out in the order to show cause we're beginning now or late because of travel difficulties so hoping that we can move quickly and get everything done i wanted to let you know that this hearing is being recorded so in the event that you would need any transcript one could be or a copy of the hearing can be made available i also wanted to get an idea of how you wish to use the time today how you propose to proceed in response to the order to show cause that you want to say in addition to what you've already submitted this would be the time to do that you i'm a great you have to file subsequent filings and i have some questions for you so if you would prefer for me to start with my questions and then you can add whatever you wish at the end i'm happy to proceed that way but i don't want  to prevent you from making whatever points you came here to make you know we can proceed with the courses that you like ask and i would like opportunity to speak in all right i'm would like to begin by having you placed under oath because i want to make sure that the questions are under penalty of perjury so i'm going to have the courtroom deputy administer the oath right now denver colorado and where did you attend law school thurgood marshall school on the campus of texas of university of texas southern university all right and after you graduated from law school in two thousand and three did you take a bar have any other employment or positions between two thousand and five and now did you take over any practice from somebody else or get any kind of the mentoring  and how did you learn about immigration law from law school to practice law anymore  and do you have any staff to assist you i have to step two full time in one part time staff and and where they do the primary responsibility of the two full time staff member is to prepare rticulated concern about the number of extensions of time they had requested in all or nearly all of your cases which led to a typical time of about a year or so between the filing of a petition or review and the brief if you got to that stage of filing a brief and i didn't see that you had addressed that concern in your response i believe up of believe in the previous statement i did address the issue regarding can you point my attention to the where th answer that charge that you have an extraordinary amount of extensions according to the order to show cause you've never filed an opening brief without securi multiple extensions of time and in the last three years it has become your standard practice to ask for as many as five or six separate sixty day extensions before submitting an opening concern about the number of extensions i've requested i mean i was under the impression that this was a i would say a common practice but a practice that that was ok to do it because i was i was it was never going to the will not necessarily have to require more extensive on any particular case so one of the things that require then are rules require is a statement of diligence and substantial need and that substantial need cannot be supported by the mere statement the mere conclusory statement that i have a press of business that a lot of cases with that rule means in practical terms is that if have a busy case what you have to explain what that case will it is you can't just say i've got a lot of work to do and i can't do your work because it doesn't allow the court then to evaluate the validity of the request and whether case in which there was a dismissal for failure to file the opening brief then a long period of time before there was a motion to reinstate that motion reinstate was denied and and that and that pallet tonight had referred the matter to me for the initiation of disciplinary proceedings and your response to  or your explanation for why you took so long to get this case back on track was you my portraying it is accurate if i can offer some procedural history behind it well i'm not i happy to hear about your procedural history of what happened and i'm also want to long time employee as i stated in my statement but he's no longer with that with me anymore because of the numerous problems i was having regarding the work he was doing and that the way have a computer system so again i have addressed the issue address a problem and contract with a whole new tire company that insured me that you know these problems want to hurt know what problems occurred well according to the assessment of the new company i'm with they were saying that he was using my again i cannot make an excuse because of course i sure that since i didn't hear a thing from it i should have followed up and same with the with any type or this disposition or or any information was sent on the case and i did not do that i'm at take full responsibility for that bounce back notification so we know that there may be you know it's a problem nothing i'm unaware of anything like that happening here so we have to be able to rely on the fact that when we send things out to  registered user of our system it's received but you know there's another problem with this case aside from the lack of notification is  my concern that if for whatever reason you don't get it or it gets misplaced where is the backup where's the tackler system where is the safeguard against a case just falling through the cracks and subjecting your client to fairly drastic consequences potentially what kind of safeguard do you have a place to make sure that a case like this one just  there with that action being taken well with the new company we're attempting to develop a program where again we can keep track of these cases but to put them on the counter schedule where someone will always be review g the case and make sure that again like i said this situation has happened this with this was a mistake it was i mean it was a mistake on my part again i should have followed through followed up when i didn't receive anything from it again i can say this again this is an issue the system now is that we charge them all on the board and make sure again and until we have confirmation on the movement in that case that case is not taken off the board so it's always visual i walk into my office i see the board is a manual especially with the smaller number of cases for the ninth circuit i'm actually taking so i want it won't be a case of fifty cases that there be case of ten which is easier to track because of that i'll see her cases hear her cases hear her case here i haven't heard anything of graham this case we need to find out and make contact if it's not tracked through the computer system because again while we've been concerned about you know the possibility of computers and you know information been lost to me i'm a very vis person it is easy for me to track it that way and follow up through the staff and make sure they're doing their checks through their system like located on the computers ok so you have but you also have can do you have computer  do a full assessment or case and let them know this is the situation with your case now this is the likelihood if you want to your case if i don't think there's a strong case to appeal just to appeal i will tell them they need over for the someone else because sixteen so a little more than a year ago a year and two months ago or so you look familiar yeah ok good so i just wanted to make a few observations about this brief and some of what i see in this brief is related to some of the problems we see are but let me let me begin by by having you look at page ten in the last paragraph there and note note that the brief says the board board affirmed with that opinion the decision ok so and that is accurate so then if you move to more pages to page twelve ok so first i want to draw your attention to the very first sentence under agency decisions the first sentence says that i j did not find that mr garcia was a credible witness that's not correct the i j found him to be credible and so grant an involuntary departure and you say that on page seventeen if you look at the last sentence of the run of a paragraph mr garfield's was found credible by the immigration judge and so then going back to page twelve the board dismissed mr garcia's appeal then you're going to say the board agreed with the i just determination that mr garcia failed to establish  best persecution but the the board never issued an opinion in this case so this is troubling because it seems like this is a can do brief the this is that no real thought went into this description  so i'm concerned about whether you're giving sufficient attention to preparing briefs that the court expects of members of the  bar now in the course of discussing the problems of the of the briefing a much sure that that's the only show cause conveyed sufficiently the degree to which we found problems with your application of the law to the facts and when we talk about candor boilerplate you have a lot of legal statements the law is this  law is this law is this is this sometimes it's right on point in the case sometimes it may be off point there's nothing particularly alarming about that but where we do find problems is then when you discuss this case and apply that legal analysis to the facts of the case that's where you win or lose and a lot of time there is not really more than a conclusion restatement of how you would apply the the analysis of a particular social group or a well founded fear of persecution what here what facts here did that and in the statement of the argue in the argument in that process when you were going to say that the petitioner in this case had a we fear of persecution based on this event or this evidence you have to give a citation to the record in the argument section for that proposition if you are saying say here not in the facts section but in the argument section on page fifteen the less sense of the first paragraph ok i think this may be the first reference prosecute the gang members for criminal activity but there's no citation there for that proposition it's not nowhere in the i j a decision does the i g talk about cholos cholos gang there's so there's no way for the court to get this without somebody having to go through and go through the record and that's not what the court has time to do you have to tell the court where to find these things or else you know it's going to be a waste the court's not going to do it you're not serving your client you're not serving the court you're wasting your client's time and money you wish in the court's time activity furthermore the fact that he has been the victim of threats and physical harm no citation we don't know what you're talking about where's the proof not in here not in your statement of facts here not in the i j a the record in the next moving on the record compels a finding that when mr garfield's made a report with the police that shows with the cellos when peter political opinion as a person was working against organisation and working directly the government who was trying to stop their living aside the fact that so there's no real valuation here you know form that the court can use that applies the law of particular social well founded fear of persecution so  that's what happened in this case what happened in this case is that the government filed a motion to push summary disposition in this three incidents of crime the experience in mexico reflect that he was persecuted on account of an imputed political opinion he specifically claims that gang members sought to persecute him because he imputed to him a political opinion against the gang after he filed the police report there citing to your brief their petitioner identifies nothing in the record that compels the conclusion that his alleged persecutors would seek to harm him on account of a political opinion imputed to him he offers no record citations him so against that motion that calls you on not supporting your brief there's no answer by you to say well i mean i did put in my brief but if you look at the new set of record here it is nothing in the court dismissed it so there's other things i could say about this but do you appreciate the concern that the court has when we receive a document like this and how it puts the court in a very difficult position of having something that we have need to cite to the rect correct that's in the rules and briefing rules and any statement like that not just in the statement of facts but particularly in the argument where you're trying to win your case you trying to show that there's merit here to this case and here's why you have to say here's the best facts i have here's where you look find in the record this is where you find the persecutions where you find the fear this is where you find the statement this was held credible put this together that's my case you know then you at least you've presented the court with the basis for making a decision here there's no basis for the court to reach the decision and so the court doesn't say in this kid we have reviewed the factual assertions and we conclude that they're not sufficient to satisfy your burden what they say is you haven't raised anything because you haven't cited in anything in you haven't attack things so this is a case called gamete sosa versus lynch and just to really sort of simplify things the immigration judge found the petitioner ineligible for relief based upon a firearms conviction and a third degree rape conviction there were other things in this case but that was basically what happened this is thirteen seven three  six one now on appeal to the b i a the b i said well we conclude that relief should be not denied based on the firearms conviction so we don't need to reach the third degree rape your brief to the court here discussed only the rape conviction and didn't even mention the firearm conviction you raised an issue that was not relevant because the b i didn't rely on it and you waived the issue as t and i think he did say something that i'm not sure that what you said really answers the concern that was raised by you know what i just  from an order of the board of immigration appeals not the immigration judge except in some rare instances but basically we are reviewing on a petition for review if you should review is what the us here the b a a said firearms so you have to somehow if you want to have a credible break you have to somehow address their firearms holding you can't just ignore it you situation where i should advise a client that after there a conversation with the guardian the possibility of him being you know successful on his petition on it that he may be that's something he really should have pursued at that point and if he decided that's what he wanted to do they refer him to someone else well that's all i yeah i think that's correct i'm just trying to figure out what was in your mind when you were doing this brief i was attempting to argue whatever i could to fo the response or you like i said and then in hindsight again this is these are those type of cases when they come up from the b a a when i come up from individual hearings i sit down with a client to say so when you have to sit down with a client to say that i mean i know that one of the issues that you talk about is the likelihood of success on the merits in immigration cases there's also this notion of these folks are here and if they're if they prosecute a petition for review this is a chance they might get this day but even if they don't get this day there's a some likelihood that the government is not going to act on removing them until after the completion of ninth circuit proceedings so is this something that you is one of the one of the elements that you discuss in terms of going in or not going ahead  the possibility that there were more born will be executed until there's decisions made on the appeal but i guess i could say that is common knowledge ok so here's another problem and this is the whole particular social group issue it's important that any issue that really is raised here be exhausted right you get that notion can raise issues that are in the record below they didn't raise in before the immigration judge and the b so one approach that is ever in some of your bridges with respect to particular social groups is to raise or identify a particular social group here that was not articulated in the same manner to the board or the immigration judge i think in one and i think i've seen you say well i didn't raise it but it was implicit but i don't think that's going to have i think our exhaustion requirement requires giving the board and the opportunity to understand exactly what you're saying and not to for them to have to read between the lines and and somehow sense a particular social group other than the one that you clearly identify you know the one s s pretty well refined in developing now in the criteria are pretty well defined although they keep continuing to get the find  redefine and particularize with respect to a number of new particular social group theories but it's kind of like this same issue that i just talked about with respect to the firearms issue and the rape issue if the beer is identifying an address or you've identified in the b h addressing one particular social group you this particular social group through their documentation which is part of the record and there are any statements they made which is part of the record those particular social groups are developed and i kind of see the court is saying that those need to be exhausted at the  the judge may not address them because they felt it was a particular social group i was believe that's why i use the word implicit because this even though she didn't say i'm a or he didn't say i am a member  it's your job as the lawyer that's a legal analysis i mean the facts are the facts it's your job as a lawyer to valuate and analyze those facts and say well before you get  already have a sense from your interview with your client about what it is that the client has to say that might qualify the coin as a member of a particular social group what's the evidence that's going to come out at the trial then it's your job to define what the particular social group is supported by the evidence from your client and i agree with this then that you're making but the again the issue regarding testimony at a federal court level in many instances unless the risk again the responded to saying i am a member of this clearly defined particular group of judges are not going to infer from your language or any documentation that you are possibly a member of some particular it isn't that your job hunt don't you have to apply for relief if you're applying for asylum relief don't you have to specify what the particular social group is that you are claiming you were a member of in order to get that relief not to the recent the i decision  required for you to specifically state some judges ask you but it wasn't specifically stated that when you come into court you need to have a particular sort of clear clear defined and i believe because of the be as the current decision that will make it easier because the problem is in and once you've established that i could been further build on that to demonstrate the particular social group on account of the persecution but if she does not say that there's no particular such words let's move it up to the b i a level no now you've got all the testimony in there don't you have to identify to the b i what particular social group is is the issue here again unless the less is clearly defined and the testimony on the record that she is a member of particular group the b a is going to say the same thing the judge said that it was never clear to define but again like i said that's why the decision the b a came out saying you need to go in and stay on the record this is a particular soldier which is make the much easier to go into the on account of and put the fact is in these cases you have identified a particular social group in the way and then the particular social group that just discussed in the court of appeals is a different one because it  testimony from responded at individual here because it's all really have to go on is what they said and the documentation to support that to a child was to try to establish the particular social group based on again that implicit fact and that's that's how i perceive ok i don't want of the thing that's mentioned in the order to show cause is that you almost never respond to a government motion to dismiss or a motion for summary disposition in the i wonder why you have like in this case when you haven't engaged the government when they want to get rid of the case on a motion they will argue no i've never really been clear about that the motion to dismiss i mean because the language in the case of the case thought the support and the like  you're you're sort of waiving the opportunity to be heard if you don't file an opposition to a motion for summary disposition and in many of the cases again of what  read again like i said they were pretty strong factors in their case and the determination that there's been made that so but your responsibility at that stage is then to take their brief cases you might have something to say and some of these but we don't see hardly any cases where you respond the government's new no they're not infallible  in this court the petition is when from time to time there was routine use of an explanation for extension of time in the planned family vacation and so that was one of the reasons why why it appeared that you were using sort of a boilerplate or canned motion for an extension of time because it seems unlikely that someone would take as many planned family vacations as would be reflected by the number cited in your motions for extension of time do you have any comment on the every you know every time i requested for family time it was that was what it was for that's a nice life if you have that many planned i mean i get a family vacation doesn't know that i'm going to be gone for two or three weeks it's just that there's something planned with the family at the time that prevents me from found a motion on time behind the string lie for this not like i said there's a longer term to use it up again i had the motions are told in compliance with the rules regarding five of motions the diligence and so ok so i don't have any other i mean it's not necessary for me to ask any questions i think of alerted you to the primary concerns that led to the filing of this sort of issue i do want to give you an opportunity to make whatever well because again i'm taking this very seriously i mean i want to be able to be an effective practitioner in front of live circuit i mean again i work very hard from a bar cart and i have a joint parts and from the ninth circuit and i would like to get into parts of nice are going to be like i said that i cannot continue to practice the way our parts in the past and i have made and will continue to make affect was that's were i again like i said i can be a good member in standing from this court so i want you to maybe explain in a little more detail what changes you've made and the way you're practicing in the ninth circuit we're going to address an issue again as we stated before that let's start with a petition for review in the motion for stay tell is that in my citing to the minister to record in the body of the work again i understand how i can without citing to the record those close their statements are unable for the court to make a determination on and since then i have been cited for the record in the nexus and applying it an analysis applying the law to the facts of the case especially you know causation context where you have to show a nexus between the legal theory and the facts show that this is the causation and it's because of this that there is the well founded fear case is this is the strong point of the case you cannot show it on account of you cannot show no nexus you can i'm sure particular social group now the odds on you been successful in your case in my legal opinion or this now they are then i ask me it's because that's not a that's no longer the benefit of the stay if it stays granted or at least some additional time in the country is what was going on in those cases yes and i appreciate your candor  lright so i'm going to prepare a report and recommendation about what to do with you and whether to recommend to review it and you can file objections or comments if you so choose and after we receive your comments or after the time expires that report and recommendation will be ruled on by a three judge panel of the court and they will decide whether we accept my recommendation or do something else or have further proceedings any questions or well thank you for coming i'm sorry that you had a difficult time getting here but i think we did cover everything we needed to cover in good time so good luck to you mr kirby and thank you for