i i believe the most important thing on this case is the i q of this person he's seventy i q sixty five to seventy one he's incompetent to proceed or at the very least that needs to be recognized and dealt with under safeguards through the immigration judge it wasn't did nobody there realize that there was this problem and the problems  t yes i think to be further psychological exam on him to see exactly where he is and any information that was received in the process would go to both his asylum application and his cancellation application question because they ground of decision was that there was no extreme and unusual hardship to the children yeah so it's not a case in which his own let's say asylum claim for persecution or something is it issue and that's that's where i have some difficulty for two reasons one is we don't have jurisdiction to review directly  saying that there is no extreme an unusual hardship and the other is that since it's about someone else i'm not sure what would be developed differently ok i try to help our first as to the motion to reopen i believe the court can discuss the need for a cancellation application as part of the motion to reopen filing but not as the on the direct appeal i think that's where the court can consider as to the hardship to the children i know i've seen cases that say hardship of to the parent is also hardship to the children i don't think that's it my understanding is that criteria was perhaps that that it would be a hardship to the child children if this individual would not be able to support them and i thank you and i would agree with that a it surely be a lot more difficult to make a living down there in mexico at the age of forty we don't have any contacts with employers down there and that's developed by dr borman says simitian on a motion to reopen which the board of immigration appeals also disability to the cancellation the only possible relevance is that if that and i demonstrated it would be hard for him just survive economically max i don't think that's the only  here i think there's also the issue of violence in mexico and the issue that i know but that doesn't have anything to do with the mental disability doesn't what it does your honor it's going to be more difficult for the petitioner to be able to gain employment and also to be safe he's going to be targeted by the cartels in mexico because he's from america in the first place and the particular social group that is mentioned isn't a particular social group within if i had it to do over again and there is going to go into court a particular social group would be mentally disabled or i'm sorry intellectually disabled long term resident former long term resident of the united states and would start talking about the torture convention against people who need help and in mexico and he wouldn't have his wife to help him do anything like paperwork you probably couldn't even get his papers in mexico which certainly would make things very difficult for though let me just try to understand this unlike a criminal case if he is found incompetent a hearing still will go forward but there would be some safeguards that would be that would be followed is that is that is that correct they don't like a criminal case in this particular case they will be some safe guys i will be i will be in instituted its very least and i i also know that there have been well is that is that correct or not well it's partially ok tell me tell me tell me what would have been that would be different from what happened before that's what i'm trying to find out if we go through the exercise and you prevail and he is found to be incompetent then what would happen next the proceedings could potentially be terminated your honor if he's found incompetent name the remains of competent of a point for the scrutiny of whether or not he can actually understand what's going on you know his testimony was just incredible he doesn't know the age of his own children he doesn't know where he was employed or for how long he doesn't know when he entered the united states he's not going to have a lack of credibility finding and i think that does affect the court if someone is in front of the court and doesn't like credibility that the courts not to get the courts not sympathetic to an individual who is in that kind of posture before the court but also i gather and another strain of this is that there was no asylum application or a ca i can certainly see a lawyer going to court and saying hey i'm going to go for the cancellation but not for the asylum i can see that even if it is a judgment but not where there's an intellectual disability of the client that makes the case so much stronger given e and being intellectually deficient is not the same as being in a mental institution i i'm aware that your honor we don't know what would happen the problem here is well he hasn't been so far correct as far as that record is yes that's correct my concern about him your honor is that he the pain is totally on his wife here to do anything to do anything that requires people work to do anything that required we know that if he is removed that she would not go with  i believe she's testified she would stay on correct i think i didn't remember one where i think he's indicated that the children would go with him but as a practical matter he very much doubt it it's too violent down there for the kids i doubt very of two words of the board of immigration appeals first he seeks review of a board order denying its application for cancellation because of a failure to establish that its removal result exceptional an extremely unusual hardship to a children because a hardship determination changes the calculation with respect to the motion to reopen so what would be different if he were found competent what would have happened differently at the hearing there is no easy way to answer that question because of the seminal decision it's a matter if i may i'm from the board and it discusses possibilities of what could happen but it's not it's individualized to the particular case but it may mean that the boards disability so when they the board decision says that he did and there's nothing on the record to demonstrate that he had a problem there certainly is well to answer your question of the first there i would agree that it could be a bribe of a variety of ways but also only what the board's it was what the actual record of it here in and look at his original counsel's response and what can they also have a psychologist  everything everything that the ministry of law in charge said was wrong with his testimony could be explained probably by the findings of the psychologist well i don't think ultimately as testimony was just jointed he didn't need prompting in order to automate we did state his children's ages correctly he did state as a point correctly just needed prompting and that's not unusual a lot of these cases the witnesses are very nervous and understandably very nervous so judges see this all the time i think what the board was getting at is it went through two immigration judges it went through an original attorney and went through a teach us process when he was in detention into a coma and he showed no indicia of incompetency and comedy's he doesn't mean that you're intelligent it 's related to whether you have a rational and functional and or standing in the nature of the object the proceedings can you consult with has turned to the other reason why opportunity to present evidence all of that was here there's no indication that this case would change whatsoever if this psychologist report was made part of the original record and if the immigration judge was where the mom case i think you pronounce him am yes this is a variety of procedural safeguards which will be implemented if he is found to be incompetent he would have available a family member now that already happened yes he would have legal representation that already happened the case will be continued for a good cause shown in this case the record was left open for thirty days and you would have the judge actively aiding the development of the record and maybe that wasn't done completely so what i want to get  know for example if he didn't have an attorney and a credit to represent to be appointed to represent him the immigration judge would asking basic questions which is part of the bench to determine whether you understand where he is going to time and place does he understand the charges against him does he understand his options to avoid removal the larger that's the part of that represented to ensure that that is done but the i g also has a heightened duty in that case to make sure that it's all done i also really i don't think anything will change  children would be that would be that would be an issue your honor but it has to go beyond that congress and i believe it's only ten thousand they only authorized ten thousand grant applications a year there are far more people that apply than are granted so the standard is exceptional  extremely unusual hardship so it can't just be you know my father is going to have employment opportunities or i won't get to see him every day it as terrible as it seems maybe it has to rise to something beyond that and there is no indication here evidence in the record before the board of the motion to reopen to suggest that a person even with an i q of sixty three cannot find employment in mexico his family farmers he testified that he returned to his family's farm he's done construction always wife in the united states he's done construction jobs a razor and up to thirty one dollars an adequately demonstrated but the problem i gather is that there is it's way of just records is a sort of connection i e if he was if his suggest that intellectual disability would affect his wooden materially affect his ability to live in mexico precedent the somewhat circular if he is incompetent and needs special assistance then presumably he needs it at this level as i mean he has counsel now you say he's always had counsel yes had so you're saying then in addition to the evidence really of the psychologist about his intellectual ma'am in the whole issue with that is the only evidence we have on the record is a boreman report which if you know it does discuss mexico a country commissions but it's not particularize to persons with it or actual disability and i'm a psychologist did posit a little bit on what may happen but there's no indication that the psychologist is an expert in the letter didn't say very much more than a paragraph and it was your honor so any further questions i don't believe i do thank you thank  the client or looked at him or something there's no report there's nothing on that there's no i q test it's it's perhaps speculation by counsel or self defense by counsel i've never seen such a thing also i  motions to reopen the board had to credit the evidence proffered it certainly hasn't credit any of the evidence proffered i thought that was part of that the rule and i believe they abused their discretion by failing to do so  right about the fact that it would have made a difference anyway so the question is what is that relevant another is do we look at the question now of how it hooks up to two and the merits question that's a and b if we do look at that what do you have to demonstrate that anything that could have been john would have made a difference i don't think the court even needs to look i think there was an abuse of discretion and it should be remained it for i knew case in th case would be totally different if the court does i that's the question that is the second part of that what would be totally different or even of different at all it would be totally different your honor for defer still the judge would have to inquiry states competence i know but that's the was decided that it was incompetent then what would be totally different well the the the merits of the cancellation case would change the hardship how exactly the hardship to the petition would increase maybe the court thinks this is extreme but i think it's catastrophic to be put into mexico with no one to help without his wife there helping them and with all of violence down there by catastrophic i mean the guy's not going to be able a particular social group that i would place before the court if i had the opportunity i would see an intellectually disabled long term resident of the united states is very narrow in focus and