issue in this case is what a lawful permanent resident of the united states has to do to confront and cross examine the government witnesses when she is accused of alien smuggling which is the most serious immigration charge out there it is a lifetime permanent ban from the united states so when she alleges duress and coercion by these government officers what does she have to do to confront and cross examine them so the st thing that happens is st of all she has to travel six times from the l a area to the immigration court in san diego why because that's where the government witnesses are located if the incident happens at a entry in san ysidro venue stays at the san diego immigration court and again it's for government witnesses so then what does she have to do she has to file a declaration alleging that the arrest and coercion but mind you she is not given a spanish version of her interview any notes of her statements she's not given the spanish version of those she's not given an audio recording of the interviews she's not given a video recording of the interviews and she is not given any discovery whatsoever from her husband who was the driver of the vehicle alleged in the incident so she is not given any of that and she must file a declaration so you file a declaration alleging that arrest coersion now does that give you the opportunity to confront and cross examine the government witnesses know what that entitles you if the to confront and cross examine the government officers know why because you are the lawful permanent resident the united states is the st witness called so the government calls you as the  st witness yours the accused the accused is the st one subject to cross examination by government attorneys and mind you in this case there is so the question becomes do you testify or not when you are the st witness called so you don't get to call the government answers as the st witnesses you are the st witness called so then the decision you have to make is the five year statute of limitations on an indian smuggling criminal charge so she had to decide whether she testifies or not so let's assume that you take the risk and you do testify so you testify you're subject to cross examination from the government's attorneys and then what happens you finish testifying and then at that point are you entitled to confront the president and government officers know why because the government can make a motion for summary judgment to the immigration judge and if the immigration judge finds you're not credible or finds that the documents are more credible than your testimony the government can then rest can then rest  papers but the officers were not there i'll tell you personally they were not there in the in b january th wealth hearing and they were not there in the october twenty four team hearing so yes that's what they say we're going to call her is the st witness we're going to call the husband as the nd witness and if you get to that hurdle then we'll have the officers ready to testify but i guarantee you and i don't know if this is on the record they were not there to testify i was physically there in the court room that's a that's a decent fair point judge but i've been doing this twenty five years and i guarantee you they were not there but that's that's you know i can't prove it but they can't prove that they were there either so so again so even if you testify if the judge the conviction rest they can let the the judge make a credible determination and they find you not credible you know as compared to a government officers then the case end there you're still not guaranteed the ability to confront and cross examine the officers so in my opinion that is the clear violation of due process i i i know it when i see it so what happened in our case we are in our case we filed the declaration we made the primacy issue case of duress incursion in the declaration i think the government argues that we may have not done that but it's very clear based on the then if they pass that hurdle they would call the the government officers they basically indicated that so there should be absolutely no question that we made a promise they see case of duress and coersion on the declaration now the only thing we did not do is is testify right because that's the central holding of the immigration judge is that she didn't testify therefore she can't sustain her dressing portion claim based on the declaration alone so now we look at the case law with respect to the the requirement that there must be testimony in addition to a sworn declaration so the only case on earth that says that you must testify is the case of parson s ok so if we if we take a look at parson us there is absolutely no analysis or reasoning in that case whatsoever so there's absolutely no chevron deference on that case and so we may must take a look at the facts of the case as to why they came up with that that holding so if you look at the facts of that case st of all that that  involved in alien who was not a lawful permanent resident of the united states he stated his name on the record date of birth and his parents mains and then he took the th so he didn't file a declaration alleging any interest wherever it is  unfairness duress of course in fact the the barking of court you know chastised him says he offered no evidence to even suggest that the contents of the form did not relate to the respondent that the information was case it's important to know that the itu thirteen was introduced and the author the officer the officer testified at length in that case as to the circumstances of the arrest and what have you so that do they say that a person has to testify in addition to a declaration none of those so the only cases says that you must test by is parsing this but again if you look at the facts of arsonists it's absolutely  your time is all used one of the things on my mind was assuming that she did not have to provide testimony in addition to a declaration to raise an issue on corps what was the record show as to what she did when she and her husband drove up to the border with a percent and said the car had no right to be in the house i don't understand the question your honor how did she have that information stored what does what did she do that says she was nearing the border ok she was a passenger in that vehicle your honor and if you want to get to the point of whether there was an affirmative act i can if i can address that as well but i can look at what i'd like to finish up on looked at our miss barnes well the case it's actually striking that the court in that case was actually upset at the government for not calling the government witness it basically file an affirmative defense to the alien smuggling even in the event that the documents would come in your honor if you look at the actual facts indicated in the eye to thirteen and record of sworn statement if you look at those allegations all there is is missing and those are asked to the child a the and what his name and date of birth was that's it one question one question  they asked her if she would practice and was if she was practicing and rehearsing with her with the illegal alien she said no now the judge and the b i made a lot of inferences based on that one question than the name she knew was his name what does that signify it signifies nothing your honor in terms of an affirmative act it signifies nothing she asked one question now the she stated why did you ask that question to see if he was nervous now based on that answer the judge and a b i inferred many things that she was practicing with him that she would not have gone through with it if he if he did in fact sound nervous but asking but giving the explanation that that she wanted to know if he was nervous that is a thought your honor that's not an act that is not an act only act alleged here is eleven question does not equal does not amount to practicing and we are seeing now if the government wanted to keep using if the government wanted to clear any of this up he should have called the officers to testify he wanted to make the inference that she practiced a rehearsed with him did it more than once then he had the burden of bringing the officers to testify your honour's it's time for the th circuit to take a real close look at the arsonist and give us a real analysis of that simply declined to call any witnesses as they separately in the twenty four team hearing the immigration judge made clear that the board had extended an invitation to the petitioner to call witnesses and when the immigration judge made that explicit what the what the petitioner did is she declined to call anyone and she closed her case now she could have called anyone literally she could have called her mother in law who was in the car she could have at least tried to  called the officer she didn't even make that effort if you look at the additional brief i think it's on page twenty three of his brief twenty four of history from sorry that's where you say claims that the officers were nowhere in the court don't cites the record at pages one hundred and three thousand one hundred and six the record on those pages does not talk about whether the officers were or were not in the court the record is simply silence but we do know from the records is of the petitioner had the option to answer is we don't know the longer answer is that's why it would have been helpful for her to have gone ahead and made that request to call witnesses she simply didn't constitutional violations require prejudice simply put there's an independent reason for it the documents to be excluded i'm sorry for that that's an independent flaw in her argument that the document should be excluded that alone is a reason for the documents to come in without a prejudice without prejudice there's no no automatic right to call government witnesses and that goes back to the reasoning vote and that's the knows and the supreme court put out in the lopez mendoza case where it discusses the burden on the agency alleging my understanding is that there's a two process and a th another violation both but it's a th amendment i don't know what the th amendment would be it was a stop at the border she was she's claiming that the reason she couldn't testify and wouldn't testify if she wen is absolutely part of the claim that i understand them to making your honor point though again that i was trying to get at is that there's nothing here where she puts forward any arguments the details weren't in the opening for you but even given that the overall point that i was trying to get at is that her briefly doesn't have arguments on this at all it doesn't have legal analysis it's something missing  i'm sorry your honor i'm not sure i understand the question suppose you testified and what would the nature of the cross examination of been would have touched upon what she did the actual the actual examined at what we do know is that because she did not testify there was no ability to test the questions and test the assertions that she put forward in her declaration to get to the itself a reason for the documents to be admitted for her confession to be admitted and i think that this is a perfect example of the benefits of testimony her decoration here contradict a she a true declarations here they're very similar but they essentially contradicted themselves they said i didn't say something but if i said it then it was coerced she never actually to go to judge cool's point she never actually talked in her decoration about that's always true with a declaration that she put forward your honor that could have been true of what she did already but the point being that there is nothing there in this declaration that has much substance to it and that's the sort of the nola fairly easy to put out declaration that i think creates the sort of problems that cross examination can fix if she had been if she had testified or if someone else had testified if you want to move away from the th amendment violation problem there's no the need that the government is claiming that she herself needed to testify here or even her husband there was a mother in law on the current adults who were there any other witnesses to the actual interrogation well some of the strabane items included testified to what it is that the agents did or did not the short answer is it's unclear from the record given what she read in the declaration when she read the decorations that some of the things that she is claiming were coersion took place potentially in the sight of others definitely what happened in the car took side in it took place on the side of others there is at least some things that could have been asked about even from a witness who wasn't her on cross examination after testimony she was given the opportunity to do that here and simply asked about what about her what about her argument that wh did something what she did is that she asked him questions and she said that she did so to make sure that he wasn't nervous that's similar to the paris case that this court decided and it's also that involve concealing someone in a car it's also similar to the garner case that we talk about which isn't an immigration case but this court's precedent says it's appropriate to look at criminal cases for aiding and abetting where the idea of rehearsing in that case in a blackjack fraud instance at a undocumented alien into the country she also when i'm quoting from the answer going to pinion reluctantly acquiesced in a father's use of her son's birth certificate close quote to carry out the plan here the petitioner made clear that she didn't simply go along with what her husband had set up but that she actively assisted in trying to make that happen think about his quality control your honor if you don't like the word rehearsal what she did was try to make sure that what the child said that his lies would pass muster and would be able to get through what an immigration officer heard maybe she could have done more but what she did was enough i would like to address one last judge to mrs mubarak and government counsel may we conclude that you will that you would ask a full panoply of questions regarding that particular incident yes your honor so that's what i would have been asked in terms of the th amendment agree just violation number one that's already been determined that th her officer passes by xavier a horrible mother you're going to go to jail the kids are going to be taken away from you at the interview after pounding the table no you don't know getting it right you're going to go to jail your husband go to jail i mean that's  my opinion with respect to calling the husband as a witness against he was within this five year statute of limitations so he had a right also not to testify and in the government said well the mother not going to  the mother in law was not in the interview sessions where were all these arrests and coercion took place so she was not there and i think the court appointed that up and in terms of in terms of the actual alien smuggling the government said that that that she asked the child illegal alien questions no the record is clear that she only asked one question again the government tries to infer a lot of stuff from this just one question it was not practicing it was not rehearsing and you cannot infer that and again if the government wanted to clear this up it was on them to call the officers the ball was in their court  and lastly judge you know this case comes down to in my in my opinion this is complete arrogance on the part of the government and how they that's exactly what happened here that cannot be this case which is involves a lawful permanent resident of the united states facing the most serious immigration charge of all a lifetime ban from the united limit the cross to what she testified to i don't see why it's necessary to get into the details of what she allegedly dead and in a in a search and seizure case that's it's a different issue because in order to establish standing for example you virtually have to admit that you possess whatever distaste seized you can truly have to a criminal yourself but i don't see how incident so the plan was to ask anything and everything regarding the incident that the rest of coersion and what have you so if if if the court would have if the immigration judge would have limited accused we're talking about the accused a lawful permanent resident of the united states should not be the st witness called she's accused and facing possible criminal charges on an atheist smuggling charge the government witnesses should be the st witnesses ca so her asking while judge please let me only testify to this it's clear what would what it's clear what the senate to immigration