issues today the first issue was whether mr b was denied due process in connection with his right to be represented by counsel at his removal hearing the second issue is whether the board of immigration appeals abus violation in this case that is to say that if as we have mr b what was the night due process and that he was unable or not given sufficient time to locate and secure counsel as represent hearing and then to say that in part because he was not represented by counsel somehow he should have known how to adequately preserve the issues for of heal and not waive the fuel in this case seems like a catch twenty two that would undercut the whole notion that due process affords aliens the opportunity at least so find an attorney to represent them well if it's you mean that as a stand alone proposition if we were to agree that there was a council question then we have the issue of prejudice which the circuits are split on and so far we've been able to dance around that question because it is there much prejudice or whatever so the ninth circuit has never actually landed on that issue if we had to find prejudiced when we then inevitably back  hearing the entire issue of asylum and or withholding was simply not addressed it was not raised no evidence on those issues were presented it was only after the fact while the case was on appeal before the v i i that mr b what became aware of is entitle men or potential entitle men i shall say to asylum and withholding and that's when he made a motion for email and reopening on that issue had he been represented by counsel at his original removal hearing counsel would have been able to marshal facts and present evidence on that issue at his original hearing and i think prejudice established on that basis alone and and i'll remind the court of course case for asylum withholding and that's all we have to do in order to satisfy the prejudice standard a lot so add though that at least according to the government the government feels that there was significant prejudice here and that mr be apparently according to the preserve those issues if they were issues at all of course if you had counsel with removal hearing this wouldn't be an issue before the court today we believe that this issue the right to counsel issue is as virtually dictated by this cour bring to bear in order to find counsel is the list of pro bono services that was given to him at his very first hearing we need it is our position that under the circumstances of this case and it's hard to and however the v a apparently did not consider those papers or in any event there was no indication on the record that it did and for sure it didn't articulate the reasons why it disagreed with mr b was either on procedural or perspective because he had received his right to appeal they certainly have jurisdiction to determine their jurisdiction then after that why would they even they sign any motions  argue anything that there was any error with regard to the immigration judge deeming that he had waived his right to appeal he made no argument  feel all he did say was that he didn't have a legal representative because he was detained for several days to contact his family but he didn't assert that he didn't wait his right to appeal announce he had to if he waived the if he raised the constitutional question and statutory question about his right to counsel but that necessarily in determining the prejudice of that implicates is waiver has and he in effect raised that question as well oh i don't believe so merely because he said well i don't understand all my constitutional possibilities doesn't mean that he didn't understand that he was waving his right not to appeal and that he chose instead to take accept this decision of the immigration intentioned here it appears to me he was giving him the right information but he didn't give him time to execute on it and only having some trouble understanding why in this case the department of justice takes such a hard line position we respect respectfully disagree they can have sufficient time he said he called one one agency on the list and say they'd call the others there is more than one organization on the list and so the immigration judge also said if you have counsel that says you know that that's so they'll take your case but we can't make an on that date then i will entertain you i will consider that and in deciding whether to continue the case further however he showed up on the second and third occasions saying they didn't have counsel and the second occasion the judge make clear that if you arrive the next time and you don't have counsel you don't have that minute addressing quickly the exhaustion issue and i'll just highlight factually what mr b wrote in his notice of appeal to the board of immigration appeals he wrote two things that i think are particularly third hearing and you don't have a counsel i'm going to make you yourself and that's exactly what happened i think it's important to note that at the second hearing mr b why did tell the immigration judge that he had tried calling one of these agencies on the list of that was referred to him and that they told him that it would take a while and i think that's consistent with what we know is the case and that seven days simply is an insufficient time to hope that any alien can have an opportunity to