prejudiced and in fact he was prejudiced by the immigration judges errors the denial of his right to appeal pretty soon because had he been able to appeal the outcome of this case would have been there for him and he's shown a reasonable probability have to be a last i don't have any mind here and the immigration judge then said it's not going to be a less can you pay for your ticket or can know he didn't even ask him if he could pay he asked if his girlfriend or someone else could pay for a ticket does he ever represent that he had the means to depart if the bond was lower than ever represent that you never does he was never given the opportunity to still going on there and he never understood i don't think what exactly was being asked or why this was important and i think this gets to the immigration judge whose duty to develop the record as it relates to him so the immigration judge never explained to him how voluntary departure works and looting that he would have a period of time to depart and that he wouldn't have to pay for his ticket within twenty four what is your definition in terms of how this court has the decision got us to the definition of what we mean by reasonable pro issue is whether or not i have kenyans to depart on his own and his testimony is that he does have he does have means he does have some fun now the problem is the when an alley in those granted voluntary departure under safeguards there is no requirement for a bond to be posted at all so the emigration judge's decision here to condition the bond on  now we get to the difference here he only has to show as judge when you know there's a reasonable probability of success so he shows because otherwise eligible to show that he has funds under those circumstances recognized that a reasonable probability requires at least some evidence i don't recall which of the th circuit cases cited in the briefing said this but it was discussed that at least some evidence was required we don't know you know he did not say maybe he could pay five hundred dollars or a one thousand dollars or two thousand five hundred dollars the immigration judge also didn't ask him that and when he tried to offer that  developed the the record then the issue would have been with their friends and i the immigration judge is duty to develop their record in this case is is i want to be clear goes to the prejudice aspect of the case for him but with respect to the questions that the court previously asked and the and the prior case our position is that an immigration judge you need to develop it's the charges against him he never explains to him what relief he was eligible for he never he never asked of the follow up questions that would have made it requires that an alien has a right to to a fair hearing and part of that requirement of rape the fair hearing is the ability to understand and be able to respond accurately it's very different difficult for ellie and to respond or for anyone and versed in the process to be able to respond to these questions when they're not being given enough information to know what's really being asked and i think the prime example of that is the question regarding your girlfriend or your wife or someone pay your girlfriend or anybody else pay for your ticket and the immigration judge never asks them or never clarifies what the timeframe for that is it would be as if some in the court were to ask me can you give me twenty dollars well the dance of the question means today no i can't but if the question means tomorrow probably  is that the time frame matters and the details matter and these issues were he ever explained so this has to be a part of a duty to to develop the record as we have set forth in the flores if he could pay or if anyone could pay the five thousand dollars bond as well as asked if it could be the last the judge said it would not be last he asked if anyone and his girlfriend or anyone else  pay for a ticket back to honduras for him as florist at no and at the end of the hearing the immigration judge in response to vasquez flores's quick basement that he could pay a lower bail said it was not going as his own statements make clear that he understood exactly what was going on here that he engaged jerry with relevant questions about what the bond amount might be and  and was in his own words unable to pay his way home he had no means to depart i j a develop those facts necessary to make that decision and the i j a determined that best flora's could not pay the five thousand dollar alien has no constitutional interest in the in the bowen terry departure it's discretionary relief and therefore our position is that there can be  no denial here it rises to a constitutional level it's quite a quarter note left my question was this to make sure that he that you're not taking the position that indiscretion indiscretion big decisions that d what was the nature of the departure and how what the difference would be if he left voluntarily as opposed to involuntary and orders you know to be the least articulate if the reason i'm asking can you go back is because if you do this then this is what's happened if you came here and that happens if one is standing before a judge and it doesn't seem to make a big difference whether or not you leave voluntarily or involuntarily then this seems not to be an incentive to do anything like pay your own ticket to go back or see unbelieving there of why why wouldn't the judge explain that well you know because he could have had the money for all we know but he just said why should i spend money to go back if you're going to send me back that would be fundamental to it least understand the difference between a voluntary and involuntary departure i don't think  looking at which i think is somewhat higher than plausibility so how do you i mean when when you when you deal with that outside the statutory requirement if you're dealing even from a due process perspective that you've got someone standing before you and you what from from the judge and then the other thing too is it just never tells it that you know this bond money would be returned a pun is proof of departure i mean it's like you know i don't know what  it the way this judge did he just go in and ask the barebone question is is i'm not obligated to see a word to you on why i'm asking these questions ok sent home i'm not sure i i can start well if i get it i shouldn't let me back back up because i did see a lot so i want to make sure you are sure the question i'm asking the question i am asking is outside of a statutory obligation which you seem to point to here that you ought to explain to him why you're doing this why would you do that and why is it not critical for the to do i j to explain well as we set forth in our brief there is no due process right to discretionary constitutional right that your answer is yes right because you justice in him said no you didn't mean that but it seems like to me you're telling me because it's discretionary therefore you can't have due process rights violated back in the saddle case without giving you a chance to explain what you mean so that you know take your time and you know if if if if you know there's something you kind of want to clarify to me go ahead and do that well i think maybe i'll start with our that the immigration judge regarding any duty to develop the record the immigration judge has certainly broad statutory and regulatory authority to develop the record but there is no statute or regulation that the government is aware of not in the government's view a constitutional duty and in this particular case to the extent that there is any duty that the court i turned to find the i j did fulfill that cutie the judge had  right is different than a right to a fair hearing where such relief is being explained in a way as you get a you're entitle to a fair hearing where the relief and what you are doing is being explained to you and here are what i hone in on is you've got a judge asking about voluntary departure without  takes of explaining what that means to him oh then you just can't leave voluntarily you don't have the money ok you've done and that's the you know because you don't have a if you you know if you take it from that well i think in this context mr escott flores in order to prevail would have to show prejudice which he can't show here and i think i think the crux of this case in terms of the facts that were developed at the immigration hearing or that once the judge decided in his discretion to set that five one thousand dollars bond and what was clear to ask is corey's hadn't paid that bond there it was clear that it was going thing to get five thousand give it to someone and never see it here is another thing if you say well let me explain to you five thousand where you get it from but if but upon the time you leave  the question is wouldn't it be fair to explain that to him and not explaining it creates a prejudice to him because he can't go i don't think that's because flores has established prejudice here it was under no obligation to act as an advocate for vasquez flores in this case and as the district court found the evidence was not clear and convincing that he had the means to depart in fact the majority of the evidence that he had never made so you know what is what is move on i mean that's just the big job what we do but you know it takes a little patience take a little time to develop it and i don't i don't know if we want to create a culture a j i j from a case like this  said to go and answer these little this is this year is going to take you ten minutes because this guy here is not to be to answer these question you don't have money he can't pay his own ticket back boom gone without explaining anything else notes i think that notice simply told him to appear before the immigration court on a certain date and he didn't know i don't know what he knew but it was just a what this is what i'm getting at i think judge women has made a really pretty persuasive to meet case but the way i read this record of the hearing it didn't seem to me that he didn't know what a bond was for or what the consequences would be your any of that so that's why i was wondering when you told them notice you brought up the notice idea well the notice says that the inspection by an immigration officer and then it says on the basis of the foregoing of his charge that you were subject to removal from the united states pursuant to the following provisions of law and it cites to the two hundred and twelve dollars c provisions and then it says that he has to appear on a date to be set a time to be set so for that's it j a fifty two dollars so it doesn't tell him anything about bond or considered in connection with his case and at the app at the hearing he would be given the opportunity to do it admit or deny any of the allegations in the notice of appear to appear and that you are inadmissible or removable on the charges contained in the notice of he's given an opportunity to have coun and again be at the judge's decision in this context of discretionary relief voluntary departure is looking at the regulation governing these proceedings and has the question before him of whether or not best as flores can and has the means to depart which is required for post inclusion bonet her departure and then in the court's just question of course he can set a bond and the court did that so in our view there wasn't anything further left to develop in the record once the court determined that best case flora's could not meet those two conditions there was nothing else to determine now whether or not best case flores had x amount of dollars or could access certain amount of dollars within a certain period of time might have been something somebody wanted to know under some other circumstance but here where the court established the two things that were relevant under the statute were in fact the decisions this  on in response to judgements fairness concerns where he's asked for a lower belly understands the court is setting a bail and has asked the judge to consider setting something less the judge explicitly declined to do so and again our view was that this hearing sorry the see i think your time has expired thank you very much you are do we have any rebuttal yes your honor so just briefly st of all the notice that the government was describing is fifty two it was conducted with an interpreter was conducted in english with the spanish interpreter it does seem that he understands why he's there may not understand the difference between voluntary departure and being removed but it does seem to understand and i thought the government's last argument was look what you've been trying to say is that there is a reasonable possibility that things would have been different if you come up with someone if they approach if there were some amount of money he could come up with but the i j a did say i'm not changing anything so it looks like maybe that's maybe that's  not reasonable but it does it does sort of close the door on a reasonable possibility of a change it doesn't include it doesn't close the door on the reasonable possibility of a change on appeal however and that's why the due process violation here is that he is prejudiced by he's denied the opportunity to appeal had you been able to appeal he could have did the beer i a would that's too broad for me what can i give him his rights to appeal the immigration judge never anything here the immigration judge never advised him of his rights to appeal the immigration judge circle b written memorandum of his of his order memorializing the oral decision but never and seven and a half minutes immigration hearing was he ever advised regarding his right to appeal asked if you wanted to appeal or immigration judges failure to develop the record but you don't make that claim that's not your claim that that goes to prejudice in this case and so for our purposes here although we believe that he has a due process right but regardless of whether it's a due process right to the development of the record or simply a right under regulation or statute or be a precedent the result is that had he been able to appeal but for the due process and violation denying him the right to feel the outcome would have been different because the case would have been remanded for further development of the record t ball there's no factual facts supporting why a five thousand dollars bond this is an appealable decision there's no indication on the record of how the immigration judge came up with that amount or whether he  evaluated any of the factors that immigration judges typically consider regarding that and rd of all there is no indication that the immigration judge did what he was required to do under binding  president which is to explain to mr vasquez flores what voluntary departure is and and provide him the opportunity to apply for it i think it's telling in this case the government refers to how these are the be of the immigration judge made two separate inquiries but he made them it in a way that put its finger on the scales of the of the inquiry regarding the  the the voluntary departure because properly speaking he should have asked st these are explained to him about very departure and then said you have the means to depart voluntarily and inquire to pay five thousand dollars also can you depart voluntarily the so the way in which these questions were asked really prejudice mr mr