this particular motion to reopen as my circuit has health to be a must give specific inclusion reasons and must rely on a legal basis in determining whether diligence has met moreover graves represented the attorney the facts of the case also mentioned that the attorney was a pretty fashion incompetent by failing to meet deadlines therefore let me just take you back in terms of i think that we know it's got a very long procedural history that i think we all spend a lot of time on that and that but there's a couple of things to it as we start back on the the first hearing that is that occurred at the beginning of this mr testified and he and the i g made an adverse credibility correct yes an essential lee when i look back at that hearing  what i see there is he he basically if if he had not had the adverse credibility finding if he had been found credible i think he clearly would have persecution by being locked in jail for two years and any number of things but there were there were things that came out in that hearing which i see as problematic in the other issues that we deal with problematic to the problem at the prong of prejudiced but you have to show on when you're talking about incompetency of counsel say the failure to it no doubt should have filed a timely appeal if that's what he wanted to do but you also have to be able to show that the result would have been when i look at that take in the worst case scenario for you but i look at there is mr vu was asked to go through you know what you know what everything that happened to him and he does talk about the two years you know he talks about basically has persecution a catholic he doesn't know anything about being a catholic and that presented him with was some issue not fundamentally about communion the father son and the holy spirit you know any of the things that are pretty fundamental to being a catholic even second graders that go through their communion know those things but he doesn't know any of those he doesn't have any evidence of that he went really to church there or that he's attending church here i guess he says that he was afraid to go to church when he came here he also has some problems with some documents of course got some problems with some documents in terms of his first certificate they have an altered document person as far as that goes but essentially in the hearing he's basically given the opportunity to say ok what you know what'll happen to you he's not cut off on any of that and he gives his version of that my concern is yes maybe if he had had a better attorney is attorney could have told him you know those facts aren't going to get you asylum or these things are going to get you a problem but if he that's what his story is the fact that someone could have said well that's not going to work i think we need to have it on the basis of politics or you don't know enough so that you better know something about catholicism before you get in there all of those things are you don't have a right to a lawyer that tells you if you say that that's going to cause you problems you have a right to a lawyer you know that basically if that's what the truth of it is and the judge made adverse credibility findings has he ever going to do better he's always stuck even if he gets a new trial and let's say that someone prepares him better and he says well you know now i know about catholicism or now i know you know i can tell you more about the politics and all of that he's still going to got he still got to deal with what he said before anyone coached him as it were he still ha to deal with those documents that he had before you know how he ever really going to get a different result i would think you know him why isn't this just the situation with ok if you would have been better prepared maybe the i j a would have thought that he was a liar but it's but if there aren't really the facts there you don't have a right to an attorney that can make up an asylum claim for you that's a very good question there's three points i'd like to i think and i just want to put that out there because i kind of see that there's that lurking there it's been seven years he did have you know and i would grant to you that you know clearly it's easy to say you know he didn't file a notice of appeal that's you know that's a problem he did have a full hearing on his motion to reopen at with how much you know if you are in fact persecuted some of these are really fundamental type of things he was given an opportunity to talk albeit without probably very good coaching but you know if you know if you get locked up in prison for two years you know why you know why would he know now any more about what he knew than about why you were locked up that's the kind of thing that would cause someone to think about it or if you say that you were you know i mean if really the whole thing was you were catholic but and that reeducation camp that he was had two to two years the arrest warrant that was issued calling him a traitor the immigration judge did not have a problem with that the adverse credibility fighting was on the basis that she didn't believe he was a catholic a competent attorney with objected to that on the basis that that's not a legitimate basis to find someone not credible their system circuit case there is a seventh circuit case but on the other hand if you're claiming persecution on behalf of  religion you can't badger the witness so you can't do certain things as far as you know you can't bring the pope in and cross examine them but don't they have to be catholic to get the benefit of that or i mean what i think of the some of the circuit cases particularly as well is that our conception of what is catholic in the united states is very different than what is catholic for someone in vietnam who's lived under communist regime that arrests priests that determines which bishops are there monitors the content of the sermons is in the country reports and so the knowledge in the mail delivery in the sumption of what is catholic is not universally known and the immigration judge made a mistake by trying to put in a pop quiz to see whether he could name the three people in the holy trinity many want to say it was based on politics that he was persecuted and what he's saying is that he is his promotion of religion and democratic ideals is is a form of both religious persecution and basis on his political opinion there is a country condition report that shows that the vietnamese government considers religious activists to be a threat to the government order because any expression of free thought is an expression to their control over the an altered document and then there's later that he says he dropped out of school and so i mean there are some real identity problems there right and a company attorney would have resolved that the company truly did not have any of the he described to court and that described to the doctor and also this particular doctor testified that this is an individual who does not respond well to open ended questions that he is suffering due to his trauma from avoidance he does translation problems were at such a high degree that no one in the courtroom was able to understand crucial testimony as recall in the three thousand mentioned there's one point where there's a member of the audience that objected to the efficiency of the interpretation there was an off the record discussion after which the judge said someone brought to my attention that the interpreter is not adequate nonetheless britain go forward today a competent attorney would have stopped right there and what are you asking us to do in the sequence or what is it that we are supposed to do find that if you go back to the v i i to have a hearing circuit has the authority in this situation because these issues will swear lee presented to the p i a s to have the authority to examine the record and term and whether there's a plausible basis for asylum a plausible basis for withholding a plausible basis for cats because all of that has been may it please the court your honors my name is robin black i represent the attorney general in this matter and maybe i did not abuse its discretion when it did i either of these motions to reopen that or before you the petition to have the opportunity to have a full and fair hearing before the immigration has argued that current counsel feed has that had them at that time he would have had better representation and he would have been granted the relief he was requesting the i mean he drew your honor but but that's not necessarily the standard he is you know that and that's kind of the standard he seems to want to help clients in that initial hearing he was represented was by mr stern words he went through the whole asylum process with him asked questions asked questions of the forensic expert you know he was at one point mr vaile was asked by the immigration judge a very open ended questions why are you asking what you are when you're asked a question why are you asking for asylum that's not that question doesn't indicate that you're going to answer very shortly i mean elaborate on if you are turning a profit the prayer you fanchon the question have you there's no indication that his attorney didn't properly prepare in your honor i mean because he didn't answer doesn't mean answer the way we might have thought was a better answer doesn't mean his attorney didn't prepare him question goes back to the probability of the interpretation he was being given to him how do we know that the interpretation was anywhere near being correct your honor we believe that it was because he answered the questions that were asked the only problem real problem in the records which the immigration judge noted in her decision was the whole thing about catholics being struck they attempted on several occasions to clarify that but there they were unable to resolve that problem but there's no indication that said please bring you your birth certificate because you've indicated during the hearing that he he had only original in san jose where he left and that she and the immigration judge city should bring that he never brought it we never saw an original in that document at any time lessons or something about it getting burned he burned it i believe that referred to their arrest record ok yes and there's some conflict about whether he brought that the united states number and it or burned it in vietnam and how he obtained the copies i mean every time his father motion to reopen his file the declaration and the declaration causes more conflicts it doesn't resolve things any further they just raises more questions about ready  citing whether somebody is qualified for your honor i'm not catholic either but i did ask some questions of people that i know who are catholics just to kind of understand what happens in the american no american but just to kind of understand what was kind of basic basic fundamental things that they were taught in in the churches here and just from my experience of going to mass and i've only been at a couple of that's experienced throughout the world are not are not done in vietnam i mean he also was not really able to talk about mary he did seem to understand some concepts about mary but he was not able to really elaborate on that at some point in the record he indicates that he went to catechism you know he should have been able to present a little more evidence that he was catholic then what he what he presented so the  that i do not know for sure for sure and as i indicated the record shows that he was he was asked open any questions and he just provided short answers that were devoid of detail very difficult life pretty hard so that when you say he was given open the question well specifically your honor i mean i think really the important open ended questions that he was asked was when the margaret his motion to reopen it was subject to a time in america limitations he had already submitted one motion to reopen and the board denies that for finding that he had to he had said he'd gone over the numerical limitation  thousand and four he wanted until january two thousand and five to even try and attempt to get counsel or anything or to seek another motion to reopen or anything like that he didn't file his motion to reopen after stalking to counsel in january two thousand and five until june two thousand and five and i mean at some point you know he has to be held responsible for not moving his case along and and pursuing his case two thousand and five he found current coun three bad lawyers according to him yes he's the producer of well your honor whether he does or not i mean he was aware of the fact that he had been denied his claim in it almost a year before he sought other counsel so i think is if he wasn't very diligent in that and that the board's finding that he didn't show diligence should be sustained there are no further questions we' two quick points and rights to bring to the court's attention that the immigration judge did not find mr not catholic but quote seems to have very little knowledge without his own religion i think that's important because she's not questioning whether he's catholic but he's not catholic in the way she expects and wants him to be as a second point with respect to diligence immigration for the b i a did not say what the lack of diligence is the records we spoke to mr of and we determine that there's a number of facts not into the record and we submitted a timely n c r as the court is aware that day that we found this out we tried to stop this proceedings in the ninth