the applicable regulations in two different ways first the government failed to advise mr herrera of the charges that were lodged against him contained on the form sixty and second the government failed to provide mr herrera necessary interpretive assistance in his native language of mixed teko so let's get the first one out of the way quickly because i think that's a really weak argument for you how would you distinguish case in fact did not read him the charges well i would distinguish for his overall though because mr herrera did submit he didn't testify in court at the evidence you're hearing but he did submit a declaration in which he said that the officer didn't explain to him that he was an informal removal proceedings and would be ordered removed from the united states and the form i had sixty is the only form an expedited removal proceedings where the charges and the specific factual allegations that give rise to the determinant determination of inadmissibility are contained in the regulations require the agent before taking the sworn statement to read whatever the allegations are as to why the person is inadmissible and to get their response so in the absence of any other evidence we would assume that the agent follow the regulations there you had an opportunity to cross examine the agent on this point and failed to so the there's zero evidence that the agent failed to follow the regulations and i language and officer lopez instead conducted the proceedings himself in the spanish language and that was violating mr herrera's due process rights in the text but i did remove all regulations would say that interpretive assistance should be provided you communicate with the alien if necessary record it was your honor that was the central issue that was litigated during the evidence your hearing and the issue that judge burns focused on during the motion to dismiss he did your honor and he found that officer lopez's testimony that he followed standard t h s protocol and he deferred to that and that protocol was supposedly that if an alien exhibited any sign of non comprehension or some sort of language barrier that the officer would immediately halt the proceedings and use the telephon translation line to contact an interpreter but there are two clear indications in the record that that finding and judge burns is a decision credit officer lopez was clearly erroneous first i would point the court to thirty three and that's the juror for the record of sworn statement and the very first question that officer asked mr herrera on that juror was why did you leave your home country or country of last residence that question would seemingly call for some type of explanation or  mr her a nonsensically said no so that should immediately have been a red flag to officer lopez if there was some sort of communication barrier and possibly a language difficulty but officer lopez didn't follow his supposedly standard protocol of stopping the proceedings then and there and calling a mixed psycho interpreter or seeing if an interpreter is necessary he simply continued to ask questions and record mr herrera's responses so that i think is clear evidence that officer lopez didn't follow supposedly standard v practice on this occasion and then we have a second indication the judge were and its findings were clearly erroneous and that's on page one eleven of the and this is transitioning into the two thousand and fourteen criminal case mr herrera was interrogated by s trained official agent barbacoa cruz and despite his difficulty communicating with her he was able to tell her that he identified as mixtec she clearly understood the significance of his response you repeated that back to him saying oh mix oh and she testified at the evidentiary hearing that she was fully aware that he was having difficulty understanding some of her questions but despite recognizing that he self identified as mixed hecho despite knowing that makes tacos an indigenous language spoken in guerrero which is where mr herrera said he was from and despite recognizing that he was having trouble communicating with her she again didn't stop the proceedings and call an interpreter she continued to trudge forward in spanish so that's a nother indication that second train v h s individual did not follow supposedly standard protocol in mr horace case and lastly i would just suggest that the district court here was focused primarily on the due process violation it didn't consider the issue of prejudice in this case which would be whether mr herrera was a plausible candidate for withdrawal of his application for admission and under this court's precedent in melendez castro and i r s golan and leon part generally it would rema prejudice inquiry in the first instance where is mr herrera hernandez now do you know he has been he got a five year term of probation and he was deported to mexico shortly after he was sentenced what do you envision a rematch and how would that  go i believe the government would have the opportunity to parole mr her in in order for the district court to determine whether there would be a hearing essentially in district court for the lawyers to argue whether he would be a possible candidate for withdrawal of his mr hernandez and immigration officer in two thousand and fourteen which shows mr hernandez speaking spanish well not very well i mean i didn't watch the tape i don't speak spanish but i read the transcript and my goodness you'd have to conce that that's a pretty disastrous attempt for two people to communicate with one another would you and the district court recognize that as well he recognized that there were instances in which questions had to be clarified repeated and there were also there are also instances  well by my count there's there's there's only two questions in which mr hernandez never seemed to understand what the agent was asking oh i think there were definitely more but if you bring the hard copy there are definitely more than that i actually just thinking at the very end where he's finally asked i think do you fear going back or am i don't know just trying to get like what's the basis for your fear and that at least the transcript doesn't give any meaningful response to that question i guess i gather that there was somehow so i was able to piece together you had some to do with his wife and kids but the translator who i gather speaks spanish is often just reduced to putting in unintelligible because i gather that probably the language that that was a response that she'd heard before that someone was afraid of coming back to the country of origin because they can support their their family financially i'm talking about the translation i got i didn't listen to the tape would do me any good but i'm saying the translation just i can't remember what it said but he's asked that question he give some completely nonresponsive answer at first and then the rest is just unintelligible that's correct but the stand for the center this court applies and finding and finding that in that case repeatedly said that he could not understand the proceedings and he was prevented from from explaining the evidence in his favor which also led to an adverse credibility finding against him in this case mr hernandez never said that he didn't he didn't understand spanish he told the officer where he was coming where he's coming from and where he was going he told the officer that he understood each of his miranda rights when they were explained to him individually he told the officer that he understood that he was going to be prosecuted for a crime so under those circumstances or simply no indication that he didn't understand the proceeding he was in is prevented from explaining something to the officer oh but i mean i'm just thinking i think it's from the twenty fourteenth transcript they're just basic questions like how did you like how did you get over the wall or something or how did you get i mean and just to give nonsensical answers which clearly show that he doesn't know what the agent is asking him and it was really you're going to say well but she was able through persistence to get clarification but actually i think she just gave leading she just you know  in the hills and so that actually wasn't nonsensical response or about the the wall or the fence or something there was an ounce that was totally nonsensical there was a question about how he crossed the fence and i don't believe that mr hernandez ever question but taking but again under there's no indication from that transcript despite those instances of language based miscommunication that mr hernandez did not have a fair opportunity to discords findings on this issue are just not clearly erroneous but very briefly on the prejudice issue it's true that the district court did not specifically address the prejudice issue but mr hernande introduced is simply insufficient as a matter of law so the key inquiry here is whether or not the six factors in the ins inspector's field manual would weigh in favor of the closure guilty of relief and bras off or over i don't exclude that something in those match any consideration is due and so while it's true that and rare that that sixth that was allowed to tip the scales that was quite a different situation the one that we have here that the defendant in that case had lived in the united states almost entire life had a us citizen wife and children and had a number of other family members and in involving that situation it was enough to tip the scales read that they made clear that was because preserving family unity has a very high status in america immigration law in particular economic considerations don't have the same consideration because most people that come here either legally or illegally do so to improve their economic status and there's also one important practical difference as well and that the only evidence on this point is that bottle first i just would dispute the government's characterization that mr her was able to communicate sufficiently with either officer lopez or agent barbara lee cruz the hallmarks of non comprehension that this court has looked at include unresponsive answers in expressions of difficulty understanding what was asked of the alien and here the record is replete with those things so in the two thousand and fourteen post arrest interrogation mr hariri is asked what country he's a citizen of he doesn't understand he has asked three or four times and told agent barber de la cruz essentially feed spoon feed him the answer and says are you mexican even then he doesn't say yes he says i'm mixed teko then again once she defines what a citizen means to him he starts to she starts to ask him about his family citizenship and if he understood the definition of citizenship one would assume that he would respond saying that his parents are both mexican but again he doesn't provide that response he's asked when did you enter the united states and he replies with  frequency to as opposed to a time he's asked how did you get over the fence he then nonsensically says well then i climbed the hill those are instances of unresponsive answers there are also instances where he doesn't understand what was said to him so when he's first asked if he understands his rights he says no and agent barbara lee cruz does go through them individually and he says yes but again it's unclear whether he's saying yes because he actually understands them or because  he's essentially knows the words yes and no and he's taking a shot in the dark at this point he's asked why he's afraid to return to mexico and he repeatedly doesn't understand the question and then he provides a response which isn't recorded in the post arrest interrogation but then we see in the record of sworn statement that he talks about his wife and kids and i think that point is interesting because the expedited removal regulations also state that if an alien expresses a credible fear that they should be referred to an her for a credible fear determination but agent barber to look cruz completely ignores the fact that mr her a says that he's afraid to return because he has a wife and kids which the just that this agent wasn't necessarily that steadfast in following the t h s regulations the asylum regulation as well as the regulation about contacting an interpreter and then lastly i would just say that she used leading questions several times in order to secure a response of answer from mr herrera so when he wasn't able to explain when he entered the united states she had to revert to essentially explaining the days of the week to him so she said well today is saturday so when did you enter the united states and so this is kind of the communication you would have with you know a young child in order for them to understand what's going on it's not the level of communication that should satisfy due process in expedited removal proceedings especially when there is no administrative or judicial review of these proceedings provided for in the statute  know your honor and the reason i would say that was because we know from the record that mr herrera was in mexico working in the fields for three continuous years leading up to his two thousand and fourteen removal i mean i thought he  right so there is an inference but i think that inference is rebutted by the fact that mr her then was deported to mexico and for the three years leading up to his arrest in the case prior to this case which is where the interrogation occurred he was also working in the fields in mexico and also exposed to spanish being spoken around him so presumably if anything that second time hearing spanish would make his abilities stronger ok great thanks very much the case just argue will be submitted i