kept of all the testimony and evidence produced at the proceedings under the regulations the hearing shall be recorded forbade him except understood her statements made off the record with permission of the immigration judge neither the statute nor the regulations provide respond it really makes no practical difference what occurred and indeed it remains a mystery well ok well you know if there was a deliberate decision not to take that would be one thing if th we're supposedly taping what's going on here so if it didn't come out it wouldn't because we were deliberately flaunt the statute it was because the high tech equipment wasn't working and i just don't have even something immigration charge in terms of the discretionary decision as to whether to grant relief so the board could have found something in this testimony of ms ramos or in the testimony of the expert witnesses that would have changed the outcome  accurate well this agreement was certainly the problem with this was that that conference itself was not recorded so there is no record as to what was represented by the immigration judge to the parties when she read from her notes and created this record you know when i worked for the phone company i was trained to take notes of every conversation that i had that was important and i imported that into my legal practice so that when i'm having a conversation because it's illegal in california to tape rescissions so if i'm having a conversation with opposing counsel or a judge i normally take notice and  enough to reconstruct after the fact and maybe even dictate a contemporaneous memo so the thing that bothers me in this case that there's no proffer by the petitioner as to what either knisley said or a minute in the conversation there's there's not not no proper it's all just saying you know fact and maybe and if that's your position i know the second circuit seems to lean perhaps in this direction that regardless  if you go through a whole proceeding at the end of the day you find out it's not been taped the proceedings and all of that you have to start from scratch even though counsel was immediately made aware of the problem there was this conference there are no no nothing to suggest that there was anything specific that was emitted that's the problem i have here well the big petition alleges that because this is a violation of the statute in the regulations she doesn't have to show prejudice and in each doesn't have to point to anything in particular that was left out and for that i would cite the coleman our decision but the fact that counsel acquiesced to the immigration judge is a telephone call was later undermined because when that appeal was filed with the board and the transcript was received it was then noticed that there was additional testimony that was missing that even the immigration judge hadn't realized was missing at the time of that criminal cases here were tapes disappear because the recording problems or the person who's recording disappears and in those cases the lawyers go back and reconstruct the as it's been reconstructed and both attorneys representing their individual clients agree there is a solid record well as i noted even after the both parties agreed it was subsequently discovered your argument right why why at that point the administrative judge say ok we agree with the record and not wait until it's up with a court of appeals and go back and say we have to start over attorney withdraw on their stipulation that this was a very well to be to be frank there was no technical stipulation and then there's no recording of such a stipulation either reman over the telephone with  that it was later discovered that this will indeed after that conference more information was discovered that was missing and petitioner did not acquiesce in that that made the record somehow complete another also missing from transcript and was not summarized by the immigration jackson her decision or if that was the case if that was the case in the converse of this conversation happen how soon after the hearing t happened then the burden would be on the government and perhaps the i j a that you would have the benefit of saying look you've got to take my word because you took away my opportunity to have the verbatim but that's what's bothering me there's no  child one example one example of that appears that those witnesses talking about the developmental disability of this child and her inability to actually use her her mouth in a physical way to enable her to talk and the immigration judge in her decision states of america that that's not a physical or mental illness and therefore she doesn't have a health problem so that would be one aspect of testimony that it's almost can point to and say the board should have recognized that the testimony here indicated a severe health condition that was physical and that was grounds for finding relief from  did not specify any due process violations or any statutory violations it was really he was complaining of the fact that there was no transcript so he couldn't go on a fishing expedition and find something we have to deal with that he argues the mere absence of a tape recording or transcript that their position proceedings satisfies the fundamental fairness we do not agree we have to do something with that you just  inguish it and what basis on the basis that that was a collateral attack on the basis that mr mclean i wasn't alleging any statutory or to process finalization and here we are also talking not only about this courtroom view but the board's review of their own decision of the immigration judge and pointed out there's a different kind of when we think that the absence of a is fundamentally unfair the second possibility is that the immigration judge made some r and forgot to turn the tape on for some reason the third possibility is that the tape was lost however whatever happened to the tape the fact that it's that it's not there we do have a record that number one was reconstructed by the immigration judge in the presence of counsel for both sides indeed it almost immediately after the hearing tablet music scene from the record to that tape of the complete and a volume of documents on the specific question of the health and learning abilities of the child i don't i don't necessarily think that the petition has shown in this case that there was some precious or or that the record i where else is there if the court would like for us to mediate this case that you know yes we would be willing to do that however i there a d h s s decision or that they prefer not to mediate this case you said if we order you to mediate or see if we direct you to mediate with us it's general we don't direct mediation we invite the parties want to go to a little different subject than you and i don't quite understand from the record where the witness writers was subpoenaed to bring some records and all of a sudden she's testifying