i've read the transcripts and i was impressed with the immigration judge thoroughness and it's in good manners in conducting this i mean we often impression that the witness makes after five hearings before the immigration judge it's sufficient to inform the immigration judge of her mental capacity and condition without asking questions such as how do you feel of mental illness and dish of incompetence and he said before we talk about in addition of incompetence i don't see where there is evidence that she was incompetent she may have she may have depression like a lot without having made that further inquiry what do we look at we deduce that from the way the hearing was conducted and her and her behavior there we are under his part of the inquiry is whether or not there's indication of a mental illness we know that she has been diagnosed with depression but we don't know the extent or the seriousness of that depression because the judge didn't make the inquiry well but a counselor he saw her multiple times and interacted with her multiple times on legal issues and he had a really good measure of how she was responding to things no he didn't necessarily ask a whole checklist of questions but my question is why did he have to he's he's talking with there he's interacting they're they're having conversations and he clearly concludes mental health issue or not she's competent to proceed we are honoring him for example during the marriage hearing the judge asked her where she had lived prior to coming to the united states in response she stated here in  wasn't in nogales so that indicated that she didn't know where she was but even then he didn't ask her a single question to the kind of understand what that response intended and that failure to make any in korea was a failure to apply th framework so this court should remand her case for proper consideration your honor this wasn't the judge's only failure to act with respect to his knowledge that she has been diagnosed with depression the judge also failed to consider whether her depression is an extraordinary circumstance permitting consideration of her asylum application notwithstanding its untimely filing now the judge found that she was statutorily ineligible for applying for asylum because she didn't file within the one year deadline but under eight u s c section eleven fifty eight a to d an application that untimely may nevertheless be considered if there are changed or extraordinary circumstances related to the delay in filing that were suffered during the year was going to be persecuted singled out the only ground was not that she was of particular religion not that she was a particular sex not the that she had any political opinion that she was a member of any particular social group acknowledged that women who are subject to domestic abuse at the hands of current or former partners can be considered a particular social group that would make a person eligible for asylum but on the the merits of her application aren't before this court because the immigration judge considered her statutorily and eligible to file the asylum application since it was filed after the one year deadline  from applying for the u v so but it certainly is going to be considered and for example she would need to get a waiver of inadmissibility from eustis this would be well you get to know all you get used to you know the journey starts with one step you gotta do it you have to do but i mean if she's eligible i'm a little puzzled why she wouldn't go and going to play for one your honor i'm she would still be considered inadmissible because she has been courting to under legality holder she has been convicted of a crime of moral and moral interpret you so she would have to not otherwise obligated to pay had the judge considered waiving her inadmissibility and she could have gone that waiver through him because there are as would have all factors suggesting there's a plausible showing that the judge would have exercise discretion in her f issue here your honor it was the immigration judges responsibility to ensure that the titian received a full and finally for their removal proceedings and that is what she received in this particular case does mam set forth some guidelines not only guidelines but some requirements when there was indeed incompetency as to what the i g should precisely do which included inquiry as to the respondent state of mind and that was not done well i think it was done in the course of examining her through the meeting privately he fell the road well i think the immigration judge as all judges have to take the party as they appear before them in this in this particular case the immigration judge saw the petition before him and saw nothing to him that would indicate that we didn't ask any questions like i see here that you're a member of a class claiming that depression causes incompetency how do you feel today are you taking any medicine are you under any doctor's prescription didn't ask him what he doesn't know that the department of homeland security at issue had entered an exhibit into the record with respect to whether she was a member of the frank opens all his class and the immigration judge make sure she knows about how she can proceed in this case is what relief she wants in this case and at the beginning of the proceedings she tells the immigration judge do we have to go through this do i have to go through this or removal process because she understand she's been convicted she's an imprint prison but she tells the i experience of getting being a member of a plane to sklansky directly related to mental health disability affect competency you have according to the record reports from the arizona department of corrections about mental health issues then plan to petition or have thought about harming herself she's got a terrible criminal background of reckless endangerment and duis which i assume and maybe not maybe i'm wrong but she's putting her kids in danger this is not just ok would you like to apply to these contexts this is something where i think the i j a had some duty to ask more pointed questions to make sure this was a competent petitioner well i think your honor in asking the petitioner questions in the ordinary course of removal proceedings immigration judge can see what her responses and what's the further inquiries and so that you know mam says further inquiry that's not furthering credentials basic inquiry well i think you've talked about your three part step or a five part step i think the three part incompetency and everything that the immigration judge is hearing from this petition read going forward and these five cases and he's five hearings excuse me is there's nothing in this record that tells him that she's incompetent i mean it's important you have medicine right questions well verbal use are important but also nonverbal cues are as important as well in the number of the cues in the verbal cues and the behavioral response is that she provided but the o j never put that on the record he never said based on the verbal and nonverbal cues before me i find she's calm he made no finding i didn't say non verbal cues but he certainly says no we don't know we don't know what he was thinking we have no kind guidelines for what he was thinking about competently he's a he refers to the mam test talking about irrational factual understanding of the proceedings and he says on the i had had her removal proceedings reinstated several times so again i think the judge takes a party or a litigant as he or she finds them and nothing told this immigration judge that this particular individual needed to move to a competency hearing to figure out whether she was competent or not over the course of these five hearing the immigration judge had enough collectively to say there's nothing about you that tells me that you're your company and we don't have due process necessarily just for the sake of process something have to tell that immigration judge i need to move this a step forward and nothing told this immigration judge that i need to move this forward into a specific competency hearing now to be sure there are statements about depression in the record and statements about harming herself but when that individual when the petitioner presented herself  she responded to the immigration judge there at least in this record two hundred responses by petitioner to inquiries or questions by they were in judge nothing in those responses and in haiti to the immigration judge that he should take it further there were at least thirteen times which the immigration judge asked her if she understood the nature of these proceedings or understood particular parts of these sort of but if we do if we do that are we just kind of knocking the legs out from mam i mean all we're saying at that point is long as the immigration judge moves forward without any explanation or without asking any questions long as the judge moves forward we should just assume mam has been met and all that can't be the right of what well well well i would i would point out the immigration judge here does is faithful same i am by referring to the standard of rational factual understanding so this isn't a case where it was just after m a m was issued an immigration judge gives no pause or does no statement with the matter the democrats and judges aware of the standard states the standard on the record and goes forward i think if you look at him am you get to the heart of e m it tells immigration judges look there are issues with respect to middle competency pay attention to them but you have to look at the particular circumstances of your case and you have flexibility to proceed and your case is at the heart of mam are certainly statements about being aware about mental competency that says look you have the flexibility to proceed depending on how the circumstances of the particular case are presented to you and that's what this but this this court has said and the case is one of flexibility is one of the of mam that sure to be sure assessment may be required but this is a specific outlines of that assessment aren't and aren't the dictated by mam so m m a m doesn't dictate certain things it tells them right immigration judges to be aware the immigration judge has to make a determination about indicia of competency and in this particular immigration judge was indeed thorough with respect to this particular individual and this individual did not tell the immigration judge or show anything to the immigration judge it lead him to believe how much less  immigration judge do and still pass imam i mean here judge didn't do anything as far as i can see to really satisfy m a m so we're where do we say you haven't satisfied him and i think we win the immigration judge isn't faithful to him am in terms of not even citing the standard in the on the record all the judge has to do is repeat the standard move on no no he can meet to talk about the standard has to make some finding or some indication that look i see nothing before me that indicates that you aren't anything other than competent to to proceed but i think as part of the immigration judges ordinary questioning of individual going forward if there's nothing that some seems a mr the immigration judge or any fact finder for that matter that tells him what emitted this person psychotic this person is given an answer that is completely unto ward there's got to be some behavioral cue or verbal cue to tell that to a trier of fact i need to move this forward because things don't look right with this but with respect to this particular individual nothing in this record told the immigration judge in the course of the certainly the ordinary questions that immigration judge would ask told him that he needed to take this a step for so i think the law but what would not pass mams if an immigration judge is unfaithful to the standard doesn't even cite to the standard or give  doesn't paraphrase a spanner in a lease and in the course of this questioning there's something in the record that tells this tribe you on a cold record that didn't see the particular individual says wait a minute something is amiss here and there sure points to the least one indication where the petitioner said or there was some hick up nogales well there's no balance in mexico there's no dollars in arizona in following up with the petition or the petitioner said oh yes i was back on this side when i when i entered so that was cleared up before the immigration just so wasn't a situation where the petition but she was in the dal mexico with respect to this case she clearly knows that she was in arizona she's been in this country for years and i'll be it in a lawful fashion so in addition to asking if there was an alternative to removal  admitted the allegations in the notice to appear she expresses a fear of returning to mexico and if you look at the questions that she asked of her aunt in this case is a pretty important question tell the court why i fear my former husband or ex my husband or my former boyfriend tell them why i fear him and tell them why i don't want to return to mexico that's a pretty lucid question that's a pretty cogent question there's a question about whether she could that formulate questions will trial attorneys have difficulty formulating questions on direct examination so she asked cogent questions to her aunt and her child she also categorically rejected a statement in a immigration document that she was informed or that she told immigration for as i believe that she was not did not have a fear of persecution she categorically rejected that these are factors that told immigration judge i have nothing but other than a competent individual before me now there's no further questions on competence i like to move to asylum and  in this particular case the issues that i believe have been raised in petitioners brief for the spec to asylum in the u v s a we're not exhausted before the immigration judge and the board of immigration appeal you're right about that at least according to my notes but could she apply on the federal government's regulations been dedicated to the department of homeland security and in particular the united states citizenship and immigration services all that the immigration judge in the board could do was tell the individual look u apply for adjustments that of the immigration judge will still have to examine whether you're in admissible or not but the immigration judge didn't have that authority in this case because the secretary of homeland security and the train general have said look the responsibility for you see you visas lies with the us the i s o there's no prejudice in this particular case for the immigration judge not to have raised a u visa with this particular individual and i think as we pointed out in our in our briefs she wouldn't be prime official proveable for you visa anyway given the repeated nature of her immigration violations but she under twelve the three a i believe we don't believe that's the law of this court and we don't believe that case was correctly decided that's the l d g case from the seventh circuit even if the seventh circuit is correct that the attorney general and therefore the bo before us the i asked while she was in immigration proceedings before the judge or even now or even later if she's been removed from the united states that avenue was available to her to her to apply to you visa so we disagree with the seven circus decision that there's a this petitioner is a member of the class so right i can't say for sure that she's a member of that class that class has very specific criteria so soon as she is a member of that class how does that impact these can do separate from this she could go back and ask her to be well i think she would have to put this case on hold and if i'm reading petitioners proposal council's papers correctly they don't want to pursue the franco gonzales at me if i'm if i'm reading it correctly she doesn't your honor first i'd like to address the not it was a question regarding the franco membership at this time we're not sure whether she is in fact a member of the class faction it's our understanding that class council has reached out to the government for its position but we haven't heard her response and it certainly isn't our position that we don't want miss rico to seek relief under the reopening agreement we would love for her to take full advantage of all opportunities that are available to her but as quest counsel pointed out in the exhausted before the agency your honor that's correct miss rico didn't argue it herself but this court has has said that the failure to inform of apparent eligibility for relief is exempted from normal exhaustion requirements because the person who doesn't know that they're available that they have relief available necessarily won't know that they need to appeal but what about the argument that her asylum application was untimely was that exhausted and she didn't she never explicitly argued that her mental competence was a mental disability but as this court is stated in cases like r s d v holder all that's required is for the argument to be place that issue they don't have to use precise terminology and here her mental illness was at issue before the immigration judge because the judge i know i'm not i'm not clear on something at the b i a did she argue that her or her untimely ap asylum application should be excused because of her