[00:00:02] Speaker 02:
Good morning, Your Honor.

[00:00:03] Speaker 02:
Good morning, counsel.

[00:00:04] Speaker 02:
May it please the court?

[00:00:05] Speaker 02:
My name is Corrine Cole, and I'm here representing Joelle and Blena Veda and his family, Katya, Adonis, and Mengi.

[00:00:13] Speaker 02:
We are here to request that this case be remanded back to the immigration court so that my clients can receive a full and fair hearing in this matter.

[00:00:23] Speaker 02:
We are contending that the immigration judge failed in his affirmative duty

[00:00:28] Speaker 02:
to help a pro se respondent fully develop his record in this manner.

[00:00:34] Speaker 02:
This is shown multiple times throughout the transcript.

[00:00:38] Speaker 02:
A total of at least 14 times he was cut off and told what he was not allowed to do and what he was expected to state.

[00:00:46] Speaker 02:
Initially when the judge explained to him how the case was going to proceed, he advised that the immigration judge would be asking him questions.

[00:00:57] Speaker 02:
then the government counsel would ask him questions, but he was never advised that he would be able to make a statement on his own behalf.

[00:01:06] Speaker 02:
In addition, there is other confusion.

[00:01:09] Speaker 02:
There's a pre-hearing statement which states that documents have to be in English.

[00:01:14] Speaker 02:
As counsel, I understand that that means it has to be certified.

[00:01:17] Speaker 02:
However, he had documents that could have possibly overcome the credibility analysis in this manner.

[00:01:26] Speaker 02:
And they were not viewed because they were provided without a certified translation.

[00:01:34] Speaker 02:
And he was never clearly advised that he could have the opportunity to bring those back.

[00:01:40] Speaker 00:
Your time is clicking down.

[00:01:42] Speaker 00:
I wonder if you could just address the credibility determination that you raised in your brief.

[00:01:49] Speaker 02:
So the issue of adverse credibility was found on the client and we are contending that the immigration judge did not take into consideration

[00:02:00] Speaker 02:
the trauma that he was affected or we also believe that there was clear and erroneous error because he says that he was inconsistent with his answers.

[00:02:11] Speaker 02:
However, after reading the transcript, it is clear that he is trying to provide information.

[00:02:16] Speaker 02:
He is not evading questions.

[00:02:18] Speaker 02:
He's trying to provide information and sometimes it's far more.

[00:02:22] Speaker 02:
than the immigration judge would like to have.

[00:02:25] Speaker 02:
There is also an issue of a location of being struck on the leg during one of the marches that he was involved in as a member of UNITA.

[00:02:36] Speaker 02:
The question was where he was hit.

[00:02:39] Speaker 02:
He speaks the language Lingala.

[00:02:41] Speaker 02:
It is a

[00:02:43] Speaker 02:
It's a Bantu language, but it's primarily oral, and then it later on became written.

[00:02:47] Speaker 02:
There can be issues with translation in there, which we did discuss in our brief.

[00:02:52] Speaker 02:
In an application, he mentioned his foot.

[00:02:59] Speaker 02:
He said he was hurt when he was running away from the police.

[00:03:03] Speaker 02:
In the initial I-589 application, he does not state that the police struck him.

[00:03:10] Speaker 02:
That was stated in the testimony.

[00:03:14] Speaker 02:
There was never a declaration that was provided to the court to more fully develop that information.

[00:03:21] Speaker 02:
The application provides a summary, detailed, and then of course there's the anticipation that more detail

[00:03:29] Speaker 02:
will be provided and elicited through testimony at the hearing which he did provide.

[00:03:35] Speaker 02:
His wife also made the statement that her husband hurt himself and although she did not specifically state that he was hurt by the police, that could simply be

[00:03:46] Speaker 02:
an issue of translation, which is also another problem that was raised, is the fact that he speaks four languages, and the judge stated that that made him sophisticated.

[00:03:58] Speaker 02:
He speaks four languages because that's what's spoken in his area, and the Portuguese that he speaks

[00:04:05] Speaker 02:
is not the same as Brazilian Portuguese, which was what was used during the translation of his application.

[00:04:14] Speaker 02:
And there's also a question of whether or not that application was completely read back to him.

[00:04:19] Speaker 02:
Even in the transcript, when the IJ asked if the application was read back to him in a language he understood, he specifically stated that the group he was working with, the nonprofit he was working with, tried to get an interpreter on the phone.

[00:04:34] Speaker 02:
He was cut off, and the judge said, this is a yes or a no question.

[00:04:40] Speaker 02:
And then his statement was, I'm aware of what is in my application.

[00:04:44] Speaker 02:
But it's never clear that it was actually read back to him.

[00:04:47] Speaker 02:
He knows what he said, but he does not speak or write and read English.

[00:04:53] Speaker 00:
So in your view, the evidence doesn't support the agency's adverse credibility determination?

[00:04:59] Speaker 00:
Yes, Your Honor.

[00:04:59] Speaker 00:
Or is it they're just trivial, immaterial, or what?

[00:05:03] Speaker 02:
Yes, we believe that there are trivial and immaterial differences.

[00:05:08] Speaker 02:
We believe that there was not a scrupulous probing of the information to determine if there was.

[00:05:17] Speaker 02:
if there should have been a credibility finding.

[00:05:20] Speaker 02:
We also believe that the judge knew that he had those concerns and there was another witness there that he could have called.

[00:05:30] Speaker 02:
Joelle was not aware that he was allowed to call another witness later.

[00:05:34] Speaker 02:
He was not aware that that could have changed things.

[00:05:38] Speaker 02:
He made the statement multiple times that he believed it was his.

[00:05:40] Speaker 04:
The other witness was his wife.

[00:05:42] Speaker 04:
What would she have added?

[00:05:43] Speaker 02:
She would have been able to tell what happened when he came home, what he had told her when he came home.

[00:05:51] Speaker 02:
So she could have corroborated what was said.

[00:05:54] Speaker 02:
She could have provided different information about his injuries and his wounds, about the people coming to the home.

[00:06:04] Speaker 02:
But we won't know because she was not called to the stand.

[00:06:08] Speaker 02:
They also asked multiple questions of Joao about Mengay's

[00:06:12] Speaker 02:
application and so they could have asked her about what was in her application so that there was a full record developed.

[00:06:21] Speaker 04:
I'm not objecting to most of what you said but I'm concerned about the issue as to whether or not there was an obligation on the part of the IJ to call the wife or to say to him you could call the wife because ordinarily it's in the hands of the petitioner to present the witnesses he or she wants to do

[00:06:42] Speaker 04:
to say to the IJ, you know, you're supposed to say, I see somebody sitting back there in the back, do you want to have him or her come forward?

[00:06:50] Speaker 04:
That's an odd and maybe tricky sort of obligation because maybe the person doesn't want to call that person and then he's on the spot like, well, no, actually I don't want to call my wife.

[00:07:05] Speaker 04:
And then the question, well, why not?

[00:07:07] Speaker 04:
So I'm a little concerned about saying that there's just an obligation on the part of the IJ to say, you know, you've got a possible witness there in the back.

[00:07:13] Speaker 04:
Why don't you bring her forward?

[00:07:15] Speaker 02:
So there's an affirmative obligation of an IJ to fully develop the record when there is a pro se respondent.

[00:07:27] Speaker 02:
They're able to call witnesses anyway, just as the government attorney is able to call witnesses.

[00:07:36] Speaker 02:
And I'm so sorry.

[00:07:36] Speaker 02:
I forgot to say that I wanted to reserve time for rebuttal.

[00:07:40] Speaker 03:
Would you like to reserve the balance?

[00:07:41] Speaker 02:
Yes, please.

[00:07:42] Speaker 03:
I would like to reserve the balance.

[00:07:43] Speaker 03:
Thank you.

[00:07:51] Speaker 03:
Can you just wait one second?

[00:07:55] Speaker 03:
Arden, can we move up the screen so that we can see Ms.

[00:08:00] Speaker 03:
Jarawan?

[00:08:01] Speaker 04:
Yeah, you may not be aware of it, but you're about to be elevated.

[00:08:09] Speaker 03:
Just give us one second while we work out the technology here.

[00:08:12] Speaker 03:
Not a problem.

[00:08:41] Speaker 03:
That's OK.

[00:08:42] Speaker 03:
I think, are you all OK with proceeding?

[00:08:44] Speaker 03:
Can you see her OK?

[00:08:45] Speaker 03:
All right.

[00:08:46] Speaker 03:
We're going to, you're not quite as elevated as we would have liked to have made you, but I think we can see you.

[00:08:51] Speaker 03:
And so you may begin when you're ready.

[00:08:55] Speaker 01:
Thank you, Your Honors.

[00:08:56] Speaker 01:
May it please the court, Raya Tarawan on behalf of the respondent, the attorney general.

[00:09:01] Speaker 01:
In this matter, the substantial evidence does, in fact, support the immigration judge's adverse credibility finding as affirmed by the board.

[00:09:09] Speaker 01:
There were two different incidents here, a June 2019 incident and a May 2021 incident that the petitioner testified to.

[00:09:16] Speaker 01:
The May 2021 incident seems to have been waived in the opening brief, so I'll focus on the June 2019.

[00:09:21] Speaker 03:
Is your argument with respect to the June 2019 incident that the adverse credibility determination is supported because there was an omission

[00:09:32] Speaker 01:
It's both an inconsistencies and omissions.

[00:09:35] Speaker 03:
The inconsistencies... Well, let me focus for a second on the omission part of your argument.

[00:09:39] Speaker 03:
I'm finding trouble with the argument that the omission of information that would be helpful for the petitioner can constitute an omission for purposes of determining an adverse credibility.

[00:09:53] Speaker 03:
Can you point me to any case that says,

[00:09:57] Speaker 03:
that a petitioner's failure, when other documents consistently notate a particular incident, but then there is one place where information or an event that actually further supports the petitioner's claim is omitted, that can constitute an omission for purposes of an adverse credibility determination.

[00:10:21] Speaker 01:
Well, I think I first would ask the question, and perhaps I'm not understanding which omission,

[00:10:27] Speaker 01:
The asylum application claims that both of them, the wives and the husbands, that the petitioner hurt himself while escaping a police involvement at the march in June 2019.

[00:10:40] Speaker 01:
But in his testimony, he actually tries to enhance his persecution claim, alleged persecution claim, by claiming that he was actually hit by the police with a weapon.

[00:10:50] Speaker 01:
So that's a very stark contrast to what he said in his asylum application.

[00:10:54] Speaker 01:
he omits from his asylum application that he was actually hit by the police.

[00:10:59] Speaker 01:
So I think that's the omission that I was discussing.

[00:11:03] Speaker 03:
And that's what I'm talking about as well.

[00:11:04] Speaker 03:
So can you cite me to a case that says when a petitioner fails to include information that further supports their claim, that constitutes an omission?

[00:11:17] Speaker 01:
Well, he is omitting it from his asylum application.

[00:11:21] Speaker 01:
Is that what you mean, Your Honor, that he omitted information that is helpful to his persecution?

[00:11:27] Speaker 03:
It was in his form I-589, correct?

[00:11:32] Speaker 01:
Correct.

[00:11:32] Speaker 01:
So he omitted information that would have helped him, and then he enhanced his information, his claim in his testimony.

[00:11:39] Speaker 01:
Right.

[00:11:39] Speaker 03:
So I guess my question is, why would he omit information that would help him?

[00:11:44] Speaker 01:
Well, Your Honor, that's the basis of the credibility decision.

[00:11:47] Speaker 01:
Did this incident even happen the way he's saying it happened now in testimony?

[00:11:51] Speaker 01:
Because if it happened the way he described it in the asylum application, then that's not sufficient for a persecution claim or alleged persecution claim.

[00:12:03] Speaker 01:
But if he's enhancing his claim in testimony and claiming that something worse happened to him, that's certainly a credibility issue that the immigration judge took consideration of.

[00:12:13] Speaker 01:
because once a petitioner is enhancing his claim or omitting information that it doesn't make sense he would omit considering this is the basis of his persecution claim, this incident, that's certainly substantial evidence of his credibility.

[00:12:28] Speaker 01:
Do you have a case that you can cite to me, counsel?

[00:12:31] Speaker 01:
I don't have one right now, Your Honor.

[00:12:34] Speaker 01:
I can certainly send you a 28-J letter and submit that to you.

[00:12:39] Speaker 01:
But generally, omissions are probative and important evidence for any immigration judge and the board to consider because, again, this is the basis of his persecution and torture claim.

[00:12:53] Speaker 01:
So to admit that important fact that you were actually hit by the police as opposed to just ran away and happened to hurt yourself, that's a very important omission.

[00:13:03] Speaker 01:
It's still part of the totality of the circumstances that need to be considered in this case.

[00:13:08] Speaker 00:
I just could I just ask you one follow-up question along there.

[00:13:13] Speaker 00:
I thought he said in his.

[00:13:18] Speaker 00:
In the eye 589 something to the effect that the police killed 2 people from our group.

[00:13:24] Speaker 00:
Yes, I managed to escape with a foot it with a foot injury.

[00:13:28] Speaker 01:
Right.

[00:13:31] Speaker 01:
That's correct, John.

[00:13:32] Speaker 04:
And it seems to me that that's at least could be contrued as I escaped with a foot injury inflicted by the police.

[00:13:39] Speaker 04:
Not that I injured it while I was running.

[00:13:42] Speaker 01:
Well, I think the standard is, what is the reasonable fact-finding here considering?

[00:13:47] Speaker 03:
I'm going to ask you about that in terms of the reasonable fact-finder.

[00:13:51] Speaker 03:
I'm looking at the footnote on ER 67.

[00:13:56] Speaker 03:
It's footnote one.

[00:13:58] Speaker 03:
And I'm curious to know your view about what you make of this footnote, which indicates a real significant animus towards the petitioner.

[00:14:09] Speaker 01:
I wouldn't call it an animus, Your Honor.

[00:14:11] Speaker 01:
I think that based on the totality of the record, this immigration judge was frustrated.

[00:14:15] Speaker 01:
They are humans.

[00:14:16] Speaker 01:
They are frustrated when the immigration proceedings go off track, which they did multiple times in this case.

[00:14:22] Speaker 01:
The immigration judge wrote an 18-page detailed written decision, which I don't see very well.

[00:14:27] Speaker 03:
You know, the IG's frustration, I'm really, I'm very troubled by it because in most of the cases that we have where a petitioner is deemed to be unresponsive and therefore not credible,

[00:14:39] Speaker 03:
It's because they are refusing to answer a question.

[00:14:42] Speaker 03:
They're evading the questions that are being presented to them.

[00:14:46] Speaker 03:
They're not speaking in response.

[00:14:48] Speaker 03:
And here what we have is a petitioner that is trying to, to the best of his ability, explain and respond to the questions being asked of him by the IJ.

[00:14:59] Speaker 03:
And it's sort of a, you know,

[00:15:04] Speaker 03:
damned if you do, damned if you don't situation, here he's now dinged for being too responsive.

[00:15:09] Speaker 03:
His answers are long-winded, and he's trying to be responsive, and so he's then determined to be unresponsive and not credible.

[00:15:19] Speaker 03:
And this footnote, sort of for me anyway, indicates that this isn't a reasonable fact-finder who is making these determinations.

[00:15:31] Speaker 01:
The government's position is that this was a reasonable fact finder who, through a very lengthy proceeding, actually two proceedings, tried to get as much information out of the petitioner on directing him to answer a specific question.

[00:15:45] Speaker 01:
And there's a half a dozen almost different examples in the immigration judge's decision where he has to ask more than three or more times to get back on track to answer the question.

[00:15:59] Speaker 01:
And there are times where he would ask the petitioner for an explanation and the petitioner wouldn't even answer that question and would start talking about a different incident entirely.

[00:16:07] Speaker 01:
And the immigration judge also gave multiple admonishments but also instructions on how to testify, why we need to get back on track and answer the question because the immigration judge in order to assess credibility and assess the merits of this case needs to have the consistent information in front of him.

[00:16:25] Speaker 01:
And if he doesn't understand, if he doesn't get coherent responses from the petitioner about what exactly happened to him, then he cannot be a fact finder.

[00:16:34] Speaker 01:
He's simply just taking in a narrative that doesn't make any sense.

[00:16:38] Speaker 01:
And so while I understand that the frustration came through specifically in that footnote, the demeanor case law also requires that the immigration judge give specific instances of both verbal and nonverbal nonresponsiveness or demeanor findings.

[00:16:56] Speaker 01:
And I would note the Rodriguez-Ramirez case that the board cites, and it says, simply because the record reflects that Rodriguez-Ramirez did in fact eventually provide some answer to the questions, does not undermine the immigration judge's finding of evasiveness.

[00:17:10] Speaker 01:
Because these immigration judge demeanor findings are given special deference, and the immigration judge is in this unique position to have in-person observations.

[00:17:20] Speaker 01:
So unlike the reviewing courts that have a cold record that they're reading,

[00:17:24] Speaker 01:
the immigration judge is in court specifically to view this petitioner, view how they testify, understand and assess their demeanor, their candor, their responsiveness.

[00:17:36] Speaker 01:
So the case law itself requires the immigration judge to give specific instances, descriptions, and examples.

[00:17:42] Speaker 01:
And I think in that footnote, the immigration judge is giving his honest assessment of this petitioner.

[00:17:49] Speaker 01:
And as the reviewing court, the standard is not to go back and second guess

[00:17:54] Speaker 01:
what the immigration judge did, the standard is, does the record compel reversal of what the immigration judge did?

[00:18:01] Speaker 01:
Would no reasonable fact finder make the same determination?

[00:18:05] Speaker 01:
I don't think that's true.

[00:18:06] Speaker 01:
I think there are many reasonable fact finders who would agree with this immigration judge.

[00:18:10] Speaker 03:
The standard for us is substantial evidence, correct?

[00:18:15] Speaker 03:
Correct.

[00:18:17] Speaker 03:
substantial evidence supports the determination, correct?

[00:18:20] Speaker 03:
In the totality of the circumstances, yes.

[00:18:22] Speaker 03:
Okay.

[00:18:22] Speaker 03:
Can you address the argument that your friend on the other side made with respect to whether or not the IJ had a duty to affirmatively develop the record?

[00:18:31] Speaker 03:
And specifically, I'm hoping that you can talk about our case, Zomorano v. Garland, and whether that case required the IJ

[00:18:44] Speaker 03:
to ask for the testimony of the wife who was present at the hearing given that the petitioner was proceeding pro se?

[00:18:53] Speaker 01:
If I remember correctly in Zamorano, is this the case in which he was told that unless his wife was physically present at the hearing, the application would be denied?

[00:19:05] Speaker 01:
And I think that's a very specific statement for an immigration judge to make.

[00:19:09] Speaker 01:
And the wife had medical issues that prevented her from attending the hearing, and the immigration judge was informed of that, if I remember this case correctly.

[00:19:16] Speaker 01:
In our case here, the immigration judge specifically asked the petitioner, would you like your wife to testify?

[00:19:22] Speaker 01:
And she was in the immigration court, and he said no, she is not a member of the political party.

[00:19:28] Speaker 01:
And later on, the immigration judge makes a finding that she was not a witness to these incidents.

[00:19:33] Speaker 01:
So the immigration judge is not obligated to act as counsel for a pro se petitioner.

[00:19:40] Speaker 03:
Would you agree that the IJ is responsible for developing the record to the fullest extent possible, given the pro se nature of the petitioner?

[00:19:49] Speaker 01:
Yes, and I think he did that.

[00:19:50] Speaker 01:
In fact, he spent a significant amount of time trying to develop this record.

[00:19:55] Speaker 01:
The fact that the petitioner had a difficult time providing those answers doesn't diminish the fact

[00:19:59] Speaker 01:
that the immigration judge spent a significant amount of time reflected in this 18 page written decision, trying to flush out what exactly happened, laying out the inconsistencies that the immigration judge saw in the record.

[00:20:13] Speaker 01:
I think there's no doubt that the immigration judge spent a significant amount of time questioning the petitioner.

[00:20:19] Speaker 01:
And he certainly never cut him off like some of the other case law that reflects an inability of the petitioner to not even express what happened to him.

[00:20:29] Speaker 03:
In this case, Council, let me see if my colleagues have any further questions.

[00:20:33] Speaker 03:
If not, can you please provide us with your closing statement because you're out of time?

[00:20:38] Speaker ?:
Certainly.

[00:20:40] Speaker 01:
With respect to the language request, I will very briefly mention that the Council, I just I need you to conclude because you're out of time.

[00:20:50] Speaker 03:
So I don't think you have time to go into another issue.

[00:20:53] Speaker 03:
But if you want to make a concluding statement, I'd be happy to take that from you.

[00:20:57] Speaker 01:
Yes, Your Honor.

[00:20:58] Speaker 01:
In summary, your honors, the substantial evidence in this case certainly supports not only the adverse credibility decision, but also the denial of the cat claim.

[00:21:10] Speaker 01:
And in this matter, the respondent would rest on any of the other arguments that were made in the answering brief.

[00:21:19] Speaker 01:
The defendant, the petitioner, not only had an adverse credibility determination that affected his cat claim, but he also was unable to demonstrate he was, he had a particularly risk of torture, particularized risk of torture in Angola.

[00:21:36] Speaker 01:
And with that, I would rest on the remaining arguments in my answering brief.

[00:21:39] Speaker 01:
Thank you.

[00:21:40] Speaker 01:
Thank you very much.

[00:21:51] Speaker 02:
Your Honours, Joelle made no attempt to bolster his claim through the omissions.

[00:21:58] Speaker 02:
They simply just provided details that there was not space to apply in his application.

[00:22:05] Speaker 02:
There is a case, I believe it's a matter of SSA, I can forward it to, it is quoted in our brief, that does say that omissions are not held in the same manner as inconsistencies.

[00:22:20] Speaker 02:
would also state that the additional information was not inconsistent.

[00:22:24] Speaker 02:
It was just to provide further details of the events, given the fact that there is a small area on that application.

[00:22:33] Speaker 02:
I do believe that in the totality of these circumstances, my client was not provided the option, while he was a pro se respondent, to completely answer

[00:22:42] Speaker 02:
his questions.

[00:22:43] Speaker 02:
He was admonished, not instructed, admonished a total of 14 times during that initial hearing.

[00:22:50] Speaker 02:
I don't even believe they went 15 minutes into the second hearing before he was once again admonished to say that he was taking too long in providing answers.

[00:23:00] Speaker 02:
Who are we to decide how long it's required to answer questions when it is the life of these individuals?

[00:23:08] Speaker 00:
Do you attribute most of what happened at the hearing as a translation problem?

[00:23:13] Speaker 02:
I think there may have been some translation issues in that first hearing.

[00:23:17] Speaker 02:
When you read the transcript, there's some strange words that may be their typos, but I do believe that there was definitely some translation issues.

[00:23:28] Speaker 02:
Lingala the word leg covers everything from your hip to your ankle So they don't really have specific areas for that so Depending on who was doing that translation they may have picked a different body part also There's the issue of where the police hit him versus where he was hurt none of that was really fully developed there wasn't a lot of things followed up on that the same with when he was kept at the camp and

[00:23:53] Speaker 02:
There wasn't a lot of questions that were really used to follow up about the torture.

[00:23:58] Speaker 02:
Where there was plenty of questions to follow up about what struck him, I think at one point somebody asked him if it was a bow and arrow because he said it shot.

[00:24:07] Speaker 02:
So the transcript shows that there were times when they took plenty of time to ask questions and then there were times when they did not develop.

[00:24:14] Speaker 02:
And when it comes to the issue of inconsistency,

[00:24:17] Speaker 02:
potential adverse credibility, there is an enhanced duty of the IJ for a pro se respondent to make sure that they are aware of that problem.

[00:24:30] Speaker 02:
Maybe he didn't have to call Menge, but he could have advised Joel that he had the opportunity to call her to get additional information.

[00:24:40] Speaker 02:
He could have just advised him that he was allowed to make a statement.

[00:24:43] Speaker 02:
He didn't even allow him to make a closing

[00:24:46] Speaker 02:
closing statement or closing argument when at the very end of the hearing he said is there anything further you would like to add but you are not allowed to go over anything we've already talked about okay council you're out of time would you like to make a closing statement no we will rest with what we have thank you very much thank you so much for your time thank you to both council for your argument in this case the matter is now submitted