Legal Case Summary

Welcome back Mr. Broadhead. Good afternoon. Good afternoon. May I reserve five minutes of a build on? Yes sir. Thank you. May please the Court of my Instructional Board Avent Co-Council with the York OX Attorney's Prohibitioner, Ms. Chai. The word immigration appeals air as a matter of law in reversing the immigration judges' grant of withholding a removal of protection under the convention against torture for Ms. Chai. Ms. Chai demonstrated that it is more likely than not that if we're trying to try to, she would be persecuted or tortured on account of our participation in the 1989 democracy student movement within the United States

. You know I wondered about that because it was a big controversy here about findings and everything. But let's take the facts, the most favorable view. In this case, you don't have the advantage of a prior persecution. In this case, you're not at the start. We're not going to do that one again. What is sitting here today taking the facts you are away and not worrying about the urge on the appeal of the BIA to say what anyone really accepted, your client is so important. Does anybody want to persecute her? Yes, right. And I do believe that the board addressed this in the second part of their determination of ages four, five, and six, saying that he's presuming that she's credible, they still found that she did not demonstrate that it's more likely than not. They was this finding on the explicit assertion that she presented no evidence of persons similarly situated being persecuted. What in fact, she pointed specifically to the US State Department reports, detailing issues revolving around people who participate in pro-democracy or anti-communist party activities outside of China and subsequently return to China. I believe it's specifically detailed in pages four, eight, four, eight, and one in the record where they indicate that some individuals who participate in pro-democracy movement have been able to return to China without any problems

. But they need some detail of the circumstances of some individuals who have had problems. What are the circumstances that distinguish between the two groups? Of course, people naturally, when they're here, they, or if I go back, this will happen and that. But the question is the reality. Does anyone really care about that person? I mean, the distinguishing factor between people participating in activities in China and outside of China, I think maybe more goes to the knowledge of the Chinese authorities of the person's activities. As we discuss in our brief, there's extensive evidence that the Chinese government pursues those that have perceived as threats to their power and who have participated in activities that are against the Chinese government. The question then becomes whether or not the Chinese government is aware. If we're accepting as true mischized statements that the Chinese government is aware that she was in fact specifically and explicitly instructed to return to China following the pro-democracy activities, then we can prove the Chinese government is aware of her activities. This is particularly true given that mischized was here on the Chinese government's dime. She was working for a state-owned company. They paid for her to obtain her LLM in the United States. This is not a citizen who is just upset with the Chinese government and sitting outside the enemy seat

. This is a person who is here on behalf of the Chinese government. As a rule, she's not working for the Chinese government. She's still considered a representative of the government working for a state-owned company. Her participation in protest was approximately 22 years ago. Yes, sir. Is there evidence in the record that shows currently or 2008 when her area was out, that the Chinese government continues to go after those who are participating in these kind of loose protests? Yes, sir. And then we would say to the State Department, report page 4848, for a long-litching matter of HLH. The board said is the most pro-dative evidence of country conditions, where they do detail instances of individuals returning to China after engaging in pro-democracy activities and including a specific dimension, the instance of a person who I believe was in 2005, returned after 1989 activities. But that report talks about ongoing and high-profile protests. What in the record shows that your clients' protests were either ongoing or high-profile? Well, again, the evidence is relatively limited. I can see that up front, but again, that's a weird person

. Her briefness to why it's limiting, considering her particular circumstances of being incarcerated. Well, I don't know about that, because she had a lawyer, she was represented. I mean, lawyers can gather documents for their clients. She can't just say, you know, I wouldn't because I couldn't present any evidence because I was incarcerated. No, she can't say that, but under the regulations, testimony alone can be considered sufficient to be a burden of proof. And under this court standard, as an initiator, and although I move this side, it is 239-F-3rd-542, where an immigration judge is expecting cooperation there required to engage in a three-part analysis. And the first is to identify the evidence they seek to be corroborated, to determine whether it's been corroborated, and three, to determine whether or not the explanation provided if they fail to corroborate, was sufficient. Well, here we have the unusual case where she's identified some of the evidence. She says, I had documents and they were in the storage unit, but I couldn't get them because I was incarcerated. Correct. Are you suggesting her lawyer couldn't go to the storage unit and get them for her? I can't

. It's not any discussions that she may have been out of hand with her lawyer or her protected and earn away part of her relative regardless of what it is. What I can't say is her explanation is that she's caught off from all friends because of her shame guilt as a result of her gambling problem, and that she has not disclosed to anybody in her family and what is going on again because of her shame guilt. That she essentially is a woman alone. She has nobody in the United States and I realize that her lawyer may or may not have been able to go get the word. It's possible we could presume that, but this is not addressed by the board. I know this sounds harsh, but I'd have to understand that she's guilt. But she says in persecution, why wouldn't she open up to try to get the evidence to show that she's not only persecuted? Do you think that's a question that one could ask? But again, this is not a question that the board asked and a little answer and that's pretty specifically our point. How many years ago was it that she last engaged in what the Chinese government considered anti-government activity? According to the record, it was about 20 years or 20 years ago. She's been incarcerated for a great deal of that time. And if I can just go back to your understanding. What's the significance of that? I mean, the fact that the matter is that, well, this has got to be a little stale

. Are we to sit here and think that the Chinese government is going to prosecute her? Of course, she went to a couple of rallies 22 years ago. As a person, I think we have the shows that the Chinese government does have a long memory. And as a person who was working for a state company, she was a fairly high-level person within the United States branch of that company, who was attending our LLM and specifically disillmediated order of the Chinese government to return to China when she was so instructed. And that the state department references an individual who was persecuted in 2005 after 1989 activities. It is certainly possible. But again, I'm not asking this court to make that conclusion. What the board said was that there was no evidence that the people similarly situated and persecuted. And we would disagree with that, but there was some evidence and we were didn't address it, discuss it, acknowledge it, explain why even this evidence was insufficient. There was just a single misstatement and misrepresentation of the evidence that's contained in the record. Can we look at the record that comes with conclusions on that? I mean, taking your version of the facts? I would respectfully assert that under those circumstances the court could do that only if it were determined that we would end with a futile because giving the errors no reasonable fact finder could possibly conclude that she would suffer past persecution. Now, given that the immigration, I was not a no reasonable fact finder would conclude that she has a well-founded fear of inter persecution or that it's more likely than not that she would be persecuted under the withholding standard

. Given that the immigration judge found that she mannered her burden of proof and the board reversed, I think this court would be hard pressed to say that no reasonable fact finder could reach that determination and that would even end with their morbid futile. Because the board is a good standard review of the necessarily credibility that's added to the review of the right-wing conclusion that she is entitled to with the ruling of a removal. This was an issue that I recently addressed by this court in Blaine, which is 620 F-370-2, when essentially the court broke down a person who exclusively desegging a silent withholding of the rule of one protected under cat. For a well-founded fear, there's three issues. The first is the factual determinations that underlie the basis of that fear. Those factual determinations are reviewed by the board under the clearly erroneous standard. The second question is whether under those circumstances whether a reasonable person would fear persecution and that this court said is a mixed question fact and law, but the ultimate determination of undisputed facts to the legal standard of the prior is reviewed by the board under the NOLO standard. What do you want us to amend for the instructions for the board to properly review the record with respect to the credibility analysis for the board to consider, miss, tries, explanations for a failure to present the evidence which they didn't consider. We do discuss that the error of the board with respect to a certain issue didn't include information which she did in fact included. With respect to the second question, we're viewed for proper analysis of the background evidence that's contained in the record. I see that many times up and always there are many times for a battle

. Thank you. Thank you, Mr. Bob David. Mr. Stollzer. Thank you, your honor. Thank you, your honor. My name is Bob Stollzer and I'm here to represent the Attorney General of the United States. Thank you, Mr. Court. I think there are two ways to dispose of the current case rights, but I'm focusing on the laws here today

. And that is the condition of crime, certain crimes that the petition is considered to. Certain crimes that have been made or removed from the United States, these crimes have been made or been eligible for asylum. And these crimes have deprived this court jurisdiction over anything except for a pure question of law or constitutional claims. As I'm seeing here, I'm hearing a discussion with the Pensionist Council and I'm hearing a lot of discussion of looking to the record and how can we weigh this evidence and how should we look at this evidence into starting with the board. And we'll look at the evidence correctly. Your honor, those questions are not reserved for review here. Congress has decided that because the applicant is committed and aggravated felony, those questions are simply beyond the written court and the president. So I'm at the urge you to take another look at our motion to dismiss. Well, you know, I've always been troubled by these situations. People, the quest findings of fact in constitutional terms, for example, is, well, if the evidence isn't there, then it's a denial of due process to reach a conclusion. So if you do that, then everything can become constitutional

. That's what I often think. I see what you're saying, Your Honor. And I think the court has addressed this in a couple of cases saying that we cannot cast what a really factual dissonance as the constitutional deprivation or as a question of law. I mean, back to this court actually has a couple of cases which we cited in our motion, suggesting that the court is over incorrectly weighing evidence, the omission of evidence, failure to consider evidence properly. These are all factual rules that are the course that we have to address. I just find it opinion, I can see it was a mistake because not the result, but we made it not press the reaction of the plaintiff's claim. You should have made a press elimination. I can't expect the demand, but it's possible that for me, or if that is the case. But because these questions are no longer available, we can look at the legal questions. So what does the legal question here is, well, did the plaintiff apply that standard review? And the answer is, given to your honors they did. Unlike the cap and case, which was referenced in the long case, where the board was immuniously applying to no overview. Here the board was very explicit, we reviewed for clear bearer, and they had a very careful discussion of the boards to study the immigration justice decision. And where the judge went wrong, I think we turned the immigration justice decision. It's because it's very well now, so it's there. The only solution to this is to lift all of these problems with the evidence. And the immigration justice, he says he's troubled, he actually believes that she's acknowledged her story. And then it's pickably, which is the key error. It says in the block, given the method of the doubt. Do you know how many people on the board, in the board of immigration appeals? Because judging by what I see, if it was only a handful of people, they have a vast case story. How many members on it? At the top of this case, I believe there was only 13 or 14 who since added some new board members. And of course the board members are going to be. They're sending groups, it's less

. Here the board was very explicit, we reviewed for clear bearer, and they had a very careful discussion of the boards to study the immigration justice decision. And where the judge went wrong, I think we turned the immigration justice decision. It's because it's very well now, so it's there. The only solution to this is to lift all of these problems with the evidence. And the immigration justice, he says he's troubled, he actually believes that she's acknowledged her story. And then it's pickably, which is the key error. It says in the block, given the method of the doubt. Do you know how many people on the board, in the board of immigration appeals? Because judging by what I see, if it was only a handful of people, they have a vast case story. How many members on it? At the top of this case, I believe there was only 13 or 14 who since added some new board members. And of course the board members are going to be. They're sending groups, it's less. In many cases they sit in three dead, three board member panels. They also can dispose of cases individually. That's a change of regulations that occurred in the last 10 years, kind of the exact date. In any case, because they find the right, what about the right standard? There's no other questions here. Before we even get to the alternative, our goal is to travel. The travel to me is the aspect of the holding that rejected the immigration judges finding of credibility. You say that there are inconsistencies that the immigration judge acknowledged, but then inexplicably went on to find her credible. But the immigration judge had the opportunity to see what this testify had a good sense of the written saying. Listen to that written says, essentially closing statement. And based primarily upon that, as I recall, found her credible, made no sense. And that she would be reluctant to go back and try and accept that she feared for prosecution

. In many cases they sit in three dead, three board member panels. They also can dispose of cases individually. That's a change of regulations that occurred in the last 10 years, kind of the exact date. In any case, because they find the right, what about the right standard? There's no other questions here. Before we even get to the alternative, our goal is to travel. The travel to me is the aspect of the holding that rejected the immigration judges finding of credibility. You say that there are inconsistencies that the immigration judge acknowledged, but then inexplicably went on to find her credible. But the immigration judge had the opportunity to see what this testify had a good sense of the written saying. Listen to that written says, essentially closing statement. And based primarily upon that, as I recall, found her credible, made no sense. And that she would be reluctant to go back and try and accept that she feared for prosecution. Well, your eye can't speculate as to the applicant state of mind. What I can say is that the board has to be able to bring these cases. Of course the board has to have a clear confirmed conviction that what occurred was correct. The one here is impossible to look at the simulation to determine what happened. That's why I think the board expressed so many paragraphs, so many pages looking at what we read. And we really think of as a traditional address credibility determination, what are the factors to consider, under the rewriting act factors, the totalist services. And after having done that analysis, the board says we were from conviction that the immigration judge was wrong. And because the immigration was wrong, the petition simply didn't mean her murder. If you were, what would you want to be in this case? What do you want to see? I believe the leadership does miss a lot of jurisdiction. I think the questions that are outstanding here are, you don't think any of them. Well, there is a certain narrow area that can survive that motion, but you don't think any of them fits it any way

. Well, your eye can't speculate as to the applicant state of mind. What I can say is that the board has to be able to bring these cases. Of course the board has to have a clear confirmed conviction that what occurred was correct. The one here is impossible to look at the simulation to determine what happened. That's why I think the board expressed so many paragraphs, so many pages looking at what we read. And we really think of as a traditional address credibility determination, what are the factors to consider, under the rewriting act factors, the totalist services. And after having done that analysis, the board says we were from conviction that the immigration judge was wrong. And because the immigration was wrong, the petition simply didn't mean her murder. If you were, what would you want to be in this case? What do you want to see? I believe the leadership does miss a lot of jurisdiction. I think the questions that are outstanding here are, you don't think any of them. Well, there is a certain narrow area that can survive that motion, but you don't think any of them fits it any way. I do, because I'm looking here for the number of survived, would be legal questions and constitutional questions. Yes, but there's a constitutional question here. We can set that aside. The question is, is there a legal question left? Let me ask you this question, because it just occurred to me. If the board had never ran into the credibility issue, so okay, we're not going to second-best the IJs, Determination of Credibility. Just as soon as you've credible, that's not enough to establish a basis for withholding of the removal. The re-interestiction? You need to have jurisdiction, because that is a legal question. The board will use it for, for, for, for the review, because it's a legal question, we would continue to be a legal question here. You're referring to the alternate binding of the board. The board ran after it said, but look, let's try. The alternate binding was then, okay, even if we accept it, which is said as credible, this hasn't met the legal standard for prosecution or for torture

. I do, because I'm looking here for the number of survived, would be legal questions and constitutional questions. Yes, but there's a constitutional question here. We can set that aside. The question is, is there a legal question left? Let me ask you this question, because it just occurred to me. If the board had never ran into the credibility issue, so okay, we're not going to second-best the IJs, Determination of Credibility. Just as soon as you've credible, that's not enough to establish a basis for withholding of the removal. The re-interestiction? You need to have jurisdiction, because that is a legal question. The board will use it for, for, for, for the review, because it's a legal question, we would continue to be a legal question here. You're referring to the alternate binding of the board. The board ran after it said, but look, let's try. The alternate binding was then, okay, even if we accept it, which is said as credible, this hasn't met the legal standard for prosecution or for torture. And that was the same. How about our point of look? I was a, I was, or the government's dying, I didn't come home, maybe what other people might do might be different, you know, as opposed to just some private person who came. So, what do you, how about that? You know, like even the immigration judge in this case, not just the board, but the legal immigration judge, and said that he ruined his basis decision on that, on that facts, saying that to the extension, would be prosecuted for violating her contract that she signed with the Chinese shipping company, and refusing to return, and she's told her to return, through the nation to say that's not prosecution, that's prosecution. That's not the case. That's not the case. Well, that would, that would be a basis, certainly, for, you know, wouldn't be prosecution. No, it wouldn't be prosecution. For a more prosecution. Are you familiar with any in-pele case law to the effect that when BIA makes an alternative, if that would mean that is a question of law, the court appeals does not have jurisdiction? You know, I, I can't name the case, there was a fifth circuit case, I do not know one of the third circuit, suggesting that in the statute of justice, it's as the courts of review have, the courts of appeals have jurisdiction to review. And there's strict address, there's a final, except questions of law. So, I mean, here we do, I think you've conceded that the alternative holding presents a question of law

. And that was the same. How about our point of look? I was a, I was, or the government's dying, I didn't come home, maybe what other people might do might be different, you know, as opposed to just some private person who came. So, what do you, how about that? You know, like even the immigration judge in this case, not just the board, but the legal immigration judge, and said that he ruined his basis decision on that, on that facts, saying that to the extension, would be prosecuted for violating her contract that she signed with the Chinese shipping company, and refusing to return, and she's told her to return, through the nation to say that's not prosecution, that's prosecution. That's not the case. That's not the case. Well, that would, that would be a basis, certainly, for, you know, wouldn't be prosecution. No, it wouldn't be prosecution. For a more prosecution. Are you familiar with any in-pele case law to the effect that when BIA makes an alternative, if that would mean that is a question of law, the court appeals does not have jurisdiction? You know, I, I can't name the case, there was a fifth circuit case, I do not know one of the third circuit, suggesting that in the statute of justice, it's as the courts of review have, the courts of appeals have jurisdiction to review. And there's strict address, there's a final, except questions of law. So, I mean, here we do, I think you've conceded that the alternative holding presents a question of law. I think the ones who are suggesting is that we ought to do it in serietum, and we ought to look at the first issue, and when we decide that the first issue goes your way, then we stop and say we don't have jurisdiction. I think the jurisdiction issue is dispositive, and I think it's, I think this conversation is intact, like I said when I started, the issue of the reason why here today is decided by the right of felonies, and Congress in its wisdom is decided that people with those right of felonies will simply not have any rights to the government. And the first to decide whether the water plot of rights, standing in the review, and credibility of the company, should have been presented. I have a question why that would follow, because it strikes me that even if we said, okay, we can't review that, that still leaves the question of the legal sufficiency of this situation. I'm going to let's look at it this way. If we were the corporate to say that we have no jurisdiction over the first finding, which makes a jurisdiction over removal, and yet we still have jurisdiction over the second, we are going to, for the second, which is the work going to turn around and say, you found that you had no jurisdiction over the first portion, which makes a removal. She can still be a removal of legal circumstances, whether a agreement or not, which is why I say spilling them out that, that kind of doesn't make sense. So, I think we have to do something off to do. According to that, we have an urgent to, a great emotion to dismiss. Thank you. Thank you very much for your question

. I think the ones who are suggesting is that we ought to do it in serietum, and we ought to look at the first issue, and when we decide that the first issue goes your way, then we stop and say we don't have jurisdiction. I think the jurisdiction issue is dispositive, and I think it's, I think this conversation is intact, like I said when I started, the issue of the reason why here today is decided by the right of felonies, and Congress in its wisdom is decided that people with those right of felonies will simply not have any rights to the government. And the first to decide whether the water plot of rights, standing in the review, and credibility of the company, should have been presented. I have a question why that would follow, because it strikes me that even if we said, okay, we can't review that, that still leaves the question of the legal sufficiency of this situation. I'm going to let's look at it this way. If we were the corporate to say that we have no jurisdiction over the first finding, which makes a jurisdiction over removal, and yet we still have jurisdiction over the second, we are going to, for the second, which is the work going to turn around and say, you found that you had no jurisdiction over the first portion, which makes a removal. She can still be a removal of legal circumstances, whether a agreement or not, which is why I say spilling them out that, that kind of doesn't make sense. So, I think we have to do something off to do. According to that, we have an urgent to, a great emotion to dismiss. Thank you. Thank you very much for your question. We'll be in the battle for Mr. Bargay. Thank you, Anders. I'll get to the jurisdiction issue once I just wanted to clarify one factual issue that was raised by the government that indicated the immigration judge himself in the 80 would not find mischized refusal to return at the end of her contract to China as a basis for granted her withholding. But that was not her claim. Her claim before the court was actually specifically in 1990, August 1990, after participating in the Prodemocracy rallies, instructed to return to China prior to the completion of her contract by a high level official within the Chinese Consulate because of her participation in the, in the Prodemocracy movement. So, it's not based upon her. There was a separate issue because she signed a contract agreement at the end of her term to return to China. So, if they get a little confused, I just want to clarify the basis of her claim is related to her refusal to return in August of 1990. Which, respect to the jurisdiction issue, as we have on her speech, there was legal error in the board's negative credibility and determination in the matter which they reversed in the immigration judge. That is to say that the board has a legal requirement under the real idea of considering the record as a whole and must accurately state the evidence that it's contained in the record failure to do so

. We'll be in the battle for Mr. Bargay. Thank you, Anders. I'll get to the jurisdiction issue once I just wanted to clarify one factual issue that was raised by the government that indicated the immigration judge himself in the 80 would not find mischized refusal to return at the end of her contract to China as a basis for granted her withholding. But that was not her claim. Her claim before the court was actually specifically in 1990, August 1990, after participating in the Prodemocracy rallies, instructed to return to China prior to the completion of her contract by a high level official within the Chinese Consulate because of her participation in the, in the Prodemocracy movement. So, it's not based upon her. There was a separate issue because she signed a contract agreement at the end of her term to return to China. So, if they get a little confused, I just want to clarify the basis of her claim is related to her refusal to return in August of 1990. Which, respect to the jurisdiction issue, as we have on her speech, there was legal error in the board's negative credibility and determination in the matter which they reversed in the immigration judge. That is to say that the board has a legal requirement under the real idea of considering the record as a whole and must accurately state the evidence that it's contained in the record failure to do so. Constitutes the legal error so it's not merely that we're disagreeing with how the board was weighing the evidence but that the board misrepresented the evidence. But that's legal error. Yes, you're out of there. This construing evidence is, if the board applies the proper standard of review but there's a shot in job of evaluating evidence, isn't that a mistake of fact? What lines that legal error? It's different from us quibbling with the way the board weighed the evidence saying, well, the reasonable fact finder could conclude the way they concluded because the evidence is so strongly our paper. Instead, by misrepresenting the evidence, the board failed in its legal duty under the real idea both sessions applying to asylum in with holding a removal. So, it's the AOC 1231 B3C and AOC left to D. B1B, both of which required the board to consider the record as a whole, consider all explanations provided for any omissions or discrepancies prior to mission and negative credibility as you're saying. So, every appeal presents a legal issue. Isn't that getting the idea to swash the concerns expressed by Judge Greenberg that if you agree with what you just said, the jurisdiction-stricken provision passed by Congress becomes a nullity? No, I would respectfully disagree with that. And it's in limited instances where there is, instead of error in arranged and balancing of the evidence where the board makes affirmative misrepresentation of the evidence that they assert something does not exist when it does or by its person. In this instance, they affirmatively assert that mischieg did not include any details about her 1990 trip to China in her asylum application when it actually very specifically did in one of the sections in this was in no way acknowledged by the board

. Constitutes the legal error so it's not merely that we're disagreeing with how the board was weighing the evidence but that the board misrepresented the evidence. But that's legal error. Yes, you're out of there. This construing evidence is, if the board applies the proper standard of review but there's a shot in job of evaluating evidence, isn't that a mistake of fact? What lines that legal error? It's different from us quibbling with the way the board weighed the evidence saying, well, the reasonable fact finder could conclude the way they concluded because the evidence is so strongly our paper. Instead, by misrepresenting the evidence, the board failed in its legal duty under the real idea both sessions applying to asylum in with holding a removal. So, it's the AOC 1231 B3C and AOC left to D. B1B, both of which required the board to consider the record as a whole, consider all explanations provided for any omissions or discrepancies prior to mission and negative credibility as you're saying. So, every appeal presents a legal issue. Isn't that getting the idea to swash the concerns expressed by Judge Greenberg that if you agree with what you just said, the jurisdiction-stricken provision passed by Congress becomes a nullity? No, I would respectfully disagree with that. And it's in limited instances where there is, instead of error in arranged and balancing of the evidence where the board makes affirmative misrepresentation of the evidence that they assert something does not exist when it does or by its person. In this instance, they affirmatively assert that mischieg did not include any details about her 1990 trip to China in her asylum application when it actually very specifically did in one of the sections in this was in no way acknowledged by the board. So, this affronts a mischaracterization of the record. It's an affirmative misrepresentation of the record and because the board is under our legal obligation under the real idea, I consider the record as a whole, affirmatively misrepresenting the record constitutes an error of law. In the case that I can find that, it might be beneficial to this court. It's not directly on point, but it's in the rule of the Ashcroft 3D-A6F3556 where the, I believe it was Judge Annabelle Ray for the court, indicated that factual, their instances where facts can be established as a matter of law. And that, since he believed that the words error below in dealing with the motion to reopen the facts were so conclusively in one favor as a matter of law they demonstrated eligibility for reopening. In this instance, the misrepresentation of facts can be an error of law, given the board's legal requirement to consider the record as a whole. I see that my time is up and almost the court has any further questions or less. All right, thank you. The case was very well on you. We'll take another ablution.

Welcome back Mr. Broadhead. Good afternoon. Good afternoon. May I reserve five minutes of a build on? Yes sir. Thank you. May please the Court of my Instructional Board Avent Co-Council with the York OX Attorney's Prohibitioner, Ms. Chai. The word immigration appeals air as a matter of law in reversing the immigration judges' grant of withholding a removal of protection under the convention against torture for Ms. Chai. Ms. Chai demonstrated that it is more likely than not that if we're trying to try to, she would be persecuted or tortured on account of our participation in the 1989 democracy student movement within the United States. You know I wondered about that because it was a big controversy here about findings and everything. But let's take the facts, the most favorable view. In this case, you don't have the advantage of a prior persecution. In this case, you're not at the start. We're not going to do that one again. What is sitting here today taking the facts you are away and not worrying about the urge on the appeal of the BIA to say what anyone really accepted, your client is so important. Does anybody want to persecute her? Yes, right. And I do believe that the board addressed this in the second part of their determination of ages four, five, and six, saying that he's presuming that she's credible, they still found that she did not demonstrate that it's more likely than not. They was this finding on the explicit assertion that she presented no evidence of persons similarly situated being persecuted. What in fact, she pointed specifically to the US State Department reports, detailing issues revolving around people who participate in pro-democracy or anti-communist party activities outside of China and subsequently return to China. I believe it's specifically detailed in pages four, eight, four, eight, and one in the record where they indicate that some individuals who participate in pro-democracy movement have been able to return to China without any problems. But they need some detail of the circumstances of some individuals who have had problems. What are the circumstances that distinguish between the two groups? Of course, people naturally, when they're here, they, or if I go back, this will happen and that. But the question is the reality. Does anyone really care about that person? I mean, the distinguishing factor between people participating in activities in China and outside of China, I think maybe more goes to the knowledge of the Chinese authorities of the person's activities. As we discuss in our brief, there's extensive evidence that the Chinese government pursues those that have perceived as threats to their power and who have participated in activities that are against the Chinese government. The question then becomes whether or not the Chinese government is aware. If we're accepting as true mischized statements that the Chinese government is aware that she was in fact specifically and explicitly instructed to return to China following the pro-democracy activities, then we can prove the Chinese government is aware of her activities. This is particularly true given that mischized was here on the Chinese government's dime. She was working for a state-owned company. They paid for her to obtain her LLM in the United States. This is not a citizen who is just upset with the Chinese government and sitting outside the enemy seat. This is a person who is here on behalf of the Chinese government. As a rule, she's not working for the Chinese government. She's still considered a representative of the government working for a state-owned company. Her participation in protest was approximately 22 years ago. Yes, sir. Is there evidence in the record that shows currently or 2008 when her area was out, that the Chinese government continues to go after those who are participating in these kind of loose protests? Yes, sir. And then we would say to the State Department, report page 4848, for a long-litching matter of HLH. The board said is the most pro-dative evidence of country conditions, where they do detail instances of individuals returning to China after engaging in pro-democracy activities and including a specific dimension, the instance of a person who I believe was in 2005, returned after 1989 activities. But that report talks about ongoing and high-profile protests. What in the record shows that your clients' protests were either ongoing or high-profile? Well, again, the evidence is relatively limited. I can see that up front, but again, that's a weird person. Her briefness to why it's limiting, considering her particular circumstances of being incarcerated. Well, I don't know about that, because she had a lawyer, she was represented. I mean, lawyers can gather documents for their clients. She can't just say, you know, I wouldn't because I couldn't present any evidence because I was incarcerated. No, she can't say that, but under the regulations, testimony alone can be considered sufficient to be a burden of proof. And under this court standard, as an initiator, and although I move this side, it is 239-F-3rd-542, where an immigration judge is expecting cooperation there required to engage in a three-part analysis. And the first is to identify the evidence they seek to be corroborated, to determine whether it's been corroborated, and three, to determine whether or not the explanation provided if they fail to corroborate, was sufficient. Well, here we have the unusual case where she's identified some of the evidence. She says, I had documents and they were in the storage unit, but I couldn't get them because I was incarcerated. Correct. Are you suggesting her lawyer couldn't go to the storage unit and get them for her? I can't. It's not any discussions that she may have been out of hand with her lawyer or her protected and earn away part of her relative regardless of what it is. What I can't say is her explanation is that she's caught off from all friends because of her shame guilt as a result of her gambling problem, and that she has not disclosed to anybody in her family and what is going on again because of her shame guilt. That she essentially is a woman alone. She has nobody in the United States and I realize that her lawyer may or may not have been able to go get the word. It's possible we could presume that, but this is not addressed by the board. I know this sounds harsh, but I'd have to understand that she's guilt. But she says in persecution, why wouldn't she open up to try to get the evidence to show that she's not only persecuted? Do you think that's a question that one could ask? But again, this is not a question that the board asked and a little answer and that's pretty specifically our point. How many years ago was it that she last engaged in what the Chinese government considered anti-government activity? According to the record, it was about 20 years or 20 years ago. She's been incarcerated for a great deal of that time. And if I can just go back to your understanding. What's the significance of that? I mean, the fact that the matter is that, well, this has got to be a little stale. Are we to sit here and think that the Chinese government is going to prosecute her? Of course, she went to a couple of rallies 22 years ago. As a person, I think we have the shows that the Chinese government does have a long memory. And as a person who was working for a state company, she was a fairly high-level person within the United States branch of that company, who was attending our LLM and specifically disillmediated order of the Chinese government to return to China when she was so instructed. And that the state department references an individual who was persecuted in 2005 after 1989 activities. It is certainly possible. But again, I'm not asking this court to make that conclusion. What the board said was that there was no evidence that the people similarly situated and persecuted. And we would disagree with that, but there was some evidence and we were didn't address it, discuss it, acknowledge it, explain why even this evidence was insufficient. There was just a single misstatement and misrepresentation of the evidence that's contained in the record. Can we look at the record that comes with conclusions on that? I mean, taking your version of the facts? I would respectfully assert that under those circumstances the court could do that only if it were determined that we would end with a futile because giving the errors no reasonable fact finder could possibly conclude that she would suffer past persecution. Now, given that the immigration, I was not a no reasonable fact finder would conclude that she has a well-founded fear of inter persecution or that it's more likely than not that she would be persecuted under the withholding standard. Given that the immigration judge found that she mannered her burden of proof and the board reversed, I think this court would be hard pressed to say that no reasonable fact finder could reach that determination and that would even end with their morbid futile. Because the board is a good standard review of the necessarily credibility that's added to the review of the right-wing conclusion that she is entitled to with the ruling of a removal. This was an issue that I recently addressed by this court in Blaine, which is 620 F-370-2, when essentially the court broke down a person who exclusively desegging a silent withholding of the rule of one protected under cat. For a well-founded fear, there's three issues. The first is the factual determinations that underlie the basis of that fear. Those factual determinations are reviewed by the board under the clearly erroneous standard. The second question is whether under those circumstances whether a reasonable person would fear persecution and that this court said is a mixed question fact and law, but the ultimate determination of undisputed facts to the legal standard of the prior is reviewed by the board under the NOLO standard. What do you want us to amend for the instructions for the board to properly review the record with respect to the credibility analysis for the board to consider, miss, tries, explanations for a failure to present the evidence which they didn't consider. We do discuss that the error of the board with respect to a certain issue didn't include information which she did in fact included. With respect to the second question, we're viewed for proper analysis of the background evidence that's contained in the record. I see that many times up and always there are many times for a battle. Thank you. Thank you, Mr. Bob David. Mr. Stollzer. Thank you, your honor. Thank you, your honor. My name is Bob Stollzer and I'm here to represent the Attorney General of the United States. Thank you, Mr. Court. I think there are two ways to dispose of the current case rights, but I'm focusing on the laws here today. And that is the condition of crime, certain crimes that the petition is considered to. Certain crimes that have been made or removed from the United States, these crimes have been made or been eligible for asylum. And these crimes have deprived this court jurisdiction over anything except for a pure question of law or constitutional claims. As I'm seeing here, I'm hearing a discussion with the Pensionist Council and I'm hearing a lot of discussion of looking to the record and how can we weigh this evidence and how should we look at this evidence into starting with the board. And we'll look at the evidence correctly. Your honor, those questions are not reserved for review here. Congress has decided that because the applicant is committed and aggravated felony, those questions are simply beyond the written court and the president. So I'm at the urge you to take another look at our motion to dismiss. Well, you know, I've always been troubled by these situations. People, the quest findings of fact in constitutional terms, for example, is, well, if the evidence isn't there, then it's a denial of due process to reach a conclusion. So if you do that, then everything can become constitutional. That's what I often think. I see what you're saying, Your Honor. And I think the court has addressed this in a couple of cases saying that we cannot cast what a really factual dissonance as the constitutional deprivation or as a question of law. I mean, back to this court actually has a couple of cases which we cited in our motion, suggesting that the court is over incorrectly weighing evidence, the omission of evidence, failure to consider evidence properly. These are all factual rules that are the course that we have to address. I just find it opinion, I can see it was a mistake because not the result, but we made it not press the reaction of the plaintiff's claim. You should have made a press elimination. I can't expect the demand, but it's possible that for me, or if that is the case. But because these questions are no longer available, we can look at the legal questions. So what does the legal question here is, well, did the plaintiff apply that standard review? And the answer is, given to your honors they did. Unlike the cap and case, which was referenced in the long case, where the board was immuniously applying to no overview. Here the board was very explicit, we reviewed for clear bearer, and they had a very careful discussion of the boards to study the immigration justice decision. And where the judge went wrong, I think we turned the immigration justice decision. It's because it's very well now, so it's there. The only solution to this is to lift all of these problems with the evidence. And the immigration justice, he says he's troubled, he actually believes that she's acknowledged her story. And then it's pickably, which is the key error. It says in the block, given the method of the doubt. Do you know how many people on the board, in the board of immigration appeals? Because judging by what I see, if it was only a handful of people, they have a vast case story. How many members on it? At the top of this case, I believe there was only 13 or 14 who since added some new board members. And of course the board members are going to be. They're sending groups, it's less. In many cases they sit in three dead, three board member panels. They also can dispose of cases individually. That's a change of regulations that occurred in the last 10 years, kind of the exact date. In any case, because they find the right, what about the right standard? There's no other questions here. Before we even get to the alternative, our goal is to travel. The travel to me is the aspect of the holding that rejected the immigration judges finding of credibility. You say that there are inconsistencies that the immigration judge acknowledged, but then inexplicably went on to find her credible. But the immigration judge had the opportunity to see what this testify had a good sense of the written saying. Listen to that written says, essentially closing statement. And based primarily upon that, as I recall, found her credible, made no sense. And that she would be reluctant to go back and try and accept that she feared for prosecution. Well, your eye can't speculate as to the applicant state of mind. What I can say is that the board has to be able to bring these cases. Of course the board has to have a clear confirmed conviction that what occurred was correct. The one here is impossible to look at the simulation to determine what happened. That's why I think the board expressed so many paragraphs, so many pages looking at what we read. And we really think of as a traditional address credibility determination, what are the factors to consider, under the rewriting act factors, the totalist services. And after having done that analysis, the board says we were from conviction that the immigration judge was wrong. And because the immigration was wrong, the petition simply didn't mean her murder. If you were, what would you want to be in this case? What do you want to see? I believe the leadership does miss a lot of jurisdiction. I think the questions that are outstanding here are, you don't think any of them. Well, there is a certain narrow area that can survive that motion, but you don't think any of them fits it any way. I do, because I'm looking here for the number of survived, would be legal questions and constitutional questions. Yes, but there's a constitutional question here. We can set that aside. The question is, is there a legal question left? Let me ask you this question, because it just occurred to me. If the board had never ran into the credibility issue, so okay, we're not going to second-best the IJs, Determination of Credibility. Just as soon as you've credible, that's not enough to establish a basis for withholding of the removal. The re-interestiction? You need to have jurisdiction, because that is a legal question. The board will use it for, for, for, for the review, because it's a legal question, we would continue to be a legal question here. You're referring to the alternate binding of the board. The board ran after it said, but look, let's try. The alternate binding was then, okay, even if we accept it, which is said as credible, this hasn't met the legal standard for prosecution or for torture. And that was the same. How about our point of look? I was a, I was, or the government's dying, I didn't come home, maybe what other people might do might be different, you know, as opposed to just some private person who came. So, what do you, how about that? You know, like even the immigration judge in this case, not just the board, but the legal immigration judge, and said that he ruined his basis decision on that, on that facts, saying that to the extension, would be prosecuted for violating her contract that she signed with the Chinese shipping company, and refusing to return, and she's told her to return, through the nation to say that's not prosecution, that's prosecution. That's not the case. That's not the case. Well, that would, that would be a basis, certainly, for, you know, wouldn't be prosecution. No, it wouldn't be prosecution. For a more prosecution. Are you familiar with any in-pele case law to the effect that when BIA makes an alternative, if that would mean that is a question of law, the court appeals does not have jurisdiction? You know, I, I can't name the case, there was a fifth circuit case, I do not know one of the third circuit, suggesting that in the statute of justice, it's as the courts of review have, the courts of appeals have jurisdiction to review. And there's strict address, there's a final, except questions of law. So, I mean, here we do, I think you've conceded that the alternative holding presents a question of law. I think the ones who are suggesting is that we ought to do it in serietum, and we ought to look at the first issue, and when we decide that the first issue goes your way, then we stop and say we don't have jurisdiction. I think the jurisdiction issue is dispositive, and I think it's, I think this conversation is intact, like I said when I started, the issue of the reason why here today is decided by the right of felonies, and Congress in its wisdom is decided that people with those right of felonies will simply not have any rights to the government. And the first to decide whether the water plot of rights, standing in the review, and credibility of the company, should have been presented. I have a question why that would follow, because it strikes me that even if we said, okay, we can't review that, that still leaves the question of the legal sufficiency of this situation. I'm going to let's look at it this way. If we were the corporate to say that we have no jurisdiction over the first finding, which makes a jurisdiction over removal, and yet we still have jurisdiction over the second, we are going to, for the second, which is the work going to turn around and say, you found that you had no jurisdiction over the first portion, which makes a removal. She can still be a removal of legal circumstances, whether a agreement or not, which is why I say spilling them out that, that kind of doesn't make sense. So, I think we have to do something off to do. According to that, we have an urgent to, a great emotion to dismiss. Thank you. Thank you very much for your question. We'll be in the battle for Mr. Bargay. Thank you, Anders. I'll get to the jurisdiction issue once I just wanted to clarify one factual issue that was raised by the government that indicated the immigration judge himself in the 80 would not find mischized refusal to return at the end of her contract to China as a basis for granted her withholding. But that was not her claim. Her claim before the court was actually specifically in 1990, August 1990, after participating in the Prodemocracy rallies, instructed to return to China prior to the completion of her contract by a high level official within the Chinese Consulate because of her participation in the, in the Prodemocracy movement. So, it's not based upon her. There was a separate issue because she signed a contract agreement at the end of her term to return to China. So, if they get a little confused, I just want to clarify the basis of her claim is related to her refusal to return in August of 1990. Which, respect to the jurisdiction issue, as we have on her speech, there was legal error in the board's negative credibility and determination in the matter which they reversed in the immigration judge. That is to say that the board has a legal requirement under the real idea of considering the record as a whole and must accurately state the evidence that it's contained in the record failure to do so. Constitutes the legal error so it's not merely that we're disagreeing with how the board was weighing the evidence but that the board misrepresented the evidence. But that's legal error. Yes, you're out of there. This construing evidence is, if the board applies the proper standard of review but there's a shot in job of evaluating evidence, isn't that a mistake of fact? What lines that legal error? It's different from us quibbling with the way the board weighed the evidence saying, well, the reasonable fact finder could conclude the way they concluded because the evidence is so strongly our paper. Instead, by misrepresenting the evidence, the board failed in its legal duty under the real idea both sessions applying to asylum in with holding a removal. So, it's the AOC 1231 B3C and AOC left to D. B1B, both of which required the board to consider the record as a whole, consider all explanations provided for any omissions or discrepancies prior to mission and negative credibility as you're saying. So, every appeal presents a legal issue. Isn't that getting the idea to swash the concerns expressed by Judge Greenberg that if you agree with what you just said, the jurisdiction-stricken provision passed by Congress becomes a nullity? No, I would respectfully disagree with that. And it's in limited instances where there is, instead of error in arranged and balancing of the evidence where the board makes affirmative misrepresentation of the evidence that they assert something does not exist when it does or by its person. In this instance, they affirmatively assert that mischieg did not include any details about her 1990 trip to China in her asylum application when it actually very specifically did in one of the sections in this was in no way acknowledged by the board. So, this affronts a mischaracterization of the record. It's an affirmative misrepresentation of the record and because the board is under our legal obligation under the real idea, I consider the record as a whole, affirmatively misrepresenting the record constitutes an error of law. In the case that I can find that, it might be beneficial to this court. It's not directly on point, but it's in the rule of the Ashcroft 3D-A6F3556 where the, I believe it was Judge Annabelle Ray for the court, indicated that factual, their instances where facts can be established as a matter of law. And that, since he believed that the words error below in dealing with the motion to reopen the facts were so conclusively in one favor as a matter of law they demonstrated eligibility for reopening. In this instance, the misrepresentation of facts can be an error of law, given the board's legal requirement to consider the record as a whole. I see that my time is up and almost the court has any further questions or less. All right, thank you. The case was very well on you. We'll take another ablution