Legal Case Summary

our last case. Yeah, first is holder number 131682. Good morning, honours. May I please the court? My name is Joshua Bart Avin, co-counsel to Petitioner Mr. Yang. Mr. Yang did not commit fraud for the purposes of gaining a benefit under the immigration and naturalization. I'm not even one question. Sure. I call them Mr. Yang and you call them Mr. Yang. But is it, is it, in some cultures the first name is the name that used like if he was Mr. Rue, will we call him Mr. King? You would usually use the surname first and then the first name, our first name last. So it would be Yang Shen, but it would be Mr. Yang still. That is his family name. So it's Mr. or Mrs. Family. He did not commit fraud for the purposes of gaining a benefit under the immigration and naturalization act

. And even assuming Arguendo that he did, the Board of Immigration Appeals abused its discretion in denying the motion to remand to consider the new and previously unavailable evidence. Starting with the. Can you start with the fingerprint problem? Yes. Because I'm not sure I don't agree with you about the fraud, but it's, you know, you've been here earlier today and you know about creating circuit press, creating circuit press, and when we have to create a circuit press, go your way on the fingerprint issue. No, you're on our because the, I believe we're referring to the fifth circuit's decision, which. I think there are a bunch of circuits on that. The one constant is the regulation in question, which is HCFR100.47, which specifically requires the department to notify the respondent, Mr. Yang, that his fingerprints have expired. Basically, in order to run a background check, they need to be refreshed every certain amount of time. The regulation that we cite HCFR104.7, I believe it's subsection D, is that requirement and there is nothing in the record and there's not even been a finding that DHS in fact did notify Mr. Yang that his fingerprints had expired. The IJ saying make sure your client has current fingerprints at the pre hearing scheduling conference on April 19, 2010. Then saying she told him if your client presents himself with expired prints and biometrics and the applications will dismiss the failure to prosecute and saying is that understood and having counsel respond, yes, is not fulfilled as requirements. No, that does not because that doesn't tell him when his prints expired, just that he's required when they are expired to in fact get them renewed because he had have previously done his fingerprints. And at no point in the record. It seemed to me that the when would be implicit, you know, have to get them when the others are expired. And when the day expired, we don't know. That's not part of the record. No one knows

. It hasn't been indicated when they expired because they only stay valid for a certain period of time and a lot of this is deals with the machinations of DHS and doing the FBI background checks. The respondents are often in the dark and there's a requirement that the DHS counsel put into the record and provide notice when those prints have expired. Therefore, the respondent Mr. Yang can then go and redo his fingerprints. And again, that was not, there's not a single document in the record and the IJ does not cite to a single document in the record that indicates that Mr. Yang was providing notice of when they did expire because again, they only stay good for valid period of time. And I would also note that we raised. I just want to be sure I understand your argument. What regulation is that you cite that say it has to be in writing? Is that your point that this notice had to be in writing? That is correct, yes, Your Honor. And so what are the regulations? And some way that's HCFR103.47 subsection D. And we cite to that and we provide an argument. I'd also note that we made this argument in our brief. According to you, it says that the statement must be in writing. That is correct. Okay, is that, do you have a quote somewhere? That is quoted in our brief. I believe on page 29 of our brief. Well, I don't see the requirements as, but I'm, where is the status to be in writing? I'm sorry, it's quoted on page 29 in applicants failure to update biometric data within the time allowed by the immigration judges order constitutes abandonment of the application. So within the time allowed. So the IJ has to specify. Well, it doesn't say any about writing

. We're both on the same page. Sorry, yes, but. Okay, and it's so true contention that it doesn't say, but the language I read you did say that make sure your client has current fingerprints. If your client presents himself with expired prints and bio net. And again, I would assert your honor that he has to be made know. I mean, she said to the council is I assume you didn't handle it below. Maybe you did. Is that understood? Council said yes. And he, but again, IJ do or not did not make him know when they expired. She did not specify a time. She just said when they are expired. But all this all the direct says is within the time allowed. And the IJ did by the order. And this is the order within the time allowed. That's to be current. I understand, but again, she didn't specify the time and the second point is why wouldn't it all your understand that? It's by current. So the lawyer. I expired. What do you mean what time? That could have been made more clear, but again, since the regulation puts the onus on the immigration judge. And the lawyer said you understood. And the lawyer said yes, you understood that when the

. That's your apprentice lawyer. You stand right. His or her shoe. I understand. Are you pursuing an ineffective assistance claim here? No, I don't mean before us, but I mean. Is that contemplated? Because this is isn't that your clients problem. Well, more than anything else. The abandonment of the application. The application. Well, one that that was remedied. No, I mean the performance of council. I understand council in this case was. Correct me for long. This bar. That is recently. Yeah. Did council even raise the fingerprint issue before the board? It was raised subsequently in the motion to remand. And I would assert more importantly, your honor that was a timely way. I would say that. Yes, it was the motion to remand was filed while the appeal was pending. So the argument was timely raised on appeal before the board

. Yes. And I would also assert your honor, even assuming argue end of that. There was an issue of abandonment. I would assert that the government has waived this argument. In fact, in there, we raised this in our brief and we state that it was the immigration judges. Obligation to provide the date. The government did not respond to that argument in their brief. And so to the extent that it is ignored you. Yes, that's that is not an argument section. There's not raised in their arguments whatsoever. The issue of abandonment. And therefore, although they stated in the statement of facts, it's in no way discussed in our citation and reliance on H. C. F. R. one 0 3.470 is not discussed whatsoever or rebutted by the government. So to that extent, I would assert that it's way. With respect to the waiver, the denial of the motion to remand. It's assert, respectfully asserted that the board of immigration appeals aired in viewing this evidence as not new and previously unavailable. That if you look at page 52, which is the medical record for the mother provided prior to the March 2011 hearing

. It's a January 2011 medical record. And compare it with pages 48 to 51, which are medical records provided after the March 2011 hearing. We see that the mother has developed additional elements, she has now difficulty breathing chest pains. She's now been diagnosed with sciatica. And there were a couple of other things that we point out in our brief. Now, whether or not this is sufficient. For pre-Mafasya evidence to warrant a new hearing is a different question as to whether or not it's new and previously unavailable. Undoubtedly, these conditions are new. The board said this evidence was not new and previously unavailable. And that was the only reason that they denied. Because these conditions undoubtedly are new, the matter should be remanded at the very least for determining whether or not they're sufficient to warrant a new hearing. Considering that the result may be different in light of the mother's worsening health conditions. And in light of the development of some mental health issues for which a psychological report was provided. Finally, our honor is turning to the negative credibility determination. The most important thing from the get go is the fact that a negative credibility determination is not a conclusion that an individual has committed fraud or a material misrepresentation. Asylum law has a very totally separate provision for making such a determination. And that is the frivolous requirements that if an immigration judge is going to find that an individual has in fact committed fraud or material misrepresentation essentially that their application was made up. 8th USC 1158 D6 provides that a judge can make a frivolous asylum finding. And upon that finding the alien would then become ineligible for any kind of future relief under immigration law. There was no such frivolous finding by IJ Dornal, either at the 2008 hearing or at the 2011 hearing. Therefore, the negative credibility determination which we discussed in greater detail on our brief is insufficient to reach a determination that Mr Yang committed fraud or material representation

. But rather that the the bases provided were product of either mistake misunderstanding the fact that his original asylum application was translated back to him and it was in English. I mean, undoubtedly didn't speak English. I do want to get just discuss one specific point that was raised in the negative credibility determination which seemed to be the primary factor which was his demeanor. But the immigration judge misrepresent the record in a significant way. She points out that supposedly Mr Yang tried to signal his mom when she was testifying to and IJ Dornal found this relevant because she said that he was doing it and then his mom changed her testimony. But in fact, if you look at the record, the her testimony on page 1304 and 1305 is when she cautions him about signaling. This occurs way before his mother discussed anything about where she lived or who lived with them. Well, can we possibly I mean, I appreciate your argument, but we weren't there. We didn't see this. I completely agree, but that's why the misreading of the record is so important. But how I don't understand how you can call it a misreading. You know, the IJ sitting there watching what's going on. We don't know how much time pass between certain behavior and when the IJ decided to put it on the record. But the point is is when it was put on the record was at the very beginning of her testimony well before she even discussed first saying that she lived in Albany and then changing her testimony to saying that she lived in Maryland. So since the IJ attributed this hand signal to what caused her to change her testimony, there's no way the mom could have changed her testimony because she hadn't even testified to the erroneous information to begin with. That testimony occurred in the transcript several pages later. So it's the misreading of the importance or the purpose of the hand signaling that makes it. What do you suggest is the purpose of the hand signal? I honestly don't know because I wasn't there, but what's important is that we know that the IJ's reading of it cannot be correct because his hand signal occurred well before her original testimony or the change in testimony. But in fact, he's given hands or she's given hand signal says we got to rely on that. That that's the record. Like one you'll testify to just to find that even if you haven't test before

. I mean that could be we just don't know. And I agree and I agree that that can be a factor, but what the IJ attributed it why she caused it called it relevant is simply cannot be correct. So at the very least can't be relevant. You say it can't be a change in testimony because there was no testimony. I'll just point this point on this point exactly. And so at the very end I'd have changed something else. It was so early in her testimony. I mean, yeah, okay, even if that's the case, that's not what the IJ found. And this court is bound by the agency's determination since the agency's determination was based on a misreading of the record at the very least it should be remanded for a determination. It does seem if you read the record that your client talked to his mother just before she was testifying and then even when she was after she'd been sworn. And that's what the IJ was really worried about. This is the second time I'm telling you you're not to speak to that witness while she's in the courtroom testifying as a witness. Do you understand? No, I totally understand what your honor is saying and it can be a cause for concern, but with IJ attributed to where the cause and the mom's change in testimony simply can't be correct. And therefore I think a remand would be appropriate on that issue. Thank you. Thank you. Good morning, your honors may it please the court. My name is Carrie Monaco and I represent a respondent attorney general Eric holder in this matter. This immigration case the government urges the court to deny the petition for review because the adverse credibility determination is supported by substantial evidence. And as a result of those Ampli supported adverse credibility findings, the agency did not air in concluding that the petitioner made willful misrepresentations when he filed his claim for asylum. And due to these willful misrepresentations, the agency did not air in concluding that the petitioner was inadmissible for purposes of adjustment of status without securing a waiver

. Why have you have you abandoned the fingerprint. We don't think that it's necessary for the court to reach that issue. I don't know if we did it would be the cleanest way to do it. Pardon? It would be the cleanest way to do it. I mean, if we should for example, if we should conclude that there wasn't evidence of fraud here, but we would lumber through this record and say yes, okay, there is a basis for the denial of what are we call it. The disability finding. Yes, for adjustment. I mean, that seems to me to be a big slog. Yes, and we agree that the petitioner was certainly on notice of his requirement to obtain fingerprints or make sure that they were current by the time his adjustment of status hearing rolled around. However, we also noted as my opposing council pointed out, we recognize that there is language in the regulation. And I think my opposing council might have quoted the incorrect section. There is a section of the regulations that require DHS to provide notice to the petitioner with instructions on how to obtain new fingerprints. That is 8 CFR 2003.47D. And without having the board address that specific regulation, which my opposing council raised in his opening brief, is the reason we did not address it in this case. And but we don't think that the court needs to reach it because of the other the other findings on the adjustment application are dispositive. We appreciate your candid. Yes, he actually does quote it on 29, but I was going after him pretty hard. So maybe he read me the wrong thing. Very understandable. So you think the fact that the agency did not provide instruction to the respondent for such a procedures was made this

. We're not saying that it was necessarily error in this case, particularly given the petitioner's warnings at the previous hearing. However, if the court felt the need to address that issue, you think it's best if the board had another opportunity to address the abandonment issue in the context of this language, the regulation language, which they did not do. And the IJ didn't either. Do you think that remanded for the board to address that. But again, we don't think remand is necessary because of the other dispositive in this case. And that because the adverse credibility finding is supported by substantial evidence. And because those findings also reasonably led to a finding that the petitioner had willfully misrepresented his asylum claims. So, suppose we didn't find there isn't evidence of will. If the court finds that the fraud, the inadmissibility finding is an error, then yes, we would agree with the court that remand is necessary for the board to address whether he abandoned his adjustment application and also address the merits of the adjustment application, whether he otherwise qualified for adjustment. If the court were to find that a waiver was not required. But again, it's the government's position that based on the adverse credibility factors that the immigration judge in the board were correct and determining that he required a waiver of inadmissibility for purposes of adjustment. And the most, the strongest finding in the adverse credibility context is in fact his demeanor. And I'd like to address my opposing counsel's argument in his opening about the nature of the record and what's on the record with respect to the demeanor. And he is correct that the immigration judge notes in the hearing transcript at the beginning of the mother's testimony that he was signaling to her in some way or attempting to speak with her in some way. There are no further references to hand gestures or signals during the mother's testimony, at least not in terms of the transcript. However, in the immigration judge's oral decision, she specifically notes that he had signaled to his mother at the points at which she changed her testimony on two different occasions. And using that's a different point that she just decided not to comment on when the witness was changing the testimony, but did comment on at the beginning of the testimony. That seems unlikely. Well, we, yes, agreed that it would have been helpful if that had been noted in the record. However, there's no reason to admit that that reference in the opinion is not supported by the record. There is no, yeah, there's no, I don't dispute that there is no reference in the transcript to their being hand gestures. At a crucial time. No hand gestures to change the testimony. There are, right, there is no reference to the. Are you allowed to do that? I mean, not reference it in the record, but then come back in the opinion and say I saw him doing it anyhow. I mean, there's no reason to think that the immigration judge cannot do that. Again, we were not present, but the judge rulings have to be based on the facts in the record. Well, in this case, all courts that I've heard of, maybe these kind of proceedings are different. Well, in this case, the immigration judge is basing it on what she personally witnessed during the hearing and what I can guess may have been notes that she made during the hearing, referencing his change of testimony and the signals that has or. I'm sorry. I'm sorry. She would comment on the first two questions that there's signaling and not comment if the person was actually changing testimony. The witness was changing testimony with regard to signaling. So it seems more likely that she'd misremembered. Well, in the first instance, and she's directly talking to the petitioner. And in the second instance, it appears that this may have been communication just going on between the petitioner and the witness. And again, there's no. It was really going on and she didn't know that after having known that the first time it seemed like she had probably taken some further action. And party from a room or something. Again, strong deference should be given. Trying to tell her mom what to say. Strong deference should be given to the immigration judge with respect to what she saw during the hearing and what she outlines in her decision

. At a crucial time. No hand gestures to change the testimony. There are, right, there is no reference to the. Are you allowed to do that? I mean, not reference it in the record, but then come back in the opinion and say I saw him doing it anyhow. I mean, there's no reason to think that the immigration judge cannot do that. Again, we were not present, but the judge rulings have to be based on the facts in the record. Well, in this case, all courts that I've heard of, maybe these kind of proceedings are different. Well, in this case, the immigration judge is basing it on what she personally witnessed during the hearing and what I can guess may have been notes that she made during the hearing, referencing his change of testimony and the signals that has or. I'm sorry. I'm sorry. She would comment on the first two questions that there's signaling and not comment if the person was actually changing testimony. The witness was changing testimony with regard to signaling. So it seems more likely that she'd misremembered. Well, in the first instance, and she's directly talking to the petitioner. And in the second instance, it appears that this may have been communication just going on between the petitioner and the witness. And again, there's no. It was really going on and she didn't know that after having known that the first time it seemed like she had probably taken some further action. And party from a room or something. Again, strong deference should be given. Trying to tell her mom what to say. Strong deference should be given to the immigration judge with respect to what she saw during the hearing and what she outlines in her decision. But even without the demeanor findings or even moving past the demeanor findings for a second here, there are numerous other inconsistencies in the record that support both the adverse credibility determination and the finding that the petitioner will fully misrepresented his asylum claim. But you think if all they do is support an adverse credibility finding we have to remain. No, I think I'm misunderstanding your question. In other words, if we find there's not evidence of fraud. We have to read. There's not sufficient evidence of fraud. If there's not sufficient evidence of fraud, are you asking whether that means that there's not sufficient evidence for credibility finding? Is that your question? No, in response to an earlier question from me, I thought you'd said if we should find there's not sufficient evidence for fraud finding here, we would have to remain. And we'd remain for what? Would remand for the agency to if the court finds that there's no fraud, then essentially the court is finding that the agency aired in denying his adjustment application for lack of admissibility. And so the case would need to go back for the agency to address whether he is eligible for adjustment because what happened here was the immigration judge in the board found that he was not eligible for adjustment because he was inadmissible and therefore required a waiver, which required him to prove hardship to certain US relatives. And so if you find that there's no fraud, then the finding that of the waiver requirement is also an error because that was the basis for the waiver was the inadmissibility finding and the fraud finding. And so the agency would then need to address the other elements of adjustment and whether he otherwise meets the requirements for adjustment on the merits of the. On the merits of the adjustment and in the matter of discretion. And in the matter of discretion because adjustment is a discretionary form of relief. So that's your alternative request. Here today. I mean, yes, if if I mean because those are the only. The only issue that's before the court. That's the only issue that's the more work on. Can you refresh my recollection of the extent I ever had. Insight into this windows ineffective assistance of council come before the agency, if ever. In a case such as this

. But even without the demeanor findings or even moving past the demeanor findings for a second here, there are numerous other inconsistencies in the record that support both the adverse credibility determination and the finding that the petitioner will fully misrepresented his asylum claim. But you think if all they do is support an adverse credibility finding we have to remain. No, I think I'm misunderstanding your question. In other words, if we find there's not evidence of fraud. We have to read. There's not sufficient evidence of fraud. If there's not sufficient evidence of fraud, are you asking whether that means that there's not sufficient evidence for credibility finding? Is that your question? No, in response to an earlier question from me, I thought you'd said if we should find there's not sufficient evidence for fraud finding here, we would have to remain. And we'd remain for what? Would remand for the agency to if the court finds that there's no fraud, then essentially the court is finding that the agency aired in denying his adjustment application for lack of admissibility. And so the case would need to go back for the agency to address whether he is eligible for adjustment because what happened here was the immigration judge in the board found that he was not eligible for adjustment because he was inadmissible and therefore required a waiver, which required him to prove hardship to certain US relatives. And so if you find that there's no fraud, then the finding that of the waiver requirement is also an error because that was the basis for the waiver was the inadmissibility finding and the fraud finding. And so the agency would then need to address the other elements of adjustment and whether he otherwise meets the requirements for adjustment on the merits of the. On the merits of the adjustment and in the matter of discretion. And in the matter of discretion because adjustment is a discretionary form of relief. So that's your alternative request. Here today. I mean, yes, if if I mean because those are the only. The only issue that's before the court. That's the only issue that's the more work on. Can you refresh my recollection of the extent I ever had. Insight into this windows ineffective assistance of council come before the agency, if ever. In a case such as this. It's often brought in the context of a motion to reopen after a removal order is in place. And this petitioner would would have that available. If he could. He would. I mean, if it goes back, he could. In theory, I mean, in theory, yes, but. And the motion to reopen is due within 90 days of the final order of removal. Unless he can show that there was a reason he couldn't file within 90 days. Well, he was represented by. But in this point, he's changed council a couple of times since then. So I think he'd have a hard time proving due diligence in pursuing that claim. What if everybody but present council back. That provided ineffective assistance. Again, he would have to show that he. He'd have to show that it was ineffective assistance by every subsequent council who failed to raise ineffective assistance. Essentially, yes, and that he was. He was diligently pursuing an ineffective assistance claim and prove when he learned of the ineffective assistance and that he diligently filed a motion to reopen. But as my opposing council admitted, they have not pursued that or filed one. And as I was mentioning the, I'd like to go back to the adverse credibility and fraud finding for a second and note the other inconsistencies in the record, which are very dramatic and relate to material elements of the petitioners claim. The first being that he gave completely different accounts of whether he engaged in political protests in Beijing in 1989, considering his initial asylum claim was based exclusively on his political activities in China, whether he went to Tiananmen square and participated in political protest there is a dramatic inconsistency. Is that the inconsistency enough standing alone to prove the fraud point? I mean, I think it is certainly evidence that the there is willfulness representation in this case and

. It's often brought in the context of a motion to reopen after a removal order is in place. And this petitioner would would have that available. If he could. He would. I mean, if it goes back, he could. In theory, I mean, in theory, yes, but. And the motion to reopen is due within 90 days of the final order of removal. Unless he can show that there was a reason he couldn't file within 90 days. Well, he was represented by. But in this point, he's changed council a couple of times since then. So I think he'd have a hard time proving due diligence in pursuing that claim. What if everybody but present council back. That provided ineffective assistance. Again, he would have to show that he. He'd have to show that it was ineffective assistance by every subsequent council who failed to raise ineffective assistance. Essentially, yes, and that he was. He was diligently pursuing an ineffective assistance claim and prove when he learned of the ineffective assistance and that he diligently filed a motion to reopen. But as my opposing council admitted, they have not pursued that or filed one. And as I was mentioning the, I'd like to go back to the adverse credibility and fraud finding for a second and note the other inconsistencies in the record, which are very dramatic and relate to material elements of the petitioners claim. The first being that he gave completely different accounts of whether he engaged in political protests in Beijing in 1989, considering his initial asylum claim was based exclusively on his political activities in China, whether he went to Tiananmen square and participated in political protest there is a dramatic inconsistency. Is that the inconsistency enough standing alone to prove the fraud point? I mean, I think it is certainly evidence that the there is willfulness representation in this case and. That's another point I want to make too is that enough standing alone. I would argue yes. Yes, that's a very dramatic. That's the turn general's position. You don't need any this other stuff about the hand signals in the hearing room and all that stuff that you did. The fraud on the animal square incidents enough. It's certainly evidence of will school misrepresentation and that's one thing I want to point out. But I'm asking the what I'm trying to find out what your position is on whether it's enough standing alone. If you lose on the hand signals and stuff like that, cause it's the judge didn't make proper references. Yes. That's better than it that you still win on this other stuff. Yes, and I'd like to make clear to the court that the inadmissibility statute we're looking at here does not definitively require the court to find that there was fraud in these inadmissibility statute renders the petitioner inadmissible if he committed fraud or willfully misrepresented a material fact. In pursuing an immigration benefit. And so a finding of actual fraud is not required. He still can be deemed inadmissible for willfully misrepresenting a material fact. It sounds like by the same thing. Yeah, what's the difference? Well, I think what we're looking at here are specific inconsistencies on material elements of his asylum claim. It doesn't necessarily need to be definitive finding that every aspect of his claim, for example, was fraudulent or that the entire claim was fraudulent. It's about whether he bolstered material elements in order to pursue asylum would also render him an admissible. But on the Tiananmen square stuff, when he says has to be a willful misrepresentation. How do you get past willful with all the language problems and all that? Well, he had his

. That's another point I want to make too is that enough standing alone. I would argue yes. Yes, that's a very dramatic. That's the turn general's position. You don't need any this other stuff about the hand signals in the hearing room and all that stuff that you did. The fraud on the animal square incidents enough. It's certainly evidence of will school misrepresentation and that's one thing I want to point out. But I'm asking the what I'm trying to find out what your position is on whether it's enough standing alone. If you lose on the hand signals and stuff like that, cause it's the judge didn't make proper references. Yes. That's better than it that you still win on this other stuff. Yes, and I'd like to make clear to the court that the inadmissibility statute we're looking at here does not definitively require the court to find that there was fraud in these inadmissibility statute renders the petitioner inadmissible if he committed fraud or willfully misrepresented a material fact. In pursuing an immigration benefit. And so a finding of actual fraud is not required. He still can be deemed inadmissible for willfully misrepresenting a material fact. It sounds like by the same thing. Yeah, what's the difference? Well, I think what we're looking at here are specific inconsistencies on material elements of his asylum claim. It doesn't necessarily need to be definitive finding that every aspect of his claim, for example, was fraudulent or that the entire claim was fraudulent. It's about whether he bolstered material elements in order to pursue asylum would also render him an admissible. But on the Tiananmen square stuff, when he says has to be a willful misrepresentation. How do you get past willful with all the language problems and all that? Well, he had his. It might be a negligent. In consistency as opposed to a willful misrepresentation. Well, in his written asylum application, he mentions twice that he went to Beijing and participated in the protests there. And that was prepared with the assistance of an attorney. And when he got to test when he went to his hearing and testified, he claimed, no, no, I never went there. One of those two things cannot be true. And so by either putting it into a written asylum application or testifying about it, one of those is a willful misrepresentation. And the same is true with the inconsistencies relating to the testimony with mother. Is that the mother and the petitioner were inconsistent about where the where his children's mother lived and even where the petitioner's mother lived. The petitioner testified that. I thought they were lying about that too. Part. You all thought they were lying about that where the where the wife was. Correct. And the mother, the mother was very inconsistent and lacked credibility on on both of those issues, both where she lived. First, she testified that she lived in Albany with her daughter. And then she immediately changed her testimony to say she lived in Maryland with the petitioner. Whether signaled or not. And that was both. But it's relevant to whether she's the caretaker for these children. And that was relevant to the claim that the petitioner would take his children back to China with him

. It might be a negligent. In consistency as opposed to a willful misrepresentation. Well, in his written asylum application, he mentions twice that he went to Beijing and participated in the protests there. And that was prepared with the assistance of an attorney. And when he got to test when he went to his hearing and testified, he claimed, no, no, I never went there. One of those two things cannot be true. And so by either putting it into a written asylum application or testifying about it, one of those is a willful misrepresentation. And the same is true with the inconsistencies relating to the testimony with mother. Is that the mother and the petitioner were inconsistent about where the where his children's mother lived and even where the petitioner's mother lived. The petitioner testified that. I thought they were lying about that too. Part. You all thought they were lying about that where the where the wife was. Correct. And the mother, the mother was very inconsistent and lacked credibility on on both of those issues, both where she lived. First, she testified that she lived in Albany with her daughter. And then she immediately changed her testimony to say she lived in Maryland with the petitioner. Whether signaled or not. And that was both. But it's relevant to whether she's the caretaker for these children. And that was relevant to the claim that the petitioner would take his children back to China with him. Or may have to take the children back to China with him. And that's an issue that the witness mother would know exactly who she's living with and in what state she currently lives. So that's one major problem. But the bigger problem is the fact that the petitioner testified that his children's mother was nowhere to be found. And then when the petitioner's mother got on the stand, Ms. Lynn, she testified that the children's mother lives with all of them in Maryland and works at the same restaurant as the petitioner. And whether a signal or not, the immigration judge references that there was a signal at this point in her decision, but it's not in the record. So even if we assume there's no signal, the petitioner then changed her testimony when confronted with this inconsistency. Oh, no, the mother is nowhere to be found. I'm sorry, the mother. The mother then changed her testimony saying that the children's mother is nowhere to be found. There's a problem with the translation from the mother's testimony, right? There's like not the right dialect. The dialect was confirmed at the beginning of the mother's testimony that the appropriate interpreter was present. I thought I remember it. I thought there was some discussion about the interpreter. Said she's not speaking manderman. Right. She's something else. She speaks something else. I thought they could make do with this, but. The petitioners attorney indicated that a mandarin interpreter was appropriate and continued the testimony

. Or may have to take the children back to China with him. And that's an issue that the witness mother would know exactly who she's living with and in what state she currently lives. So that's one major problem. But the bigger problem is the fact that the petitioner testified that his children's mother was nowhere to be found. And then when the petitioner's mother got on the stand, Ms. Lynn, she testified that the children's mother lives with all of them in Maryland and works at the same restaurant as the petitioner. And whether a signal or not, the immigration judge references that there was a signal at this point in her decision, but it's not in the record. So even if we assume there's no signal, the petitioner then changed her testimony when confronted with this inconsistency. Oh, no, the mother is nowhere to be found. I'm sorry, the mother. The mother then changed her testimony saying that the children's mother is nowhere to be found. There's a problem with the translation from the mother's testimony, right? There's like not the right dialect. The dialect was confirmed at the beginning of the mother's testimony that the appropriate interpreter was present. I thought I remember it. I thought there was some discussion about the interpreter. Said she's not speaking manderman. Right. She's something else. She speaks something else. I thought they could make do with this, but. The petitioners attorney indicated that a mandarin interpreter was appropriate and continued the testimony. No, any fact of the system. But again, these were all issues that the petitioner's mother would know and had firsthand knowledge of where she was living, who she was living with, and who was present in the household. Hello, Russia. The mother. Well, she is currently. 69, I believe. So at the time of the hearing, she would have been. Was that. In 2008. So early 60s early to mid 60s. And so for those reasons, the government argues that the adverse credibility determination and the inadmissibility findings are supported by substantial evidence. And just want to touch briefly on the motion to remand in this case and point out that the petitioner in his motion to remand seeking to. Present additional evidence of hardship never made the argument to the board that the medical her medical conditions were deteriorating never made the argument to the board that these were new medical conditions. In fact, all of the language of the motion to remand itself refers to the medical conditions in the present tense. And when you look at the medical reports included with the motion to remand. A lot of the ailments are the same throughout and even the a lot of the new ones, such as lower back pain and sciatica reference. A period of time in which they began such as low back pain for the last two weeks, which implies that those were not necessarily ongoing chronic conditions. Or evidence of a deteriorating condition because they're sporadic throughout the, throughout the medical records and they appear and then they're gone for the next record and then they reappear again. And the same is true with the psychological evaluation. There is no mention in the psychological evaluation when the mother's emotional ailments began. And to the extent my opposing counsel is arguing that they were caused by the petitioner's immigration proceedings

. No, any fact of the system. But again, these were all issues that the petitioner's mother would know and had firsthand knowledge of where she was living, who she was living with, and who was present in the household. Hello, Russia. The mother. Well, she is currently. 69, I believe. So at the time of the hearing, she would have been. Was that. In 2008. So early 60s early to mid 60s. And so for those reasons, the government argues that the adverse credibility determination and the inadmissibility findings are supported by substantial evidence. And just want to touch briefly on the motion to remand in this case and point out that the petitioner in his motion to remand seeking to. Present additional evidence of hardship never made the argument to the board that the medical her medical conditions were deteriorating never made the argument to the board that these were new medical conditions. In fact, all of the language of the motion to remand itself refers to the medical conditions in the present tense. And when you look at the medical reports included with the motion to remand. A lot of the ailments are the same throughout and even the a lot of the new ones, such as lower back pain and sciatica reference. A period of time in which they began such as low back pain for the last two weeks, which implies that those were not necessarily ongoing chronic conditions. Or evidence of a deteriorating condition because they're sporadic throughout the, throughout the medical records and they appear and then they're gone for the next record and then they reappear again. And the same is true with the psychological evaluation. There is no mention in the psychological evaluation when the mother's emotional ailments began. And to the extent my opposing counsel is arguing that they were caused by the petitioner's immigration proceedings. There's no explanation for why they would have started at this stage of his proceedings. He initially suffered a removal order in 1996. He's been going on for 20 years. And there's been no argument made as to how these emotional conditions are new and previously unavailable and could not have been presented during the proceedings in which he was seeking the waiver initially. And so for these reasons, unless the court has other questions for me, government rests and urges the court to deny the petition for you. Thank you very much. First I do want to apologize for quoting the wrong section. Thank you. Thank you very much. Just very briefly, Your Honor, I would assert that given the great importance that the immigration judge placed on the so-called demeanor finding and given that the record doesn't support the demeanor finding, we can't be certain whether the judge would deem this sufficient to for fraud finding. And I would assert that this court denotes that determination of what it is sufficient for fraud finding as the agency should be given the opportunity to review that absent the errors made in the first instance. With respect to the motion to remand, it was asserted on page 24 and 25 that this was, in fact, new and previously unavailable evidence of her medical conditions and the attached medical reports the reason for providing her one prior to the hearing and then four or five after the hearing to demonstrate the new conditions. The record certainly does support a show that the agency was presented with the argument that this was new and previously unavailable evidence unless the court has any additional questions or rest on our brief. The one thing about that is that I think you can read that is the records weren't available before but not that the condition was not present before. Do you understand what I'm saying? I mean, when I first read it, I thought, well, why didn't they put the records in before? Well, the records weren't available to them, but I understand the arguments you're making, but it doesn't quite. Given that the medical evidence could have been presented undoubtedly and I agree that it was ineffective assistance of counsel that it wasn't back in 2008. Unfortunately, we do have a due diligence issue, but really counsel hadn't met the mother. Yeah, I didn't know what dialect she spoke. That's correct. And the mother does indicate that she either sorry, the interpreter does indicate that the mother was having trouble understanding testimony. I believe that was around page 1280

. There's no explanation for why they would have started at this stage of his proceedings. He initially suffered a removal order in 1996. He's been going on for 20 years. And there's been no argument made as to how these emotional conditions are new and previously unavailable and could not have been presented during the proceedings in which he was seeking the waiver initially. And so for these reasons, unless the court has other questions for me, government rests and urges the court to deny the petition for you. Thank you very much. First I do want to apologize for quoting the wrong section. Thank you. Thank you very much. Just very briefly, Your Honor, I would assert that given the great importance that the immigration judge placed on the so-called demeanor finding and given that the record doesn't support the demeanor finding, we can't be certain whether the judge would deem this sufficient to for fraud finding. And I would assert that this court denotes that determination of what it is sufficient for fraud finding as the agency should be given the opportunity to review that absent the errors made in the first instance. With respect to the motion to remand, it was asserted on page 24 and 25 that this was, in fact, new and previously unavailable evidence of her medical conditions and the attached medical reports the reason for providing her one prior to the hearing and then four or five after the hearing to demonstrate the new conditions. The record certainly does support a show that the agency was presented with the argument that this was new and previously unavailable evidence unless the court has any additional questions or rest on our brief. The one thing about that is that I think you can read that is the records weren't available before but not that the condition was not present before. Do you understand what I'm saying? I mean, when I first read it, I thought, well, why didn't they put the records in before? Well, the records weren't available to them, but I understand the arguments you're making, but it doesn't quite. Given that the medical evidence could have been presented undoubtedly and I agree that it was ineffective assistance of counsel that it wasn't back in 2008. Unfortunately, we do have a due diligence issue, but really counsel hadn't met the mother. Yeah, I didn't know what dialect she spoke. That's correct. And the mother does indicate that she either sorry, the interpreter does indicate that the mother was having trouble understanding testimony. I believe that was around page 1280. I can provide the exact case site in a letter of the court would refer. But yeah, it's very clear that the attorney didn't prepare this case well. Unfortunately, you know, there is a requirement of due diligence pursuing an ineffective assistance. But nevertheless, the medical records, she did have some conditions, but the medical records show she has a significantly more diagnosed disorders post March 2011. And that's why the prior, the January 2011 medical report was included as well as the post 2011 medical report. That's the court has any further questions. We'll rest on brief. Thank you very much. Thank you. We will ask our clerk to adjourn court and then we'll come down and greet the lawyers. This honorable court stands adjourned until tomorrow morning at 930. God save United States and this honorable court.

our last case. Yeah, first is holder number 131682. Good morning, honours. May I please the court? My name is Joshua Bart Avin, co-counsel to Petitioner Mr. Yang. Mr. Yang did not commit fraud for the purposes of gaining a benefit under the immigration and naturalization. I'm not even one question. Sure. I call them Mr. Yang and you call them Mr. Yang. But is it, is it, in some cultures the first name is the name that used like if he was Mr. Rue, will we call him Mr. King? You would usually use the surname first and then the first name, our first name last. So it would be Yang Shen, but it would be Mr. Yang still. That is his family name. So it's Mr. or Mrs. Family. He did not commit fraud for the purposes of gaining a benefit under the immigration and naturalization act. And even assuming Arguendo that he did, the Board of Immigration Appeals abused its discretion in denying the motion to remand to consider the new and previously unavailable evidence. Starting with the. Can you start with the fingerprint problem? Yes. Because I'm not sure I don't agree with you about the fraud, but it's, you know, you've been here earlier today and you know about creating circuit press, creating circuit press, and when we have to create a circuit press, go your way on the fingerprint issue. No, you're on our because the, I believe we're referring to the fifth circuit's decision, which. I think there are a bunch of circuits on that. The one constant is the regulation in question, which is HCFR100.47, which specifically requires the department to notify the respondent, Mr. Yang, that his fingerprints have expired. Basically, in order to run a background check, they need to be refreshed every certain amount of time. The regulation that we cite HCFR104.7, I believe it's subsection D, is that requirement and there is nothing in the record and there's not even been a finding that DHS in fact did notify Mr. Yang that his fingerprints had expired. The IJ saying make sure your client has current fingerprints at the pre hearing scheduling conference on April 19, 2010. Then saying she told him if your client presents himself with expired prints and biometrics and the applications will dismiss the failure to prosecute and saying is that understood and having counsel respond, yes, is not fulfilled as requirements. No, that does not because that doesn't tell him when his prints expired, just that he's required when they are expired to in fact get them renewed because he had have previously done his fingerprints. And at no point in the record. It seemed to me that the when would be implicit, you know, have to get them when the others are expired. And when the day expired, we don't know. That's not part of the record. No one knows. It hasn't been indicated when they expired because they only stay valid for a certain period of time and a lot of this is deals with the machinations of DHS and doing the FBI background checks. The respondents are often in the dark and there's a requirement that the DHS counsel put into the record and provide notice when those prints have expired. Therefore, the respondent Mr. Yang can then go and redo his fingerprints. And again, that was not, there's not a single document in the record and the IJ does not cite to a single document in the record that indicates that Mr. Yang was providing notice of when they did expire because again, they only stay good for valid period of time. And I would also note that we raised. I just want to be sure I understand your argument. What regulation is that you cite that say it has to be in writing? Is that your point that this notice had to be in writing? That is correct, yes, Your Honor. And so what are the regulations? And some way that's HCFR103.47 subsection D. And we cite to that and we provide an argument. I'd also note that we made this argument in our brief. According to you, it says that the statement must be in writing. That is correct. Okay, is that, do you have a quote somewhere? That is quoted in our brief. I believe on page 29 of our brief. Well, I don't see the requirements as, but I'm, where is the status to be in writing? I'm sorry, it's quoted on page 29 in applicants failure to update biometric data within the time allowed by the immigration judges order constitutes abandonment of the application. So within the time allowed. So the IJ has to specify. Well, it doesn't say any about writing. We're both on the same page. Sorry, yes, but. Okay, and it's so true contention that it doesn't say, but the language I read you did say that make sure your client has current fingerprints. If your client presents himself with expired prints and bio net. And again, I would assert your honor that he has to be made know. I mean, she said to the council is I assume you didn't handle it below. Maybe you did. Is that understood? Council said yes. And he, but again, IJ do or not did not make him know when they expired. She did not specify a time. She just said when they are expired. But all this all the direct says is within the time allowed. And the IJ did by the order. And this is the order within the time allowed. That's to be current. I understand, but again, she didn't specify the time and the second point is why wouldn't it all your understand that? It's by current. So the lawyer. I expired. What do you mean what time? That could have been made more clear, but again, since the regulation puts the onus on the immigration judge. And the lawyer said you understood. And the lawyer said yes, you understood that when the. That's your apprentice lawyer. You stand right. His or her shoe. I understand. Are you pursuing an ineffective assistance claim here? No, I don't mean before us, but I mean. Is that contemplated? Because this is isn't that your clients problem. Well, more than anything else. The abandonment of the application. The application. Well, one that that was remedied. No, I mean the performance of council. I understand council in this case was. Correct me for long. This bar. That is recently. Yeah. Did council even raise the fingerprint issue before the board? It was raised subsequently in the motion to remand. And I would assert more importantly, your honor that was a timely way. I would say that. Yes, it was the motion to remand was filed while the appeal was pending. So the argument was timely raised on appeal before the board. Yes. And I would also assert your honor, even assuming argue end of that. There was an issue of abandonment. I would assert that the government has waived this argument. In fact, in there, we raised this in our brief and we state that it was the immigration judges. Obligation to provide the date. The government did not respond to that argument in their brief. And so to the extent that it is ignored you. Yes, that's that is not an argument section. There's not raised in their arguments whatsoever. The issue of abandonment. And therefore, although they stated in the statement of facts, it's in no way discussed in our citation and reliance on H. C. F. R. one 0 3.470 is not discussed whatsoever or rebutted by the government. So to that extent, I would assert that it's way. With respect to the waiver, the denial of the motion to remand. It's assert, respectfully asserted that the board of immigration appeals aired in viewing this evidence as not new and previously unavailable. That if you look at page 52, which is the medical record for the mother provided prior to the March 2011 hearing. It's a January 2011 medical record. And compare it with pages 48 to 51, which are medical records provided after the March 2011 hearing. We see that the mother has developed additional elements, she has now difficulty breathing chest pains. She's now been diagnosed with sciatica. And there were a couple of other things that we point out in our brief. Now, whether or not this is sufficient. For pre-Mafasya evidence to warrant a new hearing is a different question as to whether or not it's new and previously unavailable. Undoubtedly, these conditions are new. The board said this evidence was not new and previously unavailable. And that was the only reason that they denied. Because these conditions undoubtedly are new, the matter should be remanded at the very least for determining whether or not they're sufficient to warrant a new hearing. Considering that the result may be different in light of the mother's worsening health conditions. And in light of the development of some mental health issues for which a psychological report was provided. Finally, our honor is turning to the negative credibility determination. The most important thing from the get go is the fact that a negative credibility determination is not a conclusion that an individual has committed fraud or a material misrepresentation. Asylum law has a very totally separate provision for making such a determination. And that is the frivolous requirements that if an immigration judge is going to find that an individual has in fact committed fraud or material misrepresentation essentially that their application was made up. 8th USC 1158 D6 provides that a judge can make a frivolous asylum finding. And upon that finding the alien would then become ineligible for any kind of future relief under immigration law. There was no such frivolous finding by IJ Dornal, either at the 2008 hearing or at the 2011 hearing. Therefore, the negative credibility determination which we discussed in greater detail on our brief is insufficient to reach a determination that Mr Yang committed fraud or material representation. But rather that the the bases provided were product of either mistake misunderstanding the fact that his original asylum application was translated back to him and it was in English. I mean, undoubtedly didn't speak English. I do want to get just discuss one specific point that was raised in the negative credibility determination which seemed to be the primary factor which was his demeanor. But the immigration judge misrepresent the record in a significant way. She points out that supposedly Mr Yang tried to signal his mom when she was testifying to and IJ Dornal found this relevant because she said that he was doing it and then his mom changed her testimony. But in fact, if you look at the record, the her testimony on page 1304 and 1305 is when she cautions him about signaling. This occurs way before his mother discussed anything about where she lived or who lived with them. Well, can we possibly I mean, I appreciate your argument, but we weren't there. We didn't see this. I completely agree, but that's why the misreading of the record is so important. But how I don't understand how you can call it a misreading. You know, the IJ sitting there watching what's going on. We don't know how much time pass between certain behavior and when the IJ decided to put it on the record. But the point is is when it was put on the record was at the very beginning of her testimony well before she even discussed first saying that she lived in Albany and then changing her testimony to saying that she lived in Maryland. So since the IJ attributed this hand signal to what caused her to change her testimony, there's no way the mom could have changed her testimony because she hadn't even testified to the erroneous information to begin with. That testimony occurred in the transcript several pages later. So it's the misreading of the importance or the purpose of the hand signaling that makes it. What do you suggest is the purpose of the hand signal? I honestly don't know because I wasn't there, but what's important is that we know that the IJ's reading of it cannot be correct because his hand signal occurred well before her original testimony or the change in testimony. But in fact, he's given hands or she's given hand signal says we got to rely on that. That that's the record. Like one you'll testify to just to find that even if you haven't test before. I mean that could be we just don't know. And I agree and I agree that that can be a factor, but what the IJ attributed it why she caused it called it relevant is simply cannot be correct. So at the very least can't be relevant. You say it can't be a change in testimony because there was no testimony. I'll just point this point on this point exactly. And so at the very end I'd have changed something else. It was so early in her testimony. I mean, yeah, okay, even if that's the case, that's not what the IJ found. And this court is bound by the agency's determination since the agency's determination was based on a misreading of the record at the very least it should be remanded for a determination. It does seem if you read the record that your client talked to his mother just before she was testifying and then even when she was after she'd been sworn. And that's what the IJ was really worried about. This is the second time I'm telling you you're not to speak to that witness while she's in the courtroom testifying as a witness. Do you understand? No, I totally understand what your honor is saying and it can be a cause for concern, but with IJ attributed to where the cause and the mom's change in testimony simply can't be correct. And therefore I think a remand would be appropriate on that issue. Thank you. Thank you. Good morning, your honors may it please the court. My name is Carrie Monaco and I represent a respondent attorney general Eric holder in this matter. This immigration case the government urges the court to deny the petition for review because the adverse credibility determination is supported by substantial evidence. And as a result of those Ampli supported adverse credibility findings, the agency did not air in concluding that the petitioner made willful misrepresentations when he filed his claim for asylum. And due to these willful misrepresentations, the agency did not air in concluding that the petitioner was inadmissible for purposes of adjustment of status without securing a waiver. Why have you have you abandoned the fingerprint. We don't think that it's necessary for the court to reach that issue. I don't know if we did it would be the cleanest way to do it. Pardon? It would be the cleanest way to do it. I mean, if we should for example, if we should conclude that there wasn't evidence of fraud here, but we would lumber through this record and say yes, okay, there is a basis for the denial of what are we call it. The disability finding. Yes, for adjustment. I mean, that seems to me to be a big slog. Yes, and we agree that the petitioner was certainly on notice of his requirement to obtain fingerprints or make sure that they were current by the time his adjustment of status hearing rolled around. However, we also noted as my opposing council pointed out, we recognize that there is language in the regulation. And I think my opposing council might have quoted the incorrect section. There is a section of the regulations that require DHS to provide notice to the petitioner with instructions on how to obtain new fingerprints. That is 8 CFR 2003.47D. And without having the board address that specific regulation, which my opposing council raised in his opening brief, is the reason we did not address it in this case. And but we don't think that the court needs to reach it because of the other the other findings on the adjustment application are dispositive. We appreciate your candid. Yes, he actually does quote it on 29, but I was going after him pretty hard. So maybe he read me the wrong thing. Very understandable. So you think the fact that the agency did not provide instruction to the respondent for such a procedures was made this. We're not saying that it was necessarily error in this case, particularly given the petitioner's warnings at the previous hearing. However, if the court felt the need to address that issue, you think it's best if the board had another opportunity to address the abandonment issue in the context of this language, the regulation language, which they did not do. And the IJ didn't either. Do you think that remanded for the board to address that. But again, we don't think remand is necessary because of the other dispositive in this case. And that because the adverse credibility finding is supported by substantial evidence. And because those findings also reasonably led to a finding that the petitioner had willfully misrepresented his asylum claims. So, suppose we didn't find there isn't evidence of will. If the court finds that the fraud, the inadmissibility finding is an error, then yes, we would agree with the court that remand is necessary for the board to address whether he abandoned his adjustment application and also address the merits of the adjustment application, whether he otherwise qualified for adjustment. If the court were to find that a waiver was not required. But again, it's the government's position that based on the adverse credibility factors that the immigration judge in the board were correct and determining that he required a waiver of inadmissibility for purposes of adjustment. And the most, the strongest finding in the adverse credibility context is in fact his demeanor. And I'd like to address my opposing counsel's argument in his opening about the nature of the record and what's on the record with respect to the demeanor. And he is correct that the immigration judge notes in the hearing transcript at the beginning of the mother's testimony that he was signaling to her in some way or attempting to speak with her in some way. There are no further references to hand gestures or signals during the mother's testimony, at least not in terms of the transcript. However, in the immigration judge's oral decision, she specifically notes that he had signaled to his mother at the points at which she changed her testimony on two different occasions. And using that's a different point that she just decided not to comment on when the witness was changing the testimony, but did comment on at the beginning of the testimony. That seems unlikely. Well, we, yes, agreed that it would have been helpful if that had been noted in the record. However, there's no reason to admit that that reference in the opinion is not supported by the record. There is no, yeah, there's no, I don't dispute that there is no reference in the transcript to their being hand gestures. At a crucial time. No hand gestures to change the testimony. There are, right, there is no reference to the. Are you allowed to do that? I mean, not reference it in the record, but then come back in the opinion and say I saw him doing it anyhow. I mean, there's no reason to think that the immigration judge cannot do that. Again, we were not present, but the judge rulings have to be based on the facts in the record. Well, in this case, all courts that I've heard of, maybe these kind of proceedings are different. Well, in this case, the immigration judge is basing it on what she personally witnessed during the hearing and what I can guess may have been notes that she made during the hearing, referencing his change of testimony and the signals that has or. I'm sorry. I'm sorry. She would comment on the first two questions that there's signaling and not comment if the person was actually changing testimony. The witness was changing testimony with regard to signaling. So it seems more likely that she'd misremembered. Well, in the first instance, and she's directly talking to the petitioner. And in the second instance, it appears that this may have been communication just going on between the petitioner and the witness. And again, there's no. It was really going on and she didn't know that after having known that the first time it seemed like she had probably taken some further action. And party from a room or something. Again, strong deference should be given. Trying to tell her mom what to say. Strong deference should be given to the immigration judge with respect to what she saw during the hearing and what she outlines in her decision. But even without the demeanor findings or even moving past the demeanor findings for a second here, there are numerous other inconsistencies in the record that support both the adverse credibility determination and the finding that the petitioner will fully misrepresented his asylum claim. But you think if all they do is support an adverse credibility finding we have to remain. No, I think I'm misunderstanding your question. In other words, if we find there's not evidence of fraud. We have to read. There's not sufficient evidence of fraud. If there's not sufficient evidence of fraud, are you asking whether that means that there's not sufficient evidence for credibility finding? Is that your question? No, in response to an earlier question from me, I thought you'd said if we should find there's not sufficient evidence for fraud finding here, we would have to remain. And we'd remain for what? Would remand for the agency to if the court finds that there's no fraud, then essentially the court is finding that the agency aired in denying his adjustment application for lack of admissibility. And so the case would need to go back for the agency to address whether he is eligible for adjustment because what happened here was the immigration judge in the board found that he was not eligible for adjustment because he was inadmissible and therefore required a waiver, which required him to prove hardship to certain US relatives. And so if you find that there's no fraud, then the finding that of the waiver requirement is also an error because that was the basis for the waiver was the inadmissibility finding and the fraud finding. And so the agency would then need to address the other elements of adjustment and whether he otherwise meets the requirements for adjustment on the merits of the. On the merits of the adjustment and in the matter of discretion. And in the matter of discretion because adjustment is a discretionary form of relief. So that's your alternative request. Here today. I mean, yes, if if I mean because those are the only. The only issue that's before the court. That's the only issue that's the more work on. Can you refresh my recollection of the extent I ever had. Insight into this windows ineffective assistance of council come before the agency, if ever. In a case such as this. It's often brought in the context of a motion to reopen after a removal order is in place. And this petitioner would would have that available. If he could. He would. I mean, if it goes back, he could. In theory, I mean, in theory, yes, but. And the motion to reopen is due within 90 days of the final order of removal. Unless he can show that there was a reason he couldn't file within 90 days. Well, he was represented by. But in this point, he's changed council a couple of times since then. So I think he'd have a hard time proving due diligence in pursuing that claim. What if everybody but present council back. That provided ineffective assistance. Again, he would have to show that he. He'd have to show that it was ineffective assistance by every subsequent council who failed to raise ineffective assistance. Essentially, yes, and that he was. He was diligently pursuing an ineffective assistance claim and prove when he learned of the ineffective assistance and that he diligently filed a motion to reopen. But as my opposing council admitted, they have not pursued that or filed one. And as I was mentioning the, I'd like to go back to the adverse credibility and fraud finding for a second and note the other inconsistencies in the record, which are very dramatic and relate to material elements of the petitioners claim. The first being that he gave completely different accounts of whether he engaged in political protests in Beijing in 1989, considering his initial asylum claim was based exclusively on his political activities in China, whether he went to Tiananmen square and participated in political protest there is a dramatic inconsistency. Is that the inconsistency enough standing alone to prove the fraud point? I mean, I think it is certainly evidence that the there is willfulness representation in this case and. That's another point I want to make too is that enough standing alone. I would argue yes. Yes, that's a very dramatic. That's the turn general's position. You don't need any this other stuff about the hand signals in the hearing room and all that stuff that you did. The fraud on the animal square incidents enough. It's certainly evidence of will school misrepresentation and that's one thing I want to point out. But I'm asking the what I'm trying to find out what your position is on whether it's enough standing alone. If you lose on the hand signals and stuff like that, cause it's the judge didn't make proper references. Yes. That's better than it that you still win on this other stuff. Yes, and I'd like to make clear to the court that the inadmissibility statute we're looking at here does not definitively require the court to find that there was fraud in these inadmissibility statute renders the petitioner inadmissible if he committed fraud or willfully misrepresented a material fact. In pursuing an immigration benefit. And so a finding of actual fraud is not required. He still can be deemed inadmissible for willfully misrepresenting a material fact. It sounds like by the same thing. Yeah, what's the difference? Well, I think what we're looking at here are specific inconsistencies on material elements of his asylum claim. It doesn't necessarily need to be definitive finding that every aspect of his claim, for example, was fraudulent or that the entire claim was fraudulent. It's about whether he bolstered material elements in order to pursue asylum would also render him an admissible. But on the Tiananmen square stuff, when he says has to be a willful misrepresentation. How do you get past willful with all the language problems and all that? Well, he had his. It might be a negligent. In consistency as opposed to a willful misrepresentation. Well, in his written asylum application, he mentions twice that he went to Beijing and participated in the protests there. And that was prepared with the assistance of an attorney. And when he got to test when he went to his hearing and testified, he claimed, no, no, I never went there. One of those two things cannot be true. And so by either putting it into a written asylum application or testifying about it, one of those is a willful misrepresentation. And the same is true with the inconsistencies relating to the testimony with mother. Is that the mother and the petitioner were inconsistent about where the where his children's mother lived and even where the petitioner's mother lived. The petitioner testified that. I thought they were lying about that too. Part. You all thought they were lying about that where the where the wife was. Correct. And the mother, the mother was very inconsistent and lacked credibility on on both of those issues, both where she lived. First, she testified that she lived in Albany with her daughter. And then she immediately changed her testimony to say she lived in Maryland with the petitioner. Whether signaled or not. And that was both. But it's relevant to whether she's the caretaker for these children. And that was relevant to the claim that the petitioner would take his children back to China with him. Or may have to take the children back to China with him. And that's an issue that the witness mother would know exactly who she's living with and in what state she currently lives. So that's one major problem. But the bigger problem is the fact that the petitioner testified that his children's mother was nowhere to be found. And then when the petitioner's mother got on the stand, Ms. Lynn, she testified that the children's mother lives with all of them in Maryland and works at the same restaurant as the petitioner. And whether a signal or not, the immigration judge references that there was a signal at this point in her decision, but it's not in the record. So even if we assume there's no signal, the petitioner then changed her testimony when confronted with this inconsistency. Oh, no, the mother is nowhere to be found. I'm sorry, the mother. The mother then changed her testimony saying that the children's mother is nowhere to be found. There's a problem with the translation from the mother's testimony, right? There's like not the right dialect. The dialect was confirmed at the beginning of the mother's testimony that the appropriate interpreter was present. I thought I remember it. I thought there was some discussion about the interpreter. Said she's not speaking manderman. Right. She's something else. She speaks something else. I thought they could make do with this, but. The petitioners attorney indicated that a mandarin interpreter was appropriate and continued the testimony. No, any fact of the system. But again, these were all issues that the petitioner's mother would know and had firsthand knowledge of where she was living, who she was living with, and who was present in the household. Hello, Russia. The mother. Well, she is currently. 69, I believe. So at the time of the hearing, she would have been. Was that. In 2008. So early 60s early to mid 60s. And so for those reasons, the government argues that the adverse credibility determination and the inadmissibility findings are supported by substantial evidence. And just want to touch briefly on the motion to remand in this case and point out that the petitioner in his motion to remand seeking to. Present additional evidence of hardship never made the argument to the board that the medical her medical conditions were deteriorating never made the argument to the board that these were new medical conditions. In fact, all of the language of the motion to remand itself refers to the medical conditions in the present tense. And when you look at the medical reports included with the motion to remand. A lot of the ailments are the same throughout and even the a lot of the new ones, such as lower back pain and sciatica reference. A period of time in which they began such as low back pain for the last two weeks, which implies that those were not necessarily ongoing chronic conditions. Or evidence of a deteriorating condition because they're sporadic throughout the, throughout the medical records and they appear and then they're gone for the next record and then they reappear again. And the same is true with the psychological evaluation. There is no mention in the psychological evaluation when the mother's emotional ailments began. And to the extent my opposing counsel is arguing that they were caused by the petitioner's immigration proceedings. There's no explanation for why they would have started at this stage of his proceedings. He initially suffered a removal order in 1996. He's been going on for 20 years. And there's been no argument made as to how these emotional conditions are new and previously unavailable and could not have been presented during the proceedings in which he was seeking the waiver initially. And so for these reasons, unless the court has other questions for me, government rests and urges the court to deny the petition for you. Thank you very much. First I do want to apologize for quoting the wrong section. Thank you. Thank you very much. Just very briefly, Your Honor, I would assert that given the great importance that the immigration judge placed on the so-called demeanor finding and given that the record doesn't support the demeanor finding, we can't be certain whether the judge would deem this sufficient to for fraud finding. And I would assert that this court denotes that determination of what it is sufficient for fraud finding as the agency should be given the opportunity to review that absent the errors made in the first instance. With respect to the motion to remand, it was asserted on page 24 and 25 that this was, in fact, new and previously unavailable evidence of her medical conditions and the attached medical reports the reason for providing her one prior to the hearing and then four or five after the hearing to demonstrate the new conditions. The record certainly does support a show that the agency was presented with the argument that this was new and previously unavailable evidence unless the court has any additional questions or rest on our brief. The one thing about that is that I think you can read that is the records weren't available before but not that the condition was not present before. Do you understand what I'm saying? I mean, when I first read it, I thought, well, why didn't they put the records in before? Well, the records weren't available to them, but I understand the arguments you're making, but it doesn't quite. Given that the medical evidence could have been presented undoubtedly and I agree that it was ineffective assistance of counsel that it wasn't back in 2008. Unfortunately, we do have a due diligence issue, but really counsel hadn't met the mother. Yeah, I didn't know what dialect she spoke. That's correct. And the mother does indicate that she either sorry, the interpreter does indicate that the mother was having trouble understanding testimony. I believe that was around page 1280. I can provide the exact case site in a letter of the court would refer. But yeah, it's very clear that the attorney didn't prepare this case well. Unfortunately, you know, there is a requirement of due diligence pursuing an ineffective assistance. But nevertheless, the medical records, she did have some conditions, but the medical records show she has a significantly more diagnosed disorders post March 2011. And that's why the prior, the January 2011 medical report was included as well as the post 2011 medical report. That's the court has any further questions. We'll rest on brief. Thank you very much. Thank you. We will ask our clerk to adjourn court and then we'll come down and greet the lawyers. This honorable court stands adjourned until tomorrow morning at 930. God save United States and this honorable court