petitioners due process was violated by having the immigration judge act in the role of the government trainee during his during his asylum hearing second petitioners due process was violated by not having a closed a to start off with the due process violation in the can in how the the immigration judge conducted the trial of course it's already been stated that there is due process of billable to aliens  honor in two thousand and five has noted that it's improper in the due process by a lease for the immigration judge to act in the role as the role of the government attorney it is also and proper  the determination to be made under the reef questioning in in the in the record in the case you can see the government and the government train didn't even ask one question dd was a was pro se he didn't even have that information readily available so if the government wasn't even going to prosecute they relieving everything to the judge to do this which is  honor the government point the government in their response to my brief pointed out that he was given ample an impulse time to give a full argument mr reagan was i don't think the three questions regarding  homosexuality amounts to sufficient information in order to make a decision and determination which the judge immediately stopped after questioning whether he was a homosexual the second  fact that this was such a sensitive subject the one the petition didn't know to ask to he should have been afforded that right to know that he had a right to have a closed hearing he feared telling us family about regarding some of the challenge that was the reason for part of his persecution from max from mexico that have been difficult for him to go to disclose that to his family which leads me to the next point which is right to privacy in regards to coming out was violated by not having this closed hearing he was essentially being forced his family that is something personal other circuits have as such as the third circuit they have said that a matter of one such reality is one of the most private  the fact that he admits that he's gay an appeal your honor is not in fact the government seems to be stuck on the fact that you have to say you're gay in order to qualify host as a homosexual in that protected group that is not that is not the case this very own circuit in in other cases has noted that failure to mention persecution based on sexual orientation for fear of  allowed to actually develop that even further again those are two questions in that in that's why this argument was so brief now when somebody is asked point blank specially someone  years to actually come out that does not mean they're not gay they've always been gay you were born get that doesn't eliminate the fact he was trying to allude to the fact that he is gay  by showing that it is a feminine behavior made him have a perception being gay he didn't want to be further ostracized by not only his community by and by his family  admit to he's gay and as an update since this assault occurred he has been dissed owned by its family because he had to admit that he was gay so all of his fears have to have actually occurred unfortunately i am this is why i don't agree with the government being stuck in the fact that he has to say is gay if you use that house as an same gay just to supplement the rest of the rest of the application then you can see he is in a pretend not everybody not every man in this family is homosexual to another or he was not able to declare any sort of position as the record indicates the immigration digest all the questions and they were pretty much as background questions there was only  it a lot better that he that he is gay from the beginning he was never really given an opportunity to do so which is why there was a dupe the due process violations case it is improper for the immigration judge to at the way he acted and for the government attorney to pretty much care less about about this case in night even do their due diligence justice would have been better served had the government attorney actually taken at least fifteen minutes to to look at the evidence and look up the country conditions and see not only how young people in mexico being treated but also how maybe someone that's feminine is being treated none of that was a were able to even fully was fully argument by that or anything your honor because of what of what occurred by the immigration judges and before the immigration judge the petitioner testified that he had experienced some discriminate in employment in mexico due to his feminine appearance and he specifically denied when a not divulge certain facts specifically that he was indeed a homosexual and that he had been sexually assaulted in mexico was a count i was on account of his being afraid of speaking up during the hearing in considering the appeal as a motion to reopen the board here relied on its holding in matter of and they asked the asylum application will be considered new it either presents previously re unraised basis for relief or it presents the same protected ground but i based upon a substantially different basis tell me did you gratian judge have a duty to consider the possibility that mr barrack and might be perceived as gay and suffer  did perform as as effectively as he could and did give the opera give give a full opportunity to meaningfully present his case the immigration judge here open it asked a very open questions  responded to those questions and if you look at the if you look at the the transcript it shows that the immigration judge first went through the allegations the british had made in his asylum claim that his family had been tormented by gangs his some of his activities and yes she i'm sorry pickler social group sorry oh i'm so sorry that the immigration judge did follow up on a couple of different claims that he made in his asylum claim but then he also toward the of the hearing this is when the petitioner for the first time raises the issue that he is experiencing discrimination based on his attendant appearance the immigration judge says do you want to tell me anything else this is at the very end here and you want some anything else concerning your fear of going back to mexico and responds well there are just many things and then the immigration judge will says well is there any other reason that you fear going back you have not told me i difficulties have you had and which point just nurse talks about well i was discriminated against in hiring and he talks about how a potential employer and preference that he they would rather hire someone that can do the work of a boy rather than a girl and so you know this is after the immigration has already gone through his asylum claim he raises this for the the immigration judge clearly fills his duty of asking very broad questions and this is the only the only claim that the petitioner brings up which is that he facing discrimination hiring at which point you know the immigration judge is not expect to be a mind reader cannot know what else he may have been holding back and importantly here  counsel has argued on appeal that petitioner had been afraid to reveal these facts about his sexual assault and his mistreatment in mexico on account of being gay because his family was in there it was in the courtroom and he was afraid and wasn't ready to come out the petition himself never submitted any statements that fact these are all just statements of counsel and for that reason the board recently found and gave them no weight because they simply were not courts also find the board did not abuse discretion in finding that position or fail to meet the heavy burden of proof for reopening or reminding the proceedings based on this new information as i said the board gave recently gave no way to be unsupportive claims of counsel the petitioner to not reveal facts related to a sexual identity and sexual assault because this family was in the courtroom there are no facts that just are points to that the family was in the courtroom that the position ever asked for a sidebar with the immigration judge that there was any type of discussion had or that the immigration judge had any idea that the petitioner was was wanting to you know privately tell him some are wait a minute are you saying that we don't know if the family was in the court so if the record does not show that the family is in the courtroom never makes reference to a family being in a courtroom there's just there's no facts there's no evidence they're in the record to show that and importantly again although the counsel submitted a statement from the petitioner regarding events that happened in mexico the petitioner never said anything and there are no facts at all that the petitioner himself did not discuss these facts related to a sexual assault and facts related to his homosexuality because he was either a discuss these facts because of his youth or his lack of representation as the board observed bush petition was over eighteen at the time of his removal proceedings and he was twenty years old the record shows the time of his hearing there could also supports divorce finding made ample time to obtain counsel he had over a year and a half his his case had been postponed several times by the immigration judge specifically to allow him to obtain counsel for a present taishan and he never did so and as this court is found a motion reopen should not be granted unless the acts or the evidence evidence presented could not by the exercise of due diligence have been discovered earlier in your petition or saying you know he wasn't ready to come out he was uncomfortable could he would have liked to have a less faster slower and he would have liked to have had a closed hearing had he had counsel which he had been urged to change several times perhaps close accounts occludes obtained him a closed hearing where he would be more comfortable to discuss homosexuality and the incidents that occurred in mexico position is also not established that he was denied a full and fair hearing or that there was a due process violation here the record shows that he was provided a meaningful opportunity to present its case as an initial matter just never raised these arguments before the board so the board never had an opportunity to correct the procedural deficiencies that were in that may have occurred during the hearing even if the court finds it ha closing and also petitioner never submitted a statement saying that had he had a closed hearing he would have discussed his homosexuality or the incidents that occurred in mexico therefore he cannot establish prejudice on that basis likewise commissioner cannot has not made out of due process claim based on his assertion that he was not given a full and fair hearing by the immigration judge the record shows that the immigration judge fully to love developed a record he asked open ended just discussed the record shows that he was asked her specifically what problems he's had in that regard even if the gesture could establish however that somehow the immigration judge fell short in not you know pushing him on the issue with regard because he wasn't ready to discuss it so she cannot say that if he was pushed on this issue he would have actually revealed his homosexuality that time based on the foregoing of course if either the board   you can say that this was not a brief hearing it was very brief she read the four questions that were asked and then a decision was made also and in regards  he didn't know that he had a fear of telling of telling people again whether he was eager to particularly that he was gay better and he should not be faulted for also a lot of cannot be faulted for not saying that he's gay and those in and the fact that he say he admits that he's gay is not a new fact just like if somebody was was later on to not were just we were just we're just using facts to clarify the a in the application that was already filed we're not applying or a plain facts