the court i'm rubber joe but i'm appearing today on behalf of the petitioner safe safe in this case the immigration judge gave no wait whatsoever to what is arguably the most important piece of single piece of evidence in the record the expert declaration of d the world's greatest expert on whatever by anybody no matter what your credentials has to have expertise that matters of course and so you have to say don't you have to isn't it proper for the i j a to have a look at the prophet or in said you know there's nothing here to substantiate any kind of opinion about current affairs or about the treatment that a tunisian national being returned after being detained in the u s would be likely to encounter of course the problem did so well the wrong with that the problem is when he did it the problem is that in this particular case the immigration judge waited until the evidentiary portion of the hearing had been closed in order to assess dr nazis credentials journey evidentially portion of the of the hearing neither the immigration judge nor the government lawyer voiced any concerns whatsoever any skepticism about dr not his credentials they the immigration judge waited until the evidence the record had been close he obviously has got  attention but the problem as i understood it was with the fact that his declaration was conclusory and didn't have any facts underlying but our problem with the way this case was handled by the immigration judge is that the immigration just never gave mr say early or his attorney an opportunity to address the concerns that he was raising with regard to the expertise of dr not to and i think we can all agree that the point that dr knapp he was making in this in his declaration are central to this case and if you look at page one sixty four i think it is of the administrative record the the witness list it's clear that dr doctor not he was being offered as an expert but no one ever addressed the critical question of whether he was going to be treated as an expert until the evidence or the record had been closed and in our view that's  the responsibility if you had chosen to have the witness testify live it might even cross examination might have focused on things when i look at here is a one page one statement that was completely conclusory frankly i don't find very persuasive basically trust me this is the bottom line and of and i have difficulty with the notion that the i g is come held to trust him and his story or is compelled to give notice to a lawyer you know your lawyer your case isn't very persuasive you  also a reason given but that doesn't make much of a record for this sounds and doesn't help i know but my point is different your honor my point is that throughout this hearing the immigration judge was telling counsel for mr sadiq to bring in a statement i mean let me just run through the record real quickly on this point because i think it's an important point and i would agree with you that he should have been here in the government should have had the opportunity to cross examine i think what happened here is the judge made two errors he affected both parties the government and the alien in this particular case he he's not going to be available until march or later because he's going to be out of the country and he asked that the hearing be set out until after march the judge denied that request but said what we'll do is we can convene we'll take testimony from your client and then continue at that point how would that be so they left this hearing in october two thousand and two with the understanding that they were going to take testimony from mr say adi in the experts testimony would come in later so they come to the next hearing on january ninth and i was sleepy as agreed judge about bringing in the witnesses talking about bringing in a statement the trial attorney responds by saying i'm not opposed to keeping the record over for a brief time to receive the statements however i can say right now that we would be opposed and we would jack's if he's not going to come in and be to cross examination and then on page one forty two of the record the immigration judge goes back to this point at the close of the record and this is what he says and i think it's very important he said that he was going to quote leave the record open unquote so the mr testimony which is central it's central to the is to the issues that are arising in this case and no one ever question the expertise of dr not to until the evidence the record has closed now from our perspective in these  aeration he can only do so if he gives the applicant an opportunity to explain the failure to present that corroboration that here we have a very similar situation where i don't i think i understand the point you're making and it would have been better will arrest people who have been arrested abroad for suspicion of engaging in islamic activities and such person is quicker to say such persons are subject to detention and fairly severe adverse treatment right if we accept that's true if we have that in the record the testimony by your client hardly puts him in a position to qualify as such a person i would disagree with that your honor i mean what is that first off that there's a longstanding policy of sharing information but between the united states and tunisia about persons arrested in those respective countries first sure but even if he's arrested in this country and that information is shar we're not sure but let's assume that the information is shared there's nothing in the record here to tell me that he's arrested here and that there is legitimate says that there is real suspicion by united states authorities that he's engaged in islamic activities well we know that he was seized by the he clearly fits that profile and on this point about whether the tunisian government is aware i do want to address that very briefly because at this point it's undisputed that we have a treaty with tunisia the government concedes this and footnote for page eighteen of its brief that under that treaty article thirty nine of the treaty which has been in effect since one thousand nine hundred four the united states has an obligation a legal obligation by treaty to inform the tunisian government whenever one of its citizens is detained now the government taking the position that in this case but only they're taking the position that they violated that treaty obligation well in our view the immigration judge put the burden on this just ira to establish that in fact the government had complied with the law in our view that's wrong because there's a binding treaty obligation on the united states government to inform the tunisia government whenever one of its citizens is arrested we have to presume that the f b i agents who arrested mr saudi were complying with the law we can't presume that they were not complying with the law and so in our view the burden of proof on that question should have rested with the government to tional questions about your different subject is that the case that your client was granted voluntary departure conditioned upon posting a bond i think five hundred dollars and then there after chose not to post the bottom did not post the bond he was unable to post the bond under the current rules it's required if you're going to be granted voluntary departure that you post a minimum five hundred dollars bond in this particular case he was unable to do so within the necessary five days and so his voluntary departure has lapsed so if he's removed he'll be deported the immigration judge was correct in so concluding and as the conversation this proceeded me has pointed out the main thing he has going for him is this it's certainly not his his own testimony  judge fletcher was pointing out he he really hasn't connected up his theory of the case that that there are there are problems in tunisia with with himself he hasn't made the connection between the factual question that appears to turn on at least and in some significant part is whether the tunisian authorities would perceive him coming back as under a cloud and in particular whether whatever happened when he was detained and questioned in june or the summer of two thousand and two is something that would be a big black mark on his record when he comes back and this to that and i understand that immigration court proceedings they're dealing with volume and so are the record is sometimes just what it is but in this case i look to try to figure out what there is to support the proposition that the tunisian authorities would not have been notified of his detention and in terms of real evidence i don't find anything i do find a statement by the attorney as to his congress not turning on sworn type statement but presumably intended to be a straightforward just description of the court about the attorneys discussions with a couple of the agents but it's all real murky and about a murky here as the problem the petitioner has with this expert what are we supposed to do with that i mean is there anything else we can point to that says with confidence or gives a reason to think the i people in the field i mean that's those are the manuals that people look to when they make an arrest or we know what we have to do and that's just the reality and both the regulation and the state department guy and it's clear that tunisia is not a mandatory reporting country should have done but apparently i wasn't listed and wasn't listed and you know as you said you know these priests often gaps in murkiness and all this but i think you can take a lot of confidence from the fact know that the relevant documents in front of the relevant people omitted tunisia and that's not in dispute and it's just not in dispute now that you know it shouldn't and you know hopefully in the future it won't but for purposes of  here having confidence about what happened you have that additional support and of course you do have the the fact that the lawyer talked to the agents and it's not sworn testimony of course although he did later met the sworn declaration to that ages really wasn't disputed that that you know that it turned to talk to the agents and this is what they said he wasn't going to stipulate to it but i think this is sort of real world consequences of what was going on again that sort of supports what the immigration judge found and to the extent of course the factual finding it's obviously highly deferential review and you know like he said these are not high volume cases we're not going to have every everything as perfect as he w a regular district court proceeding but you know that that's where we are i should know this but i don't read the footnote four and so on it looks as though this is an obligation at least comparable to the  tunisia and this country i don't know whether it's set up as my reference or i'd like it's independent but it's not some sort of general obligation according to a specifically with tunisia and that is our obligation and it got messy you know d type it's just that he there was no reason to believe he knew any things specific about tunisia and the issues in this case and and that's why the times immigration there said look you know i know what is going to say it's not going to add anything enough it's not enough when it's your burned to come forward with with evidence to you know to to connect it to establish the possible real possibility of prosecution you know for the just very briefly address the notification requirement because again it's undisputed at this point that there was a treaty in effect in the united states had a legal obligation to inform the tunisian government of mr saudi's arrest and what the government is doing is they're specially putting the burden and asked establish that they