three days before an official from isis health service corps sent an e mail to the detention center asking for a psychological evaluation and the d h s never produced it either the t h s had the report in its possession and never gave it to the judge or the detention center never completed it either scenario is air under caldern rodriguez it was legal there for the d h s s not provide an evaluation to the i j a before it determined whether a report no we don't your honor what we have a page four hundred and forty five is in this e mail the ice official makes it very clear that it must be provided within seven days and says quote if detainee does not have any mental health condition you should so indicate in the attached form unquote so there is a duty to either produce the evaluation or state clearly that he is  competent now the government argues that this omission is not relevant because we don't know what's in the report but neither did the i j a which is why the comp sci finding is not reliable caldern explain that missing medical reports that were potentially relevant even without knowing what they contain renders the i g compensate finding unreliable and under those circumstances counsel is this the equivalent of a structural error that has to be sent include and that is the be a error here when it found that only mental illness can be the basis for the franco gonzales protections now on page thirty one dollars footnote nine the government agrees with me on the legal issue that intellectual disabilities are could niceville grounds for incompetency under both mam and franken solace now the government argues there is no air here because mr r t says claim hearing voices triggered the hearing but the whole point of involving medical professionals is that they are the best ones to determine if someone has the capacity to function and has the ability to help themselves if a medical report is done or when it's done and remain it is defective unless the doctor i the requested remedy would be a remain and for the i j a to conduct a full comp sci hearing with the benefit of a psychological evaluation and to have clear instructions that that evaluation must be made to determine whether he has an intellectual disability that interferes with his ability to represent himself in the support for the intellectual disability at page six and franco gonzales explains that the respondent is incompetent unless they have a quote mental disorder and then there's open friends and clued in intellectual disability open or close friends unquote at page three when explaining what the qualified health provider must assess number six on the list and the same thing over and over in the records replete with mr ortiz provides non responsive answers to questions that are asked of what you're saying is that we should disregard the js separate ruling that he  those decisions yes you're on it absolutely wipes out the can't be withholding and can't claim because that was done without competency and it's true to the question about whether this court has substantial or can review the factual finding should we assigned to that if any your honor the standard for mental competency are the same the government's brief i think actually does an excellent job of explaining how those two are relevant and m a m it is a requirement for all  or quote incompetency unquote is the basis for the inability to represent themselves franco gonzales has that same record the only difference is under franken solace he'll get additional protections if in fact he is found  incompetent but that is really triggers or that kicks in at the i g finding if that compensate occurs and if there are no further questions mary served my remaining time yes thank you half a united states attorney general the court should deny this petition for review because substantial evidence supports the agency's competency finding and the government complied with all of its frank obligations and i can walk through all of those obligations and how they were satisfied if you're amazing report here we don't know your honor what we have is what frank or requires is that initial assessment and then a follow up within fourteen days so we have exactly that here in fact to follow it happen like the very next day there was an initial intake and april i believe it was april th and then we have april th we have a clinical and forensic psychologist do a full report and that is what franco contemplates now in terms of whether the petitioner saw a doctor or had additional visits afterwards sure i mean the record indicates that he could but whether there was any change in diagnosis that would have had to have been produced by the government if there had been any material changes and but with respect counsel we don't really know what the report would have said if i understand it correctly the the i j a the apparently rather the there was an assessment of mental capabilities on april rd according to my nose but the idea as expressly of reform three requested it within seven days but they went ahead with the competency hearing on april th when they clearly would not have had that report under calderon rodriguez is that acceptable it because it nobody knew about another report if there had ever been anything else done maybe the government have a better case here but they the judge recognize that there had been a report asked for but didn't wait for and went ahead based upon what was before him isn't that a problem your honor let me make a few corrections in terms of value on the form eighty three i actually had a chance to look at one because what i wanted to do was compare i understand there's not one in this record i have a great in front of me from a different case so i could see if the same type of information that was presented here would have been in a form eighty three and in fact i was it one was requested the right it said or a medical record in the e mail and i want to direct the court to page four hundred and forty five of the record and that's exactly where the government makes the request it says please return the attached fillable form eighty three and or send a copy of the detainee's medical records to the attention of a particular person this is on page four hundred and forty five so what the government did was the end or what came after that which was to send the medical you know what would be in the four responses to whatever that form is that we don't have in front of us well your honor the franco agreement does not specify that a form eighty three is needed it doesn't use that word right ever it was was requested that somehow did not get back for the nd hearing was held but the comparable medical report was we don't know what it was comparable as my colleagues just if you had a form eighty three and then you had the medical record and they said the same thing you compare it that's one thing but at least from my perspective on this what you've got is a request for a form eighty three we don't know what that said we have the medical record and it may or may not have said the same thing but under the calderon rodriguez i'm just troubled by the fact that they went ahead without it you know result they all bully be the same i don't know but it seems to me there's a fairly strict rule to take the under the franco class action that requires that all of the medical evidence and then if you will competency evidence to be presented we as an appellate court can't tell what was in the form eighty three i'm sure you're saying good faith that you think it was the same thing but we don't know what that form says we don't we don't want the medical evidence at least to the degree it was presented in theory we don't know what the other said so i don't know how you can say that they were the same well the medical evidence is all you need because the form eighty three is just a particular type of form that the information could have been presented on what you have is the diagnosis and the review from the clinical and forensic psychologist which is exactly what the franco agreement requires are you talking referring to the group yes your honor page for the thirty one so that says initial psychological evaluation yes your hon then there was a clinical and forensic psychologist saying no that says initial but that wasn't actually the initial screening intake that was actually the follow up by the clinical and forensic psychologist then what happens is the documents  as to what you're saying be helpful your honor i guess i'm trying to speak in terms of both the franco requirements and also what we have in this record here to make to ensure the court that franco was complied with here when i guess i'm before and this is very materially distinguishable encounter on the government had very stale medical records that it was trying to produce this psychologist report was just a couple weeks prior to the competency hearing so if something had changed between between then and now it would have been pretty unlikely and especially because the merits hearing in this case was held a very short time after that there wasn't that long stretch of time in this case the way that counter on had so we couldn't have had stale record didn't from the medical perspective and then also the government would have had an obligation to provide any new or materially different now the fact of the matter is petitioners counsel is always had the ability to show that there was some diagnosis that was missed and could filed a motion to reopen with the board and said you know what here's that developmental deficiency diagnosis that was missed here and here's this previously unavailable material evidence warranting reopening never was that don here there was no sign of anything showing that the clinical psychologist who evaluated the petitioner who said he heard voices and that's what prompted that but the psychologist was looking for any and all problems here that's what that's what they were directed to do and i get that but with we can tell what all the relevant evidence was because i take your representation that it's exactly what was presented but we can't tell we don't have form eighty three here right w meant is that i have a form a general what type of information would be included and if i have information i get that but yeah i mean if we buy the government's argument on this basically it allows an i j to say well i i think this is the only part of this it's relevant i'm not going to consider the rest of the evidence as i understand the rule to consider all the evidence and determine what's relevant but you have to consider all of the r evidence and then make the relevant determination i mean you're under the government in terms of how often or frequent must the government continue to keep putting in medical records i mean that's not something that the franco agreement spells out but what you do have in this case is a series of several hearings following this competency hearing and i'd like to point out your honor that to the extent that there's any doubt in the court's mind regarding if something was missed i advise the court to please take a look following that competency hearing there are multiple hearings are one development or change and in the course of those proceedings and in all of the testimony that was obtained from the petitioner it is very clear from this record that there was no such mental incompetency that would have been overlooked like we are saying is top stories that your perspective on what we're saying is there's nothing in this record giving some in disha of a learning disability and the government is not disputing that a learning disability would be a mental defect that would qualify that's not where the dispute dispute is whether this particular petitioner indicated anything even remotely showing that a learning disability rather than a lack of education was the problem and a lack of education poor education is simply not the same as a learning disability and that's what he asked this court to find and that would open the door wide open to so many petitioners making the same claim and your honor i see that my time is running out i'm happy to answer any further questions if not the government ial screening report mr t s was taken into custody april th april th he was conducting he was then given the initial screening which is given to all individuals in custody on april th nearly two weeks later he st appeared before judge nelson and that's when she expressed doubts after that point he had the competency so this report on april th wasn't related to that matter nd on the substance of the report says assessment m s m five diagnosis that and then there are four issues deferred plan deferred orders everything is blank so even if the court says that this report would have been enough government counsel says that low education is different than no education but m e m itself recognizes that special education and i p's is absolutely relevant to whether someone can competently represent themselves my final point and i think this is where mam and franco have really contributed to the importance of providing defense to pro se litigants as it is for any pro se litigant appearing in immigration court it is david versus goliath there's no question about that but when someone doesn't have the capacity to even represent themselves when they can't even read which makes it impossible to even look at the law library you're asking a david to go against uncle liath without even  slingshot well it's a right the government kind of has a point on that in terms of how many people would be affected by that one but let me ask you this she makes the point that there was no motion to reopen even though you would have certainly known on your own maybe not you personally but whoever was representing him at that point would have known if there was a deficiency in the report that the i j a considered that was  basically you could have said to the b i a like they missed this this this is important they didn't have a complete report we need to open this why was that done well your honor there was no cherney involved below any point the one that in his initial master calendar hearing there was a pro bono attorney up for the day right she was the one that indicated to judge nelson that he appears to be unable to be facile and communicative that is when she expressed her doubts there was no other tourney involved in this matter i became involved as a pro bono attorney on appeal i didn't i'm in boston and the point is that this is supposed to be done properly this is why franklin solace and to your point this is not an overload on the system because what it provides is an accuracy and a reliance at the at the get go if this had been properly applied we would not have had the waste resources of an appeal because a lawyer would improperly appoint a blow and the claim would have been presented and maybe he would have granted or maybe wouldn't deny it but at least it would not have the trouble goes from having to go up and down or rather than doing the remedy which frankly which is not only to the benefit to the defendant or to to to mr or tease but as to the benefit to the court th