i want to thank you for doing so we really put a great value on attorneys who volunteer their time as you need for having thank you i hope your client realizes how well he's being represented here by you so thank you so much so we'll hear your argument now your honour's and meant please the court reports vetted by mr allow showing the material deterioration of conditions in christians in nigeria to be a addressed mr allows change conditions evidence in one short paragraph ending with the cursory this particular evidence would not necessarily make a difference for the application the persecutor bar however even if the prosecutor or were to remain in place re men is warranted and so is reopening because mr allowed would remain eligible for relief under the convention against torture in addition mr allow has been diagnosed with schizophrenia and prescribed anti psychotics since his underlying here and if in his removal proceedings are reopened the immigration judge will have the opportunity to hold the competence evaluation that competence evaluation could lead to any number of safeguards which may include new testimony on the issue of the prosecutor bar so there is a chance even if the court were to rio  t well i was going to ask you the understand you got your potentials for a cat claim but speak for a moment to the to the no that's what i want to explore with you in a thread which i have to say on that here's my question to you what is the disc you know you framed this says they operated on an incorrect legal premise is it fair to look at that not as a as a framing principle but simply a disagreement about what constitutes a due process that is a disagreement we think we think it wasn't due process violation bay think it wasn't the due process violation it's not that they misunderstood their authority it's not that they misunderstood the law it's that they thought that saxton rice the level of due process violation is that a fair way to look at the record it's a way to look at circuit has ruled that the rejection of a due process challenge is a legal determination which reviewed the nova there is directly a way to look at the due process issue as a question of fact what actually transpired at the hearing but there's another way to look at it as those courts suggest we should which is that the question is whether the facts on the record rise to the level under the law of it process violation and that is the question that we ask this court to answer today we submit that the due process violations that occurred in mr allows underlying hearing do in fact rise to the level of due process violations under the law because the only relevant question is was whether mr allow was able to understand and be understood and his underlying proceeding efficient to defend himself there is ample evidence i thought i thought there were something beyond that i knew you had a translator issue right and i understood that but i touch your your main argument was he was denied due process because he got pressed to represent himself wrongly did i misunderstand you there is another very important argument that we are making here your honor and that has to do with mr allows mental competence just weeks before his underlying removal proceeding the merits hearing he suffered a psychotic episode while in the chest custody and we know that because the n h s prison staff know it's say that he suffered paranoid delusions that he was going to be poisoned by prisons that he was placed on suicide watch the department of homeland security had an obligation under the b a s precedential opinion of matter of and am to provide that information to the immigration judge so that the immigration judge could see that it was an indicator of incompetence and then hold up competence here but none of that happened in this case your honor and that is another it's very important argument in our three pronged argument for why there were due process violations here your honor alluded earlier to the fact that the immigration judge told mr allow that his proceedings would be quote easy and quote straightforward and that simply is not the case now it's certain other circuits the th circuit in particular require an immigration judges to specifically ask petitioners if they understand the consequences of proceeding pro se that's not a requirement here but certainly judges are is zero zero at which an immigration judge can say i've given you enough opportunities to get a lawyer there it's after continuance after continuance on this record and you can see on the face of the the the record sort of ricing perhaps level of  frustration on the part of the immigration judge i can't keep doing this and if you if you and so we're either going forward today or you know is there something wrong with an immigration judge saying i've given you repeated opportunities and your opportunities for this are over there's nothing wrong with that your honor but the immigration judge in this case went a step further and actually told mr allowed that his proceedings would be straightforward and that there would be easy and he also told mr allowed that he good discussion if the judge and said nothing except look we're moving forward without a lawyer cause i've given you repeated opportunities to get your lawyer here get a lawyer and you haven't done it so it's time to proceed and hadn't said anything about that this is easy implied i'll take care of you what would your argument be this would be a very different case your honor and in fact that is not the case before us an immigration judge certainly can at some point say you had an opportunity to find a lawyer and you haven't and we need to move forward but as i said earlier that is not all that happened in this case it was critical that the judge told mr allow that his proceedings would be easy and straightforward and that how did that how did that prejudice stick with me on the site the technical soon be judge had said anything and they just went ahead and would not the same things have to have flowed from proceeding with or same kind of questions to mr allow same kind of answers from mr allow not necessarily your honor when the judge told mr allow that his which it would be easy answer straightforward there were still four months left before the underlying merits hearing let's say the odds that mr allow would have ended up getting a lawyer without those comments from the immigration judge were five thousand and fifty or seven thousand and thirty or whatever they might have been on that day those comments from the immigration judge may well have put the thumb on the scales and affected the odds that mr allow would in fact find counsel in the four months between when those statements were made and when the underlying merits hearing was held so it's entirely possible that those statements could have made a difference in this case and when taken together with mr allows inability to fully understand what was going on as evidenced by the government's own lawyers comments on the record during his removal proceedings and when coupled with mr allows mental illness which of course the i g didn't know about at the time these issues are very important your honor as i see that i've really got my good question for you this it seems like your brief focused a lot on the newly available evidence of his mental illnesses which are unfortunate but not much i didn't see sort of what do you have in shows about change conditions insofar as people with mental illness are tre and some of these abuses resulted in deaths that's the admin is absent from the two thousand and ten report and has at least an indication of changed conditions which the b l u did not consider there is one more point on this your honor which is that the government did not raise this issue personal circumstances has to also show change country conditions tends to focus on cases where the applicant has changed his or her circumstances of his or her own volition that's not the case here where mr allows mental illness is completely out of his control muslims but that record is precisely what is in question as a result of the due process violations that occurred in go representing the attorney general merrick garland this is not just a motion to reopen this was a motion to reopen that was not only untimely given that it was filed years does not make that that motion ineffective he raised the issue of chain of persecution as a christian and you know reading the motion it's a very typical press a motion so that does not allow him to pass the requirements of the statute which allow you to have one timely motion to reopen so in this case this is not a question of him being able to bypass that restriction by claiming a change of personal circumstances regardless of whether they were of his own making or not the statute is very clear when you have an untimely motion that is your nd motion you must show change country conditions well into the and the and they say we have them there we showed a very different we showed a significant increase in the violence against christians in one thousand euro area that that is one issue however they never even raised the issue of change country conditions regarding people who have milked mental illness it was never raised in them and the nd motion to reopen here is nowhere now the petitioner tries to overcome that by in a footnote but no fifteen dropping a reference focus on the things that they've said which was before the court they have to i understand their argument to be we showed a qualitative difference not just some continuation of the same level of problem but an actual change in the country conditions in nigeria and the north simply blew past it and there and that's that is wrong as a matter of law they can't do that and that your your liam case judges in the search circuit tells you that they're not the board isn't allowed to just ignore the evidence put in front of him and that's affectively what the board did here so try not just to know i'm i'm not disagreeing with the limp case but i and i don't think they disagree that there were problems before i take their argument to be there was a a a true and a significant uptick in the violence there was a measurable uptick in the violence like yell like sixty six percent or something i think they did some key gave a number but they said it's not just a continuation it's a difference which is  a true change in country conditions and a b a just simply didn't engage with that evidence didn't engage with the evidence then when the current line reads this record as a whole you will see that that it is not true here's here's what i'm trying to ask him is i go where did to be i a where did the b i a and gauge with the evidence that mr arad is saying they didn't can you point us to in the record where the b i a said we've read this we this back and have the b i a do its job no because because mr allow also had to show a prime a facial case that he would and remember he is not in this motion to reopen he is not eligible and lest the court and i'm setting aside the sue a sponsor argument but he is only eligible for convention against torture relief he has to show is more likely than not he would be tortured by or with the  and you ought to be making but work asking you about they've got a responsibility to do something aside from the merits completely have they done so here having gauge with the evidence and you know you cited in your i know you're well aware of our lean case which which the evidence itself is overwhelming i mean well they've a clue if they've got a different view of that right now that's the whole point about requiring that to be a to engage with the evidence i mean as an advocate you read this record and you have a very distinct view which is one that you are articulating with some passion here in the briefing reflects it but there is but there is another side to the story is not so overwhelming that the pancakes only got one side as i go that's the whole point of getting into getting to the f b i a to engage with the evidence because it may very well come out the way you said it but if they don't do their job that's a promise but terms for nd to the due process argument why why should your assertion about look with the i j a did here was outlandish just can't be tolerated and that mental health issues play into the due process i just take take that on head on why if you are a lawyer with nothing after st of all i'd like to i'd like to point out that the petitioner's counsel said the i g didn't know about his health issues and didn't have this information that in  was found to be fine he was alert he was response or he didn't show any indication all that says on one hundred and fourteen was that he was complaining about them poisoning him and that he you read this transcript this man clearly knew what the charges were he wanted to because he was detained and i and i'd like to point out he was detained and so his focus was on getting out  of detention he would think earlier saying for a long time right like three years doesn't have a very long time yeah ok so in a circumstance like that does that does that have some heightened obligation maybe to pay attention whether the person is cut some decent representation knows what's going on because they are detained i should actually accept this week forgive me do we know from this record whether the ice j provided information  allow might represent him for a minimal cost or even for free he was told that and when you read the record i invite the courts to really take a look at what the united states in this case the i g a gave this gentleman significant amount of time helps him to try to true all that is true nobody's i don't even hear the other side mr rudd seems to just like embrace at recognizer resplendent opportunity given here but but speaking of engaging engage with the argument that we're dealing with this the case that's different because here the i j a didn't just say look i gave you enough chances now i j said you don't need a lawyer server it's a very straightforward application and you speak english it's a very easy application to sell and you don't need a lawyer and there are any number of people come in this court and i know the questions asked in order to make sure you get it if you need it all those things that seem to say you don't have to have a lawyer and i'm going to look if you don't have a lawyer i'm deporting you i mean there was and said don't do that i'll represent myself isn't that how that conversation went  his wife even gave him the phone number for his wife to call he gave them information about attorneys he gave him you know he allowed him time to try to you to contact the friend that  position that the government is taking that because enough opportunities in there were multiple opportunities given to a lawyer because multiple opportunities were given and the government through the i ching would have been less in its rights to say it's time to move stand by how i represent this record but the court cannot take one or two references out of a transcript that spanned six different days and was very extensive well when i got hold on hold on what  ish because i go ms i go you'll have a chance to finish your saying context matters he said that in your briefing to what context helps the statement you don't need a lawyer this is very easy violation you have to show prejudice there is no prejudice in this case you know the the petitioners counsel in this case wants to argue that oh he didn't understand english in his original i five hundred and eighty nine he said that he was a fluent in english he never said that he did not understand the english in this case he keith you know they said oh he would have had a lawyer well that would have been fine but he probably would have lost because his  you know the evidence in this case when he testified showed that he didn't have he didn't show evidence he testified in his own behalf he didn't show evidence of past persecution so he had to show on its own face a well  of future prosecution besides the fact that he wasn't eligible because of a one year before and he wasn't eligible because of the prosecutor bar so but you know you know you have to agree you'd agree the cat claim would be you would be like persecution he doesn't rather torture not persecution he does not have evidence of prior torture ok so he has to show that it's more likely than not not just that he would be torture but islamic militant groups to try to prevent what they were doing in northern nigeria consult its government did not agree and they were not part of this and i would just i just like to to one mention because they talk about prison conditions but prison conditions by itself this this court's decision an august i don't with the prison conditions in haiti and it's said that they may be harsh and terrible but prison conditions by itself unless you can show that that particular person was was targeted that general prison conditions that are applied to everyone on detainees illness in particular are you aware of any i am not in those records they do say that people with mental illness were arrested but st of all it doesn't show a change and in country conditions you know appears as though that is the general condition there and it doesn't really there it doesn't say the date or targeted by the government for torture and that's what's significant in this case because that is what that is the only protection that mr allow house setting aside the fact that he is barred from from other relief and and you know i would return to two august which said that it's not me or even if they were arrested and imprisoned if they were subjected to the same conditions that other detainees are it's not because they are because of their mental illness all right thank you counsel  ok thank you council here from petitioners carol for five minutes thank you your honors judge for garth i'd like to pick up on a question that you left off with there which has to do with the showing that mr allow might be tortured based on his mental illness if you were returned to nigeria mr la presented evidence in the record that in most african communities it is believed that mental disorders result from supernatural causes such as witchcraft was this presented to the bia was this presented to the eye this this was not presented to the i g because the issue of mental illness was not for the mr allowed to know at the time of his mental illness but it was presented to the you're trying to prove change conditions sounds like what you're saying and i think you're ms i go referencing this is a change in his condition not a change in the country it's not it's not that these fears about supernatural causes of mental illness sprang into fact after his hearing with the i j a that was something big goes way back it's that now he's got an analyst so he wants to talk about it so if it's just his personal conditions that have changed isn't that of no moment when you're talking about overcoming the time in number bar it is a moment your honor now so in other cases in this circuit i'll give you some factual examples petitioners for example who hail from china and arrived in the united states before they had any children subsequently had children and then moved to reopen based in part on their changed personal circumstances for fear of what would happen to them under china's  child policy and in part based on changed country conditions in china showing that evidence there is there is evidence that the situation there has got worse and that is what mr well wait wait wait there you go you put your finger right on it what discus ific issue i'm not talking about other issues i'm talk about the mental illness issue that you're addressing this is an issue that is it's purely a change in his circumstance right there's no evidence in the record that mellow mentally ill people are being treated worse now than they were before this isn't like your persecution claims for christians this is just i'm mentally ill now and that's a problem for me but that's a personal issue not exchange country can issue right well here on it there is some haven't i'm sorry i think i heard an echo there there is some evidence in the record that changed that conditions have gotten worse for the mentally ill and more generally that torture is more prevalent now in nigeria than it was before critically though the beyond a it did not base its conclusion on this issue to be a directly reached the question of whether mr rove out would be tortured based on his mental illness in nigeria and decided based on that alone moreover your honor the beyond a reach that conclusion also with a very terse analysis of the record evidence same as with the country conditions faith and christians in nigeria issue and so at the very least this court should remand to the b i a to return to fully consider that evidence of change country conditions and mr allowed personal condition with respect to the mentally ill just one more point i'd like to make on this your honor there are cases where a petitioner has been found not to have properly moved to reopen based on changed personal circumstances and those cases tend to be ones where a petitioner has voluntarily changed his or her own circumstances but that's not the case here where mr allows mental illness is completely out of his control i don't think i don't think anybody is contesting that mr understood your honor i'd like to address a point the government made about the pre hearing psychotic episode report that was that issue in this case i understood the government to be saying that words are a back and forth about what that report actually meant and whether it actually showed incompetence the government at before the i j a would have showed that there was evidence of no mental illness preceding that report but that is precisely the kind of conversation that was supposed to take place in a competency evaluation and the competency evaluation never occurred for one reason and one reason only which is that the department of homeland security abdicated its duty under matter of mam to provide that report to the i