[00:00:00] Speaker 04:
You may proceed.

[00:00:02] Speaker 02:
First of all, thank you for letting me appear via video call. This is my first time and I'll try my best. I'm a little nervous.

[00:00:09] Speaker 02:
May it please the court, Risha Malik for petitioner Adiza Patunade.

[00:00:14] Speaker 02:
This case involves two errors. First, the immigration judge applied the wrong legal standard when deciding the CLPR exception. Second, the credibility finding was based on minor differences that do not change the main story. For those two reasons, we asked the court to remand. So my first point, CLPR error.

[00:00:39] Speaker 02:
The regulation requires exceptionally compelling circumstances. 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. The immigration judge added a requirement that harm must continue or that she should have stayed in Mexico and waited. That requirement is not in the regulation.

[00:01:08] Speaker 02:
And my second point that the inconsistencies that I mentioned were about small details. The core event, the assault never changed. Under this court's cases, small differences are not enough if the main story stays the same.

[00:01:27] Speaker 04:
Well, maybe we should go through, I mean, there were a number of grounds.

[00:01:31] Speaker 04:
There were a number of grounds that the IJ seemed to be concerned about. One of them was just the timeline and how it made sense that the timeline of her miscarriage and her divorce and then the child being a certain age. 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. And because of that, she got her child miscarried or aborted.

[00:02:09] Speaker 05:
Hold on, stop right there. That was in April 2015. Is that right?

[00:02:18] Speaker 05:
Yes, Your Honor.

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

[00:02:22] Speaker 05:
Yes. Okay, so that happens on April 11, 2015.

[00:02:28] Speaker 05:
Yes.

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

[00:02:35] Speaker 00:
Yes. And it seems to me that that's where there seems to be an inconsistency because she says her daughter is six months old.

[00:02:45] Speaker 00:
But then the birth certificate shows the daughter being born August 31, 2016.

[00:02:52] Speaker 00:
So, of course, the miscarriage 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. I believe that can also happen because of the trauma that she suffered and the memory and everything. So I believe that.

[00:03:31] Speaker 05:
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:
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:
That's, yeah, exactly. 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.

[00:04:15] Speaker 00:
I mean...

[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. There's a 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. That's a fairly concrete event. So are we supposed to just overlook that inconsistency? I mean, obviously it was one of about six issues, but that's the one that to me is the most concrete. The other is 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. 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 where the IJ's credibility findings were sufficient?

[00:05:43] Speaker 02:
Your Honor, I would say that even though the timeline is very different, but again, if I say so, the mental 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. She was constantly abused. There was domestic violence. There was back and forth pregnancies and there was miscarriage.

[00:06:17] Speaker 04:
What about some of the other points that the IJ was concerned about? So one of them was in the declaration, she recounted some verbal abuse by her in-laws and then obviously the incident that resulted in the miscarriage. But then at the hearing, she testified that she was beat many times until she almost died. And the IJ regarded that as inconsistent with the declaration. 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 or suffered so much, sometimes things just go blank in your mind. And we were preparing the declaration.

[00:06:57] Speaker 02:
Maybe this was not something that she would remember at that time or she would Maybe she didn't tell us at that time, but that's what that happened with her. It's not something that she is, it's completely opposite of each other. It's something that can be, okay, there was mental abuse, mental harassment. There was also physical abuse and physical harassment.

[00:07:22] Speaker 04:
Well, how about the number of times that the in-laws came to her house? 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. And then she testified a little differently that there was more constant harassment at the time. 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 living that far. So there was a possibility that they could come again and again to take the daughter back.

[00:07:59] Speaker 04:
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 order testimony in the court than her declaration. But I would also say there may be 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 happened.

[00:08:38] Speaker 00:
And what about the residence issue? She had put down her residence as Mabor.

[00:08:49] Speaker 00:
But then she said, I only lived there a week. But then in her testimony or application, she's talking about a seven-year period when she was moving around.

[00:09:05] Speaker 00:
So that's an inconsistency. 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. Yes, that's absolutely correct.

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

[00:09:29] 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 04:
Is that correct, though? I mean, I thought part of what she was saying was that she fled to Mubarak, and that was... essentially part of the persecution and that she reacted to that by leaving to a place that was six hours away. 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 00:
So, you know, one thing in a case like this, you really do have to distinguish between what relates to the persecution and what doesn't. But it didn't seem in reading your brief that that occurred because we have, we're faced with, I think, six different examples by the IJ of the inconsistency, but just as a friendly note, I think it would help 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, and as you said, she had been tortured and persecuted.

[00:10:49] Speaker 00:
She was in a very bad way. 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 friendly reminder, Your Honor. I really appreciate it. And I would also say one thing, that during what happened in Mexico, With her, that had has affected her a lot because she was there with her like eight, eight years old daughter, seven to eight years old daughter. And then sexually she was assaulted by the by the Mexican gangs. I clearly do not know who those people were. But then she she literally offered herself so they would not do anything to her daughter. And that affected her her so much that period of time that she died.

[00:11:34] Speaker 02:
and suffered all those things that mentally affected her. Again, because she suffered something back home. She thought she's going to come here. Things will be better. But then the shock that affected her so much.

[00:11:45] Speaker 05:
Could I just ask you one record question? And maybe it's not much, but the certificate of marriage, it's a certificate of witness of a religious marriage.

[00:11:59] Speaker 05:
And apparently it was, there's a date on the, Translation of April 10th, 2017. At the bottom, it's kind of strange. It says their divorce was on February 10th, 2016.

[00:12:15] Speaker 05:
Is that typical? Is that the way certificates of marriage are prepared to also show the date of divorce?

[00:12:27] Speaker 02:
Or do you know?

[00:12:29] Speaker 02:
No, to be honest, I do not know the specific thing about that country. But I believe when there are religious marriages, they don't register them immediately unless the marriage certificate is needed somewhere. Like, I'm from India, and my parents' marriage was never registered. Still not, but they are still living, you know.

[00:12:48] Speaker 05:
Let me ask you, let me ask the question a little bit differently. Is there any doubt that their divorce was on February 10th, 2016?

[00:12:59] Speaker 03:
Any, I, sorry, Your Honor. You don't know. I don't know.

[00:13:05] Speaker 04:
Is the source of this document that Judge Paez is referencing, is that a document that you provided to the record?

[00:13:13] Speaker 04:
You submitted that document on your client's behalf or did the document come from somewhere else?

[00:13:20] Speaker 02:
I, no, I think she provided us the document, Your Honor. We submitted on her behalf. She gave us the document.

[00:13:31] Speaker 04:
We've taken you over your time, but we'll put two minutes on the clock for you to respond to the government. So we'll give you two minutes and we'll hear from the government now.

[00:13:39] Speaker 03:
Thank you.

[00:13:48] Speaker 01:
May I please the court? Micah Engler on behalf of the Attorney General of the United States. In this case, substantial evidence supports the agency's denial of asylum and withholding of removal based on the adverse credibility determination. The agency provided specific and cogent reasons and relied on the totality of the circumstances that was supported by the evidentiary record. 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. Rather, in the opening brief, petitioner states that they were minor inconsistencies. 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. 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, whether it's How many times they physically harmed her in her declaration, she says one time. 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 05:
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 omission is can be treated different than actual inconsistencies.

[00:15:29] Speaker 01:
Yes, Your Honor. Omissions can be treated differently. However, 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.

[00:15:48] Speaker 00:
Let me just ask...

[00:15:54] Speaker 00:
Is it the case that each of these six points that were raised by the IJ, can they be aggregated for a finding of lack of credibility, or do you need to look at each one? What is the structure for evaluating these?

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

[00:16:17] Speaker 01:
The standard is totality of the circumstances. The immigration judge said that that's what he was doing. The board said that that was proper and that that's what the immigration judge did. I don't think that there's a bright line how many inconsistencies there have to be. 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 05:
Some of these do strike me as being somewhat minor.

[00:16:54] Speaker 05:
And, you know, if you say that maybe three of them, four of them, are really not true inconsistencies or omissions or not supported by the record, under our case law, we recognize that if you set aside 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 05:
I mean, do you disagree with that idea? That's our case law, Elon.

[00:17:49] Speaker 01:
No, no, Your Honor. I don't disagree with that. If you remove enough of the inconsistencies, then there might no longer be an adverse credibility determination.

[00:18:01] Speaker 05:
But the question is – Well, there still might be. The agency on a further look may conclude, yes, we still believe there is an adverse credibility determination.

[00:18:08] Speaker 01:
Yes.

[00:18:09] Speaker 05:
Or it's not enough.

[00:18:13] 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. And in this case in particular, it's a strong adverse credibility determination. They go through, the board at least highlights six different of these inconsistencies and plausibilities and omissions and 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 end, but they were not reasonable to the immigration judge in terms of explaining away these inconsistencies. I mean, some of these inconsistencies are very basic, like where was your last residence in Senegal? 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 04:
One of the arguments that opposing counsel made was that the petitioners endured a good deal of trauma, both in Senegal and on her way to the United States. 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 petitioner's 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.

[00:19:51] Speaker 01:
And you can use that as an explanation when you're before the immigration judge or even before the board. But that's not really what happened here. There wasn't a consistent explanation that that's why there's issues with memory. And also 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.

[00:20:28] Speaker 04:
James, we've exhausted our questions. And unless you have anything to add, I'll thank you for your presentation.

[00:20:34] Speaker 01:
Thank you, Your Honor.

[00:20:34] Speaker 04:
Thank you.

[00:20:37] Speaker 04:
We'll hear rebuttal.

[00:20:38] 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. The issue is here whether the inconsistencies relied upon were material and whether they are meaningful undermine the court claim.

[00:21:07] Speaker 02:
Several of the discrepancies identified, including the residential issue related to collateral background details rather than to alleged assault itself. Under this course 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 must be reconsidered. We are not seeking the court to revate the facts, but to ensure that the credibility findings on material inconsistencies evaluate under the totality of the circumstances, including trauma and displacement.

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

[00:21:49] Speaker 04:
Thank you.

[00:21:51] Speaker 04:
We thank you for your presentation. We thank both counsel for the briefing and argument. This case is submitted.