requirements the nd path is to reject the agency's timeliness and credibility determinations which were infected with legal error and unsupported by substantial evidence that agency's error concerning m a m means that the entire reasoning and i am as crystal clear about those requirements here there were in disha mental incompetence mr of simon submitted ice his own medical records showing his p t s d diagnosis and his medical treatment including yes i mean the government itself points out that if a court agrees with us on time has a credibility of the appropriate the appropriate relief is to remain and to consider the actual underlying merits of mr assignments claim of fair persecution because the government doesn't even attempt to consider the correct the correct circumstances which could potentially be extraordinary circumstances neither the i j a nor the b a considered whether the p t s d could be an extraordinary circumstance that warrants an exception to the one we are filing deadline said but you were diagnosed in nigeria correct mr simon answered in the affirmative and i j moved on to a completely different topic that's not what we would expect if for example and a criminal proceeding or in a civil proceeding and the trial court if a party particularly an  represented party said that he or she was being treated for mental illness and was taking medication for mental illness we would expect that the trial court would go on to ask questions about that medication here we would maybe expect the i j a would ask  they're at the t h s had further information about mr simon's diagnosis or about his medical treatment because mam makes clear that the h s has an obligation to present the most comprehensive and up to date evidence of a petitioners potential  r i think i interpret it and i am just saying that where there are dish a potential competence as there are here she has an obligation to make to make a further inquiry which would reasonably include questions about medication and the potential effects  prescription medication and then the i j a has an obligation to consider safeguards which of course are facts specific and then the i j a has an obligation to articulate her reasoning and her findings as to whether further safeguards are warranted and if they're not warranted hadn't fully engaged with the most complete and accurate evidence of the petitioners medical treatment the government doesn't distinguish caldern rodrigo and its briefs and i think that that case is really dispositive here on the timeliness of credibility points i'll just note that the failure to sufficiently acknowledge mr simons p t s d is as relevant to those those determinations as well as we've pointed out in our briefs the i j a misread the record in several points including an understanding that mr simon had used a fake id on several occasions when he hadn't had the i j a consider the evidence correctly and had the i j a considered mr simon's explanation that his p t s d means he has presenting and it corroborating evidence from his family members who had st hand experience of his detention and torture at the hands the nigerian military but mr simon did present that evidence he submitted an affidavit from his mother who gave  st hand corroborating testimony to the ira and to be a i did not consider the affidavit did not acknowledge its opinion despite despite saying that mr simon had submitted another affidavit from his uncle which i did not find to be  particularly significant because his uncle did not have firsthand experience unlike his mother can i ask a question about timeliness and is it your contention that it then i j must make an explicit finding as to mental health in all cases where an asylum application is untimely or only one in which a mental health issue is before the i j a so i think that and every case i mean if there's not a of the nature and object of the proceedings he freely chose to represent himself and he had and took advantage of the reasonable opportunity to examine and present evidence including a detailed examination was but i don't think that needs to come they record compelling the conclusion that she just disregarded it altogether what the what about the level of find that his is that should be i find based upon his demeanor today army still has to show that the record compels the conclusion that he was not competent and so although i didn't specifically say you are competent she asked all of the questions to show that he had the rational and factual understanding of the nature of the proceedings before the proceedings that and it makes sense to protect them and i and here yes i'm sure we all would have liked to see him i just say that she made the competency finding but we still are the standard here is to look at the record and see what it compiles and when looking at the record and seeing that to understand like what her records i don't know she never saw her records or before her because i can't speak for her what we see him a record knows that she wondered why the diagnosis was but she saw that he was taking medication and she asked him about his medication and then what the test is for competency and what this court has cited several times is that does that non citizen have a rational and actual understanding of the nature of the proceedings was he able to consult counsel if there was one here  freely chose not to have counsel and three did he have the reasonable opportunity to present examine evidence and the record shows that he did for our free and that he answered in a firm and to have to all the questions about what he understood and because the record does not tell that he was not competent despite the p t s d which we acknowledge as a serious diagnosis he showed his competence at that hearing by being able to and we see the record answer questions clearly lucidly he challenge evidence should we devise a new event in this case and troubling aspect of this case that says that with respect to chaplaincy that's a little different in other words in other categories of findings that we would ordinarily expect from i can't say that we would say there's anything wrong with doing that i think if we look at this particular case here even have a court set it i don't think that means that the court needs to remain as this case the court can acknowledge that the record does not mean public including but it would be better for the board and i j is to make that explicit statement when they have some fun they have and my mam already does give instructions we will acknowledge that and as i said it wasn't ideal if i didn't say it but when of the i just concerns was that they have proof about the bribe which isn't mentioned in the mother's affidavit so there are a lot of facts finding issues about that statement that i can't get into because the agency did they have other questions about it that you know if the court felt it had remained on that because of the persecution but there's no but since they were never got to the matter persecution that's really not before the court really still looking at the time ss and the credibility and i just credibility finding i believe the court can be confident that it would stay the same because he did lie to the law enforcement and she felt it was important and that one lie can damage her and he also challenged everything that law enforcement said about him and so she had some doubts about his believability and that if there are no further questions or the reasons of the record to not compel the conclusion we believe canada when he got pulled over presumably to take asylum and so he was seeking a sound somewhere else but he chose not to see it here and that's what the record is shine and what the timeliness it was an error for the i j a to find it on timely with the reason that he gave to her was that he didn't know about it and he also continued to wait to apply for it even knowing even saying he was going in april two thousand and seventeen took life for asylum in canada and in any event if the court really looks at the decisions of the i g made the timeliness findings that was untimely but she's still ultimately adjudicated the us i'm not the question because she found that he was not credible so well it would get rid of all of his claims adverse part ability and then alternatively she thought merits were not did not meet the criteria as well said in the alternative she would look at the merits and similarly not find that he met his and she would not find that he met his burden to establish that his harm that he was persecuted and the board did not address that because to sixty eight but i grant that that was about the consideration of evidence before the b a i'm not the consideration of a new argument and terms of whether there is any waiver because mr simon didn't make the specific claim before the i j a again i don't know that the government hasn't presented any argument or it's already that he waived that the timeline as a claim and of course mr simon was proceeding pro se and that goes to the heart of the whole issue is that if the court agrees with us that the i g did not follow mam and did not respond appropriately to them to show mental incompetence and the record then everything has to go back and we can do this hearing correctly when mr simon is now going to be able to present his arguments with safeguards at the very least being represented by counsel the government isn't correct to say that we have to show that the record compels that mr s r m is competent that's not the issue here the issue is that the i j a did not follow mam did not make any findings as to competence one way or another and so that it's not it's a question of law a question of whether or not to be a abused its discretion in affirming a departure from its own precedent i think it's also important to know the i j a did not ask about mr simon's medication she noted that he was taking medication and then  of a medication for serious mental illness i point this court to united states versus chestnut six hundred and thirteen federal appendix eighty two where this court affirmed in the criminal context and a competency inquiry that the district court engaged in when there was evidence in the record that the defendant was taking medication for p t s d the trial court asked exactly the kinds of questions you would expect about the potential effects of the medication about the symptoms of p asked if asked the defendant's lawyer and the government lawyer if they believe that the defendant was competent to proceed in that case it was a plea allocution that's what we would expect the i j a to do under these circumstances and that's what the i g didn't do despite the fact that could have concluded that a single use of a fake identity was not enough this court has held that a single instance of untruthfulness particularly one that takes place outside the context of the immigration proceeding itself is not necessarily fatal to respond to a petition his credibility fundamentally this case should be remanded so that represented by counsel mr simon can get the fair hearing that he deserves thank you thank you very much thank