[00:00:00] Speaker 01:
Good morning, Your Honors.

[00:00:01] Speaker 01:
My name is David Landry.

[00:00:03] Speaker 01:
I represent the petitioner, Alma's Back Rimcloth, also known as Kid Diamond.

[00:00:09] Speaker 01:
Kid Diamond was a very famous boxer from the country of Kyrgyzstan.

[00:00:15] Speaker 01:
Still very famous in boxing circles.

[00:00:18] Speaker 01:
The petitioner went through removal proceedings in custody

[00:00:25] Speaker 01:
It's clear to petitioners on appeal, he really didn't receive a very good individual hearing.

[00:00:35] Speaker 01:
In particular, the interpretation was very poorly done.

[00:00:38] Speaker 01:
The board, that's right, the IJ, the immigration judge found many, many different reasons to find that the petitioner was non-credible.

[00:00:49] Speaker 01:
The Boron review, however, only confirmed four of them.

[00:00:52] Speaker 01:
They even noted in a footnote that the IJ misread some of the testimony.

[00:00:58] Speaker 01:
That was one of the basis for the non-credibility.

[00:01:03] Speaker 01:
Petitioners of the position that even the four Basises that the board confirmed under are also incorrect they're based upon a misreading of the right of the evidence and that the whole case should be remanded under the Ninth Circuit recent case in Kalulu and Kalulu we learned but in a split decision that even if on on appeal it's confirmed that there's substantial evidence to support the non credibility decision

[00:01:32] Speaker 01:
the court can still remain the case so that the I.J.

[00:01:36] Speaker 01:
can reconsider

[00:01:37] Speaker 01:
evidence that they misinterpreted.

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And that's a lot of what happened here in the petitioner's case.

[00:01:44] Speaker 01:
The petitioner's not conceding, however, that there was substantial evidence of non-credibility.

[00:01:50] Speaker 01:
If you look at every position by the board, every finding by the board, rather, you'll see that even the board made some mistakes.

[00:01:58] Speaker 01:
For example, the first one that the board confirmed deals with whether or not the petitioner spoke out

[00:02:08] Speaker 01:
against who is now the president of Kyrgyzstan and the police minister of Kyrgyzstan and in his testimony petitioner clarifies

[00:02:22] Speaker 01:
that yes, it's true that he did speak out probably to family members about the situation, about refusing to provide support to Zhaparov and Tashkent, the president and the minister of police, and he may have also inadvertently

[00:02:42] Speaker 01:
provided that same position to some young journalists that he was speaking to that he didn't realize were journalists at the time.

[00:02:50] Speaker 01:
But in his testimony, he clarifies that the word publicly is what the issue is, and that he didn't consider himself to have publicly spoken out against them, even though he agrees that, yes, it's true that he did speak out.

[00:03:05] Speaker 00:
I think the immigration judge pointed to his wife's

[00:03:08] Speaker 00:
testimony is also contradicting what her husband had said.

[00:03:13] Speaker 01:
Well, Your Honor, the judge didn't consider the wife's statement.

[00:03:21] Speaker 01:
In fact, he found that the judge felt like it was inconsistent with what the petitioner testified.

[00:03:27] Speaker 00:
Isn't that what I just said?

[00:03:29] Speaker 00:
He cited as one of the grounds for inconsistency

[00:03:34] Speaker 00:
that her statement was contrary to what her husband was saying.

[00:03:39] Speaker 01:
Well, Your Honor, there's a lot of this record that needs to be remanded, and that's a good example of things that... Are you asking us to reweigh credibility?

[00:03:48] Speaker 00:
I mean, it sounds like you're asking us to reconsider the evidence and conclude that there was no adverse credibility here.

[00:04:00] Speaker 01:
Yes and no.

[00:04:02] Speaker 00:
Sorry for the double-speak.

[00:04:05] Speaker 01:
I apologize for the double-speak.

[00:04:06] Speaker 01:
But Kaluulu tells us that the Circuit Court can review the evidence to see whether or not the Board made clear error in confirming whether or not the basis upon which the non-credibility was found are accurate.

[00:04:24] Speaker 01:
And although I'm not asking this court to necessarily reweigh that evidence, what I am asking the court to do is to look at the documents on their face and to come to the realization that the board was wrong to confirm what the IJ decided and that the documents that the IJ relied upon should not have been relied upon for credibility.

[00:04:47] Speaker 01:
We're talking right now about the corruption issue and whether or not it was publicly done.

[00:04:53] Speaker 01:
That's a point that was never addressed by the judge and was not addressed by the board.

[00:04:58] Speaker 04:
The second one... But counsel petitioner claimed that he spoke out against corruption in the Kyrgyzstan government.

[00:05:15] Speaker 04:
but also argues that he never stated he spoke out publicly.

[00:05:20] Speaker 04:
So if he didn't do so publicly, how did he speak out against corruption?

[00:05:27] Speaker 01:
Well, Your Honor, the term you're referring to is part of the applicant's

[00:05:31] Speaker 01:
application for asylum.

[00:05:33] Speaker 01:
And in it, he says that he's afraid to be returned both because he spoke out and also because he refused to provide support.

[00:05:41] Speaker 01:
But he does use the word speak out.

[00:05:44] Speaker 01:
You're correct.

[00:05:45] Speaker 01:
And that's why the petitioner's testimony at the individual hearing is so important, because if you look at the transcript, he asks the interpreter, spoke out, almost as if to say that he didn't say these words, but the tone was

[00:06:02] Speaker 01:
No, I didn't speak out.

[00:06:03] Speaker 01:
And then he internalizes and expresses that, oh, yes, that I may have, like I said, spoken to family members about my position.

[00:06:14] Speaker 01:
He also notes that there's this time where he's speaking to who believe to be just young people, turns out to be young reporters.

[00:06:24] Speaker 01:
It's correct to say that he did speak out in that respect, and that he did speak to these people privately, and he thought was speaking to privately.

[00:06:33] Speaker 01:
But it's also true that from his perspective, he didn't publicly speak out.

[00:06:37] Speaker 01:
If you notice, in the transcript, he repeats the word publicly, meaning he's trying to give this emphasis.

[00:06:46] Speaker 01:
Now, this brings us back to the interpretation.

[00:06:49] Speaker 01:
When you read the interpretation, the grammar is

[00:06:52] Speaker 01:
is sometimes incomprehensible.

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It's very, very difficult to understand what it is that was being testified to and what the responses were.

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And that goes throughout the record.

[00:07:03] Speaker 01:
When you look at some of the other things, the statements that the petitioner made in the asylum interview, there's

[00:07:11] Speaker 01:
I'll give you an example.

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The second basis by the board for the non-credibility dealt with statements that the petitioner made during his asylum interview, what they call a reasonable fear interview.

[00:07:25] Speaker 01:
The judge finds that, no, you told the asylum officer that it was you that shut down all the businesses.

[00:07:38] Speaker 01:
But if you look at the reasonable fear interview, one of the first pages in the reasonable fear interview, the quote is, they shut down my business over there.

[00:07:48] Speaker 01:
Meaning the government shut down my business over there.

[00:07:51] Speaker 01:
And shutting down the business has also needed some clarification too, because

[00:07:56] Speaker 01:
Petitioner owned many businesses, not just ones in Kyrgyzstan.

[00:08:00] Speaker 01:
And he had to shut down all of his businesses, meaning he later testifies, yes, he had to shut down his business in Ukraine, he had to shut down his business in Belgium.

[00:08:10] Speaker 01:
Obviously, the government of Kyrgyzstan did not shut down those businesses.

[00:08:15] Speaker 01:
It's the petitioner that shut down those businesses.

[00:08:17] Speaker 01:
But the point of it is that

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The record is not clear.

[00:08:22] Speaker 01:
And I would agree with you.

[00:08:23] Speaker 01:
There's a lot of testimony in here that might, on its first, appear contradictory.

[00:08:30] Speaker 01:
Then follow-up questions are made, and it sometimes gets clearer.

[00:08:33] Speaker 01:
Sometimes it gets even muddier.

[00:08:35] Speaker 00:
Mr. Landry, one of the things that both the board and the immigration judge pointed to was the disputed signature and whether or not he had a credible fear of returning.

[00:08:46] Speaker 00:
And it's pretty clear based on the credible fear interview, which apparently he signed a statement in writing saying, I don't care if you're returning.

[00:08:56] Speaker 00:
Yeah.

[00:08:56] Speaker 00:
And then they asked him, well, isn't that your signature?

[00:08:58] Speaker 00:
And then he waffled and first denied it was his signature and then kind of in a lawyerly fashion said, but if it was my signature, I didn't understand what I was signing.

[00:09:08] Speaker 00:
And the immigration judge basically said that's fatal to his claim because at the hearing he testified he did have a fear.

[00:09:16] Speaker 01:
I would ask you to re-review that document, particularly.

[00:09:19] Speaker 00:
So I have to decide if that's his signature?

[00:09:21] Speaker 01:
No, but my point is, no, I'm not suggesting to you that you're, I'm not asking you to determine whether or not it is his signature.

[00:09:28] Speaker 01:
We're not contesting that, okay?

[00:09:30] Speaker 01:
If you signed it, he signed it.

[00:09:31] Speaker 01:
That's fine.

[00:09:32] Speaker 01:
But when you look at the document, first of all, the petitioner doesn't speak English.

[00:09:36] Speaker 01:
He thinks he speaks English, but it's clear.

[00:09:38] Speaker 00:
But he says on a 589 that he does, doesn't he?

[00:09:41] Speaker 01:
I'm not in disagreement with you that he said the words, I speak English.

[00:09:45] Speaker 01:
But it's not uncommon for people from other countries to say to American immigration officials, yes, I speak that language in an attempt to ingratiate them.

[00:09:55] Speaker 01:
Because that's true in many countries.

[00:09:58] Speaker 01:
For example, France, I'm giving you an example.

[00:10:01] Speaker 01:
The French people treat tourists differently unless they speak French.

[00:10:07] Speaker 01:
I discount that statement, but there is a lot of wrong in this document, and it was improper impeachment for the judge to rely upon it.

[00:10:16] Speaker 01:
First of all, the document was prepared in English.

[00:10:19] Speaker 01:
The interview says at the top they did not use an interpreter.

[00:10:24] Speaker 01:
Second, if you look at the transcript and the questioning from the officer, at no time does the officer ask him, hey, do you read English?

[00:10:36] Speaker 01:
He only ever says that he speaks English.

[00:10:38] Speaker 01:
Those are two very different things.

[00:10:41] Speaker 01:
So for the petitioner to be impeached upon a document that he never claimed he was able to read is improper.

[00:10:52] Speaker 01:
And the document itself is internally incorrect.

[00:10:56] Speaker 01:
If you look on the document, you'll see that one of the last lines it says, I have initialed each page of this statement.

[00:11:03] Speaker 01:
There are no initials on these documents.

[00:11:07] Speaker 01:
That didn't happen.

[00:11:09] Speaker 01:
So from Petitioner's perspective, this was a document that should not have been used for impeachment purposes because it's inherently unreliable and it was prepared in the language that Petitioner has never acknowledged the ability to read.

[00:11:25] Speaker 01:
And if we're going to say, well, then the officer read it to him and he should have understood it as it was read to him, well, we don't know that that was read correctly.

[00:11:33] Speaker 01:
There's a lot of boilerplate in this document that may or may not have been read to the petitioner.

[00:11:38] Speaker 01:
These documents are prepared by officers really in a cursory fashion.

[00:11:42] Speaker 01:
And to impeach the petitioner on that, I think, is a violation of due process rights.

[00:11:47] Speaker 02:
Let me just pause here.

[00:11:52] Speaker 02:
I'm going to go ahead and stop you there, but I'm going to give you two minutes for rebuttal.

[00:11:56] Speaker 03:
Thank you.

[00:12:11] Speaker 03:
Good morning, Your Honors.

[00:12:12] Speaker 03:
Christopher Pryby for the Attorney General.

[00:12:14] Speaker 03:
May it please the Court.

[00:12:16] Speaker 03:
The entirety of Petitioner's argument is that he wants this Court to re-decide the

[00:12:22] Speaker 03:
standard of review.

[00:12:23] Speaker 03:
I think my timer is not going.

[00:12:24] Speaker 02:
Yeah, please start the clock.

[00:12:28] Speaker 03:
Okay.

[00:12:28] Speaker 03:
He wants this court to review under a de novo standard of review, basically.

[00:12:34] Speaker 03:
He wants to reweigh all of the stuff that he just listed.

[00:12:39] Speaker 03:
This is under substantial evidence, standard of view.

[00:12:45] Speaker 03:
Every reasonable fact finder has to be compelled to buy his story for you to reverse.

[00:12:52] Speaker 03:
He proposes interpretations, some more plausible than others of the evidence, none of which are compelling.

[00:12:59] Speaker 03:
And my brief lays all that out.

[00:13:02] Speaker 03:
A few points petitioners made.

[00:13:05] Speaker 03:
He raises the quality of the interpretation as a potential issue that wasn't raised before the board, that wasn't raised in his blue brief.

[00:13:13] Speaker 03:
It's waived.

[00:13:14] Speaker 03:
It's not exhausted.

[00:13:15] Speaker 03:
This court can't consider it.

[00:13:17] Speaker 03:
Same thing for improper impeachment, not raised in the blue brief.

[00:13:21] Speaker 03:
not raised for the board, not before this court.

[00:13:26] Speaker 03:
I don't remember if he mentioned ineffective assistance of counsel, but to the extent that he's arguing that as well, that was not raised before the board, wasn't raised in his blue brief, not before the court.

[00:13:48] Speaker 03:
I am not familiar with Kalulu that was not raised in a 28-J before this hearing.

[00:13:54] Speaker 03:
I would request permission to respond to his argument with Kalulu.

[00:14:00] Speaker 02:
Certainly.

[00:14:01] Speaker 02:
You can file a 28-J on Kalulu if you'd like.

[00:14:03] Speaker 03:
Thank you, Your Honor.

[00:14:09] Speaker 03:
Unless this Court has any further questions.

[00:14:13] Speaker 02:
Well, just so I can kind of encapsulate your argument, I take it what you're saying is that to the extent he has made an argument that's before us today, it's we have to review that under substantial evidence standard.

[00:14:24] Speaker 02:
And you feel that there's enough there in terms of discrepancies to support the IJs and the BIA's decision in this case?

[00:14:32] Speaker 03:
There is enough to support at least one reasonable fact finder could agree with the agency on this case.

[00:14:39] Speaker 03:
Therefore, this court must deny the petition for review.

[00:14:47] Speaker 03:
Thank you, Your Honor.

[00:15:00] Speaker 01:
Your Honor, there were two more points, or maybe one or two more points that the Board found to be supportive of a non-credibility issue.

[00:15:11] Speaker 01:
And I understand that government counsel is at a, hasn't read Kululu, but I would note in Kululu that Kululu was a split decision.

[00:15:22] Speaker 01:
The majority found that remand was proper.

[00:15:26] Speaker 01:
And the dissent, Judge Sanchez would have found that no, that there should be a weighing of the

[00:15:35] Speaker 01:
documentary evidence that was credible versus the weight of the evidence that was non-credible and to consider which one weighed heavier.

[00:15:43] Speaker 01:
It's important to remember that the petitioner provided documentary evidence that showed he had an existing relationship with the current president who was then running at the time to become president of Kyrgyzstan, the same thing, with the head of the police.

[00:16:01] Speaker 01:
There's also very good evidence from the Human Rights Report that both of these persons engage in torture, including of political rivals or persons they consider to be political rivals.

[00:16:16] Speaker 01:
And as to the credibility issues, the documents that I was discussing before, we hadn't talked about whether or not the petitioner was harmed twice or two or three times.

[00:16:29] Speaker 01:
The judge relied upon information from the asylum officer, and I would point to the

[00:16:34] Speaker 01:
to one of the first lines that the petitioner gives to the asylum officer in the interview says, yes, they cut my arm.

[00:16:41] Speaker 01:
I had a scar now.

[00:16:42] Speaker 01:
They also warned me, threatened me that they would cut my head.

[00:16:49] Speaker 01:
The judge interpreted this as involving one incident, the incident where the goons come to petitioner's restaurant, attack him with a knife, and the petitioner's hand is cut when he's defending himself.

[00:17:03] Speaker 01:
There's another incident where the petitioner testifies to about when goons, again, at this time, I think, come to his home.

[00:17:10] Speaker 01:
They have metal rods, and they attack him.

[00:17:14] Speaker 01:
The attack results in a cut to his head.

[00:17:19] Speaker 01:
That phrase, the first line that the petitioner gives to the asylum officer, references this cut to the head.

[00:17:27] Speaker 01:
Now I would agree it's not very artfully worded.

[00:17:33] Speaker 01:
Once again, interpretation.

[00:17:35] Speaker 01:
But clearly, that's what the petitioner, I should say, impliedly, that's what the petitioner is referring to, the second incident.

[00:17:42] Speaker 01:
In fact, it was the second incident was the same one that the judge mistakenly found that the attackers had broken petitioner's legs and permanently disabled him, where in fact, petitioner's testimony was they were trying to break my legs.

[00:18:00] Speaker 01:
The last basis for non-credibility dealt with what he said, the border patrol officer.

[00:18:11] Speaker 01:
And the IJ finds that, oh, well, gee, the petitioner must have understood what was in that document because the petitioner has applied for visas to come to the United States and has been to the United States before.

[00:18:25] Speaker 01:
Well, one, that doesn't prove that the person can read English.

[00:18:28] Speaker 01:
We just talked about that.

[00:18:30] Speaker 01:
And the petitioner, in the interview to the asylum officer, they ask him, hey, do you speak English?

[00:18:39] Speaker 01:
He says, well, I speak it OK, because I used to speak it 10 years ago when I was in the United States.

[00:18:44] Speaker 01:
But I really do need a Russian interpreter for me to better understand what's going on.

[00:18:55] Speaker 02:
So, Council, we are over time.

[00:18:57] Speaker 02:
So if you want to wrap up, I'll give you, you know.

[00:18:59] Speaker 02:
I'll submit, Your Honor.

[00:19:00] Speaker 02:
Thank you very much.

[00:19:02] Speaker 02:
All right.

[00:19:02] Speaker 02:
Thank you very much, Council.

[00:19:03] Speaker 02:
Thank you very much for your briefing and argument in this case.

[00:19:06] Speaker 02:
This matter is submitted, and we are adjourned.

[00:19:09] Speaker 02:
And hopefully we can do this again.

[00:19:11] Speaker 02:
Thank you, everybody.

[00:19:12] Speaker 04:
Thank you.