[00:00:00] Speaker 03:
Proceed to hear argument in the last case schedule for argument on calendar today.

[00:00:06] Speaker 03:
And that is 24-5528 Harvey Yazzie versus United States Office of Navajo and Hopi Indian Relocation.

[00:00:19] Speaker 03:
And we will hear first from Mr. Malone.

[00:00:26] Speaker 02:
Good morning, Your Honors.

[00:00:27] Speaker 02:
Robert Malone appearing for plaintiff appellant Harvey Yazzie and may it please the court.

[00:00:34] Speaker 02:
Our challenge to the hearing officer's decision in this case is number one to his adverse credibility findings which are unsupported and do not comport with the repeated instruction of this circuit as to the proper procedure, legal procedure to support an adverse credibility finding.

[00:00:56] Speaker 02:
And also to what we see as just the largely circumstantial evidence by which the hearing officer tied Mr. Yazee to Tuba City during the requisite time period.

[00:01:10] Speaker 04:
What about your, and I understand that argument, what about the argument that the officer considered the fact that the testimony was that he worked at these specific locations, but then it turns out based upon the

[00:01:26] Speaker 04:
evidence in the record that that was not the case.

[00:01:30] Speaker 04:
Your argument is that that should not show that there's a credibility problem?

[00:01:36] Speaker 02:
Well, I think as to that employment, there can be a reasonable explanation.

[00:01:43] Speaker 02:
The first job he had at the auto parts store, I mean, this was 50 years ago and even today.

[00:01:51] Speaker 02:
I mean, he could have been paid under the table.

[00:01:53] Speaker 02:
That's why

[00:01:54] Speaker 02:
or just, you know, his employer considered him a private contract.

[00:01:57] Speaker 04:
I understand that and I understand that some folks do have that happen.

[00:02:02] Speaker 04:
But the question is, why wasn't that a basis to say that that's a credibility problem?

[00:02:10] Speaker 04:
I guess that's the issue I have.

[00:02:12] Speaker 02:
And you mean the inference being, Your Honor, that he just made this up, Mr. Yossi?

[00:02:18] Speaker 04:
Well, the inference that the hearing officer used that discrepancy in determining that that's a credibility issue.

[00:02:28] Speaker 02:
Well, I can acknowledge that because it does not show up on the Social Security earnings record, or he has other documentation to prove that he held that job, that that may, yeah, that is

[00:02:42] Speaker 02:
a reason to challenge his testimony on that particular job.

[00:02:47] Speaker 04:
Do you think that that is efficient enough to determine that there's a credibility problem?

[00:02:53] Speaker 02:
All of his testimony, no.

[00:02:55] Speaker 02:
I don't see how this impugns the integrity of his entire testimony.

[00:03:01] Speaker 03:
When we refer to credibility, we're not necessarily, and I don't necessarily know that the independent hearing officer here was referring to lying.

[00:03:12] Speaker 03:
It's just that this isn't very reliable testimony, and it's not credible in that sense in terms of not being accurate.

[00:03:21] Speaker 02:
Okay.

[00:03:21] Speaker 02:
I mean, I can accept that, but then I guess I would go on to say he did not rely on this employment to prove his eligibility for relocation benefits.

[00:03:35] Speaker 00:
Counsel, isn't it true that the hearing officer considered the

[00:03:41] Speaker 00:
lack of information on the Social Security report as one part of an overall consideration of testimony that he heard and determinations to ultimately deny your client benefits.

[00:03:57] Speaker 00:
Is that right?

[00:03:58] Speaker 00:
This is one piece, what Judge Mendoza is asking about here with respect to the Social Security report was one thing.

[00:04:05] Speaker 00:
Correct?

[00:04:06] Speaker 02:
Yes.

[00:04:07] Speaker 02:
I mean, he said in his credibility findings he stated

[00:04:10] Speaker 02:
you know, there's a discrepancy.

[00:04:13] Speaker 00:
Well, he said that his- He says there were grave discrepancies, correct?

[00:04:18] Speaker 02:
And his testimony about the employment and also about the years he attended college.

[00:04:21] Speaker 00:
Would you agree with me that part of the hearing officer's ultimate denial of benefits was also based on implicit credibility determinations with respect to Mr. Yazzie's family members?

[00:04:38] Speaker 00:
He didn't cite to any particular, he never found them to be not credible.

[00:04:45] Speaker 00:
There were no specific adverse credibility determinations made as to the family members, but he sort of generally said that they had limited credibility, is that right?

[00:04:54] Speaker 00:
Okay, so why under our case law isn't that enough to remand this case?

[00:05:03] Speaker 00:
Because when we have a hearing officer that's relying on multiple things,

[00:05:08] Speaker 00:
And one of those things is prohibited by our case law, that is making implicit credibility determinations as opposed to explicit adverse credibility determinations.

[00:05:20] Speaker 00:
How can we know that there was not at least some part of this decision that is problematic, arbitrary and capricious, a violation of the officer's duties to make adverse credibility determinations?

[00:05:36] Speaker 02:
I guess I'm not quite sure.

[00:05:37] Speaker 02:
I mean, this is what we would say.

[00:05:39] Speaker 02:
I mean, just the blanket dismissal, the collective finding that all three witnesses had limited credibility without taking the time to address each one individually and state

[00:05:56] Speaker 02:
a specific and cogent reason why they were not credible.

[00:06:00] Speaker 00:
I'm asking this question because, well, maybe you're confused because that is part of your argument.

[00:06:05] Speaker 00:
My question is, isn't that enough to get at least the remand here?

[00:06:11] Speaker 00:
Because it doesn't really matter if some part of the officer's ultimate decision was based on the social security reports.

[00:06:22] Speaker 00:
That might still be a problem, but in the sort of

[00:06:26] Speaker 00:
collection of things that the officer relied on, some part of it we know is improper.

[00:06:32] Speaker 00:
Isn't that enough?

[00:06:33] Speaker 00:
Do you have to win on all of these arguments?

[00:06:36] Speaker 00:
That's my question.

[00:06:37] Speaker 02:
No.

[00:06:40] Speaker 02:
I would think if this court finds that the hearing officer's credibility findings do not comport with this circuit's precedent,

[00:06:51] Speaker 02:
as to the proper procedure to do that, that that is sufficient to amend this case.

[00:06:57] Speaker 02:
I do think that there's more.

[00:06:59] Speaker 02:
It's problematic also that what he finds to tie Mr. Yazzie to Tuba City, that he went to high school there, his girlfriend went to the same high school, they met in high school, he stayed with his aunt while he was attending high school, and

[00:07:19] Speaker 02:
the birth certificate of his son, which was September 15, 1949 years ago today, showed the wife's residence as Tuba City.

[00:07:30] Speaker 02:
None of that is probative evidence that Mr. Yaziz.

[00:07:34] Speaker 03:
But after he said he finished school, he said that he found a place to live in Tuba City in preparation for the birth of his son, correct?

[00:07:45] Speaker 02:
He did not say that, Your Honor.

[00:07:47] Speaker 02:
Judge Collins.

[00:07:48] Speaker 02:
And I think that that's correct.

[00:07:51] Speaker 02:
You're saying that his testimony was he found another residence besides his aunt?

[00:07:59] Speaker 03:
Where was he living at the time that his son was born on September 15th?

[00:08:04] Speaker 03:
Where was he physically present?

[00:08:08] Speaker 02:
Well, I mean, his testimony was that he never moved in with his wife's family in Tuba City.

[00:08:17] Speaker 02:
So he, while he was in Tuba City, he resided with his aunt, but his legal residence remained in Coal Mine.

[00:08:26] Speaker 02:
And, you know, as far as the rate, you know, I do want to say quickly just, you know, the case that we cite in our opening brief, the Mike case, quotes from O'Neer's own 1990 plan update.

[00:08:45] Speaker 02:
where it rejected actual residents in favor of legal residents and described actual residents where the applicant may be living temporarily.

[00:08:57] Speaker 03:
So here's what I'm looking at your post hearing brief on ER 214 and it said

[00:09:08] Speaker 03:
At the end of the spring term, he said he attended college for two semesters from the fall of 75 to spring 76.

[00:09:15] Speaker 03:
He returned home to Coal Mine for Thanksgiving and Christmas.

[00:09:18] Speaker 03:
At the end of the spring term, he began looking for work since his wife was expecting a baby.

[00:09:24] Speaker 03:
After a month, he found a job as a driver for the Tuba City Hospital.

[00:09:30] Speaker 03:
During the summer of 76, after he got the job, he returned to his Coal Mine home every chance I got.

[00:09:37] Speaker 03:
It seems clear from that, that he was working and living in Tuba City in preparation for the birth of his son while still going home to coal mine every chance he got.

[00:09:52] Speaker 03:
But he was working already during the summer, correct?

[00:09:57] Speaker 02:
That is his testimony.

[00:09:59] Speaker 03:
Therefore, he was living somewhere in Tuba City while he's working in Tuba City, correct?

[00:10:06] Speaker 03:
Correct.

[00:10:07] Speaker 03:
But again, this- Why is it not a reasonable reading of the evidence that if you take a job in Tuba City in preparation for the birth of your son in Tuba City where, you know, the mother of the child lives and you're working there and living there and that's what makes you ahead of a household, why isn't it reasonable to conclude that on the day the son was born and you becomes the head of household, that his residence was Tuba City?

[00:10:35] Speaker 02:
Because, Your Honor, this takes us back to the whole temporarily away definition.

[00:10:41] Speaker 03:
How is he temporarily away if he gets this job in Tuba City specifically in preparation for the birth of his son in Tuba City?

[00:10:50] Speaker 02:
I mean, he needed, well, the reason he got the job was he needed the income.

[00:10:57] Speaker 02:
That's what he's stating.

[00:10:58] Speaker 02:
But this doesn't mean that he's legally relocated to Tuba City because

[00:11:05] Speaker 02:
The testimony of his mother and his uncle was that he would bring his... It's still his plan.

[00:11:13] Speaker 03:
The hearing officer on this evidence was compelled to conclude that it was still his plan even after the child was born.

[00:11:20] Speaker 03:
I'm going back to Carmine.

[00:11:21] Speaker 03:
That's where I really live.

[00:11:23] Speaker 03:
I'm sorry, Judge Collins, what's your... I mean, it sounds to me that what you're saying is that even though he had a job in Tuba City, was living in Tuba City, the mother of the child is living in Tuba City, the child is going to be born in Tuba City, that it was on September 15th, the day the child was born, it was his intention to return to Coal Mine to live.

[00:11:48] Speaker 03:
Well, Your Honor... Is that your claim?

[00:11:52] Speaker 02:
My claim is this, as of that date, his legal residence remained coal mined.

[00:11:58] Speaker 03:
It would only remain coal mined and his presence in Tuba City would only be temporary if it was his intention to return to coal mine.

[00:12:07] Speaker 03:
But I don't see how the hearing office compelled on all this Tuba City evidence around September 15th to conclude, you know, he really was in his heart.

[00:12:17] Speaker 03:
He wanted to go back to coal mine.

[00:12:18] Speaker 03:
I don't see why he had to conclude that.

[00:12:21] Speaker 02:
Well, Your Honor, the eligibility requirements don't require a showing that the applicant, once they've attained head of household through whatever means, that there's no requirement that they have to show that they are going to remain on the HPL indefinitely.

[00:12:41] Speaker 02:
They just have to show.

[00:12:43] Speaker 03:
What matters is where it matters where they resided.

[00:12:47] Speaker 03:
on the day they became head of household.

[00:12:51] Speaker 02:
Were they legally residing?

[00:12:52] Speaker 03:
Correct.

[00:12:54] Speaker 03:
And in order to say that his legal residence remained Coal Mine on September 15, 1976, it must have been his intention to return to Coal Mine and not to stay in Tuba City.

[00:13:10] Speaker 03:
And I just, I'm having a hard time seeing the evidence that compels the hearing officer to say, yes, I think he was going to go back to Coal Mine despite all this centering of his life in Tuba City.

[00:13:22] Speaker 02:
Well, the evidence, you know, the testimony, if it's credited, I mean, the hearing officer excluded it.

[00:13:29] Speaker 02:
He never addressed it.

[00:13:31] Speaker 02:
But his mother, Mr. Yazzie's mother, Julia, she testified to remembering when he was beat there with his infant working.

[00:13:40] Speaker 02:
he continued to have responsibilities at that home site.

[00:13:44] Speaker 02:
He was the oldest son, as his brother testified to, and this is a labor-intensive pastoral home site.

[00:13:55] Speaker 02:
I mean, he would not give up that responsibility simply because he had to work in Tuba City.

[00:14:05] Speaker 02:
He needed income.

[00:14:07] Speaker 02:
But to the best of his ability, every chance I got, the hearing officer didn't like that phrase, but it makes perfect sense.

[00:14:15] Speaker 02:
He would be home to take care of his responsibilities.

[00:14:19] Speaker 02:
And it is important, again, you know, to recognize, I mean, this is, you know, a Native American man.

[00:14:26] Speaker 03:
His brothers... Do you want to take some time for rebuttal?

[00:14:29] Speaker 02:
Yes.

[00:14:29] Speaker 02:
Yes, I do.

[00:14:30] Speaker 03:
All right.

[00:14:30] Speaker 02:
Thank you.

[00:14:31] Speaker 03:
Okay.

[00:14:31] Speaker 03:
Thank you.

[00:14:33] Speaker 03:
We'll hear next from Ms.

[00:14:35] Speaker 03:
Collier.

[00:14:43] Speaker 01:
Good morning, Your Honors, and may it please the court, Amy Collier on behalf of the United States.

[00:14:48] Speaker 01:
I'd like to start right away by addressing Judge Desai's question about the credibility finding and whether that is sufficient to require a remand in this case.

[00:14:57] Speaker 01:
I think it's true here that the hearing officer was looking at the testimony and saying that it carried limited weight in establishing plaintiff's residency in this case.

[00:15:08] Speaker 01:
But I would point out that even if you credit the testimony of the witnesses, as the hearing officer acknowledged, it was still too indefinite and vague to establish that Mr. Yazzie was actually right.

[00:15:20] Speaker 00:
I think the problem that I'm having is that the hearing officer is sort of skirting his obligation to make the kinds of adverse credibility determinations, the explicit adverse credibility determinations that our court requires,

[00:15:36] Speaker 00:
so that there can be adequate review.

[00:15:39] Speaker 00:
I think what you just said perfectly describes the problem, which is that then the district court credits this as saying, well, the hearing officer gave them as much credibility as was necessary, but we don't

[00:15:57] Speaker 00:
But really, the hearing officer didn't do that.

[00:15:59] Speaker 00:
The hearing officer ultimately, at the end, in all of its conclusions, relied on the limited credibility of these witnesses, but without ever making any sort of explicit finding that we can review on the substantial evidence standard.

[00:16:10] Speaker 01:
So I'm struggling to see what sort of specific credibility finding would be important to make here, given the limited need.

[00:16:17] Speaker 00:
Well, I think that if you're going to use the fact that they had limited credibility to support an ultimate determination,

[00:16:24] Speaker 00:
then you need to cite to something to suggest that they were not credible.

[00:16:32] Speaker 00:
I think that this is precisely the problem, which is to be able to say they have limited credibility, but without giving the reviewing courts anything to look at, there's this sort of catch-22.

[00:16:44] Speaker 00:
And that's why we have this requirement in the first place.

[00:16:47] Speaker 04:
Well, to Judge Desai's point and to counsel's argument just before he sat down,

[00:16:53] Speaker 04:
crediting, for example, the mother's testimony about how he had additional responsibilities, but when there's this limited credibility finding as to these witnesses, so you question this like, well, did they consider that?

[00:17:06] Speaker 04:
Was that something that was not?

[00:17:07] Speaker 04:
Was it unsupported by the evidence?

[00:17:10] Speaker 04:
Was that information not credible?

[00:17:11] Speaker 04:
That's the problem that we run into.

[00:17:15] Speaker 01:
Um, you know, I, I agree that the hearing officer might have, might, could have potentially provided more detailed explanations for why he was not saying, not finding that Mr. Yazzie's witnesses carried the weight in establishing his residency.

[00:17:30] Speaker 01:
But I just want to step back for a second and point out that Mr. Yazzie, the plaintiff carries the burden to establish that he was residing on the HPL at the relevant time.

[00:17:39] Speaker 00:
I don't, I don't dispute that at all.

[00:17:42] Speaker 00:
Obviously the applicant has the burden.

[00:17:45] Speaker 00:
But the applicant could argue, and I think does argue in this case, that he satisfied that burden by putting forward evidence through witnesses that he had an intent to return to the HPL, that he had a legal residence, which is what his obligation and burden is to prove, and the hearing officer discounted.

[00:18:06] Speaker 00:
that testimony, but without making any sort of explicit adverse credibility.

[00:18:11] Speaker 01:
So I don't think there was any testimony about his manifestations of intent to reside on the HPL.

[00:18:17] Speaker 01:
There was testimony about, so for example, his brother would testify that he was going to school in Tuba City, working in Tuba City, and that he, his brother, was commuting or was returning every weekend.

[00:18:29] Speaker 01:
To the to the HPL, but that when asked directly after that, whether he would see plaintiff at the HPL, he said we would we would go traveling around a lot, not every weekend, not he was intending to reside there, not any of the indicia of intent to reside that is laid out in the regulation or in other cases, such as storing belongings there.

[00:18:49] Speaker 01:
such as other documentation establishing his residency there.

[00:18:54] Speaker 01:
I would also point out that his uncle testified that he was working in Tuba City.

[00:18:58] Speaker 01:
Again, my understanding is that these two distances are not so far away that one can't live on the HPL and commute to Tuba City, and that's what his uncle was doing for decades.

[00:19:09] Speaker 01:
So the hearing officer heard that testimony, heard this sort of

[00:19:14] Speaker 01:
vague, insufficient testimony about how often they might see plaintiff at the HPL, and then on the other hand was weighing it against- Can you say about where he was living when he got the job and the summer of 76?

[00:19:29] Speaker 03:
Sorry, I missed the beginning of the question.

[00:19:32] Speaker 03:
What does the record show about where he was living when he got the job in the summer of 76?

[00:19:43] Speaker 03:
in preparation for the birth of his son.

[00:19:46] Speaker 03:
He got a job in Tuba City.

[00:19:47] Speaker 03:
What does the record show about where he was living during that time?

[00:19:51] Speaker 01:
Yeah, so my understanding is that he was living in Tuba City and working in Tuba City.

[00:19:55] Speaker 01:
I don't think there's necessarily anything in the hearing transcript that goes to that.

[00:20:00] Speaker 01:
I know when he was interviewed by the agency in the initial application period, the notes from that.

[00:20:05] Speaker 01:
indicate that he told the agency that he was living with his girlfriend in Tuba City.

[00:20:12] Speaker 01:
But in terms of the testimony, I don't think there's anything establishing that.

[00:20:15] Speaker 01:
But there's nothing saying that he was commuting from Tuba City, from the HPL to Tuba City.

[00:20:21] Speaker 01:
There's nothing saying that he was going home every weekend, that he was keeping his belongings there.

[00:20:26] Speaker 03:
Here's one of the problems I have, which is that, as you can tell from my colloquy with Mr. Malone,

[00:20:35] Speaker 03:
The strongest piece of evidence that he had shifted his residence to Tuba City was that he took a job there in the summer of 76, before his son was born and before the date he becomes head of household.

[00:20:51] Speaker 03:
However, the independent hearing officer seemed to reject that testimony because he noted that there were no social security earnings for 1976.

[00:21:05] Speaker 03:
Can we rely on testimony that the hearing officer rejected as not credible in order to sustain?

[00:21:15] Speaker 03:
There seems to be an internal contradiction.

[00:21:17] Speaker 03:
It wasn't credible because of the inconsistency with Social Security, but then it's being invoked to sustain the burden that he was in Tuba City by September 15th?

[00:21:33] Speaker 01:
So the hearing officer did find that he became a full-time resident of Tuba City by September 1976.

[00:21:42] Speaker 01:
That's at ER 229.

[00:21:44] Speaker 01:
The hearing officer acknowledged that the social security statement did not show any income for 1976 or 1977.

[00:21:52] Speaker 01:
But he's saying that the plaintiff himself claimed where he was living and claiming he was working there at that time.

[00:21:59] Speaker 01:
So again, even crediting that testimony,

[00:22:01] Speaker 04:
Again, I think there's some dispute about whether those earnings- But he's not crediting that testimony, right?

[00:22:06] Speaker 01:
Well, I don't think that there's a specific, I don't think the credibility goes to that particular job.

[00:22:14] Speaker 01:
So for example, the credibility of a social security earning statements really goes to the 1974, 1975 timeline, because as plaintiff pointed out- Oh, read this carryover sentence on 229 to 230.

[00:22:30] Speaker 03:
At that time, meaning when the child was born, applicant was a full-time resident of Tuba City where he lived and claimed that he worked.

[00:22:40] Speaker 03:
And then there's a parenthetical, applicant's Social Security earning statement does not show any income for 1976 through 77.

[00:22:47] Speaker 03:
So he's simultaneously saying, I don't believe it, but

[00:22:53] Speaker 03:
He loses any way based on it.

[00:22:55] Speaker 01:
I think, and this is in the record, it's not in the hearing officer's decision, but the reason that there's no social security earnings statement for that particular job, my understanding is that it was a civil service retirement account that would not be the individual not be paying into both agree with that, that that accounts for the discrepancy with respect to this.

[00:23:16] Speaker 01:
I think that's a possible explanation for it, and I think it's reported by the record.

[00:23:21] Speaker 00:
Isn't that adverse credibility determination not supported by substantial evidence?

[00:23:26] Speaker 01:
The adverse credibility determination going to his 1974-1975 timeline, which I think is still part of the key timeline.

[00:23:34] Speaker 01:
Again, he has to show that he was a resident of the HPL in both December 1974 and in September 1970s.

[00:23:46] Speaker 03:
By his, the hearing officer's reading of the evidence, because he believed the documents over the testimony.

[00:23:53] Speaker 03:
And the documents have them in college in December of 74.

[00:24:01] Speaker 03:
And college is, going to college out of town is not usually a shift of your residence and domicile.

[00:24:11] Speaker 03:
And so it's a little shaky then for December 74,

[00:24:16] Speaker 03:
But September 76, the problem is that we have this contradiction between the strongest piece of evidence is that he worked there, but I don't believe it.

[00:24:26] Speaker 03:
And now you're saying that the reasons for disbelieving you agree may have been faulty.

[00:24:31] Speaker 03:
It seems to me this whole thing needs to go back and be sort out.

[00:24:34] Speaker 03:
This is just too much of a mess.

[00:24:36] Speaker 01:
Two points on that.

[00:24:36] Speaker 01:
First, the temporary or way exception can apply when someone is away at college or away at work.

[00:24:43] Speaker 01:
if they intend to return back to the home site afterwards.

[00:24:47] Speaker 01:
The record here shows that he went away to college and didn't return back to the HPL.

[00:24:52] Speaker 01:
He went back to Tuba City, got a job in Tuba City, kept staying with his wife.

[00:24:57] Speaker 03:
Got a job in Tuba City when?

[00:24:58] Speaker 01:
So based on the social security testimony records for the auto shop job, that would have been in 1975 that he went to college.

[00:25:06] Speaker 03:
The auto shop was, I thought, in 74 and ended in November of 74.

[00:25:10] Speaker 01:
That's what his testimony was.

[00:25:11] Speaker 01:
But he testified that he was being paid by check.

[00:25:14] Speaker 01:
He never testified that he was being paid under the table.

[00:25:17] Speaker 01:
And the records show he has earnings from 1975.

[00:25:20] Speaker 03:
But the hearing officer did not say that that testimony, that that work took place in 75.

[00:25:25] Speaker 03:
That facture finding is not in the record.

[00:25:28] Speaker 01:
The hearing officer did find that he had earnings from 1975, no earnings from 1974.

[00:25:34] Speaker 01:
And so that was a grave inconsistency in his testimony.

[00:25:37] Speaker 01:
Correct.

[00:25:37] Speaker 03:
So he has inconsistencies in the testimony, but we kind of don't seem to really know what facts the, we know the ultimate conclusion is the hearing.

[00:25:48] Speaker 03:
We don't really know what facts we didn't, you know, was he really working there?

[00:25:54] Speaker 03:
in September of 76 because you seem not to believe it.

[00:25:58] Speaker 01:
Well so this goes back to my second point which is that

[00:26:01] Speaker 01:
The plaintiff carries the burden to establish that the evidence shows that he was a legal resident of the HPL.

[00:26:07] Speaker 01:
And what the hearing officer saw was sort of this mixed, unclear testimony that was conflicted by evidence, some additional vague testimony that really didn't show any intent to actually reside on the HPL, just said, we saw him around, and found that plaintiff did not carry his burden of establishing that he was a legal resident of the HPL at the relevant times.

[00:26:27] Speaker 01:
I don't think that the evidence compels a fact finder to say, oh, no, actually, he did carry his burden.

[00:26:33] Speaker 01:
The evidence points the opposite direction.

[00:26:35] Speaker 00:
I think that's a separate issue.

[00:26:36] Speaker 00:
I understand that there were cross motions for summary judgment.

[00:26:40] Speaker 00:
My questions really aren't going to whether or not we can determine on appeal that Mr. Yazzie was entitled of summary judgment.

[00:26:49] Speaker 00:
The question is whether or not the grant of summary judgment to the agency

[00:26:54] Speaker 00:
was appropriate given these findings by the officer that seemed very much to me like heads I win, tails you lose.

[00:27:02] Speaker 00:
I'm going to look at the record and cherry pick out the things that are helpful to support my conclusion and the things that are not helpful I'm going to find are not credible even if they are exactly the opposite of what I'm relying on to deny relief.

[00:27:17] Speaker 00:
It really seems

[00:27:21] Speaker 00:
like you could never meet your burden if that's the way that the hearing officer is weighing the evidence.

[00:27:26] Speaker 01:
So again, I think the substantive evidence standard, substantial evidence standard requires, says that it should be upheld if there's an adequate basis in the record.

[00:27:35] Speaker 01:
And the question is not whether

[00:27:38] Speaker 01:
we've established 100% that he was residing in Tuba City at the time.

[00:27:43] Speaker 01:
The question is, is there adequate evidence in the record to say that he did not carry his burden of proving that he was a legal resident of the HPL at the relevant time?

[00:27:52] Speaker 01:
And I think that there is adequate evidence in the record, just given his deepening ties with Tuba City, meeting his future wife there and staying there, continuing to live there, continuing to look for work there.

[00:28:03] Speaker 01:
continuing to stay there overnight rather than commuting like some of his relatives.

[00:28:08] Speaker 01:
I think that evidence does support an adequate, is adequate to support a finding that he did not carry his burden of showing that he, at the time, was a legal resident of the HPL.

[00:28:22] Speaker 01:
And unless the court has any further questions, we'd ask for them.

[00:28:25] Speaker 01:
Thank you.

[00:28:26] Speaker 03:
Thank you, counsel.

[00:28:26] Speaker 03:
We're here to repuddle now.

[00:28:32] Speaker 02:
Thank you, Judge Collins.

[00:28:33] Speaker 02:
I want to first take issue with one thing that counsel said that in the notes, I believe she said, that O'Neer's attorney made when he spoke to, he had a telephone conversation with Mr. Yazzie prior to the hearing and that Mr. Yazzie said he lived with his girlfriend.

[00:28:58] Speaker 02:
Now I believe what he said was he split his time between his girlfriend

[00:29:03] Speaker 02:
and his home in Coal Mine.

[00:29:06] Speaker 02:
He explicitly stated when asked, his testimony at the hearing was that he did not reside with his girlfriend.

[00:29:15] Speaker 02:
If they were not married, it would have meant living with their family.

[00:29:18] Speaker 02:
And there's no evidence that he transferred his temporary residence in Tuba City from his aunt's house to that of his wife.

[00:29:30] Speaker 02:
And, you know, I think, you know, it has been some of the questions from Your Honors that, yeah, the hearing officer here does try to have it both ways.

[00:29:42] Speaker 02:
He ties Mr. Yazdi to Tuba City through his employment that he testified to and then, parenthetically, says that this is not

[00:29:54] Speaker 02:
You know, this is not credible because the record, the social security record doesn't show it.

[00:30:01] Speaker 02:
And one thing I want to say is, you know, in the legislation of the Settlement Act, Congress, you know, acknowledged the United States trust responsibility towards Native Americans.

[00:30:18] Speaker 02:
and stated therein that this relocation program, because they saw that the joint use area would be separated and that people would be involuntarily relocated.

[00:30:29] Speaker 02:
And they stated that this involuntary relocation program would be carried out in an equitable, fair, and consistent manner so as to limit the adverse

[00:30:43] Speaker 02:
social and cultural and economic consequences.

[00:30:47] Speaker 02:
All right.

[00:30:48] Speaker 03:
Thank you.

[00:30:48] Speaker 03:
I've let you.

[00:30:49] Speaker 02:
Okay.

[00:30:49] Speaker 03:
All right.

[00:30:50] Speaker 03:
All right.

[00:30:50] Speaker 03:
Thank you.

[00:30:51] Speaker 02:
Thank you.

[00:30:52] Speaker 03:
Is submitted and we are in recess for the day.