[00:00:00] Speaker 00:
Mr. Lee.

[00:00:01] Speaker 04:
I think this case has demonstrated how far the IGA or the agency will go in searching ways to find a traditional not preferred to be credible. And the best example here is the... Let me get you a couple of questions before we get there.

[00:00:26] Speaker 03:
I'm understanding that Kyle did not challenge the withholding determination from the immigration judge at the BIA level, right?

[00:00:41] Speaker 03:
Yes, Senator. So we're only looking at asylum. That's right. Okay, I just wanted to make sure.

[00:00:50] Speaker 03:
And I understand that your client also says if he didn't meet his burden on asylum...

[00:00:56] Speaker 03:
He knows he doesn't meet his burden on asylum if he's not credible, right? Right, Your Honor. Okay.

[00:01:03] Speaker 03:
With that background, I wanted to make sure I had those down before I got there. So we're really looking at credibility.

[00:01:11] Speaker 04:
Yes, Your Honor. So my argument here is that the The agency's credibility is not supported by substantial evidence.

[00:01:25] Speaker 04:
The first reason is that the agency relied upon the petitioner's testimony regarding what Lutheran means to him.

[00:01:37] Speaker 04:
And the BIA, according to the BIA, the petitioner did not provide a coherent answer to the IJS inquiry as to what a Lutheran means.

[00:01:48] Speaker 04:
But the record shows that petitioner testified, pointed out that when he was asked what is a Lutheran, and he stated on record, because of the faith, so there is

[00:02:05] Speaker 00:
Suppose that we agree with you on the theological issues, or not on the theological issues themselves, but on the relevance of the theological issues to the legal questions in this case.

[00:02:18] Speaker 00:
What about, that was not the only grounds that the IJ identified.

[00:02:25] Speaker 00:
And maybe if I could ask you to turn in particular to the discrepancy in his travels to or near Vietnam.

[00:02:35] Speaker 00:
So I understand that he told the asylum officer that he went to Vietnam and stayed there for a while. And then at the hearing he said he just went to the border.

[00:02:45] Speaker 00:
which you could maybe sort of explain as not that big of a difference, except that he had told the asylum officer a fairly detailed account of how he went to a remote crossing so that he could get across the border without being inspected. And that seems like a pretty big discrepancy. So...

[00:03:04] Speaker 00:
Why isn't that a reason?

[00:03:05] Speaker 04:
For several reasons, Yonder. First, again, the nature of the credible failure interview. Actually, in the interview document, it does contain a caveat, and it states actually in capital letters in bold. The following notes are not a verbatim transcript of this interview. These notes are recorded to assist the interview officers in making a credible fear determination, and the supervisory assigned officer in interviewing the determination.

[00:03:42] Speaker 04:
There may be areas of the individual's claim that were not recorded, explored, or documented. So these notes are what the assigned officer wrote down and whether or not it reflects.

[00:03:58] Speaker 03:
Did you ever question the admission of the interview record for the BIA?

[00:04:09] Speaker 03:
No, Your Honor. I don't think you did. But it's in the record, the caveat. Just a minute.

[00:04:16] Speaker 03:
If you don't question the information that's in this interview that he had with the asylum officer, when he told the asylum officer that he'd left Vietnam on two different occasions, he wasn't confused about it. He said that.

[00:04:36] Speaker 03:
And the asylum officer repeated what was said in the summary.

[00:04:41] Speaker 03:
And again, your client never questioned it.

[00:04:46] Speaker 03:
How do we get rid of the inconsistency that's pretty obvious?

[00:04:52] Speaker 04:
Actually, it's not pretty obvious, Your Honor.

[00:04:54] Speaker 03:
Actually, on page 450... Well, I mean, at the hearing, he testified he'd never been to Vietnam.

[00:05:00] Speaker 04:
Yeah. Actually, that's what one part of the interview notes suggests. That's...

[00:05:08] Speaker 04:
I point out direct course attention to page 450 of the administrative record. And when an assigned officer asks petitioner, could you return to Vietnam and leave there legally now?

[00:05:22] Speaker 04:
He said, no, I cannot. Because I asked him the question before that, what's your immigration status in Vietnam? He said, I didn't have any legal status. I was just passing the border.

[00:05:37] Speaker 03:
But the thing that bothers me the most about it is that now you're questioning what he told the asylum officer. You've never questioned the interview record in front of the underlying court.

[00:05:50] Speaker 03:
Your client was under oath. He had an interpreter. He said he understood the interpreter.

[00:05:57] Speaker 03:
You wouldn't reschedule the interview to wait for your lawyer.

[00:06:01] Speaker 03:
And yet now you want me to say, guess what?

[00:06:06] Speaker 03:
There's no inconsistency.

[00:06:13] Speaker 03:
Again, substantial evidence review. Mr. Lee, I guess if the...

[00:06:21] Speaker 01:
I take your point that we should be careful in our use of the officer interview notes, but it does seem, this doesn't seem to be a problem of omission that the officer left stuff out. I think the concern with the inconsistency is the level of detail of the officer's notes relative to the later testimony.

[00:06:46] Speaker 04:
Yes, but we bring up this issue of the process of the assignment interview, the critical fear interview, just to point out that, again, this interview process by nature is not reliable. And so we just...

[00:07:06] Speaker 04:
ask the limited weight to be given to the assignment officer interview notes. And also, let's just assume there's no denial, there's some confusion regarding whether or not the patina was actually inside the venomous venom, or just at the border area.

[00:07:31] Speaker 04:
regardless, that would not reflect, one or the other would not reflect negatively upon his honesty because he had nothing to gain.

[00:07:42] Speaker 04:
But the BIA apparently did not agree, saying that this is material, because it will show that if a person wants to return to the home country, and then they will call against his credibility of the fear. But in this case, this petitioner was traveling between China and Vietnam. So the two cases cited by the BIA, to show the materialness of this inconsistency in relation to his asylum application.

[00:08:21] Speaker 03:
The BIA such the two cases, there's one is a C. But to say that there's nothing to be gained is not exactly right because he's now asking us to say he fears persecution in China Then we see right in the record, he departs to Vietnam, but he goes back to China. So that kind of operates against him, doesn't it? I mean, he went to Vietnam and he didn't do anything about it.

[00:08:54] Speaker 03:
And he wasn't scared to go back to China. In this case, it doesn't cause... And the fact is that the fact that he didn't tell... at the first hearing that he went to Vietnam was a sure cinch, that he didn't want to have that in there because if he did, it was going to go against him, that he didn't fear going back to China, and that that testimony wouldn't be comparable to the BIA, wouldn't be helpful to his case.

[00:09:26] Speaker 03:
That's why it's important when you say there was no benefit. Why isn't there a benefit?

[00:09:33] Speaker 04:
because the country that he returned from is Vietnam.

[00:09:40] Speaker 04:
So because the petitioner made it clear in Vietnam, that's on page 450, then I don't think in Vietnam that Christian beliefs is allowed.

[00:09:55] Speaker 01:
But if that's, I guess if that's the case, then there would have been nothing wrong and then no benefit to tell the same story twice, right? To testify to that and to candidly say, but I can't go there anymore. And the reason why I chose not to stay there is because I couldn't practice my religion. So I'm not sure that's helpful that he acknowledged that Vietnam may not be a place he could resettle or seek asylum, but then said he never went to Vietnam at all the second time.

[00:10:38] Speaker 04:
Because I still doubt whether or not he actually entered Vietnam.

[00:10:47] Speaker 04:
when he told the assigned officer, because he was just saying, I was just passing the border, so it could be in the border area, so on which side of the country?

[00:10:59] Speaker 01:
But on substantial evidence review, you could take two reasons for that, that that was an explanation that he got up to the border and then realized, why would I go to Vietnam? I can't practice my religion there either. Or that he, as he testified to in some detail, crossed the border, entered Vietnam, and then came back and explained to the asylum officer, but not to the immigration judge, why he came back.

[00:11:25] Speaker 04:
That's true, Your Honor. As the interview notes, it says that because it is not a verboten transcript of what the petitioner said at the interview, so there might be something lost in the translation. We don't know. So we are...

[00:11:45] Speaker 04:
The theory we are advancing now is just don't put too much weight on these interview notes.

[00:11:51] Speaker 01:
Mr. Lee, could you speak to the documents that the agency relies upon, too? The registry document?

[00:12:00] Speaker 03:
House registry document?

[00:12:03] Speaker 03:
And the fine, does the... And the fine is receipt document?

[00:12:06] Speaker 04:
Oh, yes, sir.

[00:12:08] Speaker 04:
And then the registration document, because it says that he has an elementary school level of education, and then he has a high school diploma. And I think that does not come against his credibility because the household registration itself said that if there's any alteration to the information, any change to the information must be applied before it can be changed.

[00:12:49] Speaker 04:
So it's just a

[00:12:52] Speaker 03:
But that isn't exactly the way it is posted up.

[00:12:57] Speaker 03:
He states he possesses only an elementary school education in the document.

[00:13:04] Speaker 03:
It has never been changed since he, even though he's applied for a visa to go to Purdue University three times, never changed it.

[00:13:16] Speaker 03:
The brother's document doesn't say that. The brother's document was changed.

[00:13:23] Speaker 03:
And so, and the only response that your client had when quizzed about why do you put that in there? Why don't you do something about that inconsistency? He says, well, I've got more education than that, which I don't think explains the inconsistency at all.

[00:13:46] Speaker 04:
Your Honor, it is just a lack of diligence on the petitioner's part just to update the information in the register. So I don't think there's any discrepancy there, let alone the discrepancy that reflects negatively upon his character or the honesty.

[00:14:09] Speaker 03:
I understand you're saying you don't dispute that it was inconsistent, but you can't be faulted for it. Well, we have a case named HEE, not one of the cases we've had here that you've been involved with. That case says that you do have a problem if there's inconsistency and you're challenging a credibility finding.

[00:14:35] Speaker 03:
If you admit it's inconsistent, well, then you're in trouble under HEE.

[00:14:41] Speaker 04:
Yeah, and then you should be given an opportunity to explain.

[00:14:46] Speaker 03:
In this case, the explanation is that... Well, he was given the chance to explain.

[00:14:51] Speaker 03:
His explanation is, well, it's all changed.

[00:14:54] Speaker 04:
The explanation actually lies in the record, you know, because the hospital register itself says that any operation should apply for registration at the office.

[00:15:08] Speaker 04:
So any change should be apply for the change before the change can be made. So the petitioner did not go to the registrar office to update the information. That's all.

[00:15:27] Speaker 04:
May I just address the on the fine, the issue.

[00:15:33] Speaker 00:
Very briefly.

[00:15:34] Speaker 04:
Oh, just very briefly. And actually, in this, that's clearly the spelling of the name of the Tang, Hong Tang. That clearly is a translation error, Your Honor. And which one, traditional, actually was short, the original Chinese version of the, of the, not family, you see, the diagnostic certificate. It does say that the name of the town he was from is Jiangjin versus Hongjin.

[00:16:09] Speaker 04:
What about who paid the fine? Pardon me? Oh, who paid the fine? Yeah, that's clearly, we just look at the record itself, and it says the paying unit or paying party, paying individual. So the particular testified that because the fine should be usual to the person who was penalized. Actually, that's, again, that's exactly what the Chinese version says.

[00:16:42] Speaker 04:
I won't say there's a mistranslation. There's an imperfection.

[00:16:46] Speaker 04:
in the translation. So my plan is if the court will rely on that, I will probably deny my client's petition. I will, because I wasn't an attorney involved in the hearing, I wasn't an attorney involved at a federal level before the BIA, so probably I would do an ineffective assistance of a counsel because the Chinese The Chinese receipt does say to be delivered to the person who got penalized.

[00:17:24] Speaker 04:
That's the literal translation should be. All right.

[00:17:28] Speaker 00:
Thank you. We've taken you past your time, but you may have two minutes for rebuttal.

[00:17:34] Speaker 00:
Mr. Spurlock.

[00:17:40] Speaker 02:
The petitioner's inconsistent testimony with his asylum interview testimony about his entry and departure from Vietnam, returning to China, is both substantial evidence to support the entire adverse credibility determination and deny the petition for review because it not only is an inconsistency, it also shows under the Xi Kui or the Lo Ho case that when an alien returns to their home country when they're claiming to have been experiencing persecution, that That alone supports an adverse credibility.

[00:18:19] Speaker 00:
So before we get to that issue, Mr. Spillock, there's a paragraph in the board's decision devoted to Mr. Cow's inability to coherently describe the Lutheran faith.

[00:18:35] Speaker 00:
Are you defending that portion of the board's reasoning?

[00:18:39] Speaker 02:
Yes, Your Honor.

[00:18:40] Speaker 00:
We're defending that decision because, first of all... Maybe I can start out by, what is the government's position on the doctrine of justification by faith?

[00:18:53] Speaker 02:
I think our position is consistent with what the COSA court said in that case, which is, yes, you're not allowed to go through and do a deep quiz or sort of academic investigation of what the person's understanding is of their faith or comparative to other faiths or whatnot like that. But that's not what we have in this case. We just simply have a Simply, which is also contemplated by the Cosa case, that there's nothing wrong with simply saying, tell us about your faith.

[00:19:26] Speaker 00:
Right, and he answered the question. So, I mean, he's asked, you know, what is Lutheran?

[00:19:33] Speaker 00:
That's the judge speaking in English, kind of an unidiomatic way of phrasing the question, but that's what she said. What is Lutheran? What does that mean? He says he doesn't know. There's back and forth with the interpreter asking about writing down the characters, which suggests some difficulty in understanding the translation. And then he comes up with, because of the faith, so there is righteousness. And so I take it the government's view is that that is...

[00:20:01] Speaker 00:
Not a correct statement of the Lutheran doctrine of justification by faith?

[00:20:08] Speaker 02:
I think the government's position is that the immigration judge's determination that that was not a coherent answer, first answering I don't know, and then only providing essentially a two-word answer, was not plausible. That he would only, after spending... Was he asked to elaborate?

[00:20:30] Speaker 00:
Was he asked to elaborate? To elaborate. I mean, yeah, it's a short answer.

[00:20:33] Speaker 02:
No, he was not. He was not. Okay. Well, let me correct myself. She did say, I think she said, that's it. That's what Lutheran means. That's my understanding. That's my understanding.

[00:20:44] Speaker 00:
That was the extent of the... But she didn't say, can you provide more detail on that?

[00:20:48] Speaker 02:
No, she did not.

[00:20:49] Speaker 00:
Okay. And so...

[00:20:54] Speaker 00:
I'm not sure it matters whether he's right in some sense about what Lutheran doctrine is, because I don't think it's our place to say that, and certainly not the board's. But when one looks at the Augsburg Confession of 1530, which I think most Lutherans regard as a canonical statement of Lutheranism, uh the faith they gave what he's saying is a very close paraphrase of um parts of that uh so it seems it just seems very odd that the board is pronouncing that you know an incoherent doctrine why is that appropriate for the board to say the the two words that he said that he didn't wasn't able to give more explanation i mean he wasn't asked to give more explanation

[00:21:43] Speaker 02:
Right. Well, I mean, he could have provided more than two words. And when he said, when she was asked, do you have anything else to say? He said, no, that's why I understand.

[00:21:50] Speaker 01:
Is the government's position that any creed that can be expressed briefly is incoherent?

[00:21:59] Speaker 02:
I think I honestly don't know, Your Honor. I think what the point is, is that the immigration judge found that His explanation for having spent two years going not once a day, I mean not once a week, but twice a week for two years, and supposedly took education classes. Initially, and moreover, the argument of, well, there may be something to those two words. They may have completely defined Lutheranism. It may be correct.

[00:22:29] Speaker 02:
He never argued that before the board.

[00:22:30] Speaker 01:
I think the problem on substantial evidence is that the IJ just doesn't know.

[00:22:35] Speaker 01:
So there's nothing in the record here that would suggest other than the IJ's take on Lutheranism, which isn't substantial evidence. So I guess, again, is the government standing on this as a ground for the evidence?

[00:22:49] Speaker 02:
We're not standing on it, Your Honor, because as I said before, the Vietnam, returning to Vietnam or returning to China from Vietnam is ample substantial evidence of adverse credibility.

[00:23:00] Speaker 00:
Why doesn't... If we think that this was improper, this...

[00:23:07] Speaker 00:
Theological freelancing by the IJ was improper.

[00:23:11] Speaker 00:
Why doesn't it infect the whole adverse credibility finding? I mean, so normally under a law, we look at, you know, under the totalities or the valid grounds sufficient.

[00:23:24] Speaker 00:
But aren't there cases where you have some grounds that are sort of the 13th chime of the clock that just kind of infects the whole thing?

[00:23:33] Speaker 02:
I don't believe so, Your Honor. I think you can apply the totality of the circumstances in this case.

[00:23:40] Speaker 00:
In this case, sure, but do you think there's ever a case where you would have a ground that was so bad that it infected the others?

[00:23:50] Speaker 02:
I suppose it's possible, but I feel.

[00:23:52] Speaker 00:
So just, you know, hypothetically, like if the IJ said, you know, I'm finding you not credible because of, you know, inconsistency number one and inconsistency number two and three, you're from China and I just don't trust Chinese people. I mean, there we wouldn't go through a law and say, well, the first two grounds are okay, so maybe we can uphold this.

[00:24:15] Speaker 00:
Or what would you say the whole thing just has to be thrown out?

[00:24:18] Speaker 02:
I think you can, I think you can, the court can definitely say this particular ground that the immigration judge of the agency put forth as a basis for adverse credibility is very wrong. And unless that's all there is, the court would still need to, under the totality of the circumstances, weigh the other

[00:24:40] Speaker 00:
Even in the hypothetical where the IJ invoked an explicitly racist ground for finding the person not credible, we'd have to uphold that if the rest of what she said was okay?

[00:24:53] Speaker 02:
I think under the totality of the circumstances, you would.

[00:24:55] Speaker 01:
You would have to consider... In COSO, which you've cited...

[00:25:00] Speaker 01:
There is some discussion. This adverse credibility assessment, the one arising from the IJ's improper inquiry into the response religion, infected the IJ's entire decision and led the BIA to affirm the IJ's demand for independent corroborative evidence in that point. But I mean, in this case, the board leads with this religious discussion. So why isn't this the same as COSA?

[00:25:28] Speaker 02:
Well, I think, first of all, the COSA case was really almost more of a bias case. I think they had found bias against the immigration judge. How do we know this one isn't?

[00:25:40] Speaker 02:
Because no one ever alleged that there was bias. Or at least they did raise bias, I believe, before the board, but then they didn't raise bias before this court. So they abandoned that bias discussion. But I don't even recall.

[00:25:52] Speaker 01:
So bias in terms of due process claims separately as opposed to substantial evidence?

[00:26:00] Speaker 02:
Yes. And that the immigration judge in, I believe, the Cosa case had exhibited such a dislike for the petitioner in that case's religion in which her belief system, that sort of spilled onto the record and was clear on the record. I think that alone makes this case different from that case. And that immigration judge was going far beyond asking a simple, what is the basis of your, tell me about your faith? What is your faith?

[00:26:30] Speaker 02:
And the immigration judge never, in this case, made any negative comments about Lutheranism or what this.

[00:26:38] Speaker 00:
Well, I mean, unless you consider saying that it's incoherent to be a negative comment.

[00:26:44] Speaker 02:
As a response to what he said, that it didn't make sense.

[00:26:51] Speaker 03:
I'm having a tough time with that argument. I'm sad the government is even making that argument. Because it seems in COSA that they said, without a benchmark other than the IJ's views, it's unacceptable.

[00:27:11] Speaker 03:
To test the scope of the petitioner's understanding of our religion.

[00:27:16] Speaker 03:
And there was no benchmark in this case.

[00:27:20] Speaker 03:
Except the IJ's views.

[00:27:23] Speaker 03:
And yet the IJ comes out with this idea. And frankly. Looking at what he said.

[00:27:32] Speaker 03:
Because of the faith. So there is righteousness. I don't think. Is an out of.

[00:27:41] Speaker 03:
concept statement I may not be the most religious person in the world I may not be a good religious person but that seems pretty significant to me and then all of a sudden the IJ on her own idea says well he doesn't even know what Lutheranism is when I thought boy because of the faith so there's righteousness I thought that was pretty good So I'm just having a tough time with your argument.

[00:28:12] Speaker 03:
If I'd have been in your stead, I wouldn't have even gone here. I just said, forget this. Let's go back to the things Judge Smith's been quizzing about.

[00:28:23] Speaker 02:
That's always a good idea.

[00:28:26] Speaker 02:
We should stay on those things. I don't think this was a major part of the adverse credibility decision. I think this was... Essentially, he comes out before the board and essentially says, yeah, but the immigration judge was assuming I was Lutheran, so I would have this knowledge about Lutheranism. But that's not what, then the board says, yeah, we accept that. This isn't about what he knows about Lutheranism or doesn't know about Lutheranism.

[00:28:52] Speaker 03:
It just has to do about what he picked up on.

[00:28:57] Speaker 03:
But I guess I'll let you finish your argument, sorry. I didn't mean to interrupt you.

[00:29:01] Speaker 02:
But I think the board had a good point, which was, this isn't about what you believe or what your faith is. This is simply about, you spent two years in this institution. You didn't become a Lutheran. You just went to that church. What can you tell us about the church? It wasn't testing his level of knowledge about Lutherism, about his own faith.

[00:29:22] Speaker 01:
Can we go back to, I guess, the...

[00:29:27] Speaker 01:
The Vietnam question. So the inconsistency here is premised on the fact that he did, in fact, enter Vietnam. Is that clear from the record? And where is the government's best site for that?

[00:29:45] Speaker 02:
That he entered Vietnam?

[00:29:46] Speaker 01:
Yeah.

[00:29:47] Speaker 02:
I think it's in the asylum officer notes where he's, I would direct the, there's a lot of discussion that maybe it could have gone this way or that way, but if you look at page on AR 451, that's where the asylum officer reads a summary of his testimony. And in that summary of the testimony, he again says, I returned to China from Vietnam, which seems pretty clear that he was in Vietnam.

[00:30:16] Speaker 02:
You said it twice, right? He said it multiple times. And as I said, it was in the summary of what the asylum officer, and again, that's on, I think, 451, where there's a summary of what he said. And in that summary, you left China, went to Vietnam, and returned to China, which seems pretty clear.

[00:30:43] Speaker 00:
It appears there are no further questions.

[00:30:44] Speaker 03:
Thank you. All right.

[00:30:45] Speaker 00:
Thank you.

[00:30:55] Speaker 04:
I just want to point out one thing, that actually the church attendance issue, if you want to look at the BIS decision, I think that's the first and foremost issue on the agency's mind in finding an adverse credibility determination. And the BIA discussed a host of issues, and then the church issue is the very first one that the BIA discussed it.

[00:31:29] Speaker 04:
and then almost like the, and then the IJ also found, so it appears to me that all the other discussion is just an afterthought.

[00:31:43] Speaker 01:
I guess the IJ at nine of the order does raise this first, but then says the biggest issue in this case relates to respondents' trip to Vietnam.

[00:31:54] Speaker 01:
And so, HOW MUCH CAN WE READ INTO THE PRIORITY OF THE ORDERING OF PARAGRAPHS THAT THE BOARD TAKES? AND I GUESS I SHOULD SAY IN CONSIDERING THIS ISSUE, ARE YOU RAISING ANY KIND OF GENERAL BIAS CLAIM THAT THE I.J. WAS BIASED AS OPPOSED TO IT WAS JUST INCORRECT AND FINDING AN INCONSISTENCY?

[00:32:21] Speaker 04:
I wouldn't go that far that the idea is biased. It's just that actually we are looking at the BIA's decision, and the BIA would add, I believe that the church attendance, the petitioner's knowledge about Lutheran is the the most important factor that IGA took into account in its decision. And because that ground was invalidated, it appears that it will be invalidated, and then the rest will just collapse.

[00:33:01] Speaker 00:
Thank you very much. Thank you, Your Honor. Mr. Lee, you've argued five cases this week. The court appreciates your assistance. Thank you.

[00:33:08] Speaker 00:
Thank you, Mr. Spurlock, as well. And the case is submitted.