determining whether the board erred as a matter of law and abused its discretion by denying petitioners on opposed motion to remain and for communication of his you've used the respond the issue comes down to what really is the role of an attorney in removal proceedings is it that the non citizen has to prove what he or she is eligible for and identify forms of relief or is it that the attorney should inquire of the applicant of the respondent removal proceedings what facts have happened to his life let's assume counsel was ineffective what's the prejudice and prejudice it is to find just the potential for affecting the outcome of the proceedings there were certainly delay in terms of filing the claiming a u v set but that has been filed council appropriately identified the relieve earlier in the game in two thousand and eleven up to two thousand and fifteen he could have already been granted the u v sun and  that's the delay question it's a delay question but your honor not your argument and i'm sorry to interrupt is it your position that that delay or loan is precious yes it is your honor the delay alone is prejudiced because he could have been a permanent resident prior to his removal proceeding back in two thousand and eleven it was taking four to five months to adjudicate a u v once a year view so with the waiver was granted then the petitioner was granted you an immigrant status could wait three years at the three year mark apply for his adjustment to speak for the service because the research is valid only for four years and he could have been a permanent resident prior to the final here even two thousand and fifteen their unique case law that supports that that delay alone causes pressure your honor i don't believe there is this could be an issue of st impression is there any case  the other way i'm starting is there any case law going the other way i don't i didn't the nothing was cited in the briefs and i certainly didn't find anything but not that i'm aware of your honor but see became such an important tool for non citizens in removal proceedings and fact that this court has twice held that an immigration judge has the authority to grant the waiver itself citizen in removal proceedings has the statutory right to apply for relief in removal proceedings to present evidence in support of that application for relief and to call witnesses on his  immigration judge with respect to his application for the waiver and again this was not opposed by do you chats are you saying he's not going to get that here or you don't know it's quiet won't he get it just it might be some time before he gets as far as as far as in front of the judge your honor you speaking about those of us to try to respond to your argument of prejudice that he's prejudice because he's now filed it but he hasn't had a hearing won't keep ultimately get a hearing on that petition or not he will get a hearing before the immigration judge or owners if you reverse the board's decision and remained it back to the immigration court for the eviden is pending not as part of any proceeding before an immigration judge but is pending in a separate channel altogether the front of us c i s yes john are that is correct because under the statute eight made i think quite effective i'll say is that your client has a pretty good case for you visa and so one of the thing that's not up to us to decide of course that's up to us c i s but given that that avenue is available kind of picking up on what judge the you know his ass that that avenue is available to him i know not on the timeline that he would prefer for sure but given that it's available is there legal prejudice in any of the reviewing your honor as far as his current position and name before this court the prejudices he has an outstanding order of removeable against him and so at noted in the reply brief the ice has now changed its guidelines as far as granting stays and remove all and as long as there remains a an outstanding  until there is been what is called the deferred action grant that is what is referred to as the waiting list right now the time it takes to get to deferred action because there is only a ten thousand dollars availability of visas per the statute he has the right to apply for all forms of relief that are available to present evidence and then to ask that the waiver be granted with witness testimony as well which was sort of the rest of responded maintains that in fact the board or excuse me the immigration judge did not improperly apply board president decision in making that decision we have to look at that at the time he made the decision matter of l the most recent and controlling authority on what are the factors that immigration judge should consider in deciding whether to continue a matter for or lateral proceeding to be ongoing and and that felt absolutely nothing you say you would stop there but doesn't the have to consider all of the factors that are set forth in the matter of l a p d are well sure did the the i j a didn't look at the likelihood of receiving the requested relief not the i would say that's not the custody test under l l a b r is the likelihood that the alien will receive the collateral relief it is not possible for the immigration judge to even assess that without the application appended to such motion or presented to them and that info if you read l a b r it makes that very clear to it says to assess the speculative well st of all receiving it all she did was come and say we tend to do something and at this point a case that had been ongoing for years already had for continuances remain and to remain and hearings the matter of  b r says to assess the speculative ness of an alien's collateral matter an immigration judge will need an evidentiary submission by the alien which should include relevant submission by the lynn to the agency in that collateral matter absent such evidence the alien generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceed that's right out of l a b r at the time this was an attorney  given that it's well we all agree she could still pursue that relief and in fact did so and nothing about the removal order which she said there's a final of removal currently and i would say it's not at this point it's not final until feel it's resolved but there was absolutely no good cause at the time she appeared for the st time in immigration court and announced she was taking over the case standing right there and after she basically he was just excuse she got up and said i'm taking over the case and he left and she just started at that point making all these claims that he's a relief and if that point was very speculative and i believe the judge properly applied matter of the l a p d and that there was no abuse of discretion by the by the judge at that point i got a couple questions for about the board's order if you don't mind  dare in denying the continuance he's citing that as that is the controlling standard and i believe what the board is saying is that under matter of a b r the consideration of the factors were adequately weighed by the immigration judge i mean that the immigration judge was in a position to assess the other time by june of two thousand and nineteen had it been filed in so that's that that's just the date of the court's or and oh i'm sorry i thought it was filed i'm sure as you retain it was filed after the excuse me after the judge denied the continuous but more of the before the board so at that point what you have so we have a motion continue before the immigration judge which i believe could cause didn't exist and i believe ellie b are overwhelmingly supports that now what we had happen in the interim was the filing of emotion so the next question in this in this case before the court is did the board abuse its discretion in denying that motion to remain and respond to maintain or did not and if you were seeking to remand a case on the grounds of cd you have to show three things one sub par ineffective assistance of proud counsel to that you were prejudiced by that ineffective representation and that's a but for test but for this well the question ineffective assistance of counsel as you identified in addition to finding ineffective assistance of counsel there has to be prejudice and can the delay here of prior counsel not filing the would not it's unfortunate it's inconvenient that he has a delay here but i don't believe that would qualify and i haven't found a case that says that it counsels are getting it it's more than just a time to late but by the to late things were happening much president president prejudiced as required that it wasn't shown here and that the the question is did the board abuse its discretion in finding no substantial present prejudice and finding that she they had not sufficiently established subpar performance by counsel if you look at that the evidence and that to its conflict situation or n p sure never asserts i told my counsel i was the victim of a crime and you just ignored it that's the obligation that a non citizen is under me doesn't council have a duty to investigate and if they yes for remaining in the united states and counsel counsel came forth and provided an affidavit and says that he did know he didn't say that well he said it is my common practice i have a routine whenever i interview an immigration but he didn't say he did so here i thought i would interpret what he said i think he did say that he did so in a sense of the judge and al powell how was that even relevant well aren't we're talking about it that you'd never say that a criminal you've never say that in criminal law the defendant fail to tellus criminal lawyer he had a good motion to suppress assistance there's not in tail within it an obligation for a non citizen to inform his immigration lawyer of a possible ground for relief it's the other way around a that deals with and of test of accounts all makes clear that council has a duty to make reasonable investigations yes oh how it how can't that be an accurate statement if it's shifting the your obligation to inform him of legal knowledge versus just basic facts like i was robbed at gunpoint two thousand and two he this is two thousand and eleven years later and i would emphasize that the board denied this and two alternative grounds one  petition was filed on august nd of two thousand and eighteen so the reliance on l a b r is incorrect because the judge didn't have that decision because it hadn't even been issued by the attorney general the rd point in your hono s that i'd like to make as well is again just going back to the beginning who's burden is it to identify forms of relief when a non citizen is represented by counsel at administrative record pages  and seventeen judgment a court specifically instructed the attorney mia to investigate whether or not petitioner was eligible for tenure cancellation because they believe he was not the judge that it looks like he's not eligible investigate any other forms of relief there is no evidence that either counsel cola or counsel me on ever went back and asked petitioner alvarez were you ever a victim of a crime you ever speak to a police officer in the united states had the question been asked there is no reason why petitioner would not have given the honest answer as he had been a victim in two thousand and two had cooperated and changed the police or later