he was interviewed per the procedures by an asylum officer in custody in june of two thousand and fourteen there's some officer found him credible found no evidence of persecution within the legal meaning but did find that there was torture the asylum of cert however concluded that he could probably safely relocate elsewhere in greece lucas asked for review by ed by the immigration judge where he was represented by counsel vick currie before that hearing before hearing lucas testimony the judge stated that it does not appear that there is any basis to the search disturb the credible fear finding unless there was some additional information to offer curry asked if lucas could provide a statement she didn't ask him any direct questions and lucas testified briefly the judge asked some follow up questions mostly related to fear elsewhere in greece and he testified briefly to these questions before he was cut off by the judge the judge issued a decision affirming the determination about credible fear and issued a denial that said record it twelve the it's a one page form ticked a few boxes no explanation no although the form provides for an  added optional explanation none was provided the notice states specifically that there is no appeal of ale just in those three terms three words there was no  discussion on the record of any proper appeal procedure the government erroneous leap stated in its twenty a j letter that the notice said there was no misleading of lucas because the form said there was no administrative appeal available well that's now with the form says the form says there's no appeal of vailable period well it says two different things in the paragraph i guess it's two paragraphs above where you're reading there is the phrase no administrative appeals available you see that yes i see a scene that's what the government's referring to i say you're also right that a couple of lines down it does say more definitively there is no yeah so it just seems to me i don't know if it was you or the government who referred to our decisions and i know martinez is wanted for you all of the other but the question it seems to me is just simply whether at the appeal stage we should deem your client to be pro se like the petitioners in those other cases or whether because he was represented by counsel before the immigration judge which is different from what was at it what happened in those other two cases whether that's a basis for distinction maybe you can help with i don't think that's a basis for distinction first because in this case lucas counsel didn't represent him after the judge's decision entered lucas was detained which adds the difficult as to the difficulty on his part in terms of figuring out what he should have done the form is confusing and in the last case that you reference the martinez case that the court's decision doesn't require that the person be pro se it says that's an added reason for the problems of this confusing notice so i said we can consider many factors yeah no you're right i mean but what was driving that decision was the fact that this kind of form  the reasons you've already alluded to would be confusing to someone who is pro se right should most definitely not be confusing to a lawyer especially not a lawyer experience in immigration proceedings you would agree with that right that's right ok so that's why i say if if for example your client's a lawyer had stuck with him and filed the notice of appeal to the b i a i don't think it's a very sympathetic case sure right because it's that lawyer should have known not to do that and instead should have known to come straight to our court i think your best argument seems to me before us is that essentially he had been abandoned or his lawyer had left him by the time the appellate proceedings began and so he was left to his own devices to figure out what to coherent clear statement on this form would be the way to go that's what the martinez panel said is there should be a clear statement i think that's rather than some sort of all the facts analysis i think it's better probably to have a clear bright line test unless the form specifically says you can go that night circuit i think there should be a fine the the court should hold that that's not the test that's that's should be the test is not met here just going to be a be concerned primarily with it whether there's an objective basis for his fear yes i think you i do think martina's and i are control this case and that there is yours diction so the court should turn to whether the government's preserve its arguments around the merits of the case i don't think that they did but we can get was on the on the merits of the case let me ask you this when was the date the conduct that the asylum officer thought was was torture or horrendous when did that occur it would have been quite a few years ago you well in the middle ages now you know it was decades and decades ago yes so why should we feel apart from here waiver argument why should we feel there's an objective basis for feared today well i think one there are a couple of problems here one was the courts i mean the immigration judges the level of scrutiny on this question the respondent testified briefly about what had happened more recently to other family members and of the consequences of being of the stigma stigmatization of him as gay that would carry forward through to the present but the judge cut off his testimony the government at page twenty in the last footnote suggests or seeds to the fact that the court had cut off his testimony well let me ask you is is your position that there is specific lety towards him on the part of the police or that there's a general sort of countrywide hostility to gays that puts him in jeopardy which of those positions are you taking well specifically the police but there would be in terms of resettlement or relocation there's always a question of other reasons why the person considering all the factors couldn't be relocated so even if the past persecution or past torture related to a specific event specific persecutor if there are reasons in the asylum context you look at for example that the person would be have many many other collateral problems for example anti gay prejudice throughout the countryside then that's a basis to conclude that relocation isn't reasonable brief this case it was clear to us that the court lecturers stiction over the petition for review in light of the final of the operative final order in this case being that of the immigration judge based on the specific  nature of reinstatement proceedings we believe that that jurisdictional defect remains even after the court's decisions in and martina's and i say that because of important distinctions between the petition here and the petitioners in  expedited proceedings where they did not present a claim for relief where they were not represented mr lu cuts lucas's case he was in deportation proceedings after he had been conferred lawful permanent resident status and lost that status for a long history of very serious crimes he he appeared before an immigration judge in montana i believe and was represented in those proceedings so whereas in the previous cases we have someone in the expedited removal proceedings who perhaps was turned around at the border or there was a very short  process in those cases in this case he he was represented in what was would have been then deportation proceedings i think that's an important distinction because when we look to what is the reason the order that's being reinstated what is  what is the genesis there i believe that it's a distinction that merits a difference here a different outcome here in addition the petitioner here was represented by counsel in his asylum interview which was not often done and certainly was not the case and i yell and martina's and as as your honor already mentioned before the immigration judge the the petitioner here had counsel was represented there and we believe when the immigration judge on that date issued her order he received a copy of the order in real time through his attorney and we believe that that changes the character of this case because again as your honor referenced a represented party should know through through counsel the path forward but he tells us that his attorney was no longer representing him at the time the appeal was filed the wrong appeal was filed right if he wasn't then he doesn't need drop back into the same position as the martinez and a olive i guess our  be you're correct that when he filed the appeal in opposition to the clear face of the order of the immigration judge when he filed the the appeal to the board he was pro se and we have no idea what his attorney told him that day or if you had any conversations whatsoever that would have will be easier just to clean up the letter just to make the letter clear the state exactly what the person should do sometimes eternities needed to  o i can see that i can see that that there that there can be that ambiguity there especially for pro se individual but i would i would also like to bring to the court's  attention that the judicial review statute at u s c twelve fifty two of doesn't specifically mention immigration judges doesn't specifically mention the board of immigration appeals talks about final orders of removal and perhaps i'm being redundant here but the operative final order of the we believe precludes jurisdiction by this court was the immigration judges reince reinstatement order and the clock started ticking then and as we say in our brief mr lucas was on notice that this was this is a final order as it says and pursuant to the regulation no administrative appeal is available  posing counsel would have the immigration judge have an affirmative duty to tell a represented litigant the exact path forward but he has not provided any any argument  for for that duty so we believe that as we said in our in our twenty eight jail letter that in light of ortiz all pharo and the fact that he was represented when he received in real time the order on reinstated the reinstatement order that he should have known of the path forward in his failure to his failure to timely petition to this court from that decision  flaw let's say that we don't agree with your position on that front then what in your view because you more not you personally but to whoever filed the brief more or less gave the back of the hand to the merits and just address a brief footnote i don't even know if that's sufficient to preserve the got you know the attorney general's opposition so what do we do with respect to the merits if we don't agree with you under stiction you know i can see that the merits of the merits were all but all but waived here and in that hypothetical i guess i would submit to the court that we would like an opportunity to to redo the case and in or you the merits  what is your position well in light of our jurisdiction only argument in our brief the our position on the merits of the claim would be that this is an individual who could have brought the could have brought in one thousand and seventy nine or eighty two and could have brought  the facts of his claim for relief before an immigration judge in montana because as one of the panel mentioned the harm that that he presented to the  interview happened in the early one nine hundred sixty s so he has not explained why when he was in deportation proceedings he failed to try to raise this in the first instance so we would say that he on the merits he hasn't made a claim because of the passage of time and in the context of the record here the individual who who caused him harm would likely be dead and he hasn't presented a case for why he has a likelihood of torture in greece and in a nutshell i think that's what our position would procedural due process argument so i guess i assume the right remedy here is especially if you're not prepared to say anything more about the merits of these two process arguments is to just do what we did in martina's and to say ok well remedy be to just send it back to the i j a to do it over again and cure those to due process violations and then presumably he would then petition straight to our court and we could then reach the the real underlying merits your hon if if the court finds jurisdiction and finds that this case is more like martinez and doesn't accept origami then we we would agree that remained would be the the best way to move forward so that so the petitioner in that context could present more false claim and the government could respond more more fully to it ok thank you very much just one additional reason why i think remains would be the appropriate order from this court which is the milder not a case that we cited about the changed case law on bach ninth circuit decision that issued a year after this hearing that laid out what kind of evidence the court to the immigration judges supposed to consider on the relocation question and really change the way that those are to be analyzed such that specifically the applicant did not have to prove that relocation was impossible so if it changes in some way significant ways the the case law on how those decisions are being made and obviously since it came down after the immigration judges isn't a decision which was marked by its lack of clarity and specificity and which erroneous lee said there was no torture we think it's appropriate for remained if for no other reason than for the the first case of luke us versus session shall be submitted and we thank both counsel for their excellent arguments we should mr gibbs coming here from seattle where he practices and mr nelson coming here all the way from d c so thank you both