which has it as an independent grounds for reopening however the attorney general says it's a matter of administrative grace so i guess they would be taking the position that this co thirty and they believe that is the reason it may have been sent to storage there so the question on reopening is what other what's the standard there is abuse of discretion yes situation as he became aware of the fact that his appeal was about to be decided and he was advised that he did not have much chance of being successful with the application he had on file right and also m is married to someone who marry someone who they know isn't deportation proceedings and in doesn't you know contemplate that it could be a factor in when they got married and and it's i don't think intimate and now we're officially married here's a married certificate here's people who are at the wedding that sort of thing but she seems to say in the very first paragraph of the affidavit that a determining factor in the establishment of the marriage relationship was that not only is immigration status but the fact that being married would help this appeal yes well she she she mentions that they were i think i do get the feeling from from a government meeting that if a marriage is motivated by immigration consequences that it can't be accepted and i if i hear you you're saying well look if the question is is america a bona fide marriage and yet i may be a million reasons to get married but if it's a bona fide marriage then maybe it doesn't matter how many motivations there were so well it's a marriage is barred under the marriage fraud act where the sole basis of the marriage is to provide an immigration benefit or what does the record say sole purpose or what what  in order to commit fraud on the government and stoop to to a marriage which is principally you know for the purpose of is dating the immigration laws of the united states and obtaining  authorities and we both went our separate ways and that was the end of it i mean and that i understand but i i guess i don't have the reg right in front of me right now but i'll see what it says i'm  nobody suggests that she's others incredible and if you look at that entire declaration and it's assumed to be credible i don't think there's an argument to say that it was not on the side marriage notwithstanding that she said you know when he was the if you was coming up and they were together and if you was going to stay together with him as husband and wife they had to get married i think that the marriage the government would have an opportunity to present evidence to suggest that it was not bona fide and but it would be your client's burden to prove that it was absolutely ok absolutely and as far as taken out of fuel i think as far as the asylum and the and the cancellation application there's an issue there regarding did he show prejudice you know it would have been a different outcome if it even but perhaps the most important implications he had before the court was that a voluntary departure because he was not granted voluntary departure for lack of being informed that he had to get a current pass for and if you were to go back with an order he's got two issues he'd have to do a waiver for illegal presence and being here for more than a year  the whole thing with her prior marriage and wanted to make sure because she had a prior husband was an alcoholic and had some reservations you know their whole life together and then the fact that he had this this matter coming up and she had to act quickly because immigration doesn't recognize any kind of relationship unless you've got a marriage for sex and so she realizes that's what she had to do but i don't think that that you know the fact that she took those into consideration in no way indicates that this is a marriage for his fraud or simply solely to gain an immigration benefit so i've got my thirty seconds was bonafide significantly mr luker lego's married his second u s citizen wife after he lost his case before the immigration judge and his wife filed the immigrant visa petition the i one thirty the same day the board and his wife are woefully insufficient to satisfy the clear and convincing standard of a bona fide marriage to overcome the presumption that the marriage was entered into during removal proceedings that any former attorney for two reasons first he did not prove that his former attorney failed to perform with sufficient competent that he did not prove that he was prejudiced by his former coun performance significantly and failed to prove that the absence of an interpreter prejudiced the outcome of his case which was denied because he had failed to prove the exceptional an extremely unusual hardship she was u s citizen s the sufficient amount of evidence to meet the clear and convincing standard that his marriage with bona fide these the facts of this case the very similar to this court's decision in mali as in mali the i want thirty that had then remarried while their cases were before the board and the evidence that was deemed insufficient in mali is a horse decree from the first marriage for wedding photos of the second marriage marriage certificate  in this case that i think in both cases you have to show clear and convincing proof of a bona fide marriage if you are married during your removal proceedings case he clearly didn't it's as well what the petitioner is asking for is an opportunity to demonstrate that the marriage is legitimate correct apples and oranges i'm trying to get to a concept here ok like and when you move to amend a civil complaint in federal district court you don't have to prove your case in its entirety you simply have to show the judge the district judge that you have a sufficient basis to give you that opportunity oh i see what you're saying is this any different from there yes it is the prize and there are very clear so i think you're saying the quantum of proof to to gain reopening is exactly the same as the quantum of proof evidence witnesses everything else as it would be at the proceeding itself i believe that it's that it's a higher are reopening would have to be so that whatever was submitted the petition to reopen would have to run they should be sufficient to overcome yes your honor it is a significant burden to overcome that presumption of fraud and in him for an immigration benefit and that's certainly not clear and convincing the fact that they didn't submit any affidavits by third parties even though the record indicates there are several third parties that they have in common particularly mr league a guy goes the sister his wife is good friends with separate and apart before she even met with her legal eagles who apparently does not have a good relationship with his sister but there are even these marriage and this was not done here it is unclear why and not just is the fact that there's such minimal evidence despite the fact that the marriage was in a of two thousand and five and the motion to reopen was filed in august of two thousand and five but the board's decision wasn't six was until six months later and there was no supplemental evidence submitted to show further proof of this marriage with respect to the ineffective assistance of counsel claim and h original asylum claim that he had it's clear that that was a tactical decision to withdraw the asylum application and it was it was clear on the record that he was voluntarily with that before this court that assumes that he had a weak asylum claim or not at all really because he seems that it would have been denied by the immigration judge by the board and then he would have had to petition this course review it doesn't sound like he really was advised much about why he might need a passport that could be the case your honor he doesn't say on the record that use attorney told him that he needed a passport and he admits that he didn't get one but now the the main issue there is that there's no prejudice from that because  he is referring to the the bars that apply the tenure bar that would apply for reentry but that applies even if a petitioner is granted voluntary departure so there's voluntary departure there would still be the bar in place and with respect to the the cancellation claim there's clearly no prejudice there because even though it was untimely filed the immigration judge went ahead and heard evidence on that and that also  it's important that with respect to his claim about the interpreter it's clear from the record that he was able to present his cancellation claim he had no problems testifying and that when there seemed to be a non responsive answer the question was rephrase until he gave one so the he does say in his affidavit that you only understood seventy five percent of the hearing that's a technical legal immigration terms he did you didn't understand but i would say i would imagine that most people don't understand the technical or legal terms so that's what his counsel was there for and so he didn't show any prejudice from being able to  present his cancellation thank be it makes a big difference when he gets voluntary departure not because if he goes back with voluntary departure there's a waiver which he can reasonably get for the illegal presence and i six on waiver which is routinely granted based upon hardship she would u s innocent spouse it's another be hearsay evidence they've never been to the united states they've never had the opportunity to meet mr hali looking they can't simply come here they're there and they're waiting to get their visas in order to come here that have been a