good morning it pleases the court thank you for allowing me to come before before you today i'm here on behalf of mr and has been as aguilar applied pro se for asylum in two thousand and fifteen from a detention center and was heard by an immigration judge at a separate court and i believe that her trial is fundamentally unfair her case needs to be remanded to the immigration judge to develop the record because of the procedural deficiencies in the undeveloped record which caused her due process to not to be violated to such an extent that it may have affected the outcome of the pursuit mr holt let me clear up something  packet of documents on a hearing on how your hearing and those documents were not accepted into evidence the documents which she claimed w show grounds for asylum and withholding in cat relief right and then later she mentioned some other documents let's call it what you think package exhibit a and then later on she mentions a male package would have been sent to her by her sister and it was returned and she used that some letters l o p which i don't further documentation which she thought would be helpful to her claims my problem is in assessing whether a due process violation was indeed prejudicial is i  my missing something in the record your honor those documents are not in the record then help me out how can i tell whether those documents if in the record would have had a material effect on claims for relief thank you so st we would want to consider whether the evidence would have been relevant or how do we how do we know is that is the problem we have i don't have the same concern to judge bears expressed let me let's assume for purposes of our questions that you've established that your client's rights were violated by the way the hearing was conducted whether statutory or due process rights even if it's a due process violation or case law says you have to show some prejudice typically and obviously this didn't occur here because your client was pro se we have an offer of proof that the documents wouldn't be admitted into evidence but to be marked for identification or something and in this case we just don't know what the documents say he never attempted later on to get them into the record maybe there was no procedural way to do so so how do we how do we find the requisite prejudice correct i didn't have a procedural way to do it well what i would do is i would refer to the record where the immigration judge stated that the document related to what's going on in ms no i did i'm assuming that the immigration judge made a mistake i'm assuming the judge should release a look at the documents or at the very least mark them for identification and i understand the difficulties of conducting a pro se hearing with the with the petitioner one place in the judge in another our case law even for due process violation seems to require i don't know whether require some selling showing a prejudice i guess that's what i'm asking do we have to find prejudice or is it just enough that there was a violation here with that that's another question so that's the question ok so it's prejudice is necessary it's not necessary where the that state applicants will be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf the documents were clearly relevant the immigration judge stated as much that they were information regarding her town what had happened in our town but was happening in her town and criminal and in the community and i think i think you're missing the import of my question and i think judge beyers i'm assuming the immigration judge violated the regulation i mean assuming for purposes of this question that he violated the constitution i'm trying to figure out whether it's enough that whether or not we can what's what's our standard on the prejudiced side there is some case law suggesting that maybe you don't have to show prejudice at all but i don't know what case law applies to this so i'm assuming off this record i can't tell whether the hearing would have ended up differently had he admitted every single bit of evidence because we don't know what it is so tell me tell me are you excuse me showing prejudice is it enough that he just kept the documents out that's that's what the hard part of the case for me here i would argue that one it's not necessary to show help me here what judge bay a called exhibit a the fixed stack my understanding is that's from a generalized document and that does not have anything to do with her town she has a statement about there are things that my town what happened in my town and my sister sent me some evidence now those a b a documents they exist the sister's documents is there any evidence that they have ever surface been found in any way so they were rejected and i don't know if she has a minute as a nd question following from that in your brief your major to me the substantive argument is that well maybe they was related to these self defense squads and that would be a  help me i see nothing that you tie that to any of these documents that is if the a b a documents at page three hundred and twenty five dollars said in much there are lots of self defense groups i would assume you would have cited that so am i right that the things in your brief do not ta even now to either the big stack of documents or even statements that the systems documents would have said that is that being fair to you the l a p the legal orientation program right in mr by the american bar association provides conference of documentation regarding the country but then they also can do state and they can do regional and in this case i believe it was state and regional for mitchell conn which is ok but if you have those documents right documents and they're not cited in either your submission to the a b a or your submission to us is that because they they were in existence before so argument was that the immigration judge violated misbah knows his due process rights by not allowing them in the st instance when she had them in her hand at that hearing like to reserve the last ten seconds we for the government i think that you want to hear about the prejudice issue so let me st talk i think it's the best part of your argument you may want to defend what the immigration judge did here but i wouldn't start with that all right that i'll start with prejudice i'll go back to what the immigration judge did and we'll split this into the develop the record claim and into the introduction of documents i think the prejudice issues the same petitioners counsel argues with regard to prejudice show that there are these defense leagues that sort of pose the knights templar in the region the difficulty with that is that neither her testimony nor the statement that she was allowed to read into the into the record had any relationship to that kind but here's my difficulty with that he's got a regulatory obligation probably a statutory obligation to develop the record that is correct yes conditioner shows up on video remote from him with a bunch of documents and he says after a very cursory questioning of what the documents my contain she says they describe conditions in my hometown he says well i just assume that they show things are really bad in mexico and should notice of that and we don't have the documents no one reason we don't have them is of course nobody in the other side ever submitted them but she was pro se doesn't he i j at least have an obligation to those circumstances to say well mark them for identification they'll be in the record so we can later when we review this case for all i know one of those documents says she's a member of a self defense league she's pro per an educated had he had  look at those documents he might have said to her hey i i see you're a member of a self defense league let's ask a temp tell me about that so one of our problems here is our inability to to review is caused in a large part by the i a failure to do what i think he should have been doing you know i mean i know you're i know you want to defend what he did but that i know she didn't say anything about a self defense lee but she is pro per and she doesn't know what's important and she here's these documents no support my case and if one of those documents did say he had there was a self defense leak i assume at that point the i j a would have been required to say tell me about it were you a member of it what  documents when she had retained counsel alternatively she could have sought re man i mean the concern is that i think petition that counsel here is bizarre and is that the board would have rejected them because it's not new evidence she had it at the hearing  but presumably if the argument is i that i knew in advance you know i didn't have an opportunity to present these to the immigration judge despite the fact that i wanted to and i had them here and he knew about them  they would've presently they were considered i don't know how they would have come down but that's the case i think was that was there would have been you forgetting them in the record after the hearing was over the avenue would have been a motion to reconsider with the immigration or some or a motion to reopen the for the immigration judge with the tag you know attaching the documents i think that would have been the opportunity to do that and then actually done that and the immigration judge then said no then we would have then presumably you know if there was a violation we might have had more of a problem here i think secondly again this is the difficulty is the documents may say a whole raft of things they may say in mr hand there are problems in detail the difficulty is is that the immigration judge isn't going to know what   and i think there's strangely a link between sort of whether the immigration judge violated her due process but not letting her have the doctors in the st place and that difficulty on the other side of the immigration judge at the front end of it you know at her an initial hearing says you know asked her says when you file your your asylum application present documents with it and then she files are silent application he asked her do you have any documents with this do you need additional time to bring in documents but here's the there's a problem picking the documents don't say anything different about a particular social group so he's making a determination of fact without looking at the documents and without marking them for dinner vacation in the record  you're this doesn't seem to be the discharge is the duty of properly developing the record i understand your honor well you understand and you can see  can say i think that there is a little bit more i mean he does ask her what these documents are about he says conditions in my essentially actually conditions are good right rather then he said she says conditions in my hometown and he jumps from that to the generalized conditions of crime in mexico without determining whether the conditions in my hometown might be somewhat different and ground a claim for a p s g particular social group had he say in any of her prior documents or her interview asylum application was her problem was that she was russia it was that she's rob that she was being or that she was being extorted and as a result of that from the organization the knights templar and that as a result of the extortion she closed down her business they can and they kidnapped her husband then subsequently you know they called her they threatened her they threatened her children and she went to the police and they said and they turned her away right that's the that's her claim in a nutshell as far as and  place in say in her my dear hundreds of other possible ways of getting asylum she could have intrinsically that is what a person applies for asylum you know you've got books and books and books of how many ways to get asylum right that is correct any of which she might have claimed but the only one she claimed were the ones you just said this is the only one she claimed and the immigration judge his ruling came down to it's speculation that the person that the people who called you who threatens you the back end of this were the knights templar were the people who were extorting you just to be clear on this record i don't think the immigration judge lacked you know i don't think h ruling was wrong on this record on the record in front of them in the testimony he heard and i don't think they're challenging it on the record to challenging the procedural aspect of keeping out right the stuff that she wanted to submit  and so i'm still stuck with at the very least isn't there an obligation to to where the immigration judge to give us in the b i a record that we can review and under lata which is a case from them to me that is true and so we said so we said a lot of well you know you should have described them better once you looked at them right so that we could review whether you were right or wrong right here he never looked at them right your honor i think we're done ever looked at it we have i have not your honor i don't even know i i assume that i'm leading the case and maybe i should alien it might be worthwhile to have looked at somewhere that i just you know curious right right we're talking about has subsequently said that to the extent anyone considers family to be somehow special or an exemption from any b g and the requirements of showing immutability particularities social distinction that's not the case so that one with regard to the did the didn't develop the record claim the immigration judge did bend over backwards to walk her through a claim and while her to read her statement into testimony and again with regard to the rejection of the evidence as to a constitutional violation itself she had other avenues of bringing the evidence into the record and also she did not you know and she did not avail herself of those of those opportunities if this court has any from the unless this court has any further questions the government rest when did she get counsel at what point i don't know i think that's the question to but i represent my clients i was appalled at what happened her per se self defense groups as just one example for particular social group she was also a business owner owner who reported extortion to authorities she was a witness of crime who reported to the so i take it you haven't in court and that would be the other due process if i listened she wanted more time to go to be able to present her evidence and he gave her a recess to annotate on her seven page declaration what else she might want to say but that's a poor  alternative to defining the contours of a particular social scene that we didn't want just my question goes to your brief you suggest in your brief that perhaps she's a member of a vigilante group that opposes the government or has some political could be a particular social group but you know that just is that your speculation on your part now would you have a look at the documents it is just we don't have anything in the record that allows your say maybe it will show this crap it's just one example of many of the different social groups and political opinions for that matter because as we know well it's quite obvious possible that you see a member of the communist party too and being persecuted for that reason but we just don't you when you represent this you're not saying i represent that that's what her claim is going to be and she has evidence to support it you're just saying perhaps that's a claim she might make it may have affected the outcome and i think that's the standard here for for the the board didn't consider as a whole the probative relevant evidence and also i wanted and with a question the presumption of prejudice in this court applies to ineffective assistance of counsel claims there's a presumption of prejudice in cases where for example an attorney fails to file an application or fails to file an appeal there's a presumption of prejudice should there be a presumption of prejudice where the immigration judge fails to develop the record and i would just leave it at counsel i heard you say earlier that she asked for more time during the hearing where did where or when did that occur if i have that in this final hearing where the st hearing well is she had a hearing in the st week of december and he said i'm going to set you for new year's eve and she said i need more time there wasn't a lot of time for her and then you know when i read that part of the record it wasn't clear to me whether she was saying i need time between now and new year's eve or i need time after new year's eve and then when the documents or reject is that are my right in saying i just can't tell that from the record correct and then it exhibit when exhibit b was rejected it was potentially rejected by the detention center it's very hard to provide evidence to right and the judge immigration judge said i'll find that it was returned for some reason and it's not available at that point did you see i think it was the january one after he issued his decision she tried to speak he turned he muted her at the detention center and then finally told the guards ok and mute her and then it went back on and i'm listening because i have the audio transcript i've been listening to c d s as i drive after the board decision or after he issued his decision he says madam and this is on page thirty four dollars of the transcript you tell the board of immigration appeals that you think i did wrong by not giving you more time ok but whether that's from a statement here or the earlier that you know ok not quite enough got in the next page here says and you can tell them that you think i didn't give you enough time you know what you want to evidence i don't need the background information about mexico i know it's about country that's the judge ok and i think that was a failure ok got it thank you i think on any other questions i have a question can you give me any reason why with counsel in the being a these documents were not added to his record or here in the th circuit why did you make a motion to expand the record by provide additional i would provide it because then we could look at those documents and say yeah the judge screwed up but it would they wouldn't have made any difference that that would help my client quite a bit think that you conducted the other thing that about exhibit b do you have a way of getting the documents that the sister sent the petitioner and they were returned to the system i will speak to the client and do my best to get those documents if you ha an opportunity to amplify the record if i had the opportunity i certainly would and answered the court's question about why i didn't submit it to the board of immigration appeals the board of immigration appeals isn't a fact finder so if i provided that that's not really you see i understand your client was pro per but if this were a normal court proceeding we would say gee you didn't make an offer of proof so we can't tell what the documents that were excluded would have health i'm not i'm not holding your client to that to that sort of level but it's the way we would typically review and argument that the exclusion of evidence prejudiced someone we would say now we've looked at it and maybe did we she turned it back i mean nobody you know these documents could be the oxford english dictionary you know nobody at least so far claims they can state what they claim they might have but when they're physical documents i am in the same place and i'm not saying that you're being dishonest in saying you didn't look at them but it seems very strange but to the last things one the board in its decision said this evidence exhibit a was proffered which it clearly was not and that's something to consider in the board's decision the board's decision on page one says exhibit one the but i think the board was correct in a sense it was proffered the immigration judge should have under those circumstances said either all market for identification it would be in the record or look at it in rejected it but it was proffered she said here i've got this evidence i'd like you to consider it that's a proffer and to the american bar associations legal orientation program the operates at that detention center and provided some of the supporting documents to is partially funded by the department of justice so we would believe that the documents provided by an organization partially funded by the department justice would have supported the department of justice is employ the immigration judge in making a decision and here he