two thousand and one and second by failing at her cancellation of removal hearing to present any evidence regarding the hardships her three minor united states citizen children would face upon her removal from the country the government doesn't even try to argue that the heart of the device to marry was competent let alone strategic as to be determined and so as to prejudice there can be no doubt the consequence of a lenient salvatore's marriage was to disqualify her of the for the visa her effective assistance attaches soon as the notice to appear issues from the agency the agency center and it was to appear in july two thousand she sought mr guard as counsel in march two thousand and one almost a year later specifically with respect to the notice to appear she said watch what i'm going to do about this will you represent me in these proceedings go hard without asking her any questions whether she had any other way of entering the country illegally without looking at her immigration file which was readily available to him through the freedom of information act quite glibly said the best thing you could do right now is get married she and she had been refraining from marrying consciously for fully a decade though she had been living with the father of her three children they'd already had their children who were u s citizens and she and her father's advice she knew not to get married up until then and now she's speaking to a lawyer who says you got to get married it appears that what mr hart oh was really after because he later  that was really stupid of me to have told you to do that it appears that what mr grider thought was he could ask her for more money if he told her that he could get her husband at the same time as he won her won her right to remain in the country does this actually in a sense more serious and effective assistance of counsel if that's what we're going to call it fit into our scheme under which this court is able to provide relief i understand your  that this court operates under constraints and i i really did rack my brains i have yet to see a case where the court has said this was ineffective assistance it was highly prejudicial we can't do anything about  it in fact the government i'm a little hampered in defending this rally because the government didn't in fact assail this particular remedy in its answering brief the government i proposed two different remedies in the opening brief the government only attacked one of court for when a when a certain when the same petitioner has sought benefits for the same beneficiary and there are some change in circumstances for either the petitioner or the beneficiary for that to transfer the it's called recapturing the priority date to apply the date of the original petition to the later petition in this situation her father filed a petition which was approved for her in one thousand nine hundred eighty five other has now become a naturalized citizen  thousand and six and he filed a new petition for her his same daughter united states citizens unlike l p r as they can bring their married children into the country but if she is made to wait in line for the petition filed in two thousand and six she's looking probably a question to you was that is that is that a feasible thing or a program thing to do as a basis for a remake yeah no evidence to meet this daunting in fact pacific standard the witnesses out of our herself had lined up and the declarations and psychological reports she herself had compiled were all excluded because he failed to disclose and it's the end of south of us hearing date because salazar was never informed that the showing she was supposed to make had to do with her children much of that excluded evidence would not likely have helped her but some of it does explain the role she plays in her children's lives her sister wrote in a declaration that elaine is the wonderful mom who always has time to take her kids to activities and go to school for younger daughter stephanie who was interviewed by a psychologist at age six said that she began to have bad dreams when her mother told her she might have to go away and her older daughter michelle interviewed at age ten said that without her mother the family would not be the same because her mother makes the family stick together michelle also stated that her mother insists that she does her homework eats well and sleeps on time she said what she likes best about her mother is that she helps her a lot with her homework and gives her food michelle also stated that her saddest memory was of her mother leaving to spend a month in chicago with her ailing father when michelle was seven or eight years old she said that when her mother was away court has repeatedly held that family separation warrants careful scrutiny these facts could have made a difference other pivotal facts were not presented because go harder had not taken the time to prepare his client or to learn anything in particular about her children in fact he had no idea who would take care of them and their mother's absence and neither did mr saldivar he put her on the stand without ever having informed her that the i j a would expect to hear what she planned to do with the children if she was made to leave the country sell the car had no answer to this question when the i j a asked her what heart and did know is one of the facts that makes this case exceptional and extremely unusual the fact that but for his incompetence the sound of our children would not be facing the loss of their mother at all he couldn't afford to reveal this fact because her heart is an attorney who was skating on very thin ice i take this court is well aware he's been criticized many times he was suspended and he was almost disbarred by this court in one thousand nine hundred one for his habitual professional negligence he's currently the subject of an ongoing disciplinary inquisition in this court right now and he has a sixty nine page discipline record with the california state bar the truth is that a s the bar took more hard as that advice to marry a conflict of interest arose that should have prevented him from representing her in these proceedings because the fact that it was hard at least wanted to come to light was the fact that the i j a most needed to know to appreciate  exceptional and unusual the cut the facts of this case are the fact that the only reason salad bar does not have a green card today is because her attorney made a disastrous an inexcusable mistake since all the guys hearing in two thousand and three additional facts have a reason which also will do many of her children's hardship michelle salvatore's oldest daughter a straight a student has been awarded a scholarship to private school the same time a mother is begun preparing her to take over hopes her along with through school work and also gives her food would be able to continue on her current academic trajectory if she were suddenly not only deprived of her mother support but also expected to fill her shoes the government  hardship exists it is very possible that this evidence has been presented could have changed the outcome of this case it certainly cannot be as obvious as it seems this governing that outcome based on no evidence could not possibly like be altered by the about that all of south of our siblings younger and older eventually achieve legal status in this country and she did not he asked mr carhart about her father's nine hundred ninety one petition has been approved when was it approved and what's the priority date  agency considered these things and i'm probable for whether or not we have a case where their decision either without substantial evidence or  arbitrary capricious because i think that's what we have to find you know order to to remain even if it were persuaded that the if we were making the decision in the first instance we'd say this this  strategic decision has to advance some discernible tragedy their strategy has to be something good that might have come from this advice there was nothing good that could possibly have come from his advice to mary so that was you abused discretion when you when you fail to apply relevant law or when you misapply relevant law so that that certainly was an abuse of discretion there would be i guess to this question that i'm discussing now whether harder should have confessed his c simply ignored that question to be i said nothing about that in denying that the motion to remain and so you know it doesn't have the discretion to do that either there's a whole bunch of ninth circuit law that also on from judge holmes question you answered it and in substantial part and part of the part of your answer was well the i j a might have come to a different decision in weighing the hardships and deciding whether to grant relief adjudicators who are swayed in closed cases by things that are not strictly relevant as a legal matter and you tell me however how that knowledge as to how  lawyers advice again would be legally relevant to the question of hardship i think it does compound the hardship in this case your honor for a few reasons first of all this is a family it's quite extensive well first of all i should say that the standard isn't is this is this hardship harder the standard is this is this hardship exceptional and extremely unusual and this is about as unusual cases i've ever seen two things that i can think of immediately that make it unusual is well this never should have happened this these children contrary to what the i j a said they were not born in the face of the clear and present danger that they would one day that their mother would one day be removed from the country and this family i see so that that actually does change in a conclusion by the i g exactly that's my the i j a said repeatedly in his decision that it was very clear that he was assuring himself assuring the b a and assuring this court that it lanced all of our had assumed the risk that she would one day be separated from her children he said in his opinion that she had these children in the face of the clear and present danger that she would be kicked out of the country paragraph of the b r d decision that we're reviewing right that's correct your honor it is a crime you know it's a real paragraph it's not just a little one liner right it's a full paragraph but the advice that she received with respect to her visa petition with respect to risk that actually was in existence which was moderately low until this lawyer gets involved well for to address that issue first one just because there's a piece of station that's been approved and you have that pending that doesn't give you any greater right or entitlement to be get married to this guy that would improve her chances of remaining in the united states and it would be clear to that it would be clear at that point that there is no government action in that decision between mr carhart and the petitioner and it would remain that decision would affect only the visa petition that was proceeding before the department of homeland security that doesn't change merely because that scenario arose after the notice of the notice to appear had been issued to petitioner that was the fact that she is no longer eligible for this form of being able to adjust something and something that only relates student visa petition proceedings before the department of homeland security and so with respect to any prejudice or any ineffective assistance that she may be asserting in this case to her marriage to her decision to get married that has no bearing as your honour's may have noted earlier with respect to that to her claim that that any sort of ineffective assistance or due process violations arose  as a mary told of law for permanent resident to be able to adjust her status that provision simply was not provided for by congress and so to give her the remedy with respect and with respect or adjustment application of being able to adjust or to go back to a place in line so that she could adjust status as an l p r as a daughter unmarried daughter and l p r is simply not a remedy that is available to either this quarter even the board to be able to grant you know if she had had good legal advice or maybe i'll even say it this way if she had had no legal advice and simply had done what her father told her to do she would almost certainly be legal today not limited to list lawyer of catastrophic lee bad lawyers in this field we try hard to educate lawyers in this field we try hard but it's pretty pathetic the degree to which these people remain in practice i don't think anyone can look at the sequence of events and say that the system worked properly or even fairly with respect to her with the government we willing to take advantage of our mediation services in this case  agency it's always a possibility i'd be happy to check with them in and get back to the court about that i think it is important to realize though there is even if the remedy that she is asking for before this court that is to be able to be given a status for she can adjust again even though that's not something that she can be granted by this quite and she certainly can't get that from the board she does help other means of remedy she can certainly bring suit against m you know i've got another question which is a one off and away off to one side of the case of stealth on pages thirty one to thirty five of your brief you argue that there should be no claim for ineffective assistance of counsel basically an position your honor because i believe that same argument has been made in various forms maybe in the form of a flight now it may be in the form of a full address that as it is in our brief in this particular case but i do know it's a point  made several different on different occasions in various different cases to this court and it's specifically because as this court has recognized an immigration proceeding is a proceeding and there is no expectation or requirement on the part of the government to provide counsel to that against they have the ability to be able to they have the privilege or the earth the ability to those retain one of their own but the fact that they might have gotten bad counsel as a result of that privately retained attorney should not be something that's imputed to the government because they simply were not required to provide that counsel but yeah you recognize i think that you're asking for a change in existing law with respect to this circuit i believe so yes are there any marriage of course i don't want to speculate as to how the government might treat her application at that point there are certain provisions in the i and a regarding how an application may be viewed if certain steps are taken in order to avoid  fault but again i can check with our client and see what their position would be that how long how long would it take you and i don't i'm not trying to press you without a salary and deadline and just trying to get reasonable so how long would it take you  determine whether the government would willingly submit to mediation it probably wouldn't take that long maybe a week why don't why don't we give you twenty one days because you may be a lock to mr custer how fast the wheels are going to turn here subject to extension but with you if within twenty one days you could tell us whether or not the government would willingly take this case to mediation that would be useful to us we course have the power to order you to mediation but that usually doesn't work very well if one party says goes kicking and screaming and the government may wish to consider as is deciding whether willingly to go to mediation as to whether or not it's kind of like the law we're going to marital because of the fact that she is currently married she's a married daughter of an l t r and the government would like to point out that there's no i in a provision that allows her to be able to have any basis of adjusting based on our current marital status and i know i'm out of time on us but i just do want to go very quickly point out with respect to the second half of this case which is the cancellation application that was denied one as we argue in our brief that there is no liberty interest attach cancellation which is a purely discretionary form of relief so again there would be no due process claim that can arise out of a discretionary form of relief and in any event that both the wellesley i gave the fish and review of the evidence that was submitted in concluding there was no not sufficient hardship in this matter your honor and and there's nothing to dispute the fact that the findings of of the agency with respect to the fact that there was no health issues no educational or special needs issues regarding these children and that they do speak  first just to be perfectly clear her immigration status is now that she is the daughter of a united states citizen her father is no longer an l p r i'm just correcting what she just said and i i'm just going to give you some  cited in both her opening and reply brief which i think is illuminating here kwang was the case where an alien was subject to criminal charges and he sought the advice of a criminal attorney who urged him to plead guilty the the defendant's they're worried if i plead guilty that it might that i might get deported the attorney said don't worry about it there's lots of things we can do if you're ordered deported and as soon as he pleaded guilty