03:
And the BIA's four reasons are not supported by substantial evidence.

[00:02:58] Speaker 03:
Now, the first reason, the BIA affirmed the IJ's finding that, quote, his inability to register his identity in Honduras is implausible.

[00:03:08] Speaker 03:
And it referenced the IJ's finding that he has some, if not all, the necessary documents.

[00:03:15] Speaker 03:
This finding ignores that the law, the family law attorney, the aunt, and the expert all explain that a parent must be present to be involved.

[00:03:27] Speaker 03:
And so in this case, not having that dispositive factor.

[00:03:31] Speaker 02:
The reaction of the agency was that, do you really mean to suggest that if the parent says, I'm not going to get involved, that there's no possibility to be recognized or get an identification.

[00:03:44] Speaker 02:
It's just simply impossible.

[00:03:45] Speaker 03:
Your mother has to show up or nothing.

[00:03:48] Speaker 03:
That is what the family law attorney in Honduras says.

[00:03:52] Speaker 03:
That is what Mr. Bowman, the expert, testified to.

[00:03:57] Speaker 03:
That is what the law says itself.

[00:04:00] Speaker 03:
And that is what the aunt said.

[00:04:02] Speaker 02:
So then orphans can't, or people whose parents have already been deceased, they just can't ever be registered and Honduras has no procedure for doing that?

[00:04:13] Speaker 02:
It seems to strain credulity to say something like that.

[00:04:15] Speaker 03:
Well, Your Honor, the orphan issue, that's something that the I.J.

[00:04:18] Speaker 03:
made up on the spot.

[00:04:20] Speaker 02:
It's just reflecting, there are lots of situations in which a parent is not capable of showing up.

[00:04:27] Speaker 02:
So this insistence that there's no option other than the parent showing up, and if that, then the Honduras is not going to give an identification document no matter what the circumstances, seems implausible.

[00:04:39] Speaker 03:
Your Honor, there are two responses.

[00:04:40] Speaker 03:
Kumar says the speculation has to be grounded in evidence.

[00:04:44] Speaker 03:
And on the orphan question, most orphans become orphan after their parents, they've already given birth.

[00:04:51] Speaker 03:
Their parents die after they've been registered.

[00:04:53] Speaker 03:
And even in the United States, in immigration law, orphan is defined as someone who's under 16.

[00:05:00] Speaker 03:
There is no showing that Mr. Waterhouse, now in his 30s,

[00:05:04] Speaker 03:
is an orphan as defined under Honduran law and there's no law explaining how orphans are registered differently if in fact they are.

[00:05:13] Speaker 03:
So that question about the orphan is complete speculation that the IJ raised on her own without prompting by the DHS without evidence.

[00:05:22] Speaker 03:
that cannot be a basis to find him not credible.

[00:05:25] Speaker 01:
What about the basis that he used all of these different aliases?

[00:05:30] Speaker 01:
Now he gives a reason why, at least you indicate in the briefing why, but why isn't that a basis for the IJ to say that he's not credible?

[00:05:40] Speaker 03:
Well, there are two responses.

[00:05:42] Speaker 03:
The first is that, of course, it's reasonable for multiple aliases to be in dish of dishonesty, but this law or this court's precedent requires that the IJ explain and give a cogent

[00:05:55] Speaker 03:
rejection for a cogent explanation.

[00:05:58] Speaker 03:
And here, the BIA did not give that, other than say, well, he used it for work, so I'm dismissing the fact that he could not obtain other documents.

[00:06:10] Speaker 01:
Well, but he used it in different contexts as well.

[00:06:13] Speaker 01:
I mean, he used it when he was arrested on several occasions with different names and different alliances.

[00:06:19] Speaker 01:
So it wasn't just for work.

[00:06:21] Speaker 01:
He used it for different reasons.

[00:06:24] Speaker 03:
Correct.

[00:06:24] Speaker 03:
And unlike every other case cited in the briefing where someone uses a false identity, they're using to hide their true identity.

[00:06:32] Speaker 03:
He never had his true identity.

[00:06:34] Speaker 03:
That's the crux of this case.

[00:06:36] Speaker 03:
Now if the court disagrees that that alone cannot stand under Kumar, if any of the credibility cases or reasons are rejected under Alam and Kumar,

[00:06:48] Speaker 03:
given that they are interwoven here, remand is the proper remedy for the IJ to look at this in its totality.

[00:06:54] Speaker 03:
And on remand, the BIA and IJ would also have the benefit of the USCIS stateless memo, which provides and gives context to the fact.

[00:07:02] Speaker 01:
I want to go back to what you said, though.

[00:07:04] Speaker 01:
So are you saying that if there are some reasons, though, that the IJ provided, wouldn't that be sufficient to establish substantial basis for affirming their decision?

[00:07:16] Speaker 01:
Why is that incorrect?

[00:07:17] Speaker 03:
In under Alam and under Kumar, this court has said that there's no longer a bright line rule that the single factor will uphold an adverse credibility finding.

[00:07:28] Speaker 03:
And in Kumar in particular, when the different, like I think three of the four were rejected, and so that single factor was interwoven to the three that were not substantiated by evidence.

[00:07:39] Speaker 03:
So remand is the proper remedy for the IJ to look at it anew.

[00:07:43] Speaker 03:
And here, given that orphans was pure speculation,

[00:07:47] Speaker 03:
That in itself would be enough to remand for the IJ to kind of rebut whether, you know, her finding that this was completely implausible is actually supported in record.

[00:07:57] Speaker 03:
Now, the second reason is that the BIA affirmed that the delay in the removal was not significant because he lacked the Honduran identity documents.

[00:08:06] Speaker 03:
However, again, in the special trip authorization permitting his 2008 removal, it wasn't his true name.

[00:08:12] Speaker 03:
That's an 853.

[00:08:14] Speaker 03:
But then in the reinstated order itself, it also, it never listed his name of Waterhouse, and that set the supplemental documents at seven.

[00:08:24] Speaker 03:
And again, on January 8th, the consulate recorded no documentation or registry of him even after his removal.

[00:08:32] Speaker 03:
So that rebuts the concern and corroborates his concern, or his claim that they didn't even have regular removal orders the first time around in 2018.

[00:08:43] Speaker 03:
The third reason on credibility is that the BIA said there wasn't corroborating evidence that the Honduran government lacks records in its real name.

[00:08:55] Speaker 03:
Here the IJ and the BIA ignored the aunt's second declaration found at 377 where she explained she tried to get a record from the Honduran court confirming that he's not registered

[00:09:12] Speaker 03:
But the only way she could get that record is if the parents participate in that process to confirm that there's no record of his birth.

[00:09:21] Speaker 03:
And the lack of parental involvement is the exact reason why he can't register her birth.

[00:09:27] Speaker 03:
This, again, Mr. Waterhouse produced school records from sixth grade in his real name at 857.

[00:09:34] Speaker 03:
And so then that shows that even though he was there in school under his real name, the aunt was unable to corroborate the lack of registry and prove the omission that the IJ wanted.

[00:09:49] Speaker 03:
Um, under, um, Batardi and Baguette, um, um, um, Baca, excuse me, Barg Sagan, um, the IJ cannot ignore what's in the record, but has to actually identify an actual, uh, record that could corroborate the claim rather than just saying there isn't enough, which is what happened here.

[00:10:12] Speaker 03:
On the cat claim.

[00:10:13] Speaker 03:
And then the agency overlooked the objective evidence that supports his claim that he would face future torture.

[00:10:21] Speaker 03:
The honest declaration is probably one of the most important documents that they overlooked.

[00:10:27] Speaker 03:
The family law attorney declaration at AR 384 saying that he can't register.

[00:10:34] Speaker 03:
Dr. Borman's testimony at 295 saying there's no way that he knows of how he can register his birth without his parents.

[00:10:43] Speaker 03:
And lastly, the Honduran consulates claim that he still doesn't exist in their records as documents that supports the CAT claim.

[00:10:54] Speaker 03:
If there are no further questions, may I reserve my remaining time?

[00:10:57] Speaker 03:
Yes.

[00:10:58] Speaker 03:
Okay.

[00:10:58] Speaker 03:
All right.

[00:10:58] Speaker 03:
Thank you, counsel.

[00:11:00] Speaker 02:
All right.

[00:11:00] Speaker 02:
So we'll hear now from Mr. Needle.

[00:11:15] Speaker 00:
Good morning, may it please the court, Jonathan Needle, Department of Justice, on behalf of the respondent.

[00:11:21] Speaker 00:
While the factual record in this case is pretty convoluted, the ultimate question for the court to resolve, that is the question of the petitioner's credibility, is pretty straightforward, where, in this case, the agency thoroughly, comprehensively reviewed the record and explained

[00:11:38] Speaker 00:
why the petitioner was not a credible witness.

[00:11:41] Speaker 01:
Can you address the last issue that was raised in the last filing about remand?

[00:11:47] Speaker 01:
Why isn't it proper for us to then send this back for the IJ in the first instance to consider the new documents?

[00:11:54] Speaker 00:
Right.

[00:11:55] Speaker 00:
And we did file a short response to the motion last Friday.

[00:12:01] Speaker 00:
But, you know, our position is that any argument based on the DHS record should have been raised earlier in the proceedings where the court accept the government's motion to submit the record for permission to submit the record after the deadline.

[00:12:20] Speaker 00:
and also the court's order gave the petitioner an opportunity to either file a supplemental or a substitute opening brief.

[00:12:29] Speaker 01:
I understand that's your position, but it's here now.

[00:12:32] Speaker 01:
So what's your position?

[00:12:34] Speaker 00:
The position is that the documentation in the DHS record to which the petitioner points is basically no different from what was in the immigration court record with regard to the petitioner's dishonesty in withholding what he claims is his true identity, the name Rodolfo Waterhouse.

[00:12:58] Speaker 00:
The argument is being made is that the I-213 that DHS generated in January of 2020 contains a notation that the Honduran consulate didn't have any record of this individual in their database.

[00:13:16] Speaker 00:
But it's clear from the context of the I-213 that the Honduran consulant was looking up the name Vernardis.

[00:13:25] Speaker 00:
And it's clear, the petitioner himself admits that Vernardis was a false name that he used.

[00:13:31] Speaker 00:
And so it stands to reason that the Honduran government would not have a record of this person.

[00:13:37] Speaker 00:
Now, it is the case that he was removed under the name Waterhouse back in April of 2018.

[00:13:44] Speaker 00:
The circumstances of his removal are far from clear how the Honduran government was able to locate or issue a travel document under that name.

[00:13:55] Speaker 00:
There was no indication that before that travel document was issued that the petitioner told the US government that his true name is Rodolfo Waterhouse.

[00:14:07] Speaker 00:
Um, it appears from his testimony that the first time that he identified himself by that name was after he was taken into immigration custody, after the stipulated order of removal was entered by the immigration judge.

[00:14:20] Speaker 00:
Um, and, uh, apparently there was some delay in getting travel documents.

[00:14:25] Speaker 00:
He was lingering, lingering in immigration detention.

[00:14:28] Speaker 00:
And so apparently this is according to the petitioner's testimony, but apparently there was some conversation with the consulate where he divulged this water house name for the first time.

[00:14:38] Speaker 00:
And that is how the government was able to issue its travel documents.

[00:14:44] Speaker 00:
So it's unclear why the Honduran government would do that if they did not consider him to be a national of their country.

[00:14:52] Speaker 00:
And in fact, the petitioner also testified that as he was returning to Honduras on the removal flight,

[00:14:59] Speaker 00:
as he was disembarking at the airport, he was handed birth certificates, certified birth certificates, including one belonging to his biological mother.

[00:15:13] Speaker 00:
This was given to him by an official of the government of Honduras.

[00:15:19] Speaker 00:
He doesn't explain why he was given these documents, but one can infer that the government

[00:15:24] Speaker 00:
was encouraging him to go through the registration process and to obtain the identity documents that he had not received in the past.

[00:15:34] Speaker 00:
And so his claim that he's a man without a country, that he has a very attenuated connection to Honduras, is belied by the circumstances of his removal.

[00:15:45] Speaker 02:
What's your response to counsel's argument that the IJ relied on speculation and concluding that it was not credible that he could not register in Honduras and get an identity card?

[00:16:01] Speaker 00:
Well, the petitioner is basically testifying that he is without any recourse, because neither of his parents were willing to participate in that process.

[00:16:13] Speaker 00:
That was his testimony, that there was no recourse whatsoever.

[00:16:17] Speaker 00:
And that testimony is self-serving, and it's not corroborated by any of the documentary evidence that he submitted.

[00:16:25] Speaker 00:
It's not substantial.

[00:16:26] Speaker 02:
Counsel claims it's corroborated by the

[00:16:30] Speaker 02:
the declaration from the Honduran law expert.

[00:16:34] Speaker 00:
I would disagree with that characterization.

[00:16:37] Speaker 00:
There was no unequivocal statement.

[00:16:40] Speaker 00:
If we're referring to the declaration of Ms.

[00:16:44] Speaker 00:
Aguilar, there was no statement

[00:16:48] Speaker 00:
substantiating the petitioner's claim that he had no recourse.

[00:16:51] Speaker 02:
And one of the things she said is both parents must present copies of their identity cards, birth certificates, copies of the page.

[00:16:59] Speaker 02:
Does that mean that they have to personally show up with the documents?

[00:17:04] Speaker 00:
It's far from clear.

[00:17:06] Speaker 00:
There is a clearer statement of the law in the document that DHS submitted during the removal proceeding.

[00:17:13] Speaker 00:
from a foreign law specialist at the Law Library of Congress where he refers to a specific article of the Honduran code which provides a list of documents that could be presented, that it's not an exhaustive list, it's not a matter of the petitioner having to provide each and every one

[00:17:39] Speaker 00:
of the listed documents, but it allows for some flexibility in what evidence he can present to the authorities.

[00:17:47] Speaker 01:
And he had those documents, correct?

[00:17:49] Speaker 00:
Well, the record does reflect that he has his mother's birth certificate.

[00:17:53] Speaker 00:
He has birth certificates for his aunt, his grandmother.

[00:17:58] Speaker 00:
He has school records that were issued in the name of Waterhouse.

[00:18:01] Speaker 00:
He has vaccination records.

[00:18:04] Speaker 00:
This is all apparent from the petitioner's own evidence.

[00:18:07] Speaker 00:
There is a document that the Honduran Registration Authority purportedly issued in July of 2018 acknowledging the fact that the petitioner had submitted these documents.

[00:18:22] Speaker 00:
And there is no conclusive statement anywhere in the record other than the petitioner's own self-serving testimony that

[00:18:30] Speaker 00:
his application was rejected and he has no further recourse.

[00:18:35] Speaker 00:
So the agency acted reasonably in relying on this discrepancy between his testimony and what's reflected in the record.

[00:18:45] Speaker 00:
And this is also in addition to his criminal history, which is extensive.

[00:18:49] Speaker 01:
What do you make of counsel's argument that under, I think, Kumar, that we, if any one, according to her take, if any one of the bases that the IJ relied on is speculative or not supported by the record, that that is not sufficient?

[00:19:12] Speaker 00:
i think i think that's a misstatement of of the holding of kumar and other uh...

[00:19:18] Speaker 00:
cases from this court that deal with that issue.

[00:19:22] Speaker 00:
There have certainly been instances where the court has disagreed with certain factors underlying an adverse credibility determination and has determined that because those specific findings weren't supported by substantial evidence, then the proper course is to remand the case to the agency to reconsider the credibility determination.

[00:19:45] Speaker 01:
However... But would one basis be sufficient?

[00:19:48] Speaker 00:
In this particular case, it seems that, well, first of all, all the factors are supported by substantial evidence.

[00:19:56] Speaker 01:
But there has to be- Let's assume that I don't agree with you.

[00:20:00] Speaker 01:
But if some of the factors are supported, how many factors would it be?

[00:20:06] Speaker 01:
Is it a number?

[00:20:08] Speaker 01:
What's the context?

[00:20:09] Speaker 00:
No.

[00:20:10] Speaker 00:
I think this was addressed at length in the Kululu decision, this court's recent presidential decision in Kululu.

[00:20:18] Speaker 00:
that it's not a matter of balancing the findings that are not supported by the record against the findings that are.

[00:20:26] Speaker 00:
The scope of the inquiry is whether the record as a whole provides substantial evidence for

[00:20:34] Speaker 00:
you know, at least one of the bases of the credibility determination.

[00:20:39] Speaker 00:
And, you know, in this case in particular, one of the bases was his criminal history, his misrepresentations of his identity to state and federal authorities.

[00:20:50] Speaker 00:
That is clearly supported by the record.

[00:20:52] Speaker 00:
A petitioner does not dispute his actions, and that in and of itself, even though it's only one of the factors identified by the agency, it is

[00:21:05] Speaker 00:
or then substantial evidence supporting the credibility determination.

[00:21:10] Speaker 00:
So even if one factor, one of the findings is supported by the record, then that provides a basis for upholding the credibility determination based on substantial evidence review.

[00:21:30] Speaker 00:
There was also a discussion of the cat claim

[00:21:34] Speaker 00:
On that the objective evidence in the record independently establishes his eligibility for cat protection and as we argued in our brief the that that that argument was not sufficiently developed.

[00:21:49] Speaker 00:
In the opening brief, it had been waived by the petitioner, and the petitioner also does not point to any objective evidence in the record that compels reversal of the agency's decision that he did not establish through objective evidence a sufficient likelihood of torture for purposes of cap protection.

[00:22:10] Speaker 01:
What do you make of the collateral attack on the removal order?

[00:22:15] Speaker 01:
If it, whether it's barred, if he did not object to the reinstatement order?

[00:22:25] Speaker 01:
I mean, I guess that's, I was trying to understand how it could still survive.

[00:22:31] Speaker 00:
I'm not sure that I understand the question.

[00:22:34] Speaker 01:
Right.

[00:22:35] Speaker 01:
So they didn't object to the reinstatement order.

[00:22:37] Speaker 01:
It's my understanding.

[00:22:38] Speaker 01:
So why are they then allowed to challenge at this point the removal order?

[00:22:47] Speaker 00:
Well, as we argue, they're not allowed to challenge the removal order because

[00:22:55] Speaker 00:
that that that's correct there's no uh... there was nothing after the re notice of reinstatement was served by d h s uh... there was no objection and i i i'm not entirely sure what the court's position is regarding exhaustion if there if there is a need to exhaust an argument before uh... d h s before this court can entertain it uh... however uh...

[00:23:19] Speaker 00:
The crux is that the petitioner hasn't provided a basis for challenging the reinstatement order, that the regulatory prerequisites were met.

[00:23:31] Speaker 00:
A DHS officer determined that the petitioner was subject to a final order of removal that was entered in 2017, that he had illegally reentered the United States after being removed.

[00:23:49] Speaker 00:
Evidence provided the officer with a basis for reinstating the order of removal.

[00:23:54] Speaker 00:
And the statute limits a noncitizen's ability to challenge the reinstatement determination.

[00:24:02] Speaker 00:
And there is no meaningful challenge in that regard in this case.

[00:24:08] Speaker 02:
And Honduras is a country to which under the statute he's eligible to be sent.

[00:24:15] Speaker 00:
Correct.

[00:24:16] Speaker 00:
The reinstatement essentially reactivates the underlying removal order, which designates Honduras as the country of removal.

[00:24:27] Speaker 00:
This was pursuant to the petitioner's own designation of Honduras in his stipulation of removability, which was filed with the immigration judge in 2017.

[00:24:40] Speaker 00:
However, the agency is not limited to removing him to Honduras if there are

[00:24:45] Speaker 00:
complications in that process.

[00:24:47] Speaker 00:
The statute and the regulations provide for alternative countries of removal, depending on the circumstances, depending on whether there is some sort of connection between the petitioner and an alternate country.

[00:25:03] Speaker 00:
However, in this case, it doesn't appear that it's removed.

[00:25:09] Speaker 00:
Well, it's hypothetical at this point what will happen, but we can look at what happened in 2018 where the petitioner revealed his true name to the Honduran consulate.

[00:25:22] Speaker 00:
They issued travel documents, and he was removed.

[00:25:27] Speaker 00:
The credibility determination, based on that, the agency did not have to credit

[00:25:33] Speaker 00:
his testimony regarding what transpired after his removal, the alleged confrontations with the police that occurred upon his removal.

[00:25:44] Speaker 00:
That falls within the scope of the credibility determination, and so that aspect of his testimony does not have to be credited.

[00:25:57] Speaker 00:
Again, the record reflects that he does have a connection, that he is considered a national of Honduras, that he has certain avenues for registering his identity, obtaining identification documents in Honduras, and that evidence suggests that he will be accepted

[00:26:21] Speaker 00:
by Honduras, if and when he's removed there.

[00:26:23] Speaker 02:
I'll ask you one final question.

[00:26:25] Speaker 02:
What is his custody status?

[00:26:27] Speaker 02:
Is he still in detention?

[00:26:29] Speaker 00:
My understanding is that he is no longer in detention, although petitioners' counsel would be able to answer that question definitively.

[00:26:43] Speaker 02:
All right.

[00:26:43] Speaker 02:
Thank you, counsel.

[00:26:44] Speaker 02:
Your time has expired.

[00:26:44] Speaker 02:
We'll hear a rebuttal now from Ms.

[00:26:46] Speaker 02:
Hall.

[00:26:49] Speaker 02:
Can you address that question?

[00:26:51] Speaker 02:
Is he still in detention?

[00:26:52] Speaker 03:
No, he's been released, Your Honor.

[00:26:54] Speaker 03:
I have three points.

[00:26:57] Speaker 03:
The Library of Congress letter is at page 399, and on the list of possible documents must be a sworn statement of paternity, which would be coming from the parent, and that's not available.

[00:27:13] Speaker 02:
So there's at least two

[00:27:15] Speaker 02:
of those pertinent documents and you know among the others are vaccination card.

[00:27:25] Speaker 03:
And again, the case law says the court can't speculate what's available.

[00:27:32] Speaker 03:
They have to show that it doesn't, that it actually exists.

[00:27:35] Speaker 03:
It also on that list is his birth certificate.

[00:27:37] Speaker 03:
The council said he did have a vaccination card.

[00:27:40] Speaker 03:
There's no proof of that.

[00:27:42] Speaker 03:
And what is required is, I mean, that list also has his birth certificate, which he doesn't have, baptismal records, which he doesn't have.

[00:27:51] Speaker 03:
The problem is that he doesn't have this documentation in his true name.

[00:27:54] Speaker 03:
At AR 378, the law also requires the involvement of the parents.

[00:28:01] Speaker 03:
The second point.

[00:28:03] Speaker 03:
is that the government said that only Mr. Waterhouse's testimony says he could not get his documents in 2018.

[00:28:09] Speaker 03:
That is not true.

[00:28:11] Speaker 03:
The aunt's declaration at AR377 confirms that they were not, that she was involved in that process in 2018 and ultimately was not successful in obtaining his registry of birth.

[00:28:26] Speaker 03:
The grandmother's declaration at AR 492 gives even more detail regarding her process both before he left the United States and then again in 2018 when they tried.

[00:28:36] Speaker 03:
Third, the Kumar case at 1153.

[00:28:39] Speaker 03:
To read from that, the BIA identified four factors involving its adverse credibility finding.

[00:28:47] Speaker 03:
In some we hold that most of the factors are not supported by the record.

[00:28:53] Speaker 03:
And then Kumar remanded.

[00:28:55] Speaker 03:
But Alam, I was at the center on the panel in Alam.

[00:29:02] Speaker 03:
And I appreciate that decision, Your Honor.

[00:29:04] Speaker 03:
I'm very aware of that.

[00:29:05] Speaker 02:
But Alam said you look at the totality of the circumstances.

[00:29:09] Speaker 02:
Yes.

[00:29:09] Speaker 02:
So you could have one ground that's really a killer and then three trivial ones.

[00:29:14] Speaker 02:
And so one could be enough in some cases, but sometimes they're all kind of a little bit weak and they work together.

[00:29:20] Speaker 02:
And then knocking out a few may send it back.

[00:29:22] Speaker 02:
So where does this fall in that kind of mix?

[00:29:24] Speaker 03:
Exactly.

[00:29:25] Speaker 03:
It's all mixed in together.

[00:29:27] Speaker 03:
And to your Honor's first point about saying, well, he could register as an orphan, part of the IJ's adverse credibility is that she found it implausible that there was no way for him to register.

[00:29:37] Speaker 03:
And if it is pointed out that there's no showing that he could register as an orphan, because we don't even know if he is an orphan,

[00:29:44] Speaker 03:
That is enough, because if she has it out of her mind that actually there is no way for him to register, all the other document is seen in a new light.

[00:29:55] Speaker 03:
And under the Real ID Act, it's the totality of circumstances that controls, and that is the remand that we are asking for.

[00:30:09] Speaker 02:
All right.

[00:30:09] Speaker 02:
Thank you, Counsel.

[00:30:10] Speaker 02:
Thank you.

[00:30:13] Speaker 02:
Case just argued will be submitted.