representing her interests before the immigration court the immigration judge received a motion to continue the case by this new lawyer mr polanski mr burns good buys the courts that he had a personal obligation that it was impossible for him to appear  fifth of two thousand and four that's in the record of page one ninety eight that's exactly right and didn't the judge immediately deny it yes it was denied on may twenty sixth two thousand and four i think i was of that counsel with the plenty there on august fourteenth of two thousand and three when this hearing was set yes your honor that's correct so the hearing was set in august of two thousand and three it was set for nearly a year away and just made before counsel comes in and says i can't come due to unforeseen personal obligations and the judge says i told you back in two thousand and three august this there will be no more because when you do plead to these allegations at that time the immigration judge will reset the case for you to file relief and that happened by hand different times where the old i j had this person in front of the counsel without counsel and each time said we'll give you some more time i respectfully disagree with that now the immigration judge indicated in his oldest vision that there were ten continuances and when you look at the record that is wrong and in fact the immigrant i would say there were three but those were requests made by her lawyers for not being prepared they were not for the continuance they filed a motion to continue with the court it was a written motion indicating that they need more time to present a witness this was a declaration that was filed without refuse me a motion that was filed without a declaration signed and that the family perjury which is not required from officers harris and it was some kind of ellis thing and there there was a change of venue that was made that's in the record at two thirty seven that was august twenty seventh of two thousand and one now but when you look at the record there's a big blank for the black hole between october fourth of two thousand and one and january sixth of two thousand and three where there were no hearings held but there were continuous is granted cases being reset we're not sure if it was a request by the government or not or if it was by the executive immigration review but that there were three parties here well for that i understand that the october fourth two thousand and one continuous was granted to december twenty third two thousand and two until january twenty sixth two thousand and three with all due respect your honor i believe that you may have the facts wrong here because on october fourth two thousand and one the case was reset to the pen birth third of two thousand and two because mr maguire failed to show and that's on the record  administrative record of page thirty one then and again we don't know why because it's not memorialized in the transcript on august twenty eighth of two thousand and two the executive office for immigration review reset the case to december twenty third two thousand and three that is because again without being on the record without being in front of the courts either with miss filament over or her lawyer the court on its own for reasons that are unexplained in the record and which we could not find through the freedom of information act or in the administrative record the court on its own reset the case to january sixth of two thousand and three eleven months earlier and she didn't show up because her lawyer did not give her not throwing out and then it was reopened unopposed by the immigration and customs enforcement so again i just want to say that we have three parties here we have the courts that are responsible for changing the case because judge gordon originally retired so it was continued we have something happening between october of two thousand and one and january sixth of two thousand and three with the immigration court shuffling its cases and we also have the immigration attorney the government attorney requesting  continuance in september of two thousand august of two thousand and one there was a joint motion in april of two thousand i just want to add something here the immigration judge had admonished in this film another because her counsel had failed to file the motion as required by the local rules because it didn't have a declaration signed in the penalty of perjury and it was filed with not beyond thirty days you have thirty days to file a motion with before your individual hearing date but when you look at the record obligations are and we don't want to punish her we shouldn't punish petitioners aliens in immigration proceedings for the misdeeds or the bad representation by their attorneys and we required in an alien to move forward without an attorney effectively depriving him of his statutory right to have a lawyer the immigration judge for miss characterize the record like we see here with judge way in san francisco one i think that he should have exercise some restraint on the bench secondly given the complexity of this case the fact that the government was alleging fraud the fact that the government had a witness scheduled from the department of justice to testify as an expert regarding forensics there's no way that this lady from russia could have adequately cross examine this expert witness the judge should have realized that taking a look at the entire case the whole context of the case and said am i  caution in order to especially when you look at the the potential consequences of getting sent back to russia for somebody saying look i was persecuted in the past and i will be persecuted in the future when the consequences are so great this is a time for the judge to say in the interest of justice i will grant you a time to have a lawyer here to represent you and to cross examine critical distinction between circumstances in korea i believe in her going to school there was some evidence that the lawyer was in the building and that the immigration judge took no steps to figure out where this lawyer is or give the lawyer an opportunity to come in and address what was going on in the case i believe in when there was a there was an ex parte conversation between an immigration and a lawyer and there were some allegations between the lawyer and the alien at that point as to who was at fault in this situation in the case of the worst cases involve situations with immigration judges had really available steps that he could have taken to attempt to figure out what was going on here in the immigration judge had previously continued it based on the failure found sort of here and the same set of circumstances again for that immigration judge and at some point there has to be as long as he was willing to do so and that she should take steps to ensure that she was able to go forward in her next hearing how much time did the questioner have from the time she knew the hearing was going to go forward until june at the last hearing mr mcguire it's very hard for the i j a then to have made that determination about whether the need for a continuance was based on the aliens or reasonable conduct do we have any evidence other than what we've talked about here about that say damp but nonetheless the honest truth is ervin some before but if we look very carefully at this particular record the person representing or before has been disciplined by the court what we really have then is that question that i present to you very straight does it make a difference that the person who just simply did not do anything whether it's ten or three or whatever continuance and the fact that he was then disciplined does that give her an up for a continuance this particular case i believe it's a relevant fa expert who was not available that day so it's complicated this far off what is i would also like to emphasize that this woman has not demonstrated prejudice t that point if she'd done that then she would have had no choice but to file a motion to reopen or something to that effect and she could have had she gone for it and thought she'd incredulous by the she could have complained at that point but because she chose to not present any evidence at all in front of the immigration judge we have no idea what would happen at that hearing and that decision not to come forward  rather than just a client that point to find out what was going on had it in korea could have been possible at that point i think reading just the transcript obviously i wasn't there and i think that's all i've got to go on i think it's essentially very difficult to determine in the absence of any testimony on her part without the lawyer whether or not the lawyer would have been able to assist her or whether she would have been able to explain her case adequately we can't know in the absence of her testimony she file a motion to reopen a pro se she was fluent in english and had taken steps to she was able to engage with the immigration judge in the hearing so i would just say that she had some second language being thrown to the lions potentially with having to make objections foundational objections relevancy objections to cross examine an expert witness when the department of justice has to use time line is we don't know whe applied for which is a non discretionary form of relief you have convention against torture which is a function of time yet there's a mandatory it's a mandatory form of release and even if that document was was fraudulent a