optional there can be an appeal that only involves the notice of appeal and so raising it in the notice of appeal in fact those cases came from prior cases that said if you don't sufficiently raise something the notice of appeal when there isn't a brief then it's waive you the next thing that was on my mind is the ineffective assistance argument it looks to me as though the lawyers had a really good reason not to raise the violence against women act and that is that if they did there would be more examination of the marriage and the marriage was almost certainly a sham and it would have been exposed the woman who was with me marrying a man who was homosexual wouldn't talk women and was buying the time and kind of looks like a sham well your lawyers say there is to explain it this just didn't want to open their can of worms with due respect to those lawyers i believe they're ineffective even to this day because they don't understand immigration law they claim it was better to pursue the adjustment of status but the adjustment of status required of us petition and he's been teaching requires examination of that first marriage so the claim that we are pursuing an alternate form of relief would have gotten the court back to that same point of examining her first marriage moreover the court proceeding below in front of the immigration judge did exactly that it did examine there w three days of testimony sixteen documents six or eight witnesses on the issue of the marriage and the judge found petitioner credible he said i believe this is a consummated relationship i don't believe you engaged in the fraud and he found it completely credible moreover he granted her voluntary departure which is a discretionary form of relief where you have to show good character so if the judge had found it were her lawyer that's an error if you want to keep   on but the thing is her only option for relief was it was under the law law under the suspension that's the only form of relief she would be eligible for otherwise voluntary departure does is grants voluntary departure finding that she didn't engage in any fraud and she was a person of good moral character so the examination of the marriage as far as what the petitioners will was actually occurred in front of the judge and the judge ruled in her favor that point the judge should have said and based on the evidence or else will provide a suspension or her attorney should have said based on everything the judge found at that point the judge was dealing with the portability question because she was charges of portability for fun and the judge says you're not deportable thought so at that point the judge said what applications you're eligible for and the attorney should have said she meets all the qualifications for vala suspension she's been or three years she's found to be a person of the more character and there's evidence of the abuse he found her not deportable on the fraud charge he then said basically what promise to release the applying for an attorney only said voluntary departure in fact the judge asked the attorney you want to play for voluntary departure at that point the attorney could have said i like we like to file for certainly there's a hardship requirement but that was mentioned in the case because the judge was well aware she was pregnant at the time and he was aware her husband had diabetes so the factors for even extreme hardship were readily apparent and  charge or the attorney could have been made that application and i believe since the judge would have likely approved it since he found in her favor on credibility and she found she's a person going large character in order to grant her voluntary departure so there's every reason to think the judge would have represented by the third attorney she had her second child which then call and also the second child was born within four years of the first child and that calls into question whether the chinese government would then harm her for  violation of their strict one child policy since that point she had two children it wasn't until that point that she would be found in violation and in fact the state department report that was referenced i believe in the  child was born when they're outside of china china doesn't count on that one child policy i don't believe the record says that i don't think the record addresses that exactly either way but i think that the state department observes that when the age difference of the of the children is more or less than four years is what often makes the difference so since in this case they're within four years we believe that makes a prime aphasia case again th me precisely why she was ineffective because our position is that petitioners should have been should have filed the violence suspension when your case is on appeal and the you can file or or could have raised the fact that the judge violated the regulation and not advising her either way but certainly the case was alive at that point could have brought this the attention of the court the courts should have said sure she needs all the crime and send it back to the judge for a new hearing instead she was actually filed by the first to turn right and he switched so she ignored what was somewhat more intelligently raised in the notice of appeal and did her own argument and completely failed to notice this and then the third attorney took over the case after the one motion to reopen the board allows so when when she obtained new counsel and we filed that second late motion to reopen we had to allege that reason it was the second and the reason it job requires is an element as i understand it some reasonable probability that they would have succeeded had they done what you think they should have done is a right yes now under my reading of the record it looked as though in a sense they would have had a shot at not getting contradictory evidence once the husband was dead  but even so the circumstances cast such a substantial value on chance story that her chances of success the feat raised all these different arguments and claims that she didn't raise don look that great well why would she have a reasonable probability of success because because it goes back to just the same judge judge to a who decided the case in the first place and he already heard like the more you knew about it the more  inclined to say what was i thinking well he certainly should have the opportunity i think i'm given the fact that he unequivocally said i find her credible i give full evidentiary weight to a test and he wasn't bound by that he this court case law says the standard for prejudice is the outcome may have been affected so based on the immigration twenty logical possibility that it could have been affected is enough for in effect it was just and well i don't think so in this case there's more than a logical possibility because the judge heard her testify not just about her entry visa but about the whole marriage and relationship and found her to be credible he also heard from the government he also heard from the other witnesses and he found her testimony credible he found that she consummated the marriage and she found that she is a person of good moral character so that it's not just a logical possibility that means if you ask the judge who made the decision what he thinks of the petitioner he has a very favorable impression of her i don't know but that follows a lot of judges if they're going to find against somebody without calling them a liar they'll find against him without calling him a liar but if that then becomes important states three years and all the events happen in the united states so he could have said maybe you didn't weren't involved with the fraud but there's something fishy here and i'm going to now you voluntary departure she could easily have said that he didn't he went out of his way to say i find you completely credible again sometime it means you can depart united states than a deportation on your record right but he noted that she was pregnant at the time he granted her a particular amount of time in light of that pregnancy he was clearly exhibited sympathy to her situation and i think that an attorney who could have taken that to the next point and said well then we absolutely can file this fall application we can't say with certainty today the judge would have granted it but he may have granted it that's all we need charged in the end so it doesn't bar her but even if it were to be charged the fact that the director said under two for see marriage fraud that's a lower standard so it doesn't require or bind the judge that it was raised is the notice of appeal and what the issue that they had to have raised in the notice of appeal is that they were making specific allegations against the immigration judge that in fact the immigration judge had acted inappropriately and not advising eligibility so they had to have alerted the board and when you look at the notice of appeal which is on the second administration of record at four forty five you'll see that the only thing that they said in paragraph to which is what it was referring to is they made a passing reference to the fact that she was a victim of the domestic violence and then she cites the one thousand nine hundred twelve hour while law now how on earth the boy could have read that one sentence statement that there she was making an allegation of impropriety against the immigration judge is beyond me it simply isn't there and they never brief the issue and there's clearly been no exhaustion in this case and they can't raise the issue of impropriety by the immigration judge for the first time before this court because that case law as well settled that in fact the when the board is in the position to remedy a procedural due process violation which they could have here they must exhaust in front of the board so accordingly this court has no jurisdiction over the first petition for you and should simply with marriage fraud exactly and that's why one of the reasons why it's very clear that that's not the finding that the immigration judge meant that she wasn't involved in marriage fraud because that issue wasn't we had a contest to deport ability hearing in the here and the issue that was before the immigration judge was did she commit fraud at the time of her entry into the united states on that k one fiance visa and he found in the end that the government was not able to establish by clear convincing and unequivocal evidence so as to make her deportable that in fact in obtaining the fiance visa she didn't commit fraud and when you look at the immigration judge's decision it's very clear that that's the limitation that he's making in his decision in my brief women and he's dying of aids she just thinks she's got an american fiance waiting for but then he could consistently have found had it been raised and it wasn't a marriage fraud because once she discovered what she had here no way she was going to get any further through well exactly in some ways the marriage fraud issue was was raised because the parties were throwing out everything that related to the circumstances surrounding th but frankly i can't keep it straight ok everybody's got multiple marriages right if so i may be all confused on well no you're right but i think that the important thing to keep in mind is the government didn't charge marriage fraud the only charge that she obtained a fiance these and ultimately that was the only issue that was really decided by the immigration judge notwithstanding there were these collateral issues about the overall marriage in front of him there was no finding in the end that there approved and then based on that visa petitions you filed an application for adjustment of status to become a lawful permanent resident and that's in the second administrative record at eight seventeen one in eight seventy six and that's the district director's denial basically saying we have found that you committed marriage fraud you haven't been able to prove to us that you are in fact this is a bona fide marriage that was not appealed then her second husband mr wu he filed the visa petition for her and in fact that's the long decision that's all really clearly lays out this case and that's in the second administrative strait of record eight forty three to eight fifty four and that's the eleventh page just vision by conducted b examinations and the one thing that's really significant to note about that is they had the benefit of mr baldwin while he was still alive they interviewed him they have his contradictory evidence regarding the circumstances of the marriage which the district director made those decisions that you're just going through i believe i don't know i don't think it was at the time of the notice the order to show cause was but i think in the course of the proceedings because they dragged out for a while i think eventually those two decisions were made what the court has to keep in mind is there was no marriage fraud finding it by the immigration judge in effect the lar of this case now is that she has been found to have entered a sham marriage for immigration purposes not for this particular petition for review but the law of her petition for review the motion to reopen i just want the court to note that this was a case where the board gave this case substantial consideration the court may have noted that this is a three panel member and i know the court sees a lot of words decisions these days and i think it's a rare ins on this issue and in fact in faction lost both times and she was found to be have ventured into a fraudulent you're using your your point that with those two district director decisions that that i did you could not have granted and light of the record now the two findings by the district director she's going to have a huge problem facing ever overcoming that hurdle that in fact that marriage is and fragile i think if you read the eleven page decision the full investigation by the agency  unquestionable that the fact that this was a fraudulent marriage so that i think the board is on very solid ground saying it's we're not going to grant reopening  it's probably a bona fide marriage however under the immigration laws once once an alien is found to eventually fraudulent marriage there and after they were forever precluded from adjusting their status you two forty one ground we don't have she's never been found deportable on marriage fraud but we have a in the visa petition and just in the stabber given is in light of the district director her and our petition exactly and you have to keep in mind worked out we're talking about a motion to reopen here that's as well recognized disfavored we're talking about a motion to reopen that's questionably time and numbered bard so wh account a lot of different facts and he he found some or all facts it looked like to me which would be a part of a finding of no marriage that's what if there might be some fact aisle there might be some facts there that might look favorable in terms of the overall big decision of the unrelated to marriage fraud but the issue of marriage fraud was not directly in front of him but he had just been filing fiance know fiance fraud well i'm thinking sometimes woman i honestly think she's engaged fraud at the time of entering you re what he said on the question of their sexual relations that they did not have sexual relations she said he finds that he believes the marriage is consummated i don't know why he homosexual and could not have sexual relations well right i mean that's a contradiction the whole notion of marriage fraud because you were so we can buy aids and he also al you have to agree with you that they don't are wrong i mean the one finding of fact that seems like you know the whole case is what the jury found after a two day hearing listening to witnesses right would respectfully disagree rather in terms of the ultimate issue that was decided by the immigration judge and that was the that was that she didn't commit fraud at the time and then three he wasn't examining whether she was then committed marriage fraud because that was not an issue before him at that point because one of the elements of our relief that you'd have to establish that she was married that all what you one of the things that i think is most critical concern to judge overcome that statutory hurdle that she in fact is not eligible is not deportable on that ground which was never an issue in the first go around like this which got a pretty sympathetic case i mean looking  terms of the third counsel ms jones last counsel there making the all of these allegations against mr jones and in fact mr jones never represented the petitioner in front of the immigration some third party attorney who had no and never made an appearance in your proceedings or had any bearing on your proceedings or could have in any way affected your proceedings in the legal sense because they were they were representing you had no influence in the pursuit and he went to somebody know it might be under some circumstances but in the circumstances this case where they're basically saying this miss jones could have played a role in their hearings that that actually is completely incorrect based on the fact that the children and my response to that is is the fact that back in the it would have been around ninety seven i believe at the time that ms jones was playing a role in this case there's no there was no law early two thousand and and now most of the case law this court hasn't decided to but most of the case law has said no there are in fact the birth of a child children in the united states isn't going to be a basis for asylum so i mean the fact that they she absolutely no law on this side all of the cases that in the two thousands have said no that's not a basis but there was no such law in the in the mid one nine all i can get out of that is if you think it's ineffective assistance of counsel if there's any logical possibility that a contention might have been successful i thought there had to be a reasonable probability that it would have been successful but the way your phrasing your arguments would court i believe has used the phrase may have affected and context determines what we mean by a phrase like that sometimes you can use language like that we can use language like that to me  or this would have been a really strong contention had it been made and sometimes it refers to a mere logical possibility you are apparently taking the latter position and i think you've just confirmed that well i think i think you could say there has to be a logical possibility with some evidence in the record and in this case the record has more than some evidence the record has more than a logical possibility of point and a mere logical possibility not a reasonable d her eligible for the relief i think that the fact that there's a possibility that she could have obtained that relief is sufficient maybe that's not as low as a logical possibility as far formulations forms are standard but that's what we that's the question here whether you know a factor in this film effect of something whether it was harmless or mom you could phrase it that way i suppose but in this case being that to the situation where the person makes an application for relief and it's denied and then later they say but my tray didn't present this piece of evidence that might have changed that here the application for relief was never filed at all the judge found her credible found in her favor but never presented with an application for relief so that situation clearly cries out for remedy that's not it's not just the logical possibility you could have made the application everything the judge did suggested he would favorably consider it so i don't know that it's clear whether logical possibility we have to go that far because in this case there's more than a logical possibility when the judge made a credibility finding in her favor found her  so the judge the fact that the government the district director thought that she engaged in the marriage fraud judge was well aware of all that the judge heard all the evidence presented and then judge is well aware of the statement that  evidence to make that higher standard so the fact that the district director found against her doesn't decide to question the charge rules on the application for relief the charge is the one who finds whether or not she's deportable  even charged ok thank you