[00:00:00] Speaker 03:
You may proceed.

[00:00:02] Speaker 02:
First of all, thank you for letting me appear via video call.

[00:00:05] Speaker 02:
This is my first time and I'll try my best.

[00:00:07] Speaker 02:
I'm a little nervous.

[00:00:09] Speaker 02:
May it please the court, Richa Malik for Petitioner Addisya Patun Adiyya.

[00:00:14] Speaker 02:
This case involves two errors.

[00:00:16] Speaker 02:
First, the immigration judge applied the wrong legal standard when deciding the CLPR exception.

[00:00:22] Speaker 02:
Second, the credibility finding was based on minor differences that do not change the main story.

[00:00:28] Speaker 02:
For those two reasons, we ask the court to remand.

[00:00:34] Speaker 02:
So my first point, CLPR error.

[00:00:39] Speaker 02:
The regulation requires exceptionally compelling circumstances.

[00:00:43] Speaker 02:
Here, my client was assaulted at knife point and sexually touched while traveling with her female young child.

[00:00:52] Speaker 02:
And this is an extreme threat to safety.

[00:00:55] Speaker 02:
The immigration judge added a requirement that harm must continue or that she should have stayed in Mexico and waited.

[00:01:03] Speaker 02:
That requirement is not in the regulation.

[00:01:08] Speaker 02:
And my second point that the inconsistencies that IJ mentioned were about small details.

[00:01:16] Speaker 02:
The court event, the assault never changed.

[00:01:20] Speaker 02:
Under this court's cases, small differences are not enough if the main story stays the same.

[00:01:27] Speaker 03:
Well, maybe we should go through, I mean, there were a number of grounds.

[00:01:31] Speaker 03:
There were a number of grounds that the IJ seemed to be concerned about.

[00:01:34] Speaker 03:
One of them was just the timeline and

[00:01:38] Speaker 03:
how it made sense that the timeline of her miscarriage and her divorce and then the child being a certain age.

[00:01:45] Speaker 03:
Can you respond to that?

[00:01:50] Speaker 02:
Her main thing was the family violence that she suffered from her sister-in-law and from her mother-in-law.

[00:02:00] Speaker 02:
And because of that,

[00:02:02] Speaker 02:
she got her child miscarriage or aborted.

[00:02:08] Speaker 04:
And I... Hold on, stop right there.

[00:02:11] Speaker 04:
That was in April 2015.

[00:02:13] Speaker 04:
Is that right?

[00:02:18] Speaker 04:
Yes, Your Honor.

[00:02:19] Speaker 00:
And there's documentation on that, correct?

[00:02:22] Speaker 04:
Yes.

[00:02:23] Speaker 04:
Okay, so that happens on April 11, 2015.

[00:02:28] Speaker 04:
Yes.

[00:02:29] Speaker 00:
Then we go to the divorce, February of 2016, correct?

[00:02:35] Speaker 00:
Yes.

[00:02:36] Speaker 00:
And it seems to me that that's where there seems to be an inconsistency because she says her daughter is six months old, but then the birth certificate shows the daughter being born August 31, 2016.

[00:02:52] Speaker 00:
So of course the miscarriage

[00:02:57] Speaker 00:
could be documented and then she could have the daughter born in August of 2016.

[00:03:05] Speaker 00:
But what do we do with her saying, well, when I moved in, I think it was with her mother, the daughter was six months old, but she hadn't been born yet.

[00:03:17] Speaker 02:
Yes, I understand.

[00:03:18] Speaker 02:
I believe that can also happen because of the trauma that she suffered and the memory and everything.

[00:03:28] Speaker 02:
So I believe that.

[00:03:31] Speaker 04:
So this is just all a mistake?

[00:03:37] Speaker 02:
Yes, I believe that it can be a mistake, Your Honor.

[00:03:40] Speaker 00:
Well, I guess the question is, is it collateral to what we're talking about?

[00:03:47] Speaker 00:
and therefore can be overlooked in the heat of the testimony, the circumstances.

[00:03:55] Speaker 00:
What's your view on that?

[00:03:58] Speaker 02:
Yeah, exactly.

[00:04:01] Speaker 02:
That's what I am also thinking, Your Honor, that in the heat of the testimony and everything that was going on, maybe she has mistaken the timeline.

[00:04:17] Speaker 00:
We have cases that basically say, look, we're not going to hold you to these strict timelines because a lot of activities are going on.

[00:04:25] Speaker 00:
There's the passage of time and memory.

[00:04:29] Speaker 00:
But there is this, the notion that your child was born and then you take that child to your mother, that's not forgetting whatever date that was.

[00:04:39] Speaker 00:
That's a fairly concrete event.

[00:04:43] Speaker 00:
So are we supposed to just overlook that inconsistency?

[00:04:47] Speaker 00:
I mean, obviously it was one of about six issues, but that's the one that to me is the most concrete.

[00:04:55] Speaker 00:
The other's arguable.

[00:04:58] Speaker 00:
So what would be our authority to say, well, it's just a question of mistaken timing.

[00:05:09] Speaker 02:
Yes, I do understand that, Your Honor, and I believe that your opinion is correct.

[00:05:16] Speaker 02:
I am not going to say much about it.

[00:05:19] Speaker 00:
But if you can't say much about it, wouldn't that point toward denying the petition and in effect affirming

[00:05:37] Speaker 00:
where the IJ's credibility findings were sufficient?

[00:05:43] Speaker 02:
Your Honor, I would say that even though there are, the timeline is very different, but again, if I say so,

[00:05:54] Speaker 02:
The mentally harm that she suffered due to the constant abuse, due to the miscarriage and everything, it's because of that in her memory, the timeline maybe, it's different, Your Honor.

[00:06:08] Speaker 02:
She was constantly abused, there was domestic violence, there was back and forth pregnancies, and there was miscarriage.

[00:06:17] Speaker 03:
What about some of the other points that the IJ was concerned about?

[00:06:20] Speaker 03:
So one of them was the

[00:06:23] Speaker 03:
In the declaration, she recounted some verbal abuse by her in-laws and then obviously the incident that resulted in the miscarriage.

[00:06:30] Speaker 03:
But then at the hearing, she testified that she was beat many times until she almost died.

[00:06:36] Speaker 03:
And the IJ regarded that as inconsistent with the declaration.

[00:06:40] Speaker 03:
So how do you address that?

[00:06:41] Speaker 02:
I would say the same thing, Your Honor.

[00:06:47] Speaker 02:
When you are tortured,

[00:06:49] Speaker 02:
or suffered so much, sometimes things just go blank in your mind.

[00:06:54] Speaker 02:
And we were preparing the declaration.

[00:06:56] Speaker 02:
Maybe this was not something that she would remember at that time, or maybe she didn't tell us at that time.

[00:07:05] Speaker 02:
But that's what that happened with her.

[00:07:08] Speaker 02:
It's not something that she is, it's completely opposite of each other.

[00:07:14] Speaker 02:
It's something that can be, okay, there was mental abuse, mental harassment,

[00:07:18] Speaker 02:
there was also physical abuse and physical harassment.

[00:07:22] Speaker 03:
Well, how about the number of times that the in-laws came to her house?

[00:07:25] Speaker 03:
Because again, the IJ seemed to rely on the fact that after she left at the time when her in-laws were trying to come and take the daughter, there was a single encounter.

[00:07:35] Speaker 03:
And then she testified a little differently that there was more constant harassment at the time.

[00:07:42] Speaker 03:
So how do you address that point?

[00:07:45] Speaker 02:
The in-laws came, I agree, Your Honor, just one time, but she was not leaving that far, so there was a possibility that they could come again and again to take the daughter back.

[00:07:59] Speaker 03:
I thought she testified a little bit more expansively than that, though, that they came and tried to bother her when she was grocery shopping, and they would send other people to the house, and that was different than what she said in her declaration.

[00:08:14] Speaker 02:
Your Honor, I do acknowledge the fact that she talked more in her oral testimony in the court than her declaration.

[00:08:24] Speaker 02:
But I would also say that maybe things jogged her memory more when she was there, when we were two hours sitting there and discussing everything about her past.

[00:08:34] Speaker 02:
So that can be happening.

[00:08:38] Speaker 00:
And what about the residence issue?

[00:08:41] Speaker 00:
She had put down her

[00:08:44] Speaker 00:
residents as Mabor.

[00:08:49] Speaker 00:
But then she said, I only lived there a week.

[00:08:52] Speaker 00:
But then in her testimony, her application, she's talking about a seven-year period when she was moving around.

[00:09:05] Speaker 00:
So that's an inconsistency.

[00:09:06] Speaker 00:
The IJ says, well, that seems pretty big, a week here or seven years.

[00:09:13] Speaker 00:
what is the explanation, or could the explanation just be, well, it's an inconsistency, but not related to persecution?

[00:09:23] Speaker 02:
Yes, that's absolutely correct.

[00:09:26] Speaker 02:
It is an inconsistency.

[00:09:27] Speaker 02:
What is correct?

[00:09:30] Speaker 02:
Correct thing is that it is inconsistency, and I agree with you, Your Honor, respectfully, but this is not something that is related to her persecution.

[00:09:38] Speaker 03:
Is that not, is that correct though?

[00:09:40] Speaker 03:
I mean, I thought part of what she was saying was that she fled to Mubor and that was essentially part of the persecution and that she reacted to that by leaving to a place that was six hours away.

[00:09:52] Speaker 03:
But then the asylum application seems to say that she had been living there for eight years.

[00:10:00] Speaker 02:
Yeah, I have no comment on that.

[00:10:02] Speaker 02:
Apologize, Your Honor.

[00:10:05] Speaker 00:
So, you know, one thing in a case like this.

[00:10:08] Speaker 00:
You really do have to distinguish between what relates to the persecution and what doesn't.

[00:10:14] Speaker 00:
But it didn't seem, in reading your brief, that that occurred.

[00:10:19] Speaker 00:
Because we're faced with, I think, six different examples by the IJ of the inconsistency.

[00:10:29] Speaker 00:
But just as a friendly note, I think it would help

[00:10:35] Speaker 00:
the court down the road in cases where if you have that, you need to respond to that and either link it up with persecution or say, well, memories fade.

[00:10:46] Speaker 00:
And as you've said, she had been tortured and persecuted.

[00:10:50] Speaker 00:
She was in a very bad way.

[00:10:51] Speaker 00:
But I'm having trouble divining that from the argument here, I must say.

[00:10:59] Speaker 02:
Thank you so much for giving me this friend reminder, Your Honor.

[00:11:03] Speaker 02:
I really appreciate it.

[00:11:04] Speaker 02:
And I would also say one thing that during what happened in Mexico with her, that has affected her a lot because she was there with her like eight years old daughter, seven to eight years old daughter, and then sexually she was assaulted by the Mexican gangs.

[00:11:20] Speaker 02:
I clearly do not know who those people were.

[00:11:23] Speaker 02:
then she literally offered herself so they would not do anything to her daughter.

[00:11:27] Speaker 02:
And that affected her so much, that period of her time that she suffered all those things, that mentally affected her.

[00:11:37] Speaker 02:
Again, because she suffered something back home, she thought she gonna come here, things will be better, but then the shock, that affected her so much.

[00:11:45] Speaker 04:
Can I just ask you one record question?

[00:11:51] Speaker 04:
Maybe it's not much, but the certificate of marriage, it's a certificate of witness of a religious marriage.

[00:11:59] Speaker 04:
And apparently it was, there's a date on the translation of April 10th, 2017.

[00:12:08] Speaker 04:
At the bottom, it's kind of strange.

[00:12:10] Speaker 04:
It says their divorce was on February 10th, 2016.

[00:12:15] Speaker 04:
Is that typical?

[00:12:16] Speaker 04:
Is that the way

[00:12:19] Speaker 04:
Certificates of marriage are prepared to also show the date of divorce?

[00:12:27] Speaker 04:
Or do you know?

[00:12:29] Speaker 02:
No, I, to be honest, I do not know the specific thing about that country, but I believe when there are religious marriage, they won't register them immediately until or unless the marriage certificate is needed somewhere.

[00:12:42] Speaker 02:
Like I'm from India and my parents' marriage was never registered, still not, but they are just still living.

[00:12:48] Speaker 04:
Let me ask you, let me ask the question a little bit differently.

[00:12:51] Speaker 04:
Is there any doubt that their divorce was on February 10th, 2016?

[00:12:59] Speaker 02:
Any?

[00:13:01] Speaker 02:
I saw you and I don't know.

[00:13:03] Speaker 02:
I don't I don't know.

[00:13:04] Speaker 03:
I'm not the is the source of this document that Judge Piaz is referencing.

[00:13:08] Speaker 03:
Is that a document that you provided to the record?

[00:13:12] Speaker 03:
You submitted that document on your clients behalf or did the document come from somewhere else?

[00:13:20] Speaker 02:
I. No, I think she provided us the documentary honor.

[00:13:26] Speaker 02:
We submitted on her behalf.

[00:13:27] Speaker 02:
She gave us the document.

[00:13:31] Speaker 03:
We've taken you over your time, but we'll put two minutes on the clock for you to respond to the government.

[00:13:36] Speaker 03:
So we'll give you two minutes and we'll hear from the government now.

[00:13:40] Speaker 02:
Thank you.

[00:13:48] Speaker 01:
May I please the court?

[00:13:49] Speaker 01:
Micah Engler on behalf of the Attorney General of the United States.

[00:13:52] Speaker 01:
In this case, substantial evidence supports the agency's denial of asylum and withholding of removal based on the adverse credibility determination.

[00:14:00] Speaker 01:
The agency provided specific and cogent reasons and relied on the totality of the circumstances that was supported by the evidentiary record.

[00:14:10] Speaker 01:
As Your Honors just discussed with opposing counsel, the board highlighted six different inconsistencies, implausibilities, and omissions that the record supports.

[00:14:20] Speaker 01:
Petitioner does not argue that these did not occur.

[00:14:23] Speaker 01:
Rather, in the opening brief, petitioner states that they were minor inconsistencies.

[00:14:30] Speaker 01:
First, these inconsistencies do not have to go to the heart of the claim, but in this case, they actually do go to the heart of the claim.

[00:14:37] Speaker 01:
Petitioner's fear is of her former in-laws and whether they will circumcise her minor daughter if they return to Senegal.

[00:14:45] Speaker 01:
Just about every one of these inconsistencies and implausibilities has to do with her relationship with her former in-laws and her interactions with them.

[00:14:54] Speaker 01:
Whether it's how many times they physically harmed her in her declaration, she says one time.

[00:14:59] Speaker 01:
In her testimony, she says many, many times that it was a habit of theirs.

[00:15:04] Speaker 01:
How many times they would call her, how many times they called her when she was in hiding.

[00:15:09] Speaker 04:
So is that an inconsistency or an omission?

[00:15:14] Speaker 01:
Your Honor, I believe that that would be an inconsistency with the declaration.

[00:15:19] Speaker 00:
Do you agree that our case law suggests that omissions can be treated different than...

[00:15:27] Speaker 00:
actual inconsistencies.

[00:15:29] Speaker 01:
Yes, Your Honor.

[00:15:30] Speaker 01:
Omissions can be treated differently.

[00:15:32] Speaker 01:
However, when I believe that we cited case law saying that when they are an attempt to buttress the claim during testimony, then the agency is allowed to review those omissions as well as part of its adverse credibility determination.

[00:15:49] Speaker 00:
Let me just ask, is it the case that each of these

[00:15:57] Speaker 00:
six points that were raised by the IJ.

[00:16:01] Speaker 00:
Can they be aggregated for a finding of lack of credibility, or do you need to look at each one?

[00:16:09] Speaker 00:
What is the structure for evaluating these?

[00:16:13] Speaker 01:
I heard a lot of aggregation in the previous argument.

[00:16:16] Speaker 01:
The standard is totality of the circumstances.

[00:16:20] Speaker 01:
The immigration judge said that that's what he was doing.

[00:16:22] Speaker 01:
The board said that that was proper and that that's what the immigration judge did.

[00:16:26] Speaker 01:
I don't think that there's a bright line how many inconsistencies there have to be.

[00:16:33] Speaker 01:
So it seems like it's similar in the aggregate, but the court and the agency has not used in the aggregate for this test, to my knowledge.

[00:16:48] Speaker 04:
Some of these do strike me as being somewhat minor.

[00:16:54] Speaker 04:
And if you say that maybe three of them

[00:17:03] Speaker 04:
Four of them are really not true inconsistencies or omissions or not supported by the record.

[00:17:16] Speaker 04:
Under a case law, we recognize that if you set aside

[00:17:28] Speaker 04:
some of the inconsistencies or whatever, the findings, that that may be enough to sort of pull the rug out from under the adverse credibility finding and it should go back for further consideration.

[00:17:43] Speaker 04:
I mean, do you disagree with that idea?

[00:17:47] Speaker 04:
That's our case law, Elon.

[00:17:50] Speaker 01:
No, no, Your Honor.

[00:17:51] Speaker 01:
I don't disagree with that.

[00:17:52] Speaker 01:
If you remove enough of the inconsistencies, then there might no longer be an adverse credibility determination.

[00:18:01] Speaker 04:
But the question is... Well, there still might be.

[00:18:02] Speaker 04:
The agency, on a further look, may conclude, yes, we still believe there is an adverse credibility determination.

[00:18:09] Speaker 04:
Or it's not enough.

[00:18:12] Speaker 01:
The question is whether any reasonable fact finder would be compelled to conclude to the contrary that this is not a valid adverse credibility determination by the agency.

[00:18:23] Speaker 01:
And in this case in particular, it's a strong adverse credibility determination.

[00:18:29] Speaker 01:
They go through the board at least highlights six different of these inconsistencies and plausibilities and omissions.

[00:18:37] Speaker 01:
addresses how the immigration judge provided petitioner an opportunity to explain them, and petitioner was unable to do so.

[00:18:43] Speaker 01:
The immigration judge went through each of the explanations that was given, but they were not reasonable to the immigration judge in terms of explaining away these inconsistencies.

[00:18:54] Speaker 01:
I mean, some of these inconsistencies are very basic, like where was your last residence in Senegal?

[00:19:00] Speaker 01:
And petitioner listed a different residence in Mabour for seven years to where she lived, and then she said she only lived there actually for a week back when she was in Senegal because she lived six hours away with her mother during those seven years.

[00:19:14] Speaker 01:
That type of inconsistency is hard to remedy.

[00:19:22] Speaker 03:
One of the arguments that opposing counsel made was that, you know, the petitioners endured a good deal of trauma, both in Senegal and on her way to the United States.

[00:19:32] Speaker 03:
And how do you think that should factor into the analysis?

[00:19:35] Speaker 01:
Your honor I didn't see any argument in petitioners opening brief with case law supporting that that is something that we should be taking into account at this stage, but Unfortunately that isn't uncommon in these types of cases And you can use that as an explanation when you're before the immigration judge or even before the board But that's not that's not really what happened here.

[00:20:01] Speaker 01:
There wasn't a consistent explanation that that's why there's issues with

[00:20:05] Speaker 01:
Memory and also when every when almost every one of the inconsistencies is a bolstering of the claim That makes it seem like it's not necessarily a problem with memory, but an attempt to enhance the claim before the immigration judge Seems we've exhausted our questions and Unless you have anything to add.

[00:20:32] Speaker 03:
I'll thank you for your presentation.

[00:20:34] Speaker 03:
Thank you your honor.

[00:20:34] Speaker 03:
Thank you

[00:20:37] Speaker 03:
We'll hear rebuttal.

[00:20:43] Speaker 02:
Thank you, Your Honor.

[00:20:45] Speaker 02:
We do not dispute that credibility is reviewed under a differential standard, and we do not dispute that multiple inconsistencies can support an adverse credible finding.

[00:20:56] Speaker 02:
The issue is here whether the inconsistencies relied upon where material and whether they are meaningful undermine the court claim.

[00:21:06] Speaker 02:
Several of the discrepancies identified including the residential issue related to collateral background details rather than to alleged assault itself.

[00:21:17] Speaker 02:
Under this court's precedence, if a number of the cited inconsistencies are either not supported by the record or are immaterial, then the credibility determination cannot stand as currently structured and most be reconsidered.

[00:21:32] Speaker 02:
We are not seeking the court to reread the facts, but to ensure that the credibility findings resets on material inconsistencies evaluate under the totality of the circumstances, including trauma and displacement.

[00:21:47] Speaker 02:
Thank you.

[00:21:50] Speaker 03:
Thank you.

[00:21:51] Speaker 03:
We thank you for your presentation.

[00:21:53] Speaker 03:
We thank both counsel for the briefing and argument.

[00:21:55] Speaker 03:
This case is submitted.