stage on this case it's it's undisputed in the record that my client believes that president jacques chirac ordered a friend of his to implant a microchip in her mouth and monitors all of her movements can access her mind that the t v spies on her and whatever that they know her thoughts and that if she would charge her friends they'll kill her because of the ability she has to look at people and kill them and the i j a found she was quote credible and her beliefs to be a called these beliefs sincerely and that's that's that's the record and i don't think there's any evidence if there's anything that you didn't file any sort of supplemental brief on her behalf i did not your honor and there's in the a c l u filed a an amicus order in the record other than the order from may th two thousand and eight i do not believe that there is a formal order there certainly references by the government about their plans at a port her there's to be some sort of determination back that she subject to remove ability when we look through the through the administrative record we couldn't find that particular document i think i assume because they referred the matter for removal proceedings that they know what they're doing and i was i assume that they made that determination but it's not in the record and that's what we sent out the order so maybe that comment will be the government will address that when they yes obviously the government were to say look we're not going to deport her and i would remove her we would be open to differences what's in the record can you b case you know and also even the new cursor case you know that felt the standard is initial determination of her movability so if the government is saying they're going to have to remove her or if these proceedings are you know not that the french government implanted a device in her tooth to monitor her because they believe she can kill people by looking at them i j conducted a hearing on this claim which she permitted her to appear pro se and present evidence based entirely on these obvious her delusions she understands what's happening and while it may be the case that there could be a person with the lucian's who is nonetheless competent to represent themselves in an unrelated matter where the i j a finds the petitioner has to lucian's about governmental persecution that person cannot be competent to represent themselves on claims about governmental persecution and it was and was are for the i just so find q agree that the procedures  case it would be a necessary to appoint counsel as a reasonable accommodation but she is not a class member and that case does not directly apply and the rehabilitation act argument was raised by the a c l u for the st time that was the st time that argument was raised  counsel would other safeguards could have utilized well if you look at the m m safeguards your honour's the only ones that could have made a difference other than appointing counsel would have been to administrative leave close the proceedings or terminate the government acknowledges in their supplemental brief page eight that had the i j a found the petitioner incompetent she likely would have taken the case off the docket she says that in the record at fifty seven and fifty eight but other than that if you look at the safeguards there things like closing the court that wouldn't help waving her appearance wouldn't have helped continuances that i did that and it didn't make a difference allowing a friend family member or guardian to appear on her behalf there was no such person i mean even if there were there's no guarantee they would have been like what could a lawyer do i think many things around i think one of the things the government says is well so what even if she wasn't competent nothing would have been different i think this court has said it's very hard to figure out how things would have been different if there was a lawyer and for that reason there's no prejudice requirement on the dial of counsel claim that's months as  as sources holder but here we can see how things would have been different for one the attorney could have been able to ask for administrative closure as they did when the case arise to this court it seems the government gave substantial consideration to that request it might have come out differently had it been made earlier another thing we know if i don't claim is from france are rare but there are viable asylum claims based on the threat of forest institutionalization and psychiatric facilities and possibly could have been developed had she had counsel below it's very difficult to see how the proceedings would have been different but it's clear that they medical evaluation as she would have been allowed to do under mam but there's her testimony your honor is and we think in this case i think her representative summarized some of that i think you know if the court looks in the record we've read it anyway we're fully aware of what the claim is and what's in the  successfully filed a motion to reopen proceedings so i understand the nature of the claim but it seems to me that that's the entire basis of arguing that the court should the i j a should determine that she wasn't competent to proceed and that's right where you have delusions about governmental persecution you are not competent to present a claim about governmental persecution that's our position turning to the rehab act claim most of this is laid out in our brief but just to make a few points the government says that she was denied that she was not denied meaningful access because she didn't go to the hearing she did testify but again if the court finds that she was not competent or that she had delusions about governmental persecution she necessarily didn't have a reasonable opportunity to present evidence about that and the court government also makes a sort of half hearted argument that it would be a fundamental alteration to have appointed counsel here but counsel appear on behalf of mentally incompetent people in immigration court every day sometimes appointed by the government far beyond what frankel gonzales requires the government has a nationwide program to appoint counsel for mentally incompetent attain that she was an overstay from france and referred her case to an immigration judge asylum only proceedings there's no formal order of removal correct we're going to stand there but our case law seems to say that there needs to be specific determination made by some immigration officer in this in the proceeding says that she subject to remove and there has been there is it in the record it's not in the record your honor and it's  there must have been some determination there would have been it was based on her she filed an asylum application in two thousand and eight and then you say you the c i s referred that to the immigration judge with an affirms the jays order that's the functional equivalent of the removal order and now the the agency is prepared to remove ms ms on if the court finds it has jurisdiction at that point they would execute on or but that's how this happens and when  an alien requests an affirmative asylum application this is not the case like a curse or where you know she was deigned that she was found to be at a jail because she committed a crime just look at what our case law has said the th circuit cases and in this  we under i understand it that in this kind of proceeding you don't there doesn't need to be as the traditional final order of removed but you need to comply with losses in this kind of situation which is that there needs to be a we've said that the functional equivalent to that is a determination by an immigration officer that the person is subject to removal i just assumed when i st looked at this case i assumed that that existed because it had been referred to the i j a so the must i thought mother must be but we looked that's my  visa overstay they're not entitled to forty proceedings that automatically were to immigration only proceedings for determination of whether or not they are skinny asylum only proceedings for termination of whether or not they are great asylum or not so your argument is that because there should've been an order for her for her to be referred to the immigration judge we should assume that there is one even if there's nothing in the record to support that that's what that's that's what i'm arguing on and that's my understanding it goes in or just request asylum and then they they send him to to an immigration judge for asylum in the proceedings again very different from the alien in the cursor who was a criminal it's their regulation judge there was no removal order issued as it is if she'd been arrested but did somebody make a determination that she was subject to remove them they would have had to in order to refer to that to the judge would have to say that she's from france and she's passed her ninety days she's no longer an status here she doesn't rate or move here and send it over to the immigration judge and that's the form we can that you can't find i don't know it's just your honor i don't know if it ever has ok or if you want to dress the merits a little bit yes you are  miss competency i'd like to start off to say that petitioners never said she's not confident but this is counsel has never said she's not confident raise it below that didn't raise it in the supplemental brief this is just brought on by a ms on and even in during the removal hearing she said she was competent the appropriate question to consider is whether the immigration judges competency determination is supported by substantial evidence lawyer for just brought it to the implants or something implanted in her head that's an atypical claim so the judge when he made his the termination that she was competent looked at the entire record in fact over this four year period in fact ms on has been competent or proceeding competently since  ninety five when she alleges she went to law school she claims over and in french came here since that time she has she's she's had a work authorization authorization since the hearing she figured out how to file an asylum claim on her own she figured out to do in an appeal she talked to the judge below that when she failed to appear for one hearing she reopened on her own save yourself two thousand five hundred dollars and the judge was impressed by this and said at the very last year in two thousand thirteen you know i'm in i'm including this in my determination that you're competent and she said you're right i am or she acknowledged that she was and so it really doesn't matter what the nature of the claim is people can make a typical claims all the time my son goes to school in alabama and there's a church a mile from auburn that they believe the world flat you know i can go twenty miles west of where i live in virginia and people would rape themselves in rattlesnakes and copperheads and when i was a officer down at camp pendleton every night this  ask you this so she makes the finding that she moves to the merits of the claim and then starts talking about having the chip implanted well this was that i mean this was part of this is a claim this is why the judge did be to the competency hearing seems like she's really suffering from iran or she may have this little she may have this belief but since then she's held the job she 's not had she's not been in she's not been incarcerated she's not been detained she's the only time in the united states since two thousand and five that she had to see any doctor was once for just that issue and once because of  sting you know she has been functioning and understanding and certainly understood the removal proceedings and she certainly understood the nature of the mobile proceedings she needed to have evidence that she didn't have evidence she even asked the immigration judge whether or not cat was available a sound only proceeding see understood that the his counsel the time wasn't sure but looked into it so she understood what was going on the proof she needed so just because she's got you know how did a typical claim does not mean she's record on the government's representation she's clearly going to be removed at this court but i sort of asked of the merits your honour's on the way for a point i would say there is to be exceptions to the general way of her role there laid out by this court in the case they all apply here the government addressed this at length it would be a manifest injustice not to address it should the court find you know for some reason not want to reverse the competency determination the other option available to the court as to remount with instructions to the immigration judge to redo the competency hearing and get a medical evaluation to determine whether the petitioner really was competent and at that new competency hearing the judge should consider not only whether she has a reasonable opportunity to present evidence but whether she can do the additional functions that are necessary to ask for help she learned about it from a t v host she she was a well educated person she could navigate the asylum quite but well educated people can suffer from mental disorders as well she clearly did she clearly was not present in reasonable evidence the only witness she tried to get to attend her hearing was