freezing freezing tell a video system of the incompetent translation services provided or a combination thereof mr matter goal was not able to communicate effectively with anyone in the courtroom be that the immigration judge or his own counsel we look at the transcript to see that it's littered with garbled and non responsive answers including in response to questions that went to the very core of his case we also see that on seven separate instances mr mr magical the judge and the interpreter each complained about the tell the us system freezing and contrary to what the government says we also see repeated instances throughout the chrissy tings of mr magical expressing difficulties understanding what was going on in fact it got so bad that twenty times in the twenty five or so pages containing mr magill score testimony the core of quarter simply gave up trying to understand what he was saying and simply labelled the testimony indiscernible we also have two instances in which the translator openly admitted that he had translated incorrectly and of course we can't know how many other an acknowledged translation errors there were but we can assume that there were quite a few from the ample from the ample evidence we have here of communication difficulties throughout the entire proceeding to your honor's this is exactly the kind of record that demonstrates a due process violation and this court impreza laster observes that where as here we have a faulty translation services that violate an applicant's due process right that we can't expect the applicant to put on a record that doesn't exist we obviously don't know what his actual testimony was we have no record of it all we do have is a transcript that shows that the applicant as translated did not make sense and thus couldn't put on his case this court has thus repeatedly held that in these circumstances prejudice is presumed as long as the applicant can show a plausible ca reliable evidence in this record that would preclude him from establishing any of the six factors and we also if we look at the parts of the record that aren't tainted by the due process violation it looks like the evidence underlying his conviction support their case against him and your honor you can be certain that if the government had evidence that would've prevented him from rebutting the other five while factors they would have submitted that instead of just relying on the court's minute order in the immigration hearing  we also missed a magical sworn declaration that had he been able to communicate effectively he could explained that there was no connection between the conviction on one hand and the thirty sixth street gang he would have explained that he was simply ing out with a friend from school named bell tree that i'll treat was not a gang member and that mr magical had no idea about the drugs hidden on his trail trees person so so i guess fundamentally your honor we need to keep in mind that mr magical is burden at this stage is not to convince you that he's here but at the while factors his burden is merely a show that there is a possibility that if he was given a fair hearing he could have done so and not supported by pres in the courtroom and only able to communicate with his client through a malfunctioning told your system in an an incompetent translator so that's part of why it was very very difficult to elicit the relevant testimony but as far as his proffer your honor his proffer is that he doesn't have the strong support system he has in the united states and he can't speak the language or mexican sign language so he has no way to communicate with anyone even the distant relatives that he does have in mexico and even looking at you know these these factors here make it very very difficult for him to support himself and his family in the united states even where he is able to communicate in mexico he it would be even more difficult for him to find employment communicate with society as necessary to sort of function in our system and your honor and we took the holder this court found that when an applicant would be unable to secure employment as necessary to support himself in a foreign country because of a protected characteristic that rose to the level of persecution and was a valid basis for a finding that the that the applicant would suffer harm to his life or liberty if returned to the country so you know i actually correspond directly to any language but it's its own language itself and there is mexican sign language there's also spanish saying language and there's american sign language so yes it's totally different language that  i don't speak spanish he's saying i am disabled i have a protected characteristic that that renders me unable to support myself and i mean it took him he's thirty five years you know it took him a very long time even gaining you know a basic competency in english or an american you know american sign language and the ability to write in english well enough to get by so so i think here the difference is you have not just a language barrier you have a disability that compounds that language barrier significantly and you have and in fact your honor and i know you mentioned that you haven't seen the fact pattern before but we did submit in our opening brief you know we referenced that honor i'm not sure if we say that he says or simply just pointing out that this yeah that this has happened and it did post his hearing but it's something that is that it's the extent your wonder your question is well is it plausible is it possible that this can happen yes yes it is well but it's important to have a case some care authority to support the proposition because if you tell us there is no case to support your how much cocaine was involved and that's one of the pieces which remain for further fact finding is necessary and again absolutely no evidence that any money was exchanged at all so again another fact for which we we need further proceedings to to determine so you're asking us to remain for further proceeding yes yes your honor that we think is the appropriate remedy here and not supported by for pres last probably the best case that i could name others if you need and i actually did find  on its footnote sixteen on page forty five of our brief so i guess the basis for our our position that this is not unheard of is a recent report by the asylum office of the united states citizenship and immigration services that they granted at least one asylum application so yes it wasn't case because it happened at the minute and the administrative level exactly as  your honor and in as much as the the applicant is given a full and fair hearing if he fails to offer evidence necessary to support his case then you're right she would not be entitled to the relief but the whole point here is that he didn't get that full and fair hearing he didn't get that opportunity and in fact impreza laster this court confronted the exact same circumstances they confronted a situation in which the applicant had not put on evidence as to essential elements of his case and the court express rejected that as a basis for denying the requested relief here that we're in in granted the petition notwithstanding that explaining that there is no plausible reason why an applicant wouldn't put on essential  except that there must have been some communication difficulty that prevented him from doing that there's no strategic reason why he would have done that and in fact you can look at the record here and you see counsel trying over and over again you elicit testimony about the inner circumstances surrounding this detention center obviously green and he the screen was pointed at the translator so his entire perception of these proceedings is limited to what he can see the translator doing and i would just emphasize that  because it's such a b and b or he can't hear it's such a visual language that it's that you know all he knew is see what's going on and so if there's freezing that makes it even harder when you're not hearing you're only as a translator was translating i'm sorry  translate he was translating into what american sign marriage correct is the freezing occur throughout the proceedings it did and i can give you the record cites if that would be use i don't want that i thought the government had a different view but but let me i'll just give you a couple that were well in i thought that you that you cited but i was just cherry as as to whether it was continuous freezing or were there were a couple of places because we have that sometimes to learn we're doing remote arguments so i was just curious but i'm sure we'll hear from the government you're fifty seven seconds with if you want to government man please the court nancy cantor on behalf of the attorney general this case has a long and circuitous history but at bottom there are only two issues the court needs to decide one whether petitioner received a fair opportunity to testify in support of his application for withholding of  and to whether the agency identified and applied the correct standard in concluding that petitioner failed to rebut is heavy presumption that his california health and safety conviction constitute a particularly serious crime with regard to his testimony before the in your baby but i still have a fresh in my mind would you please describe first of all do you agree with the description of how the hearing to place that was to pull to apply defense counsel and  in a detention facility and that his attorney the translator was present in the courtroom with the immigration judge so that the translation that occurred was by video conferencing of the petitioner in one place and his sign language interpreter in the court room with the judge did that answer the questions or is helpful when you are beginning to say there is there is a complete dukkha to me between the positions of the parties regarding the freezing because i understand the government to say that there was some reason initially but the problem was corrected however the petition his attorney says there was freezing throughout so why is there such a discrepancy between the parties on that point i don't know your honor to be honest i've read the transcript of the december ninth two thousand and ten hearing a dozen times by this point i have tracked the page record citations and it appears to me that from the start of the hearings page three hundred twelve of record there was probably ten or twelve pages in which there were initial issues with phrasing the immigration judge confirmed with the petitioner whether or not he would like to continue and he said i would prefer to continue the immigration judge said let me know if you have any problems his petitioners counsel then asked him questions about his eligibility eligibility for a fee waiver which he answered completely the immigration judge granted the fee waiver petitioners testimony about his petitioners merits testimony begins at page three hundred thirty four and it continues for approximately twenty pages during that twenty page pages of testimony there's only about five lines in which an interpreter interjects and says he can't see me and i have seen he's referring to the petitioner so there's five lines in which the interpreter says he can't see me the issue is corrected and petitioner was instructed that he should continue to look at the interpreter how many pages  transcript include how many pages all together did his hearing well like in his book the petitioners the hearing begins at three twelve and at three fifty four petitioners testimony concludes so we have a little over forty pages there are a number of times in which yes there is a notation that it's indiscernible but indiscernible refers to the recording not the recording on the tape not to i don't know your honor i mean to be honest i see indiscernible and transcripts all the time it's just the tape does not record if the if it's freezing would there be a different notation not that i'm aware of we would but that the individual transcribing the tape could not make out what that noise was so that could be someone talking outside the door it could be the immigration judge asking a question but it could also be a cell phone going off in the corner we simply don't know i mean it's it's an unfortunate nature it's the unfortunate nature of these immigration proceedings that they are audio recorded and if and when an appeal is filed a transcript is prepared they are not been we simply don't know it could have been testimony it could have been outside noises it could have been i mean any number of things and i thought that was what the honor was asking what question what the possibilities it could have been ok so i apologize misspoke if i i guess i'd like to briefly address the second part of the second issue before this court which is whether or not petitioner had the had the opportunity to fully  buy the presumption that his conviction is a particularly serious crime matter under a matter of y l it is a heavy presumption that a conviction for california health and safety one one three five one five is a particularly serious crime and is partition is burden to rebut that so here petitioner only presented evidence that there was no gang involvement there is no testimony about there is no evidence regarding how large the how much car came there was or whether or not there was money exchange because the government did not need to present that evidence the presumption is that it is a particularly serious crime and it is petitioners obligation to rebut or petitioners burden to rebut that presumption during the hearing his counsel petitioner's counsel was given the opportunity to follow up after the conclusion of cross examination the immigration judge asked whether petitioners counsel had any follow  and he said no that would have been a great opportunity to present any amount of evidence regarding you know the quantity of cocaine whether money was paid whether there was the threat of violence or absence of it but there was simply no evidence to that effect  would you please address the prejudice prong of the due process going on to the government's position is that petitioner can't meet his burden of demonstrating prejudice for two reasons one should the court agree that the board applied the correct legal standard then the part then the particularly serious crime conviction stands and that's petitioner is statutorily ineligible for withholding of remove all to the evidence  petitioner seeks to present in support of his claim for withholding simply has no nexus to a protected ground a protected ground as one that is based on race religion nationality or membership in a particular social group a disability is not a protected ground or at least petitioners disability while regretful is not the type of is not the type of protected ground that is cognizable under for withholding  between on page three fifty three fifty one petitioner was asked whether or not he was a member of a gang he said he was not a member of a gang he admitted that he hang around members of the gang gang members because he was interested  serious yes he was curious he was curious ari i misspoke ins counsel then asked what about the i two thirteen that identified you as a gang member petitioner said i'm not a member i was just hanging around he was then asked whether there any of the gang members i believe that he was hanging around with were involved with drugs to which petitioner responded yes they were yes they were so that was the evidence that the agency relied on and concluding that while there was evidence of gang involvement in relation to his conviction yes i believe so your honor that was the agent or the well well the board said there was no well your honor it where if you look at the if you're looking at the entire testimony yes petitioner initially denied that he was a member of the gang or that his conviction had anything to do with his participation or hanging around with members of gangs but during follow up tests during cross examination trial counsel ins trial counsel asked him questions which brought his involvement brought to light his involvement both with gang members his hanging around with them and his hanging around with gang members who were involved with drugs so the board simply determined that there was no  right but that was the board reviewing for clear air and the board said that it found no clear error in the immigration judges determination to the extent that this court would be reviewing that it would be reviewing it for an abuse of discretion and the simply no evidence that would compel there's simply no evidence that would or at least the government's position is that it was not an abuse of discretion for the board to make that finding counsel does there have to be any gang connection in order for the particularly serious crime determination to stand there does not your honor i just i was just curious why the discussion went into the game membership if that's not necessary for the presumption of the particularly serious crime of the statute does the heavy lifting so i don't i don't understand why the gang finding was necessary or pursued while your honor that was just the immigration judge you're to absolutely correct the presumption applies era spectacle but there are not there is gang involvement petition or attend petitioners sought to rebut that presumption by referencing one of the six mitigating factors and that was gang involvement there are still other mitigating factors and under matter of y l the board clearly states that only if all the criteria are demonstrated would be would it be appropriate to move it away from that presumption so the government in its  that yes we're making a big deal about the gang involvement here but that was really only one of the six factors that petitioners sought to rebut and there's no evidence of any of the other mitigating factors that would have been necessary to move away from the presumption unless the court has any further questions at the time the government respectfully request that you deny the petition for review do you have any other questions you  honor just to briefly address the point about the other while factors this court has held multiple times in brazilian beholder n v to be holder that framing a fact finding as an absence of fact is nonetheless  finding of fact so in brazilian beholder this court found the b a had engaged an impermissible fact finding when it found that the the brazilian had quote failed to establish how he would be recognizing he as an artist supporter because in order to reach that conclusion that the i a e a had to had to find that brazilian had offered no evidence about how he would be recognized and that's exactly the same thing that the did hear as to want to go back to the point about harm that your honour's raised and i would just point you to coleman are the ins and i'm quoting although coleman or does not explain exactly what evidence he would have presented to support these assertions we do not require such an explanation if i am prejudiced we were acquired the petition only to show that the due process violation potentially affected the outcome of the proceedings and that syrians met here we have mr magill testimony on page three forty two which though not which incomplete gives some basis he says he thinks he would be lost the rest is life life in mexico he gives at least some basis for why he thinks he would suffer harm in his written application as already mistreated in his brief to the i a e a he explained that he lacks basic human functionality and wouldn't be able to support himself so that's his proffer and how do you been able to fully explain himself and articulate  the harm that would befall him there's a very good chance that he would have been able to shuffle the problem with the nexus to a protected group your honor it would say his disability is the nexus that says that you aren't able to a disability homosexuality is not a dishrag if anything i would say a disability is even more of a protected characteristic all right thank you thank you both counsel we particularly thank counsel for taking this case pro bono