voluntary departure and unlike many other relief and immigration court which is rather ambiguous and requires in depth analysis i believe the voluntary departure is rather straightforward in is really an issue of timing and elements and i know that the board of immigration of appeals had made a decision that the voluntary departure application that was made in this particular case was in essence a post they post conclusion voluntary departure however i feel that the record was clear that this was actually a pretty conclusion voluntary departure  now with regard to the issue of timing i believe that pretty conclusive voluntary departure is typically a request that is made prior to the conclusion of the proceedings at least in this particular case it was made at the the initial hearing in the case which was a master hearing and i believe also the issues of the elements of the post conclusion are pretty conclusi voluntary department of departure is actually clear believe that the board held in this particular case that the there was no applications they said that actually because the applications were not formally waived or withdrawn that that made them and eligible for the pretty conclusive voluntary departure however at the master hearing there was just clearly a discussion and i believe this was actually the first time that counsel on behalf of this particular responded had made an appearance and the discussion between the immigration judge and the counsel was basically a discussion as to what he would have been eligible for and i believe because of his drug possession conviction it was determined that he would have not been eligible for cancellation of removal so that would have been the issue of voluntary departure would been the only issue so there was no applications formally they said that there was no formal withdrawal of the application but i believe that there was never really any formal submission of the cancellation of removal application so i believe that the board of immigration of appeals was actually in error when it came to the issue of of the fact that there was no formal withdrawal so i think clearly that there was a this was pretty conclusion i believe there was also an issue with the immigration judge with regards to whether one of the elements is about whether the person can show that they intend to actually depart and in this particular case i believe that the immigration judge had made inquiry about whether this individual was willing understood that it would it was unlawful for him to either return to the united states or not depart the united states and he did not advise the court that he wasn't willing to leave the united states are willing to leave the united states i think that the issue was he said that he did not want to be with his family he did not want to leave his family and i think can explain to me why in your view we have jurisdiction to review a denial of voluntary departure i believe that you have in your view to review the dot denial of the voluntary departure because it was i think the court clearly has a has jurisdiction in this particular case i don't think that there's i think the question is why wouldn't the court not have jurisdiction to review a denial of voluntary departure it was a discretionary relief that was made by the immigration judge and a foreign by the board of immigration of appeals and i think that is properly before this court because  typically have jurisdiction some trying to figure out why we would have jurisdiction that i have a similar question well i mean i think that basically the in this particular case i believe that the decisions that were made in this particular  case by the immigration judge as well as what was a fine by the board of immigration of appeals was the fact that the judge doesn't although he has discretion to grant i don't think that he has the discretion to make a determination when he makes a determination at a spree conclusion voluntary departure i believe that that makes it an issue of well she wants your best authority for that i believe that the best authority for the jurisdiction and i know i'm sorry you are wasn't here to i don't think that jurisdiction was actually an issue in this case but i believe that the court clearly has jurisdiction in any case where the a person is that n do pressed process rights to pursue a claim that is well within their right to me pretty conclusion voluntary departure is clearly something that is eligible to anyone who basically meets the elements which were met in this particular case if you believe your claim here is a question of law or a constitutional claim i believe it's both a constitutional as a question of law because if a judge m determination that someone is not eligible for relief which he's clearly eligible for i believe that's really a question of law i don't believe that's necessarily a question of they seem like factual determinations here  so that's not just curious you know i'm just trying to figure out what your argument why there are constitutional this point well i think a denial of someone's rights i think i guess you can always make a constitutional claim whenever there's a denial of a right to someone is entitled to but it also was factual from the perspective that whether it was pretty or post conclusion voluntary departure and what i mean by that being factual is obviously it's a matter of what phase of the of the immigration proceedings was this individual in i don't think it's a complicated analysis i think it's a very straightforward analysis as proposed conclusion voluntary departure is clearly an issue when ever a judge makes a decision arce requested after the conclusion of the proceedings in this particular case this was not a proceeding that was concluded this was actually in fact the master calendar hearing meaning that this is the very part of the proceedings i don't believe that any applications had actually been formally so submitted and in light of the fact that the court had already made a determination just the fact before even any applications were made that he was not entitled to them then this was clearly a preclusion voluntary you make very declarative statement and you tell me what it back to was but you cite no authority for your positions in your brief or here today and i just struggle with how it hopeful that you might bring some here today because you didn't really have a lot in your briefing and the question on voluntary departure often we have to look to see if it's  jurisdictional question and i think you've been practicing well long enough certainly before this court that you should probably been prepared today to have that information well i mean i think that when it comes to the issue of and i think that as far as if it is a discretionary issue and i don't believe that this was a discretionary issue which is where you i believe that the question was whether the court w i believe is clearly not an issue of discretionary or your belief and you're staying at it so doesn't make it so you have you know as you well know you have to come in bring your authority in and show why it is and you didn't do it in your briefing please the court john hope for the attorney general there was no ineffective assistance of counsel there are no facts that establish a possible claim for relief there is no prejudice here there's a priceless legal admonition that is the key that unlocks this case always salt down the facts first the law will keep always preserve the facts first the law will keep here petitioner is not preserved in facts in the manner sanctioned by law to establish prejudice regarding the ineffective assistance of counsel claim first of all in the administrative record on page one twenty two the immigration judge asked the titian or whether he feared or felt any torture or harm if  relief he asserts no facts so there's nothing in the administrative record that establishes a factual predicate to support the claim of ineffective assistance of counsel in my colleague's brief on page the first brief filed to the b i a on page fifty two and fifty three there are no facts to support claims for relief his supplemental brief it paid sixteen seventeen in the record there are no facts in his brief before this court on pages fourteen  to eighty b and d the court does have jurisdiction to determine its jurisdiction we would submit that when the court looks here in light of the factual deficit the factual absence of anything to support a possible claim that this merely comes down to a discretionary matter and indeed the court has no jurisdiction but the court does have jurisdiction and a two forty two a two d to determine the constitutional claim regarding ineffective assistance of counsel from what i can tell the talents of titian's best argument is that the immigration judge wasn't clear it was a lack of clarity i think that's the best argument that they have  and so that somehow that transforms this into more of a less of a discretionary and more of a constitutional sort of question is that what's your response to that well the the  and here the immigration judge specifically on page one zero nine one twenty three dresses where the petitioner had any form of relief in terms of cancellation of removal the immigration judge concluded that there was not basis when petitioner filed his appeal at the board and petitioner said the immigration judge erred by denying him any form of relief so it's we would submit that in this particular point there is no terry cancellation of removal in response to the judge's question the immigration judge was quite explicit in terms of addressing possible forms of relief in terms of pre cancer lation of removal we would submit it's paradoxical it's inconsistent for petitioner to come here and assert ineffective assistance of counsel and then claim that he has prevented voluntary removal relief available but in order to pursue voluntary relief you have to draw all forms of relief so his argument before the court here asserting blatant grounds of relief is contradictory to pray cancellation with respect to post cancellation of relief the significant point was that the  and the immigration judge addressed both both specifically the board contrary to my colleague's assertion the board at page three specifically addresses both pre and post voluntary cancellation of relief regarding post page one forty of the record i have to come back here i do not want to be separated from my children the judge said well i want to promise that you're going to leave and petitioner would not do so and so he would even in even in his declaration on page fifty nine of the administrative record the petitioner asserts that he has to be here first children indeed it was he was prescient in that he was removed and within two days he returned the united states at the core of this claim returning back to for a moment the issue of jurisdiction you cited the statute that provides for a judicial review and that says to provide for some exceptions including two tional claims and questions of law i asked opposing counsel if he felt those were in play here he said no your insert would be and i'm sorry he said yes your answer would be i assume no and why we would say that two forty two a two d which your honor refers to in terms of restoring jurisdiction is triggered to review the ineffective assistance of client counsel claim but once the court concluded there's absolutely no plausible grounds for relief then to forty two a two d does not operate to as an exception to two forty two a to b and so we would submit that the proper relief here is to dismiss the case for lack of jurisdiction at its core what we have here is a most unusual case of cognex save cognitive dissonance in the petitioner comes before the court in argues ineffective assistance of counsel regarding voluntary departure but then he claims that he didn't want voluntary departure asserts claims both voluntary departure that he wants to be here for his children he would submit that the court should dismiss the petition for review just quickly to address the court's question with regards to the jurisdiction and i believe that in the issue of voluntary departure under car car a bargain versus holders seven eighteen after eleven seventy four and eleve seventy six the court does have the power to our jurisdiction to really review questions of law regarding voluntary departure now with regards to make a term i think this is a case that turns on that issue as it as a question of law is this pretty conclusion or post conclusion voluntary departure i think that's a critical question that goes into making a dark determination when to be a problem early said because they did determine that this was post