[00:00:01] Speaker 01:
All right.

[00:00:01] Speaker 01:
We will take up the next case on the argument calendar, Singh v. Bondi.

[00:00:16] Speaker 01:
Whenever you're ready, counsel.

[00:00:17] Speaker 03:
Thank you.

[00:00:18] Speaker 03:
Good morning, Your Honors.

[00:00:19] Speaker 03:
May it please the court.

[00:00:20] Speaker 03:
My name is Jessica Leyou, and I represent the detained petitioner in this matter, Jitinder Singh.

[00:00:25] Speaker 03:
I would like to reserve two minutes for rebuttal.

[00:00:28] Speaker 03:
Petitioner in this matter is appealing an adverse credibility finding that occurred during his reasonable fear interview and then was affirmed by an immigration judge.

[00:00:35] Speaker 03:
Petitioner is seeking remand for full withholding only proceedings where the evidence establishes a reasonable possibility of persecution or torture.

[00:00:44] Speaker 03:
This court reviews the adverse credibility finding for substantial evidence.

[00:00:47] Speaker 04:
I'm sure you've heard this many times before, but reading a argument is not a good idea.

[00:00:52] Speaker 03:
Thank you, Judge.

[00:00:53] Speaker 03:
Your Honor, we're asking first that this court find that there was no inconsistent statements made and that the substantial evidence doesn't support the IJ's affirmance in this matter.

[00:01:03] Speaker 03:
Given that the immigration judge issued a determination without any explanation, we refer to the asylum officer's reasoning.

[00:01:12] Speaker 03:
While the officer could have referred on a lot of different factors when making their decision, she only relied on the alleged inconsistent statements.

[00:01:19] Speaker 01:
But Counsel, you say there are no inconsistencies.

[00:01:24] Speaker 01:
the record of 131.

[00:01:25] Speaker 01:
He was beaten three times, he said he was beaten three times by party members.

[00:01:33] Speaker 01:
And then, didn't he later change that?

[00:01:37] Speaker 01:
That it was once by police?

[00:01:38] Speaker 03:
Yes, Your Honor.

[00:01:39] Speaker 01:
So that is an inconsistency, whether it's material enough is a different question.

[00:01:44] Speaker 01:
But isn't that, you said there were no inconsistencies.

[00:01:47] Speaker 01:
Isn't that an inconsistency?

[00:01:49] Speaker 03:
Judge, we would say that it's not an inconsistency because he later testifies that he believes the BJP, oh, sorry, Judge, you're referring to how many times he was beaten.

[00:01:57] Speaker 03:
No, I'm referring to who beat him.

[00:01:59] Speaker 03:
Judge, we would say it's not an inconsistency because he later testifies that he finds the BJP to be part of the government, which relates to the police.

[00:02:08] Speaker 04:
Didn't he actually say that, more specifically, that when asked how did he know that this was BJP said because the car said Indian government?

[00:02:18] Speaker 03:
Yes, Your Honor, and he also referenced that they were wearing uniforms, and so that's how, like tan-colored uniforms, and that's how he believed that they were part of the government.

[00:02:27] Speaker 04:
And so, while maybe not direct... So he basically thought they were all the same.

[00:02:30] Speaker 03:
He thought they were all the same.

[00:02:31] Speaker 03:
Which seems to be the case.

[00:02:32] Speaker 03:
That seems to be the understanding, Your Honor.

[00:02:34] Speaker 01:
Well, I mean, I read the record a little differently.

[00:02:36] Speaker 01:
He said, I was beaten three times by BJP party workers, and then he changes that to police with a normal protest attack that

[00:02:48] Speaker 01:
So to me, like the asylum officer, I see that as an inconsistency.

[00:02:54] Speaker 03:
Yeah, I suppose, Judge, then it's going to be, Your Honor, it's going to be based on your reading.

[00:02:57] Speaker 03:
And if it was an inconsistency, we would assert that he did later explain the inconsistency, again, where he states that BJP is the police, that he considers them all the same.

[00:03:08] Speaker 03:
And in the totality of the circumstances, when we look at the other two inconsistencies that the asylum officer lists,

[00:03:15] Speaker 03:
I would say that there wasn't any other inconsistencies.

[00:03:19] Speaker 03:
And I'd like to draw the court's attention to one of those in particular when they ask why he was targeted.

[00:03:25] Speaker 03:
And I'm referencing specifically the administrative record at 140.

[00:03:28] Speaker 03:
They say that the officer stated that he said he was inconsistent as to why he was being targeted, saying that he first said that he was targeted because they came to his village to sell drugs and he opposed.

[00:03:41] Speaker 03:
And then he allegedly later testified he was harmed because of his political involvement.

[00:03:45] Speaker 03:
But if we take a little closer look at the testimony on, and I'm referencing the administrative record of 132, he testifies, and I'm just going to turn to that if you don't mind, Your Honors, but he testifies first that he was being targeted.

[00:03:59] Speaker 03:
They made comments regarding him being Sikh.

[00:04:02] Speaker 03:
Then they told him that they needed to join his party.

[00:04:05] Speaker 03:
Then when they asked why did they target you, he also states, because they came to my village to sell drugs and I opposed them.

[00:04:11] Speaker 03:
And so when we look at the testimony and the totality of circumstances that he gave, he lists all three reasons.

[00:04:18] Speaker 03:
So there's not an inconsistency when the officer later confronts him about it and says, you stated, and this is on AR 135, you stated that the BJP targeted you because you opposed them when they came to sell drugs, and now you're saying it's because you wanted them to join their party.

[00:04:33] Speaker 03:
when on AR 132 he literally testifies and I quote, they said, we told you to stay away and join our party.

[00:04:41] Speaker 03:
So there's no inconsistency in that matter at all.

[00:04:48] Speaker 04:
So what if we were of the view that that inconsistency was not inconsistent but there was at least maybe a reasonable person could think that there was an inconsistency as to

[00:05:01] Speaker 04:
this third event, third attack by the police.

[00:05:08] Speaker 04:
What do we do then?

[00:05:09] Speaker 03:
Judge, we're asking that this court consider that we- Andrew, why?

[00:05:12] Speaker 04:
I'm sorry.

[00:05:12] Speaker 03:
We're asking that this court remand for full removal because we would assert that the immigration judge, when this case was referred to her, failed to conduct a novel review, which is kind of the, I mean, really, I think the crux of our argument.

[00:05:26] Speaker 03:
When we look at, when the petitioner went to court in front of the immigration judge,

[00:05:32] Speaker 03:
She failed to acknowledge any of the inconsistencies that she on her de novo review considered herself and failed to give the petitioner any opportunity to explain any inconsistencies that she thought.

[00:05:45] Speaker 01:
Is there any case that you can cite that requires the IJ to do more than the IJ did here?

[00:05:58] Speaker 03:
Well, Judge, I do think in Dong V. Garland, it says, quote, if the immigration judge relies on purported inconsistencies to make an adverse credibility determination, they must provide with an opportunity to explain each inconsistency.

[00:06:10] Speaker 03:
And the petitioner wasn't afforded that here.

[00:06:12] Speaker 03:
If we're in a de novo review, where the immigration judge is supposed to be reviewing this anew, afresh, we have no way to know what she perceived as inconsistencies.

[00:06:23] Speaker 01:
So wouldn't you have reason to know?

[00:06:25] Speaker 03:
She agrees with the reasoning and finding of the asylum office.

[00:06:28] Speaker 03:
But she never identified what she perceived to be an inconsistency.

[00:06:32] Speaker 03:
Well, she said the reasoning of the asylum office.

[00:06:35] Speaker 03:
So whatever the asylum office said.

[00:06:37] Speaker 03:
Okay.

[00:06:38] Speaker 03:
If that's the case, Your Honor, then she failed to provide the petitioner an opportunity to explain each of those.

[00:06:42] Speaker 01:
I don't understand that.

[00:06:44] Speaker 01:
So I'm looking at page 12 where there is a discussion by your client's attorney as to why

[00:06:58] Speaker 01:
there was no credibility problem.

[00:07:03] Speaker 01:
Isn't that an opportunity to explain?

[00:07:06] Speaker 03:
I think the answer would be yes and no.

[00:07:09] Speaker 03:
I think that because when we're on a de novo review, if the immigration judge is reviewing this anew, right, we have no way to know.

[00:07:20] Speaker 03:
And I just want to use this as an example.

[00:07:22] Speaker 03:
If, as this court we just discussed just a few minutes ago,

[00:07:25] Speaker 03:
If this court says, well, I could find in my own perception that perhaps this is why the petitioner thought that the government was the BJP and that seems reasonable to me.

[00:07:36] Speaker 03:
But perhaps this inconsistency as to why he was targeted or by who.

[00:07:40] Speaker 03:
that the immigration judge should have questioned or at least pointed that out to counsel because I would note that prior counsel did make arguments that there were no inconsistencies.

[00:07:49] Speaker 03:
And if there were in the totality of circumstances, one inconsistency is not enough to find an adverse finding.

[00:07:54] Speaker 01:
So, counsel, I'd like to go back as I could for a minute to Judge Berzahn's question.

[00:07:58] Speaker 01:
Let's say hypothetically we were to say that there was one or two valid inconsistencies

[00:08:09] Speaker 01:
But let's say we rejected one of them.

[00:08:13] Speaker 01:
Let's say we rejected sort of the motive part.

[00:08:20] Speaker 01:
I think Judge Berzahn's question is, what should we do?

[00:08:24] Speaker 03:
Well, Judge, then we should find that based on the totality of circumstances, in light of the country conditions that were submitted by petitioner on review, would find that there wasn't enough to affirm this decision for an adverse credibility finding.

[00:08:37] Speaker 03:
If we say that there's only one,

[00:08:39] Speaker 03:
alleged inconsistency and perhaps maybe there was, then based on the country conditions that support his claim that were submitted, that should have been enough in the totality of the circumstances to overcome it.

[00:08:50] Speaker 01:
So wouldn't we have to find that no reasonable adjudicator based on the evidence could rule the way the asylum officer and basically that the I.J.

[00:09:02] Speaker 03:
did?

[00:09:05] Speaker 01:
Did you want to reserve the rest of your time?

[00:09:07] Speaker 01:
Yes, I will.

[00:09:07] Speaker 01:
And we'll give you a little bit more as well.

[00:09:09] Speaker 03:
Okay, that's okay.

[00:09:09] Speaker 03:
Thank you, Your Honor.

[00:09:22] Speaker 02:
Good morning again.

[00:09:23] Speaker 02:
May it please the Court, Courtney Moran on behalf of the Attorney General.

[00:09:28] Speaker 02:
This court should deny the petition for review here because the asylum officer's adverse credibility finding is supported by substantial evidence.

[00:09:36] Speaker 02:
The immigration judge's review of that finding was more than sufficient under the regulations in this court's decision in Bartolome.

[00:09:43] Speaker 02:
And most of the arguments that the petitioner is raising before this court

[00:09:48] Speaker 02:
were not raised before the immigration judge and are thus have been waived for failure to exhaust.

[00:09:56] Speaker 02:
In any event, all of the challenges to the adverse credibility finding or excuse me, none of them compel this court to remand such that no reasonable adjudicator could have made this adverse credibility finding.

[00:10:12] Speaker 00:
I think the tough question here which has been raised by my colleagues is,

[00:10:18] Speaker 00:
What to do when you find that the hearing officer, immigration judge relied on testimony that they thought was inconsistent but wasn't inconsistent and then there are other areas that they relied upon that were inconsistent.

[00:10:36] Speaker 00:
What do you do in that situation when you have a disagreement with the totality of the circumstances?

[00:10:44] Speaker 02:
Well, I think that because the credibility finding is based on the totality of the circumstances, even if the court were to disagree with one of the three findings that the asylum officer made, that doesn't mean that no reasonable adjudicator could have made that adverse credibility finding based on the other two reasons.

[00:11:08] Speaker 02:
But I think that, more importantly, the petitioner here had the opportunity repeatedly before the asylum officer

[00:11:14] Speaker 02:
to explain his testimony and before the immigration judge to explain his testimony.

[00:11:20] Speaker 02:
The immigration judge wasn't required to allow him to testify under the regulation under Bartolome, but the immigration judge did.

[00:11:29] Speaker 04:
The judge asked if... I don't understand the relevance of that to the question that was asked.

[00:11:37] Speaker 04:
What is the relevance to the question of how we perceive if we determine that the

[00:11:45] Speaker 04:
asylum officer and the IHA had relied on, first of all, had fairly flimsy or minor inconsistencies to begin with and relied on at least one that was not actually inconsistent.

[00:12:04] Speaker 04:
What do we do next?

[00:12:07] Speaker 04:
How does the question that you were addressing have anything to do with that?

[00:12:13] Speaker 02:
First, the court would have to decide that no reasonable adjudicator could have found that there were inconsistencies.

[00:12:22] Speaker 04:
Let's say we decided that no reasonable adjudicator could decide that at least one inconsistency was inconsistent.

[00:12:33] Speaker 02:
Okay.

[00:12:34] Speaker 02:
So then there would still be the other two.

[00:12:36] Speaker 04:
Well, there are either two or one because the other one is all the same.

[00:12:39] Speaker 04:
It's whether there was in fact another, he said that there was another location, another instance at which the police were being violent.

[00:12:52] Speaker 04:
And so it's all of a piece.

[00:12:53] Speaker 04:
There's one other story, right?

[00:12:56] Speaker 02:
So there were, just to clarify, there were three inconsistencies.

[00:13:02] Speaker 04:
You're saying there were three inconsistencies, but there were really two inconsistencies because there either was or wasn't just a third instance in which the police were attacking a large crowd of people.

[00:13:20] Speaker 01:
The government's view is that there were an inconsistency as to two or three and an inconsistency, whether we accept it or not is a different question, but the government's argument is one, he said it was BJP and then he said it was BJP and police and the other was two versus three, right?

[00:13:39] Speaker 02:
Right.

[00:13:40] Speaker 02:
Thank you, Your Honor.

[00:13:42] Speaker 02:
I think that

[00:13:45] Speaker 02:
each of those were inconsistencies that the asylum officer perceived and in each of those points the asylum officer asked the petitioner to explain the inconsistencies and then noted that the explanations either didn't really answer the question or added to the inconsistencies.

[00:14:05] Speaker 02:
Although she never explained that, I don't know what she meant by that.

[00:14:12] Speaker 04:
Forget about that.

[00:14:14] Speaker 04:
I still want you to answer my initial question.

[00:14:17] Speaker 02:
I think that still, even if one of those three reasons the court disagrees with, we're still left with the other two bases for the adverse credibility findings.

[00:14:29] Speaker 02:
Again, the court would have to decide that those two bases are not sufficient in this totality of the circumstances analysis to conclude that the... In some of the cases, we have articulated the question as being whether a find or a fact with one or more of the inconsistencies off the table would have made the same conclusion.

[00:14:58] Speaker 04:
Because the one way one ordinarily makes credibility determinations, anybody, is to take the totality of the circumstances.

[00:15:06] Speaker 04:
And once you pull out a piece of the totality of the circumstances, how can one say that the IJA would have made the same decision?

[00:15:16] Speaker 04:
If I say I don't believe him because he's not answering directly and he made this misstatement and that misstatement, and then it turns out

[00:15:28] Speaker 04:
that his misstatements weren't misstatements.

[00:15:32] Speaker 04:
How can one say that the finder of fact would have found the same thing?

[00:15:40] Speaker 02:
I think that might be a fair question on which reasonable minds could disagree, which means that this court is not compelled to remand based on the evidence that is in the record.

[00:15:53] Speaker 02:
I also think that the time to raise issues like that would have been before the immigration judge.

[00:15:59] Speaker 02:
If the petitioner wanted to explain his testimony, which he already knew that his lawyer had made an argument.

[00:16:10] Speaker 02:
And then the immigration judge questioned the petitioner and he answered in a couple of ways that again added to the inconsistencies because he mentioned additional faces that he feared harm.

[00:16:29] Speaker 02:
He also mentioned a new alleged attack that he hadn't mentioned in his interview before the asylum officer.

[00:16:38] Speaker 02:
What was that?

[00:16:40] Speaker 02:
He said that he had been attacked in 2019 before his initial entry into the United States.

[00:17:09] Speaker 02:
Sorry, I'm not finding it right now.

[00:17:12] Speaker 01:
Why don't you just continue with your argument, counsel?

[00:17:19] Speaker 02:
So I think that, again, when the asylum officer is considering these during this abbreviated procedure before the asylum officer and then before the immigration judge, all that the agency is required to do is

[00:17:37] Speaker 02:
asked questions to elicit testimony if the petitioner had the asylum officer's findings before going to the immigration judge.

[00:17:51] Speaker 02:
So he was aware, he was on notice of the findings that the asylum officer had made.

[00:17:57] Speaker 02:
And so his presentation before the immigration judge was his time to explain any of the perceived inconsistencies.

[00:18:05] Speaker 02:
He also had the opportunity to submit additional evidence.

[00:18:09] Speaker 02:
He submitted country conditions documents, but none of that went to the adverse credibility findings.

[00:18:17] Speaker 01:
So counsel, was the reference that you had had on page 10 of the record, why did you come to the US the last time at that time?

[00:18:25] Speaker 01:
Also I had the same attack by BJP and also I came to seek asylum.

[00:18:30] Speaker 01:
So you've been assaulted before you came to the U.S.

[00:18:33] Speaker 01:
in 2019.

[00:18:33] Speaker 01:
Was that your reference?

[00:18:35] Speaker 02:
Yes, Your Honor.

[00:18:35] Speaker 02:
Thank you for finding that.

[00:18:37] Speaker 01:
Page 10, the transcript for the I.J.

[00:18:46] Speaker 02:
The Administrator Record, page 10.

[00:18:48] Speaker 02:
Page 7 of the transcript and page 10 of the Administrator Record.

[00:18:54] Speaker 04:
Yes, I see.

[00:18:54] Speaker 04:
I see.

[00:19:00] Speaker 02:
Again, in this posture, the evidence in the record for the court to remand would have to compel any reasonable adjudicator to make a different credibility finding.

[00:19:17] Speaker 02:
The evidence in the record does not compel that conclusion here, and we ask the court to deny the petition for review.

[00:19:22] Speaker 01:
All right, thank you.

[00:19:23] Speaker 02:
Thank you.

[00:19:26] Speaker 01:
So we'll give you two minutes.

[00:19:31] Speaker 03:
Just briefly, Your Honors, I want to address the respondent's argument regarding exhaustion.

[00:19:37] Speaker 03:
We would note that prior counsel and the petitioner had no way to know that the immigration judge was going to neglect to provide a reasoned decision, apply her de novo review, or ignore evidence provided by prior counsel.

[00:19:51] Speaker 03:
These are all arguments that could not have raised

[00:19:53] Speaker 03:
been raised before anyone but before this court.

[00:19:57] Speaker 03:
And as far as the inconsistencies, prior counsel never concedes the adverse credibility finding.

[00:20:03] Speaker 03:
She argues in her arguments before the immigration judge that, based on, and she says, the totality of the circumstances, that if the court were to find what she perceives as maybe one inconsistencies, that he reasonably explained it.

[00:20:17] Speaker 03:
and that the country conditions supported it.

[00:20:20] Speaker 03:
And so we would state that based on the evidence and the testimony provided by petitioner during the immigration review.

[00:20:28] Speaker 04:
What in the country conditions reports do you think is relevant here?

[00:20:38] Speaker 03:
I think we would turn to this court specifically, and we list them in our brief, but there's, I think, some specific country conditions that I think would collaborate his testimony that goes to credibility, specifically regarding the Sikh-led farmer protests, and that's on AR 39.

[00:20:56] Speaker 03:
where it specifically says that Modi's government grew frustrated with Sikh-led farmer protests in 2021, and they were labeled as calistanis.

[00:21:06] Speaker 03:
And I think especially related to the drug-related comment

[00:21:09] Speaker 03:
where he states that he was targeted because the persecutors said that he opposed this drug distribution, and that's on AR 34.

[00:21:22] Speaker 03:
The country conditions state that violence in Punjab is directly related to narcotics trafficking, and that farmers, Sikh farmers specifically, just like the petitioner, are being crushed by that, and that is compounded by political alienation of minority Sikh communities.

[00:21:39] Speaker 03:
So I do think that all of this does collaborate and goes to the totality of the circumstances that his testimony is credible.

[00:21:46] Speaker 03:
So we'd ask this court to remand for full withholding only proceedings.

[00:21:49] Speaker 03:
And I do think that this circuits time and consideration in this matter.

[00:21:53] Speaker 01:
Thank you.

[00:21:53] Speaker 01:
We thank counsel for their arguments.

[00:21:55] Speaker 01:
The case just argued is submitted.

[00:21:57] Speaker 01:
We'll now proceed to the next case on the argument calendar, Mahmoud versus Bondi.