the denial of the continuance by petitioners attorney due to illness and the nd the adverse credibility finding by the immigration judge the st part of the lack of the continuance due to the illness finding to the specific crime as it relates to particular serious crime under the sanchez lopez showing that this crime doesn't fall into the crime of stocking would it be and i'd give it a felony it wouldn't be a particularly serious crime it's not a visible statute doesn't need to modify categorical approach and therefore doesn't meet the meaning of a particularly serious crime because it's not stalking so i would defer to the sanction lopez decision on this case should the court determine the st continuance and there was a nd continuance that was denied that is correct but in the st continuance what was left on the table was a just is it true that it was just documents closing argument it was documents in closing argument however it is uncertain and your hon not do that portion of the case obviously but that was yet to do with the documents which are very important documents to this case as far as credibility in the click of a properly translated and i think he did documents have never been submitted to immigration court documents themselves have been submitted to the immigration office where they were when a question properly authenticated and translated that was the issue that the immigration judge was concerned about he granted a continu documents that we have in the record were those that were admitted soley for identification and which were translated by the petitioner himself that is correct yet the reason the she could submit that that the document a nd continuance was due to the illness of her not and then her that she was supposed to have those documents submitted to the court before the nd hearing and she didn't do that either the timing between the two in the far as the transcripts and the decision by the immigration judge the documents were to be presented to the court at the hearing and to make a determination at the hearing whether or not they're going to present but even if she were sick why couldn't she was the argument or did she present something in the court to say because of my illness whatever it was i couldn't get the documents at that kate any more time to do that where was it i got sick yesterday i can't come to the hearing she got sixty three days prior to that he went to the doctor three days prior to th hearing her illness could have stepped before and i do not know that but i am a true the prime suspect she was going to have them translated by catholic immigration services or whatever the rd party entity was and there's nothing in the record to suggest that attorney at the time for the petition to get her due diligence contacted the court that them no she was not going to be a detail on this the immigration judge his position at the time was so i can move forward with a decision because sure go ahead and read it later well but part of part of that rationale was the documents aren't going to change anything so i would like to hear your position on why these documents were so important because what we have in the record is you know i gave you an extra week to go get these sort of fighting come before me but i don't think that they have anything to do with the case and then she gets sick doesn't submit documents and the judge then just goes forward what is it in those documents it's going to change his opinion you know i think that's extremely important itself there was a double edged sword in of itself because you know where a number of grounds of the immigration cited in support of the adverse credibility determination including the inconsistent statements between the petitioner and his wife with regard to  prior act or persecution and the inconsistent statements with regard to whether or not they witnessed a murder in mexico and there were a number of grounds cited that the document don't address at all well the doctor the police report that would have been translated from el salvador would have confirmed the issue of that individual's coming into the home the injuries to his wife which is where someone's got it right they knock on the gate or did they knock on the door did he open the gate to admit the but i would cite to read the whole deal with issues that are not pertinent to the actual substance of the case someone pushed the door kicked the door he testified that there were multiple people someone pushed the door someone kicked the door  about any of those addresses the st address he gives in his testimony is the last address where this attack out how about the start of the details of the stalking with fact that he sent one hundred text messages threatening to kill his wife and i would have a separate argument as par for that your honor that i would argue that even police reports coming into a case like this without any possibility of exam imitation of the victim in this case are the officers there is nothing else cooperated what i said what we're talking about bases to support ebbers credibility findings do with what happened in mexico is kind of off the table well seems to me i mean both directions i mean and it seems to me to be a subject of an adverse credibility finding either it's just off the table me please the court sarah bird on behalf of the government can we start with the particular serious crime because i was i don't know what case he was talking about that is the stone issue with that particular serious crime yes your honor we believe that the particularly serious crime is an alternative basis for that and nial of withholding of removal so certainly the immigration judge provided a numerous alternative for denial including adverse credibility particularly serious crime and then went on and tonight on the merits so if we if we reached the credibility adverse credibility determinations and that was ok then we don't need to reach realize and vice versa that's correct now as petitional pointed out in the twenty eight j letter that was recently filed the scope of review here is a little confusing because the board adopted an affirmed the immigration judge's decision and then highlighted agreeing that with some of the inconsistency is for the adverse credibility and then added to why the board was finding no abuse of discretion in denying the continuance but did not specifically mention the particular serious crime so under this court's decision in a baby a when the board adoption affirms and cites a matter bano the entire immigration judge decision comes in unless the board explicitly limits the scope and here the board did explicitly limit the scope by noting that there had been no challenge to the resettlement from resettlement so asylum is off the table and there had been no challenge to the merits of the convention against torture plain so those two issues weren't exhausted and are off the table but the board did not specifically mention particularly serious crimes so it becomes a little unclear under this court's case law as to how that plays out it's the government's position that because the board adopted  didn't say that it wasn't reaching particularly serious crime that brings in the particularly serious crime so this court could affirm on that or alternatively could affirm the adverse credibility and either of those would be sufficient to uphold as to the underlying they said that she was sentenced to three years for stocking when it was really earth serve time for the three years for stalking when it was really for a violation of the probation as far as what was served or a right so yes the immigration judge said that the sentence was three years and the original sentence for just the conviction was three hundred and sixty five days in jail plus three years probation and then he violated his probation by continuing to contact the court we don't really know why he violated his probation and that's not in the record it isn't there where is that i mean i know he did that but we don't know that was the basis on which the probation was revoked i have see administrative record six hundred and thirty nine he violated his probation by mailing her a card i think that the point is that the overall three years with two years suspended one year in custody of three years probation it wasn't at the original the original but a superior her i believe so so if the defendant is sentenced to three years decision was as to a totally different issue that was whether this california stalking offense under the categorical approach is a crime of stalking which is a ground of remove ability in the eye and a so in that decision the board addressing a separate issue this particularly serious crime determination is a case by case analysis that specifically is supposed to look at the facts and circumstances underlie but that kind of a writer elist way i mean it's i question please so the continuance the hearing closed the merits hearing at the beginning of the merits hearing it came out that those documents had not been properly translated and the immigration judge said well we'll consider about a continuance after we hear testimony so they heard testimony and then the immigration judge granted one week continuance to get the translations in at the next hearing which was supposed to be i believe just for the i think it they were discussed in that the immigration judge had the table of contents listing what the documents purported to be and went through them one by one and even looked at them to see the translations and that's why part of the reason the i j a found that they were not properly trained slated so the idea was very aware of the scope of those documents but he does like a current discussed by me to write a substance it was more like a proffer of what they would rather than where the problem was that the petition didn't recognize some of the spanish words and that's right that's right so it's not a complete translation even from the that's right in the translated documents are still not a part of the record and that's significant because in order to show that the lawyer well that's all that actually happened but the lawyer it was originally a continuation of the merits hearing at the end of the merits hearing immigration judge specified that the next hearing would be for the issu wanted him to consider the documents prior to issuing an oral decision she would have had to submit them before that next hearing so was it was there any understanding that they were going to come with the documents and then have somebody talk about the documents and substance or was was it really just a continuance to say hey here's the documents that this is it you know we're going to check the box on submitting it certified copies the immigration judge says at the end of that hearing that it's late in the day will continue it for the actions of the decision in the meantime since we're continuing it you can see those translated documents so it was not anticipated that there was going to be additional witnesses i mean he started presenting his two witnesses and the board did say that in order to show if for them to reverse the denial of a continuance he needed to show prejudice i know he said but that is minutes right and well i do think it's significant that he still didn't submit those counsel was not denied at a discrete was denied a discrete stage of the proceedings would you characterize this second hearing as a discrete stage for which a showing of prejudice is the immigration judge specifically addressed that by saying that this at this hearing it was just an issue and seven decision because it's an oral decision instead of a written decision it's substantively the same as just mailing the decision and counsel was going to get a copy of the decision and the immigration judge is going to reserve a keel so in this particular context at this last hearing that was just for issuance of a decision there was no active role for counsel to play and at that point the immigration judge didn't even have a written motion for continuance yet all the immigration judge had was a phone call saying counsel was sick and evaluating the war have it in writing and can then appeal it which she did but he also said i believe at that juncture that the documents when make a difference i mean recognize the documents were he didn't say the documents can't come in because they weren't submitted earlier he said there's no i understood him to say there's no reason to grant a continuance for the documents because i don't because the documents won't matter so he clearly wasn't relying on a procedural reason why the documents could come in at that juncture and he recognized that she was supposed to expecting to submit the documents you recognize that she i've already decided that he's not credible and therefore i don't want to look at more information that may change my mind and make its and convince me that he is credible well i think as to the adverse credibility you're right they are somewhat connected but as to the other that's what  resentment we know about but with regard to that particular serious crime and the credibility issues are kind of in their agenda and so so we've been proceeding here on the theory that we immigration judge also weighed the the the proffer of the type of evidence and said i've got these significant contradictions between his testimony in the testimony of the are so significant they were pretty insignificant closed my mind i don't care what these documents say and they're not going to change my mind i witness the only eyewitness to the incident both in mexico and i'll salvador was the wife and he testified that he got went applied to immigration court but it never happened and we don't have them in the record and i do agree with that i think this case would be much different as documents represented i don't think it would be here arguing that issue however the problem is when they but let's take a step back i mean the st hearing could have easily been the deadline i mean so the attorney shows up to the hearing with documents to submit that she can submit she gets a continuance in order to do that and then still doesn't comply it seems to me that if i were in that situation i'd go immediately after the hearing be a little bit grateful that i had some extra time and i go get them translated immediately now she happen to get sick at some point in there but i just feels like this is being dumped on the i j a when there's a lot the could have been done and should have been done to prevent this from happening i'll be the st to say that i think a lot could have been done at the lower level and all sides to prevent a lot of things from happening including from the i j a from the trial attorney to the government attorneys themselves however where we are now and i think i am in agreement with respond here that holder would be the case that would justify the continuance here i would look at those five factors in that case the nature of the evidence excluded in this case as police reports thought of hospital records and medical records the reasonable mostly used assuming that they were part of the evidence in the record and never had the honor to martin you're asking the i j a to speculate on the basis of evidence that he your he or she never received and that's the basis of the continuance you have an attorney who ill who could have been to court at that but you didn't in the declaration i'm sorry i didn't have time to get the documents translated or if she did here they are i'm sorry couldn't make it here's my doctor's note we don't have we don't know what happened to those documents other than they never made it to the immigration and i think the flip side of that is what would have been the prejudice to the court if the hearing was continued out beyond the doctor's note date to her attorney to be present at this hearing and make a record for the purposes of american high mishap thank you very much i want to say to both of you that this was an unusually good argument immigration case thank you very much