th circuit and we're very appreciative and you may all be seated and we will take up the cases in the order in which they appear on the docket we have two cases previously submitted today versus bar and us verses loopholed and we will take up pablo versus bar almost isn't indigent my asylum seeker with a th grade education his prior counsel withdrew ten days before his final detained asylum hearing at the hearing despite telling the immigration judge i do not have money to pay for an attorney that i never informed mr public almo of the availability of free legal services and did not provide him with the list of those providers council given given that fact and given the regulations that deal with that do we really even need to deal with the rest of the issues that you raised on appeal no your honor that single issue is dispositive if the court agrees that the regulation here was violated which the government does not contest the court need not go any further and how do we do then if we agree with you on the regulatory violation remand for a new the violates its own regulation that can deem subsequent agency action invalid so in this case the appropriate course would be remanded and that is exactly what other circuits who have dealt with a violation of this exact regulation have done i would also like to point out that although the government argues in its twenty eight dollars days that prejudice is required this court's case law for close is a showing of prejudice of prejudice when a regulation such as this one is violated in monticello pose this court squarely help that one of petitioners right to counsel as so forth in governing statutes and regulations is denied no showing of prejudice is required court recognized in montana was is there any case that that requires prejudice to be shown in a situation like this i do not believe that there is a case that requires prejudice to be shown in a case like this the cases cited by the government do not involve this situation calderon medina involved a violation of a regulation requiring that an individual be notified of his right to contact his consulate an entirely different kind of regulation one that can easily be squared with this court's subsequent case law saying that when the regulation violated involves me or procedural regulations that facilitate the orderly conduct of business then a prejudiced showing must be made however when a regulation such as this one that protects fundamental rights is violated no prejudice showing is required what would have happened if the immigration judge had if it was a list of pro bono lawyers that that he or she was supposed to give to and if given that to the petitioner what would have happened there i believe that the petitioner in that then may have understood that he actually does not have no other option except to pay for coun the prior attorney withdrew because he had not been paid according to him in over two years what role if any does the fact that the prior attorney prior to his withdrawal had helped prepare petition for this case and filed pleadings made arguments of the like so i don't know exactly how what percentage was them but let's just say that that attorney did three quarters of the things that were necessary to is an accurate representation of the amount of work park counsel here i'm just i'm a busy hypothesis i don't know how much was done yes even if our council had done some significant portion of the work i don't believe that that would counsel a different outcome as this i'm aware of no case that says that an id is duties are somehow limited if an individual previously had counsel in fact this court in montana and into  and the nd circuit in p ca both dealt with individuals who were previously represented and the court nonetheless held the i j a to his duty strange is it not though i mean that the whole idea is particularly when you have someone with as little if you will educational background as this petitioner it is strange if you had a lawyer who represented the position right up to the time of the hearing had most of the work and filed most of the plea that notwithstanding that fact it will be back in effect just wear one because you didn't have a lawyer through the entire procedure you get my point it is does that make sense to you do your honor but the thing about immigration proceedings is that most of the substantive work happens at the ultimate hearing oftentimes theories are presented for the st time at the ultimate hearing in fact the b itself has indicated that asylum cases really can't be decided on the papers so that final hearing is really critical and one other thing on my i could i would like to add as a practical matter is that mr public kamel is actually in many ways worse off for having been previously represented than he might have been if he had been on represented throughout unrepresented individuals often receive at least some basic guidance from immigration judges about what they can expect at their final hearing master calendar hearings mr public never got that unrepresented detained individuals can also take advantage of some limited scope assistance from pro bono attorneys who visit detention centers mr public comma would have never had reason lawyer or no lawyer sooner or later he's going to lose because there is no basis under the law for him to be successful should that play into our analysis of how i want a slope as it gets applied here no your honor i don't please the court a lot of jason either on behalf of the united states attorney general respectfully your honor as we ask that the court dismiss in part and deny in part the petition for review for two reasons st petitioner was provided with a full and fair hearing a did not say well you here's a list of pro bono counsel you can talk to them st and then we'll come back again under the circumstances does it matter under montez lopez that he was not in quotes prejudice there  no harmless error respectfully your honour's the government asserts that there was no due process violation in this case st the immigration judges duty to provide the legal services list only attaches at the opening of the hearing and that's from the plain language of  four of which of those years he had been represented by counsel in any event petitioner had been provided with the legal services list in sri separate locations in the record and i can point your honour's to those locations petitioner had been provided with a services list the nd and administrative records seven hundred and sixty one where petitioner signed his i five hundred and eighty nine under penalty of perjury that he had received a copy of the legal services list and rd administrative record and ninety nine there is at the bottom a certificate of service that court staff had provided before petitioners st hearing with by the immigration judge had provided him with a copy of that legal services list so basically the month this lapus requirement has been purply satisfied from your perspective in that the less the same list that that case requires the i j a to provide had already been provided three times is that your position that's correct your honor and your position is that putting those others aside that the requirement under the regulation is to present that list at the beginning of the hearing doesn't matter a done later the lawyer quits halfway through the hearing there's no obligation to present that that's correct and that was particularly acute in this case where petitioners attorney actually waived the reading of the rights advisor and you can find that it a r seven transcript with you know he couldn't afford an attorney there was no no not a single point were he was told you can afford or attorney we have we have we have identified a list of people attorneys who are willing to do this pro bono and you could get a pro bono attorney to help you through this hearing the immigration judge never stated that outright but petitioner was provided with the list and in his st appearance it's clear that he was when you're saying he was revising with the list at the very very beginning of this five year period when he didn't need the list because he had an attorney i won't read the address out loud but there is it's clear that it is sent and there's a certificate of service that's completed by court staff on the bottom and you can see clearly legal services list is checked off and this was in advance of his st hearing that was dated october rd two thousand and twelve and in fact if you look at the transcript of hearing in his st hearing he was represented by pro bono counsel there is a man who appears in his st hearing and labels himself as pro bono coun man by the name of t davis so we have all the reason to assume that partitioner actually did in fact receive the legal services list and in fact perhaps availed himself of somebody on that legal services  list respectfully your honor as we believe that multiple factors lead to a full and fair hearing here the petitioner was represented by for four years prior to his merits hearing by an attorney during which time that attorney filled out a form i and eighty nine on behalf of the petitioner submitted nearly one hundred pages of evidence in support of the claims that he made and that i five hundred and eighty nine and worked with the petitioner to call his claims and to support his application in an affidavit and the immigration judge thoroughly probed the record and our contention for this is supported by the immigration judges explicitly going off the record immediately before i mean after a pardon me the waive his right to counsel and the immigration real judge realizes that the proceedings are going forward and the immigration judge says hold on one second i'm going off the record  so we could assume by that that hit least knew there were such things as lawyers who would appear for him without respectfully your honor we submit yes we we believe that we have any idea how he matched up with this pro bono lawyer was i tempted to obtain that information on line by looking at the pro bono legal services list couldn't match any attorney's names they weren't readily available on line so i don't have the indicate how he paid for that it's my understanding that petitioner actually did and was unable to compensate his attorney which led to his attorneys withdraw all before the merits hearing but he represented him for three years the only or the most important thing in this particular case petitioner was represented and sat within a representative who was able to talk with him about what claims are we going to talk you know discuss in your asylum hearing and c a narrow the scope of the inquiry so i see that my time is running short here so if there are no further questions from the panel i respectfully your honor as we ask that the court dismissed him pardons and i in part th honor argument the government is making for the st time today that's just wondering why i wasn't aware of this argument about the prior thing and so i'm looking at the red leaf and i was trying to find where in the read any mention these prior advise of pro bono counsel was made because i don't believe i was previously made aware of this and possibly all of that argument's been waived your are that's correct that argument has never been raised in fact the government's answering brief does not even address the regulatory claim at all anywhere in it the record contains the information we can still look at it what's your position about the fact that the initial lawyer stated on the record that he was pro bono does that have any impact on our  retained counsel so i don't believe that that individual actually represented mr public right yes but i believe that that is why no no your honor it's like a courtroom attorney right is there to represent the can arraignment exactly he is immigration courts in san francisco in particular often have attorneys that appear briefly to assist people pro bono on the day of in an extremely limited scope practically that there were tourney's who would appear for him without charging a fee i don't believe it is your honor and moreover this precise issue has been addressed and rejected by the nd circuit in piqua and actually it was the case is that in pico which was cited in our twenty j letter there also the government raised this exact argument that because the proof of service on the notice to appear stated that he had received a list of pro bono attorneys that that was sufficient and that court found that in no way obviated the immigration judges duty to provide him with that information and that is exactly what happened here the notice to appear that such a figure of service not filled out by the immigration court it is filled out by an immigration of official who works for d h but she's posing council said there were three instances three times that the list or the advisor was given to your client so that was one of them so you're saying that income ration judge judge still has the duty what about the other two i don't believe any of the others were also were given by the immigration judge either so one of them is just  what parts of the record indicate that the immigration judge provided that information to mr public obviously your position is that this is an independent duty of the i j a and whatever happened before practically doesn't matter is that make any sense to you i'll just say he was represented by a pro bono counselor in the entire previous four years effectively was because he did it we got to get paid but had a lawyer he knew there were people who did that doesn't common sense suggest that's enough but what we what we want to have due process we want people to know that they have this right but is your best argument aside from waiver the idea that this is an independent duty of i j and of the i j doesn't give this declaration and you say at the very beginning of the proceeding then you violated proceedings it is simply not the same as receiving a piece of paper in the mail in a language that you don't understand it's also not the same as coming into a busy immigration court room where there are a lot of other respondents and quickly being shuffled through with a brief appearance mentioning that i was people in the united states speaking good english understand legal documents when they get them i'm not sure about that when you read a contract from adobe you understand it often not and that's that's a fair point your honor and but that is why it's so critical for the immigration judge to explain doubt right to the parsing and proceedings don't want you to think that this is criticism of you personally in any way or your skills of a lawyer