and to that she was unable to give a clear and coherent account of any relationship between the court case that she filed the five to find her husband and her arrest in august twenty fourth one thousand nine hundred six i think in addressing these credibility findings we must keep in mind that she is an illiterate and unsophisticated village woman as the records show she was not even able to do simple math and to calculate the ages of her children and she did testify that she only had a third grade education so keeping that in mind i'd like to first address why she was not able to give or why the i j a believed she was not able to give a clear and coherent account of the reasons that led up to her arrest on her declaration she states that the reason she was arrested with because her husband gave a speech at a local event at her local goodwater regarding an attack on a good while but she was not able to state which water and i think what we have to keep in mind here is that the the petitioner's unsophisticated witness and more than that she never testified to being a political person she testified that you know she never testified to being involved in any political activities or even knowing what exactly what organization her husband was involved in counselor i guess what would bothers me is that whether she is going sophisticated or not she's talking about her own life experiences not as though she's trying to testify about space matters involving satellites so all she's trying to do is to say this is what happened to me so her sophistication should bear on the fact that she has a much mentally  has some sort of deficiency this is not in the record well your honor i think as to what happened to her she was able to testify clearly and consistently with regards to historical or background information which she might not have been aware of as an educated wom yet that she had some problem with because she was not a political person she did not get involved in the akali organization but as far as her being arrested what happened to her husband what happened when the police came to her house what happen jail she clearly testified to that but she wasn't present at the goodwater when her husband gave the speech she didn't go to that event to know what it was about and i think her confusion stems from the fact that she she doesn't know exactly why her husband went to this event speech he gave what this that she had a vague idea that there was some attack on a good water but she doesn't know the relationship is fairly between the event that happened at the local goodwater and the events that took place in one thousand nine hundred four well what do we do with the transcripts to as an example transcript of one thirty to one thirty one where there's this back and forth about the attack on  the police or anyone attack the gurdwara in syrup or she says no i do not know and yet she just said previously that that's where it happened and room and then all of a sudden what are the judges what attack on the good were you talking about and she says the one that was launched in one thousand nine hundred four so you know finally immigration judge i'm thinking that this woman can't get her story straight now the one of the questions i had and looking through the transcript there seemed to be some issues of translation and perhaps with the interpreter but nobody's raise that so i don't know whether or not i you know we can't tell from a cold cramped transcript what the dynamic is a human dynamic is that's going on and in this process and i'm so i'm at a loss to know how we should evaluate from a cold transcript this inability of the petitioner to keep or keep her story straight even within the two pages that i've just referred to how do you how do you react to that well you know and i again i think that she because she knew there was some attack and that her husband speech had to do with some attack but she wasn't privy to she wasn't knowledgeable about the historical information and the police were pushy knew that the police were present at the good water at the local good well she may have thought there was some altercation there between the police and as far as translation problems i like to address that in addressing the second issue the the connection between arrests then in cross examine she sticks to that same story and it's only at pages one forty two one forty three which is some confusion and that's almost at the very end of her cross exam and i just like to direct your your she says no do not do it the first time i've done it the second i think when you look at that in the totality of her overall testimony which was consistent and in what immediately follows on later on one forty two one forty three i think what she's trying to say no this was not the first time i did it it was the second time i did it and if you look very next line one twenty one how many times did you file the papers i've done it once but it cannot be present there because i was in jail and she's that make that's what she said earlier about what she said on v h one forty four of line fifteen through twenty three when the question was asked again but you testified today that the nine hundred ninety six arrest had nothing to do with the filing of the papers because you filed them after you got on it you know yes can you explain that contradiction no i don't understand i think she didn't realize what the contradiction was because in her mind she had been testifying because the simple thing either filed once or twice what's  contradiction here to explain why you said it once one way and wants another because she in her mind she never said that she found out we don't know what's in the mind because she didn't say this is in my mind what we got to do is get the cold record what bothers me on this issue about translation or what she said no where do i see the judge or any and it was yours or the person saying the translators got it wrong i don't understand what's going on because i said this he did say that there's no translation indications in this transcript that people were not understanding each other she just said i don't understand now that could be a very serious that could be whatever it's just what she said but again he says these are simple things to do fire once or twice you've asked about the contradiction she says no i don't understand and it's not a response of dancers what it is well i'd like to reserve i don't have much more time but i think if you look at one forty three you can also see that if you actually if you look at anything so before you were arrested you were not applied to find your husband is that true and she said she said no meaning it is not true that i had not applied before for my husband and second after that so first the next line and one forty three ok so you can actually couldn't be president if you file if you file anything more and again she says yes after i return from jail i thought well i think the whole testimony is actually rather consistent and it about the reasons that led to her arrest is a word that's missing in there it's the reasons that led to her supposed that arrest her claim to arrest because that is what the i j a had to decide was she really arrested or is this just a stor is that the burden was upon petitioner to establish the truth of her story and the second is of course that in reviewing you apply the reasonable fact find the test in other words you have to sustain the administrative decision unless no reasonable fact finder could have found the way the immigration judge did in this case though the burden here is let me tell you what bothers me about this case we have counsel who is representing her has been disbarred i'm sorry so helsel who was representing her has been disbarred by this court for fraudulent practices in the immigration proceedings i didn't know that well it's true and so that's the problem we have and we've had a number of cases some of our colleagues have written about it is that  the process gets corrupted by these corrupt practitioners and reading the transcript i see a woman who is obviously confused i wasn't there i have we have to as you say we have to rely on the immigration judge who was but it's very troublesome where you have someone who has been disbarred i think i'm correct that's what our that's what our records show many instances of many cases if you're unaware of that and as counsel for the government i take that as as a fact does that give you any pause that a woman whose life and freedom are dependent on getting a fair hearing may have been put at a disadvantage by an established incompetent counsel and do you not think it might be appropriate for the immigration judge to have an opportunity to re evaluate this person in light of of that fact that is that the a lawyer who turnings in the immigration field you know even the ones that make the motion on the first one are equally income and then it doesn't solve the problem of due process or person getting a fair trial it tells you that this area is permeated with unfair hearings because the person doesn't have representation and therefore is not receiving the process well i will say this you know  but reading reading the transcript i didn't see any real problems in the way he represented hiring in the hearing and possibly the difficulty is that you you have people making claims you don't really have a case i did i take the point you're in the same boat we are then and that's why i said the one who would be best to use me best situated to decide whether or not this had any of fact at all would be the immigration judge needs to move to reopen and so he wouldn't move let me ask you something else we have a process here we've invoked with the understanding of the  department of justice and v h s it's a voluntary mediation option where before we render any decision you all have the opportunity to and decide whether there all this short of our ruling and going through the process you don't have to do it but it's sometimes been a way to get some communication in a case where there may be some some merit and i think my answer to that was going to have to be that's certainly as i read the transcript seem to be the average immigration attorney i didn't see any real problems with the way i  he had a problem at all it was his problem the same problem that the judge had understanding what this woman was saying because you know they have part i cannot say on the record i can't i say oh yes this is me put another spin on this because now we've gotten to the point we were into the merits of a disbarred counsel determining that that this part counsel something did wrong in this record when there's no record to show that so unless we rule that because somebody has been disbarred that there's an automatic procedure to declare his performance at this hearing was incompetent we're not going to go anywhere first of all as i read the record the first counsel presented all the briefs and he moved to withdraw on feb twenty first of two thousand and six and the discord gave cowra notice that within twenty eight day she could file a substitute opening brief she did not do that we then finally learned that she had new counsel shortly before this hearing a new council has appeared new council has made any motions she didn't get new counsel either now this is the first time this whole issue has come up so what are we supposed to do that in your prosecutor and took a very active role in presenting the case and doing the cross examination so clearly there's nothing wrong with the court taking an active role on appeal so if we discover an injustice understand if the court is going to play an active role in these immigration cases is there any reason that even though we have not had an emotion ourselves we could encourage the parties to try to see that there a fair process in this case i'm not sure that it is the function of the score to play as you put it and your role in these immigration cases your function is to review what is happen below and find out if it is so bad that you have to reverse and i don't think that's the case here counsel could have moved to just point i mean we're now stuck with the record as we have a new counsel br case to us as we have and nobody has moved to try to reopen or anything else so at this point i'm asking you what functions you're dischord do i think is this i actually i think you've answered the question i think you what you should do is mentioned which is she's talking supposedly about things that happened in one nine hundred ninety five supposedly i'm fisher that's brunette or you were the one who you know first and also were well out of now the second thing i would like to bring up is you know you do your honors raise the translation problems and although it's not clear on the face of the record necessarily obvious on the face of the record i think there are points at which it does hint at it trent possible translation problems and then the other point i would like to bring up is i think mr kong the previous attorneys ineffective assistance of counsel was quite obvious even on the face of the record if you look at the the record the judge had asked him to get documents twice a week to give him gave him an opportunity and gave him plenty of time to bring documents to the case and both times he just brought it on the day of the here and when asked why he said all of the attorney client just gave them to me today but when you looked at her testimony she s