minutes of my time for rebuttal of this appeal involves the potential deportation of petitioner edgar at an end this girl the father of three young children all of whom are u s citizens and i should take this opportunity to advise the court that although the record and briefing indicate the petitioner had to us that is in children he recently had a third child who's still an infant who was also born in the united states so the record should now reflect that he's got three children and would either force petitioner to remove his three children from the only country they've ever known or leave them here without a father because this case involves such potentially tragic and serious considerations but usenet was entitled to a fair and full hearing represented by effective counsel however in at least two distinct ways this just him failed him here petitioner retained counsel and attended every hearing however when it came time for his merits hearing he appeared the i j a first concluded that she would proceed with the hearing without petitioners counsel present perhaps realizing the error of that conclusion the i j a backtracked and then proceeded to ask petitioner a few questions she asked whether petitioner was prepared to present his case he responded no she asked whether petitioner wanted a continuance to meet with counsel to prepare his case he responded yes notwithstanding those responses the i j a proceeded to conduct the hearing without petitioners attorney ultimately denying his application the i g s refusal to grant a continuance in this case so the petitioner could meet with counsel or engage new counsel deprive him of a full and fair hearing and was in violation of his constitutional and statutory right to counsel this was wrong number two this appeal seeks to redress of both of these wrongs and with the court's permission i'd like to address the second rung first with regard to the deprivation of the right to counsel contrary to the attorney general's position the fifth amendment right to counsel does doesn't exist for subjects of immigration proceedings the supreme court and this court has held the due process mandates that any alien is entitled to counsel of  own choice at his own expense in addition aliens enjoy a statutory right to counsel under eight u s c thirteen sixty two and when as here an individual is deprived if it is deprived of his statutory or constitutional right to counsel that when as here a petition refers to an issue or a claim in his brief to the b ira the claim has been exhausted in at least two fallings with the b i petitioner expressed that he was entitled to a new hearing represented by general that there are some exceptions right i think they have to make a bar complaint they have to give notice to the attorney the attorney has an opportunity to give their side of the picture  there are a lot of good reasons for that matter a little requirement so i would not view it as a life matter that you know we could dance past lives there's a pretty well established exception yes your honor i agree i would agree with your honor that it's not that it wouldn't be with lightly that we would address this question with regard to specific sleeps a list you mentioned that there were there are exceptions to the rule that generally this court in a b i a require that petitioners alleging ineffective assistance  represented by counsel and yet the kind of the attorney failed to show up at the merits hearing the most important hearing by far of an immigration proceeding so we would submit that the record makes plain that he received  complete lack of lack of confidence on the part of titian has in his counsel that he might have been able to engage new counsel at that point but he was deprived of the opportunity to do so i was standing that it would have been a modest counsel the idea was well aware of that and now withstanding that knowledge notwithstanding his clear position is clear request that he be granted a continuance to meet with or engage new counsel she proceeded to conduct the hearing outside  papers and for that i apologize but in any event in that case this court held that an i j failure to continue with hearing when petitioner appeared without counsel violated the petitioners right under thirteen sixty two that place the case in particular places t your honors please the court my name is on park on the have the attorney general alberto gonzales in this case petitioners challenge the immigration judge is denial of his motion for a continuance however the i j a the immigration judge did neither in this case by denying that motion because according to the printing regulations an immigration judge may grant a motion for a continuance for good cause shown because in this case the immigration judge that because like on which the immigration judge relied the immigration judge determined that there would not be a sufficient bend benefit to warrant delaying the case based on petitioners testimony that he had not consulted with his attorney in preparation for that hearing scheduled for that day nor during the sixteen you for a moment but first of all if i understand the record correctly the delay in the scheduling of the hearing wasn't really the  it wasn't of his making or the petitioners making it was just the scheduling that the i j a did he scheduled the hearing a long time after their early earlier conference so now they get to the date of the hearing and the lawyer doesn't show up why why does the a lack of consultation with the attorney before they hearing resolve the matter of whether he needed an attorney and it seems like like even this is speculative and i don't know why we would get into it maybe they were fully consulted before that period you know maybe the lawyer knew exactly what he was supposed to propose and if in fact the record shows that a different lawyer from the from his counsel's office said that he's here in the building somewhere in a different court room why why on earth shouldn't the i j take steps to try to get the lawyer in the room and find out why he's not there and give a short continuance on on a matter of a matter that affects  whether the petitioner the stay in the country or not and simple response to that question first met respect to the fact that petitioner had not consulted his attorney during that time between his master county hearing and his hearing on the merits i think issue isn't so much that he failed to consult with her attorney or i didn't speak with her whatever the case may be i think the more important issue is that the immigration judge had heard from the petitioner in this case that he had not because he had not consulted his attorney with respect to the preparations for that particular date hearing that based on that claim the immigration immigration judge me that made the determination that having waiting prepared for that particular hearing so i think based on that the immigration judge first made the determination well does will this merit more is this an unwarranted delay and he made the call yes it seems like there's not insufficient  but one area where a defendant does not have to show prejudice because it's deemed to be a structural layer is a denial of counsel because it's taken as a given that an individual pro se isn't going to be in a position to defend himself in the same way the somebody with counsel no matter how well prepared the lawyer may be well this isn't that context but i'm still so kind of struck by the by a situation where there's no possibility that the petitioner is making this up because some other lawyer came in plainly the lawyer knew that she was supposed to be there that day and sent somebody else in a poor way to resolve the spiritual conflict to say she's in another court room and for the judge to make an independent decision based on a very brief dialogue well they're not going to be able to put up much of a case so i'm going to skip this right to counsel and go forward it isn't simply a denial of a continuance it's denial of counsel he's got counsel the i j a knows he's got counsel i j proceed without counsel and the violation of the statu need why we need to proffer from her the i janet knows independently that she has been retained to appear because maguire comes in and tells the i j a and the idea doesn't dispute that this isn't a case where a petitioner comes in or responded in that case so that the the alien comes in and and just was kind of making things up and i talked to a lawyer and i thought he'd be here and he's not i jane knows for a fact that a member of the bar has come in and told the i j a i'm  we don't go there with regard to denial of counsel because it's understood in the criminal context that parents with counsel makes things entirely different i think it's speculation on the part of the i g with regard to how much preparation been accomplished and i'm not sure the slide to inquire into the communications between the alien and his attorney but in any event why should we be considering prejudiced if it's taken as a given in this other context that is a structural or that you don't have to consider prejudice well i think that in this case the a due process violation and you're alleging it's because you didn't get a full and fair hearing before the immigration judge then you have to demonstrate that you've still been prejudiced as a result of that and in this case when you take it to take a look at the evidence of record the immigration judge w meticulous in asking every question that would be relevant to the cancelation context for this particular petition he asked numerous times what kind of hardships with your children suffer do your children have any sort of health issues any sort of mental  emotional educational needs what is the status of your family members for yourself in the u s and mexico for your wife what kinds of employment do you think that you'd be eligible to do what kind of educational opportunities are there and in addition to all the sort of the evaluation that was performed on the older child which has counsel affected time in the record but the immigration judge went ahead and admitted it and said no i'll consider th deprived council if it's clear from the record that there's been some kind of harm that's been given to this petition as though in previous cases this court has found that if the petitioner was outright denied all forms of the peel or they were unable to file some sort of application for which they would have normally a former belief that they would have normally been eligible in those kind of agree just situations this court has recognized yes there has been harm as a result of the deprivation of counsel but in this case the petitioner simply can't establish that and in fact still apply for speculating as to well his wife may get l p r status at some point there are some things that he points to but certainly not enough to demonstrate that this petition was unable to present his full case that he was prevented from submitting some form of evidence or barred from testifying or what's simply lost just to the confusion more court that requires a demonstration of some articulated level of prejudice i believe and i will spell this and i will say that i know there are a lot of citations with regard to some of the particulars there was some sort of harm or prejudice that was experienced by the petitioner and again i would like to make the distinction between cases that arise in the criminal context from those that are right in the civil context i mean the constitution itself makes that distinction and because of the importance of what goes on in terms of meeting counsel per say in a criminal case there is this six and then i guarantee of counsel provided for criminal defendants as opposed to a civil immigration context analogy how absolutely your honor and i can argue with measure my surprise when we strongly agree that it's essentially the same thing yes we realize that there's a distinction between criminal and civil cases but here it's it's perhaps a little bit more similar to criminal would agree that strongly agree that you did complete deprivation of counsel as per se prejudicial however to the extent that this court would refrain from making that holding or being inclined in that direction we believe that in this case there was certainly prejudice the burden of showing prejudice in this court is whether the outcome may have been affected we don't have to the petitioner and he not show that it definitely would have changed the outcome and here there's no question that counsel could have better marshaled the evidence could've presented more effectively evidence regarding petitioners limited employment prospects the educational and psychological tolls that removal would inflict upon his children and with regard to switching over to ineffective assistance at its there's no telling what what other sorts of things might have been a list that had the record been developed more fully and had more facts been a doucette trial at the merits hearing in this case  up at the hearing in this case there's no question that the attorney completely failed to show up at the hearing and for that reason that we would also submit that there was indeed prejudice in this case to the extent that the court feels that it's necessary to show with regard to the points about the clients have petition or not contacting council for a year as the court pointed out earlier the hearing was scheduled by the i j a wasn't as the petitioner requested all that time and we'd point out again again switching to i see the government place no law that shifts the burden of effective representation from counsel to the client in this case if an attorney doesn't contact an unsophisticated client prior to a hearing that client is not likely to know one way or the other whether that's troubling or not a client is entitled as petitioner was in this case to rely on a basic level of competence and moving on to my third and final point  there were comments that suggested that in this case the hearing was fair because the i j a pointed a few things out and asked a few questions and allowed certain pieces of evidence and over the government's objection i'll say that i don't i can't think of a day of immigration hearings that have done as well argued as what we have this morning his colleague justice department now and and thank all of you it's been a very well presented