[00:00:00] Speaker 00:
Mr. Lee. Good morning, Your Honor. Please record. My name is Jixian Li and I represent Traditioner. Here, the BIA found Traditioner not to be credible.

[00:00:13] Speaker 00:
The BIA identified several reasons. I would like to address the church attendance first.

[00:00:23] Speaker 00:
because according to the PIA.

[00:00:26] Speaker 04:
Well, church attendance might be your best way to go in this particular situation, but why don't you address the falsity in his 2016 asylum application?

[00:00:43] Speaker 04:
Because that to me is pretty important.

[00:00:48] Speaker 04:
He has an asylum application, He doesn't tell anybody that was detained in Cuba or that even went to Cuba.

[00:00:58] Speaker 04:
He only says China.

[00:01:00] Speaker 04:
Then he goes to the asylum interview and he tells them that he goes to Cuba. So again, there's a contradiction and that's the one that the BIA and the IJ come up with. And then they don't go very far before he goes to the merits hearing and counsel admits that he didn't mention that he went to Cuba, that he was detained in Cuba. In the merits hearing, counsel got up and admitted that the fact about Cuba was not mentioned in the application.

[00:01:39] Speaker 00:
Well, Your Honor, I think the fact that the The Cuba trip was not mentioned in the assignment application. Actually, it's an oversight by the assignment officer. Oversight? Yes, Your Honor.

[00:01:51] Speaker 04:
Now, just a minute. You can argue oversight, but again, you and I have been in front of each other before. I'm on...

[00:02:00] Speaker 04:
substantial evidence review. You arguing oversight is just a good argument by counsel. But the BIA is entitled to get their due as well in their argument, which is you didn't say anything about this in your asylum application.

[00:02:20] Speaker 04:
In your asylum interview, you finally tell us.

[00:02:24] Speaker 04:
And then in your merits hearing, you admit that and she didn't put it in there. So they said that's a problem. Then the next thing they go to is they say, and then you say you were detained for a week in your asylum interview, and you went to jail for seven days, and then when you get to your merits hearing, you say it's only a day.

[00:02:49] Speaker 04:
So again, they caught him in another contradiction.

[00:02:53] Speaker 04:
Then they go to the next one, where it is, how long did you stay in Cuba? In one time he says two months, in another time he says eight months.

[00:03:06] Speaker 04:
All of those significant contradictions in very important applications and hearings.

[00:03:16] Speaker 04:
Now, why can't I say that there is substantial evidence then to sustain the The BIA's determination.

[00:03:25] Speaker 00:
Because, Your Honor, those inconsistencies do not reflect. Because what?

[00:03:32] Speaker 00:
The points that you just pointed out, the discrepancies, do not reflect negatively upon the petitioner's propensity meaning the propensity to lie because it does not reflect in any way in his honesty. Actually, it reflects in his honesty because the practitioner was the one who volunteered the information.

[00:04:01] Speaker 04:
Well, just a minute. I didn't even think that they argued that in front of the BIA. I mean, in front of the BIA, he seems to suggest that this thing about the, well, first of all, He doesn't say too much about except that he went to Cuba and he didn't have an explanation of why he didn't do that. But then when it goes to the detained for a week and that's for seven days, he says, well, that's all the interpreter's fault.

[00:04:32] Speaker 04:
The interpreter didn't have the right thing down. But the asylum interviewer didn't say he turned for one week or seven days or whatever, he differentiated the days and the way he laid it out. So I'm having a tough time understanding why the BIA is wrong in saying it's implausible that the interpreter was the problem.

[00:05:05] Speaker 00:
Well, Your Honor, it's just assuming those inconsistencies do exist. It's our argument that they do not reflect his propensity for dishonesty because he's the one who mentioned the Cuba trip at his assignment interview. Actually, the assignment officer went through his assignment application item by item. The assignment officer put a check mark on the question whether or not you were arrested in any other country than United States.

[00:05:45] Speaker 00:
At that time.

[00:05:48] Speaker 04:
You're saying even though those are big inconsistencies and we see that they are, we should ignore that part because that does not sustain the substantial evidence review?

[00:06:04] Speaker 04:
What do I do with the length of stay? Two months or eight months?

[00:06:10] Speaker 00:
You just said.

[00:06:11] Speaker 00:
There's nothing that the petitioner here can gain by changing the length of his stay in Cuba. So therefore, that does not go to the heart of his assignment.

[00:06:24] Speaker 04:
So again, you admit the inconsistency. You just don't think it's sustained?

[00:06:28] Speaker 00:
Yes, Your Honor.

[00:06:30] Speaker 00:
So then we have to look at this inconsistency in the context, again, in the totality of circumstances.

[00:06:38] Speaker 04:
Why don't we look at the fine receipt? Okay, the fine.

[00:06:43] Speaker 04:
It contains a date 9-24-14. And there's a stamp. Looks like it's stamped on there with 2009.

[00:06:55] Speaker 04:
So your client says that date doesn't relate to the year. But when he was confronted about what does it relate to, he doesn't know.

[00:07:07] Speaker 04:
Because of this discrepancy, the BIA determined the document didn't support his testimony. That seems pretty plausible.

[00:07:16] Speaker 00:
The document does support his testimony, because the number 2009 does not refer to the year.

[00:07:28] Speaker 04:
I'm not trying to say what is right or what is wrong. I'm just saying when you got a stamp right on it that says 2009 and you give your client the chance to say, what does that relate to? And he says, oh, well, I don't have any idea. Why is it bad for the BIA to say, well, we're not going to rely on that document?

[00:07:49] Speaker 00:
the board has a document in front of itself and also the court has the document in front of the court and if we look at the That's the page 465 of the administrative record. And it says registration number 2009 with serial number 31. So it's a part of registration number. Judging by my accent, you know that I'm a native Chinese speaker.

[00:08:22] Speaker 00:
Just look at the...

[00:08:24] Speaker 00:
The original of the receipt, any reasonable person who understands Mandarin or Chinese will tell that 2009 actually is not part of the stamp. It's part of a serious number.

[00:08:45] Speaker 04:
I understand your good argument. And if I were there, maybe I'd have bought it. But the bottom line is, the BIA said, He doesn't know what that is about. He doesn't know why it's there. He doesn't understand the situation. So therefore, we're just not going to use that document to help. That's all I said.

[00:09:06] Speaker 00:
Then I agree with you, Your Honor. Maybe the document doesn't help.

[00:09:12] Speaker 00:
his credibility, but it does not detract from his credibility. So it's a different issue.

[00:09:16] Speaker 04:
Well, we're already past the detraction. We've talked about those other ones, which we've already talked about. That's why.

[00:09:25] Speaker 00:
So your, and also the court has a property decision that's in Kuma, and in the court, I think the court, the panel agree with me that the church attendance is not a valid reason for the adverse credibility finding, and the court in Kuma, Kuma versus Garland

[00:09:51] Speaker 04:
I guess my worry about that is this, and I don't mean to monopolize here, but even if I give you that it seemed pretty implausible about what they said about church attendance, it seems they've got lots of reasons otherwise. That's why I had you address those first. So what might even go with you on the implausibility of the church?

[00:10:16] Speaker 04:
But I still have lots of reasons to sustain the credibility determination. That's why I had you talk about those first.

[00:10:23] Speaker 00:
But then the court should not substitute, as you pointed out earlier, Your Honor, the court should not substitute its judgment with the BIA's judgment. Because in the case of QMAR, the court says that if the practitioner has success, satisfactorily invalidated at least some, if not all, of the reasons identified by the BIA for its adverse credibility finding, the court should remain to the BIA to determine whether the remaining factors are sufficient in title of the totality of the circumstances.

[00:11:03] Speaker 01:
Thank you, Mr. Lee. We've taken you past your time. We'll give you two minutes for rebuttal.

[00:11:13] Speaker 01:
Mr. Spillock.

[00:11:16] Speaker 03:
Thank you.

[00:11:21] Speaker 03:
Substantial evidence supports the agency's adverse credibility finding this case and also their application, although totality of the circumstances in this case clearly shows that just if nothing else based on his false statements in his asylum application and his later false statements to, or at least conflicting statements between his testimony and the asylum officers.

[00:11:43] Speaker 04:
Council, as I understand it, The petitioner only challenges the adverse credibility finding on appeal, right? Correct. That if he doesn't get that, we have to send the case back for a merits finding.

[00:11:58] Speaker 04:
Isn't that true?

[00:11:59] Speaker 03:
I believe with this case that's true. I believe that's true.

[00:12:05] Speaker 03:
There's really no question that the petitioner, when he testified before the asylum officer, said that he had been detained for seven days. Do we know whether that's his words or the asylum officer's words?

[00:12:23] Speaker 03:
It's written down by the asylum officer on the asylum officer's memorandum. It's essentially, it's not a verbatim transcript, but they wrote down what the

[00:12:35] Speaker 02:
I guess that's kind of the problem, at least with the concern about the translation issue. I'm not sure exactly what the process is, but if those aren't his words and the translation issue kind of arose in between what he said and how the officer took it,

[00:12:58] Speaker 03:
I think the best argument for why there was no translation error in that issue between one day and seven days is because he also says at one point in the asylum officer's notes, one week, seven days. He made a lot of argument about the one and the seven character in Mandarin look the same and so they're easily confused. But It's not just one seven. It's also one one. Is there also confusion between week and day?

[00:13:27] Speaker 03:
He didn't mention that so you have it in the silent officers notes both referred to as seven days and One week not so that you don't have that problem at all.

[00:13:38] Speaker 02:
It seems pretty clear that it's But both instances are the asylum officers notes not not a transcript of his testimony. I

[00:13:45] Speaker 03:
Correct. You're right. And, Your Honor, there's other issues. I mean, if it was just a translation error, it wouldn't just be the one day versus the seven days, but it also would be his other inconsistencies between his asylum testimony with the asylum officer and then later his trial testimony, which was also inconsistent on the length of time that he was detained. He went from two months with the asylum officer and then admitted... Length of time that he visited. Correct. Correct.

[00:14:13] Speaker 03:
later changed that to eight months, which was a substantial difference in time and Did he have the opportunity to explain that inconsistency?

[00:14:23] Speaker 03:
at the hearing that he the immigration judge certainly was asking questions like why would you have gone eight months versus two months and the the the explanation was Yes, I went there for eight months. He didn't explain why he had changed from two to eight months.

[00:14:42] Speaker 04:
But if he were going to say he didn't have an explanation or wasn't given the chance for an explanation, he didn't exhaust that in front of the BIA at all, did he?

[00:14:54] Speaker 02:
Correct, Your Honor. In fact, we required exhaustion of arguments rather than claims. So the claim here is that I was not given the opportunity, that I.J. did not adhere to our step process for it. And that's one element of the argument. But it's unclear to me whether that's an argument, which typically don't require exhaustion of, or whether it's an issue or claim that we would require exhaustion of that he spoke to. He did raise the general issue on that point.

[00:15:28] Speaker 03:
I would respond to her by saying not only did he not exhaust that specific type of argument, which is a very specific argument, was he given the opportunity to explain. He actually didn't, it wouldn't have been necessary to ask that question or to raise that issue because his whole entire, his entire thrust in his appeal to the board was there's no problem here. There's no These are minor problems. These aren't major inconsistencies. They are inconsistencies, but they're just simply minor.

[00:15:59] Speaker 03:
That was the entire thrust of his argument, which is really kind of, I wouldn't say the opposite, but it's not on the same track of I wasn't given an opportunity to explain these differences.

[00:16:09] Speaker 02:
What about that question about who detained him, the question about whether it's the airport police or the police? How much weight should we put on that, given how it came out?

[00:16:18] Speaker 03:
It's very clear in the asylum officer's notes that he said he was arrested by the police. And when he was asked, Who did you pay the fine to? He said, the police station, the Cuban police station. He said nothing about airport detention. And it's clear why, it's definitely an inconsistency, talking about, I wasn't detained.

[00:16:41] Speaker 03:
At first, his entire argument about why he was detained or not detained, he said, well, I didn't lie on my asylum application because I don't consider what happened in Cuba to be the same thing as what the asylum application question was asking, which made no sense because it asked specifically detained, held, interrogated. It's very expansive. It's not just arrested.

[00:17:03] Speaker 02:
So there was some colloquy with the immigration judge on that point. Where did the IJ give a specific cogent reason not to accept his explanation? They're both police. They're different places.

[00:17:18] Speaker 03:
Well, I think the basic finding was the purpose of making that change in his story or his narrative was that it was less damning to his immigration case that he had completely forgotten to or completely failed to mention this entire incident on his asylum application completely and never changed it, even though he later had the opportunity to change it. I think that was the entire...

[00:17:47] Speaker 03:
PRESSED OF WHAT THE IMMIGRATION JUDGE FOUND.

[00:17:48] Speaker 02:
NEW SPEAKER DOES THE GOVERNMENT RELY ON THE INCONSISTENCIES WITH RESPECT TO THE CHURCH ATTENDANCE?

[00:17:57] Speaker 03:
NEW SPEAKER WE DO BELIEVE THAT SUBSTANTIAL EVIDENCE SUPPORTS THE IMMIGRATION JUDGE AS FOUND BY THE BOARD'S FINDING THAT THERE WAS INCONSISTENCY IN THE TESTIMONY BETWEEN THE PETITIONER AND HIS WIFE. THE PETITIONER TESTIFIED THAT THE REASON WHY HE DID NOT ATTEND CHURCH ON THE BIG ISLAND WAS BECAUSE there were no churches where they spoke Chinese on the Big Island, so they didn't go to church on the Big Island. And his wife came back and testified that, yes, in fact, there were churches on the Big Island that they did speak Chinese, but they didn't go to them because they didn't believe in baptism.

[00:18:33] Speaker 02:
Why isn't that consistent? If I refer to my church and that there are no churches, why is it inconsistent that he's not also referring to the churches that reflect his denomination.

[00:18:49] Speaker 03:
I think he was saying that there were no churches at all in the Big Island, but it's in Chinese. I think that was the crux of what the inconsistent finding was. There's sort of a plausibility finding as well with that issue, but that was the inconsistency.

[00:19:05] Speaker 02:
The plausibility that there are There are no churches. So the IJ and the board, to the extent it just accepted the inconsistency, I find was correct in deciding for itself which churches may or may not count as a church for his worship purposes.

[00:19:29] Speaker 03:
The plausibility finding related to the fact that petitioner's entire basis for claiming that he left China for religious persecution purposes was because he wasn't able to go to a house church. He wasn't able to attend a church, so he left China. So the implausibility was that he would move to the United States to an area where there would be no church that he would be able to attend for whatever reason, either because they didn't speak Chinese in that church or because they He wasn't in agreement with their theology.

[00:20:01] Speaker 03:
You would think that he would make that decision. It would be more plausible that you would make a decision if you fled China for religious purposes because you weren't able to go to church. You would go someplace where you were able to go to church.

[00:20:13] Speaker 04:
Well, but he says he attends church in Honolulu one or two times a month. His wife doesn't go.

[00:20:20] Speaker 03:
That's correct, Your Honor.

[00:20:22] Speaker 04:
That is true. I think the government's argument on this is a little problematic. I think it's kind of inconsistent. He testifies he's very religious. He wants to go to his house church. He goes to house church even after his arrest.

[00:20:39] Speaker 04:
He doesn't attend church on the Big Island because there's no Chinese churches. Then the wife says there is a church, but they don't go because they don't practice baptism. He didn't say that. She did. Then he says he attends church in Honolulu one or two times a month, but his wife doesn't go. And then they say they both read the Bible, and then all of a sudden the IJ jumps to the conclusion he moves to a place where he can't attend church. I mean, he can attend church. He went in Honolulu.

[00:21:09] Speaker 03:
I THINK IF I COULD ANSWER YOUR QUESTION, JUDGE, ALTHOUGH I DON'T KNOW THAT I CAN POINT IT TO THE AGENCY'S SPECIFIC LANGUAGE, BUT I THINK IT WOULD BE SAFE TO SAY IT'S UNPLAUSIBLE THAT ESPECIALLY THE ENTIRE REASON WHY YOU MOVED TO THE BIG ISLAND IS FOR ECONOMIC REASONS SO YOU CAN GET A JOB. THAT'S WHY HE SAID HE MOVED TO THE BIG ISLAND WAS FOR MONEY PURPOSES SO THEY COULD WORK. I THINK HE ALSO TESTIFIED THAT THE RESTAURANT THAT HE WAS WORKING WITH ON THE BIG ISLAND WAS EXPERIENCING TOUGH FINANCIAL PROBLEMS.

[00:21:39] Speaker 03:
And that was one of the reasons why, I think I would argue that the fact that he's arguing that he's spending $178 twice a month to fly back to Honolulu also is probably not plausible.

[00:21:56] Speaker 04:
Well, I didn't say that. You might argue it.

[00:22:01] Speaker 03:
If the judge has time for any more questions.

[00:22:03] Speaker 01:
It appears not. Thank you.

[00:22:09] Speaker 01:
Srili, rebuttal.

[00:22:12] Speaker 00:
I'd like to address the church attendance issue, trust risk. And actually, the BIA did not found that the petitioner's testimony is impossible in this aspect. The BIA only mentioned about the discrepancy.

[00:22:33] Speaker 00:
As the record shows, there's no actual discrepancy. The idea I understand that the petitioner's testimony to be that there's no church that he can attend on the Big Island. And let's assume there is a discrepancy. So because the BIA was the one that raised this discrepancy issue on the first instance, so petitioner did not have an opportunity to explain the discrepancy.

[00:23:03] Speaker 00:
So clearly, this factor is invalid to support an adverse credibility determination.

[00:23:13] Speaker 02:
Mr. Lee, could I have your response to your friend's argument about the length of detention question, the inconsistencies apparent between the The notes and the testimony?

[00:23:23] Speaker 00:
Yeah, actually, you know, the petitioner did answer that when he was asked about the length of detention, he said approximately two months, it's more than two months. He said it's been a while, I couldn't remember. And then eight months, I would argue that it's more than two months.

[00:23:40] Speaker 02:
No, I'm sorry, about the detention, the week versus day issue. His arrest...

[00:23:46] Speaker 02:
issue.

[00:23:48] Speaker 02:
The one week.

[00:23:49] Speaker 04:
The one week, seven days versus one day.

[00:23:52] Speaker 00:
The one and the seven in Mandarin Chinese are very easily mixed up. So maybe that's something was lost in the translation, but we don't know. But just the nature...

[00:24:09] Speaker 00:
We're just asking because the agency should not place too much weight on the reliability of the assignment officer's notes because it's not the nature of how the interview was conducted. And the court has precedent decisions saying that the assignment interview process by nature is not reliable.

[00:24:41] Speaker 01:
Thank you very much. Thank both counsel for their helpful arguments on the cases submitted.