[00:00:33] Speaker 04:
I'll be discussing the BIA's application of the wrong credibility standard for five minutes, and my colleague, Charles Publico Fernandez, will be discussing the failure to consider documentary evidence and due process issues for seven minutes.

[00:00:47] Speaker 04:
And I'd like to reserve three minutes for a bottle, please.

[00:00:52] Speaker 04:
If at a very basic level, and excuse me, I see the clock's running now.

[00:00:56] Speaker 04:
If at a very basic level, the job

[00:01:03] Speaker 04:
It failed on the law side because it did not assess the IJ's credibility finding under the pre-Real ID Act legal standard that governs Mr. Ding's case.

[00:01:14] Speaker 04:
And as my colleague will discuss in more depth, it also failed.

[00:01:37] Speaker 04:
Exactly, Your Honor, yes.

[00:01:41] Speaker 04:
And that's what happened here, because the BIA analyzed Mr. Ding's case under the Real ID Act's Totality of the Circumstances Credibility Standard.

[00:01:52] Speaker 04:
Excuse me, did you have a question?

[00:02:13] Speaker 01:
to March 18th, but the passport was issued March 11th while he was

[00:02:57] Speaker 01:
on March 11th, but either of those two possibilities is not explained in the record.

[00:03:07] Speaker 01:
So why isn't he just flat out, let's say incorrect, not say lying, incorrect in his statement that he applied for the passport after he got out of jail?

[00:03:20] Speaker 01:
Yes, the passport was indeed issued on a date when he was in jail.

[00:03:25] Speaker 01:
Perhaps, perhaps,

[00:03:28] Speaker 01:
the trial effect might say, I don't think you were in jail at all.

[00:03:33] Speaker 04:
Yes, your honor.

[00:03:34] Speaker 04:
Um, and this is exactly why the application of the wrong legal standard is so important to this case because, uh, under the pre real idea standard, um, there are a few cases from this circuit in which this court held that date discrepancies exactly like this one.

[00:04:28] Speaker 02:
in jail or not, that seems like it's pretty significant.

[00:04:32] Speaker 04:
Your Honor, that it doesn't necessarily show that he wasn't in jail at all, that was essentially speculation on the IJ's part, because as Judge Bea pointed out, there are many potential reasons that the date on the passport could be what it is, it could be he applied before he was in prison, it could be a clerical error, and that's exactly

[00:05:40] Speaker 02:
he said a typo or a misspelling, a scrivener's error.

[00:05:48] Speaker 02:
There's nothing here that suggests that's what the issue is.

[00:05:52] Speaker 02:
This is a key issue in his argument.

[00:05:57] Speaker 04:
Your Honor, I see I'm running into my colleague's time if I could just briefly respond to your question.

[00:06:03] Speaker 04:
This is why the BIA needs a chief

[00:06:38] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:06:41] Speaker 00:
My name is Charles Pablico Fernandez, certified law student, on behalf of the petitioner Yu Cheng Ting, and I'll be addressing the BIA's failure to consider the evidentiary evidence, or the documentary evidence, and due process issues.

[00:07:13] Speaker 00:
the BIA or the IHA considered this evidence, it could have impacted Mr. Ding's claims for relief in two ways.

[00:07:20] Speaker 00:
First, the documentary evidence could have had a significant impact on the adverse credibility determination.

[00:07:50] Speaker 00:
record that can explain the passport issue in state, but the statements from Mr. Ding's wife and his coworker do establish the fact that he was incarcerated for 20 days.

[00:08:00] Speaker 00:
Mr. Ding's wife and his coworker both stated that the Chinese police arrested him for protecting Zongong practitioners, which is a form of expressing political opinion

[00:08:16] Speaker 02:
I didn't really show he was persecuted.

[00:08:18] Speaker 02:
They both, both the letter said he was detained, but none of them

[00:08:50] Speaker 00:
1194.

[00:08:52] Speaker 00:
The petitioner was beaten and arbitrarily detained for 15 days and this court... The letters don't corroborate any beating or anything of that sort.

[00:09:02] Speaker 00:
Correct.

[00:09:03] Speaker 00:
It does not corroborate that, but it does establish the fact that he was incarcerated for 20 days.

[00:09:08] Speaker 00:
And if Mr. Dean's testimony was credited

[00:09:51] Speaker 00:
that Mr. Ding provided.

[00:09:53] Speaker 00:
Had I considered this under the pre-real ID standard, it could have concluded that Mr. Ding's credibility determination was not sufficient to support his claim for relief.

[00:10:18] Speaker 00:
itself requires reversal.

[00:10:20] Speaker 00:
But Mr. Ding also suffered another due process violation when the IJ inexplicably cut off his testimony regarding the passport issue.

[00:10:53] Speaker 00:
So his, in other words, his claim was raised in a form that would put the BIA on notice that he, that there was this potential due process violation and the BIA did have an opportunity to pass on that and so this issue is properly before the court.

[00:11:20] Speaker 00:
Your Honor, I think I

[00:11:58] Speaker 01:
Well, let me ask you a question that Mr. Fernandez brought up.

[00:12:03] Speaker 01:
If the discrepancy in the date of the issuance of the passport and the time he claims to be incarcerated casts doubt on whether he was incarcerated at all, and that goes to the heart of the matter because no incarceration, no persecution, right?

[00:12:24] Speaker 01:
What about Mr. Fernandez's point that the BIA did not consider

[00:12:33] Speaker 01:
incarcerated they didn't even mention that it says mr. Fernandez do you agree with that

[00:13:26] Speaker 01:
Now, answer me this if you can.

[00:13:30] Speaker 01:
Do you agree with Mr. Fernandez that both the wife and the co-workers' statements corroborate the fact that he was in jail?

[00:14:39] Speaker 01:
mention the wife and the co-worker's statement and discard them as being insufficient.

[00:15:31] Speaker 02:
Do we have another case where we found harmless error when the BIA applied the wrong legal standard?

[00:15:44] Speaker ?:
I have a moment.

[00:15:51] Speaker 03:
I know it should be briefed.

[00:16:38] Speaker 03:
The clearer review of the board to the IJ doesn't change under that.

[00:16:46] Speaker 03:
In fact, if you look at between the two of those, one always has to tell the truth.

[00:17:11] Speaker 03:
and that's where petitioners fail.

[00:17:15] Speaker 03:
The due process arguments as far as looking at the documents, for instance, the IJ herself specifically states that she considered the country condition stuff, and I think that's on page 35 or 36 of the decision.

[00:17:29] Speaker 03:
And the country conditions evidence doesn't seem to stand for what petitioners seem to think it stands for.

[00:17:36] Speaker 03:
If you look at all of it, I would start with maybe

[00:19:30] Speaker 03:
the state's

[00:19:59] Speaker 01:
We'll see any mention – any mention of the wife statement or the co-order statement.

[00:20:06] Speaker 01:
No mention.

[00:20:07] Speaker 01:
Can you point that out to me?

[00:20:08] Speaker 01:
Some mention that.

[00:20:10] Speaker 01:
Maybe that'd be something.

[00:20:15] Speaker 01:
Take a look at ER 3 and 4.

[00:20:56] Speaker 01:
nothing about.

[00:23:14] Speaker 03:
It's tears.

[00:24:23] Speaker 04:
Thank you, Your Honors.

[00:24:24] Speaker 04:
I think three quick points on this.

[00:24:28] Speaker 04:
First, as to the date discrepancy and whether that renders the BIA's legal error as to the credibility standard harmless, it doesn't.

[00:24:39] Speaker 04:
As this Court has repeatedly recognized, the application of the wrong legal standard requires reversal.

[00:24:46] Speaker 04:
Cases on that include Asnorby Ashcroft, Ornella Chavez, B. Gonzalez, and in fact,

[00:25:03] Speaker 04:
emphasized that when a legal error such as this occurs, the proper course is almost always to remand to the agency for application of the proper law.

[00:25:14] Speaker 04:
And in fact, the narrow exception to that is when the proper law would mandate only one outcome.

[00:25:20] Speaker 04:
And whatever you have to say

[00:25:36] Speaker 04:
Second, as to the statements of the wife and co-worker.

[00:25:42] Speaker 04:
Well, no, we don't have an explanation, but we do have the Pre-Real ID Act standard under which that discrepancy

[00:26:22] Speaker 04:
that it's different from his testimony, that alone is not a significant fact.

[00:26:29] Speaker 04:
The significance is whether it means he was not in jail at all.

[00:26:34] Speaker 04:
That's the real heart of the claim, right, whether he was in prison.

[00:26:39] Speaker 04:
And his wife and co-workers' statements do go to that.

[00:26:42] Speaker 04:
They do corroborate that.

[00:26:43] Speaker 04:
And they were not mentioned at all by the BIA or by the IJ.

[00:26:50] Speaker 04:
And lastly, as

[00:26:58] Speaker 04:
it was for reasons other than their beliefs.

[00:27:23] Speaker ?:
crimes that it said it was second there.

[00:27:28] Speaker ?:
This court has held that the persecution of

[00:27:52] Speaker 04:
I don't think Zongong maps exactly onto a religion or a social group in the way that we conceive of it as the nexus.

[00:28:04] Speaker 04:
The nexus would be on account of a protected social group or political opinion also because by protecting

[00:28:22] Speaker 04:
these people essentially expressing the political opinion that the persecution of them is wrong.

[00:28:58] Speaker 02:
We thank the law school for taking on this case.

[00:29:02] Speaker 02:
Thank you.