established that he had a claim to a u visa and he was thereby prejudiced by the denial of his due process right to counsel the issue disputed here is the possibility of an of all i want to separate two things that you're asking because you asked about the possibility of a law enforcement certification the government isn't just puting that and the district court appeared to talk about its view of the because there is clear error because my client did in fact cooperate the only thing that happened was that he did not initially disclose that he knew the initials of the person and we're not entirely sure how that interaction went down but the thought to the matter is my client consistently described the individual as best as he could remember he was stabbed he was in an emergency room he was in pain hip and passing out so far so he described tly described him and provided all of the information that he had and even after i got to meet her i mean she was a bit of a red herring about the identification and whether he lied or he didn't lie to the officers see that with the district court was was commenting i agree with that the defendant has the burden of showing prejudice the government have the burden on showing to due process violation so i agree with that we do have that burden but what i would say is that there is insufficient evidence to to conclude that he didn't cooperate because it was i'm not sure what else my client could have done he provided the description of both both remove what we actually do that the so the police reports as i've left messages for this victim and you have to the report is not sufficient because it doesn't prove that your client received a phone call that's putting the burden on the government rather than on their defended see come forward and say you know i was cooperate and i think the messages i'm eligible for  waiver but i get understand your point your honor but i used my response would be that we we really still don't know and there's no the government didn't point to i mean i'd knowledge this is my current prejudice but the government doesn't identify any real defects there other than the fact that my client maybe didn't return a phone call that we don't even know that he got and we also have an expert doctor ranged from margarita s that says that under her experience even with all of these circumstances even if clients are minimally cooperative of the phoenix police departments will give these you be some  nature of the gun but i think the overall offense it was an armed robbery that's what he pled to but the fact of the matter is he didn't injure anyone and he couldn't have intended to injure anyone because that was a toy gun and that's our point about the robberies and those robberies were not can text realized by the district court and looking at why they came about how they were committed they were all committed as a result of the trauma that he received bring you know he was only convicted of three but i  you whenever you're ready that afternoon your honor may please the court just an assurance on behalf of the united states the district court correctly concluded that the defendant could not establish prejudice because he was not plausibly eligible for discretionary relief in the form of the u v s in the district court's factual findings regarding both the minimal level of assistance that the defendant provided to law enforcement contrasted with his serious criminal record supported that decision  there's a number of points that i'd like to address with regard to those factual findings because as the court just pointed out in a number of the exchanges with counsel for the opponent that there was no clear error in the courts determination that the defendant did not ultimately participate because it was based off of the police reports that were provided by the defendant himself in support of his motion to dismiss and while the palace coun differently we don't know whether or not the defendant received these phone calls out is that as judge they pointed out the defendant not only could have provided a declaration with regard to that issue but did in fact provide a declaration and part of that declaration did address certain portions of the police report specifically the allegation that the defendant lied to the police so clearly the defendant was aware of the documents that were being submitted by himself as exhibits to his motion had the opportunity to say this statement that multiple phone calls were made to witnesses including myself and were not returned and that is the reason why no prosecution was to go forward with certainly something defendant had the eligibility for you visa is based off of whether or not you can receive a certification that you either have provided or will in the future provide assistance to law enforcement so it is conceivable that an individual who was the victim of a crime and was still stood ready to provide some sort of assistance could do so i think that's obviously factually is very dissimilar from what we have here why would why would my would  you know repentance in the in the face of deportation or indictment change that so he came forward and said hey you've got you've got an unsolved murder unsolved crime on your hands that you would really like to solve and i can difference in terms of that question i think it would make a difference in terms of whether or not just on the basis of the text of the statute a defendant could make an argument that they had some level of eligibility but you're absolutely right that when it comes to the question of plausibility both in terms of whether or not the police department or local law enforcement would grant that certification now thirteen years after the fact and presumably well after any ability to actually conduct a prosecution in this instance but thirteen years is interesting because  actual factual record front of you in terms of what the defendant did at the time in two thousand and seven when he had every opportunity and in fact told the police that he would participate but then absolutely failed to do so and so you've got his actual behavior contrasted the hypothetical of what he might have done in two thousand and eleven and i don't think at that point that's sufficient to establish paul's ability particularly when it's over the just record ultimately did rely heavily on his lack of cooperation in terms of bringing for the prosecution one of the other things that the district court focused on was his conduct initially and in the just records opinion it lays out in pretty specific detail he was initially approached interviewed well in the hospital he did not volunteer the fact that well perhaps did not know the person's full name he did have information about them they then learned the identity of that individual and the fact that the defendant likely did know them came back confronted him with that and then he made that mission that yes i do know that the police then came to the conclusion that he had lied to them when you take all of that into consideration it's extraordinarily unlikely in fact just not plausible that the phoenix police department would grant that certification but moreover that factual conclusion by the district court would also underlie u s c i s his determination about whether or not to grant a waiver because one of the factors and in fact the government's position is that one of the most critical factors is the degree of assistance that an individual provides to law enforcement balanced against that individual's criminal history and that's really where cisneros rodriguez and trinidad hernandez come into play because what it makes clear is that the court absolutely must take into consideration the degree of assistance that an individual provides contrary to what appellant position is we don't believe those cases are in conflict what they represent is a spectrum with cisneros rodriguez on one and zero if you go so far as to cooperate to testify and to be a critical component in obtaining a conviction that weighs heavily in your favor versus trinidad hernandez which is much more factually similar to this instance where an individual initially makes a report but then it's i don't believe so your honor the united states affirmatively conceded a number of things at the district court level for example we conceded that under the due process analysis that there was deficient evidence to shift the burden back to the united states to prove by clear and convincing evidence we did that explicitly we did address it in the response of the district court level the fact that the certification had not been actually granted and that it was now at the time of the district court hearing twelve years removed and there was no evidence the defendant had even made an attempt to do so so we did not explicitly waive anything and the record before the district court based off of the submissions by the defendant himself or what the court relied on and suggest in discounting the expert opinions that were offered by the defendant in support of his claim that he would have received that certification so no i don't think we have waived that issue individual were submitted application and to make clear a number of factors including the fact that it was you it would be us c i s who would ultimately make the evidential determination as to the credibility of any documents that were submitted to include a hypothetical certification and to discuss the public interest and and then the heightened extraordinary circumstances standard that's present as a result of the defendant's armed robbery conviction or you present are you saying then that the agency would not allow  submission was not to provide a contrary opinion it was merely to provide what the noted but numerous hurdles that the defendant would have faced in attempting to obtain their visa given his criminal history and the particular nature of his convictions to the district courts reza taishan of the defendant's level of involvement must be reviewed as it appears everyone has agreed under a clear or standard and the district court laid out in very specific detail why this defendant was a very poor candidate for either any form frankly of discretionary relief because of his total lack of cooperation and ultimately the fact that he was the one who hindered prosecute the court has no further questions that's all that certification the fact of the matter is the defendant submitted a declaration from margarita zavala who has extensive experience getting your visa certifications from the phoenix police department under these circumstances your your experts seem to imply that all you have to do is walk into the headquarters and say i want to certification and they're going to give it to you without regard to whether they even have a prosecutable case because nobody's cooperating that just doesn't make any sense to me well your honor it's not thank you true well it's not the case that nobody has cooperated they were per my client and other witnesses provide that information that identify who this person was there's a name in the point out that the government did not challenge the fact of the case until today they had not raised this issue with their sole issue in the brief was against the possibility of the  inadmissibility way of r and i think that the issues are confused a little bit in the district court but my reading of the district court's opinion is that they too are it to decide the case based on the possibility of the  and that requires a review of all of the equities not simply what is contained in his police report not simply my client's robberies but all of his characteristics and the district court record with with none of those a