supreme court said in funk almost seventy years ago that deportation is a drastic penalty the b i l s decision in this case flies in the face of the due process that's required for such a drastic measure to be imposed i'm going to be looking at due process from a couple of different perspectives and the first perspective i'd like to look at is the evidence that was presented and that was not present at both an opportunity to cross examine witnesses who were not called by the government that is officer baka the driver of the vehicle are these child who is the alleged smuggling that is counsel so i understand your argument you're saying that the opportunity to cross examine was there not because the government neglected to call these witnesses ashcroft did she answer my question first is that your argument is it your argument that your client was denied the opportunity to cross examine these witnesses because the government failed to call these witnesses the government introduce evidence that came from those persons and then the squire drama says that the government doesn't have a wholly unfettered choice to produce witnesses or to rely on sworn  affidavits or declarations this witness could have been crucial could have been critical in this case there's an even more serious violation of due process with the introduction of the alleged transcript of this missing videotape and it's incident it's curious that two of the related cases that have already been submitted by the scandal  the record that you have contested the validity of the transcript report itself in other words you're not saying that the transcript did not truly reflect what the video you are i think it's not reasonable to expect us four years or five years after the fact to say here it says this but that wasn't what he originally said when we don't have access to the original act evidence if we have access to the original video and the transcript then we can go through and and and intensified point by point what were the problems may have been but i think it's important to point out that even the transcript has mr pena saying i don't understand what's going on here which is something that the government simply has not addressed and also has explained how it is out of three out of four cases they happen to have a mission missing videotape the testimony regarding how mr pinioned his family were treated  a wrongly concludes that mr pena statements were not under duress because he allegedly stated in the missing videotape that he was treated fine as i have argued reliance on this transcript is a violation of she was treated fine and statements were made voluntarily so yes if we disagree with you regarding the decision to the transcript you i don't want to make an opinion i don't think so your honor i think that there's enough prejudice in the fact that the makers officer backup wasn't there that a legend smuggle agree that in that case the government had deported the witnesses in there for therefore they were able to testify that's correct and the child in this case was apparently are deported or turned over to the mexican martinez was not ported because he was united states citizen and promptly disappeared after this incident so my question is does the rationale for in the end is a lot of drama versus ashcroft apply when there is no that does not involve deportation of witnesses support your argument to immigration the government has a responsibility to call these witnesses that debt can be used to support the same argument the government doesn't give mr pena a fair opportunity to fight his case when they can't dance and  alien involved to to can't contested and i see them running out of time and i want to move just a moment if i to the adverse credibility determination i him and the child could have exonerated him it is simply unconscionable to deport a person who has had legal permanent residence in this country and the whole family in this country on this type of evidence thank you thank you me please the court eric marsteller for the attorney general will start with hernandez quite a rama that case is distinguishable not just because of the deportation of the witness but the only evidence in hernandez in the i two thirteen was government in terms of safe keeping those two well i believe one of the witnesses indicated that they were not sent away for transcription until or unless and until the requested by counsel in this  case the timeline is not exactly clear the practice i'm not exactly sure but i can say that the video was transcribed on november fourth two thousand and nine which was just about one week after the government officials first said they couldn't locate it so it's very likely that the video had been sent away for transcription and that's why it was not able to be located at the at the facility it was in a way for transcription the government track it or if it's somehow disappear between the time it was sent for happened i believe officer rares one of the witnesses testified that they also couldn't find a log book indicating the record keeping the history of where it had been located but the is that is that common i don't know how common that is your honor i know as opposing counsel mentioned that that was this case the video was missing in a few other cases here we don't think there's any prejudice to that because we do have a transcript both in spanish language and translated of what was on the videotape counsel may i ask when the transcript was prepared it was prepared on november fourth two thousand  which was just about eight days after the initial d h s s notification that they had been unable to locate it and then and then we really don't know what happened to the videotape after it was transcribed there's nothing in the record about that well i'm not i find that hard to understand the videotape was mislaid but nevertheless a transcript was made i don't understand that you're on it what what what what what probably happened i think this is what the board mentioned in its decision was the it wasn't mislaid it had been sent away for transcription and so when they looked for it at the facility it wasn't there because presumably it had been sent away and now no one was aware apparently not your hono s there's no indication at the in the record specifically what happened to the videotape but when it was sent away for transcription what was the delay between the time it was sent away for transcription and when the transcript was produced well we don't know exactly when it was sent away your honor we know that on october twenty seventh d h s s submitted a letter saying they could not find the videotape and we know that on november is the date the transcript was made but we don't know how much before october twenty seventh the transcript had been sent to the transcription service i don't know what the turnaround time is for the transcribing the the video tape it would have had to have been watched in transcribing the spanish language and then transcribed after translation into english well aren't aren't you puzzled like i am that a transcript could be made when the videotape can't be found well as the board indicated it's likely that the videotape obviously could have been very just whoever wrote the report on october twenty seventh apparently was unaware that had been it had been sent away for transcription so they could not find that i'm not sure of your honor i i don't have the exact date those documents were submitted i believe it was in two thousand and ten the government submitted the transcript and the incident reports from officers anderson and baucus and the i two thirteen but i don't know was important to note here is that the transcript is in some ways a secondary issue it provides extra evidence indicating mr paine is involvement with the smuggling but you can understand  but the problem here is that mr pena his other arguments are based on the fact that he made these statements that he helps smuggle in this alien and that and so he doesn't deny the kind of the material evidence that the videotape would have provided which is that he confessed that he helped smuggle in this alien well what about the evidence of cars will the videotape be pertinent in terms of being able to  the actual interaction it may your honor but there's a couple of key points one what was said in the videotape sworn statement was ripped duplicative of what in large part of what he had said it secondary inspection which was  started at one fifty in the morning like some hours before the videotape sworn statement was made at that and secondary inspection he said initially that all of the children were united states citizens and then when the immigration officer after speaking with the child in learning that he was not the child of mr pena or his now wife and that he was a mexican citizen when when the immigration officer told that to reno and that he used the birth certificate from his wife's son in order to do so so the transcript of a sworn statement merely repeated he repeated those same statements in providing more detail but the coercion claims are inapplicable to the statements made at secondary inspection because there was no a long wait of time before the interview there was no lack of food or water this was this was in the carmona which the government would have had no way to know that the name of the father of this child was mr carmona so so the attempts to  to to to suggest that all of the transcript ging was was manufactured by the immigration officers makes no sense given that the name of the alien smugly was included in the transcript ultimately whether the document should be admitted comes down to whether was probably even fundamentally fair in this case your honor as we believe that the evidence establishing mr pena's remove ability for assisting in alien smuggling was probative and it was fundamentally fair and in this case mr pena also had the opportunity to cross examine the officer who spoke with him of secondary inspection as well as the officer who conducted the statement of the sworn statement by videotape there is pure speculation by the board of immigration appeals that this transcript may have been out to be are they a videotape may have been out to transcribe we don't know a lot but this mixing we have other than that the transcript we have there's no evidence whatsoever that the video was ever made and i want to focus on the government set me a letter on october twenty seventh saying that they had made a diligent search for the videotape it wouldn't occur to them that maybe they had senate if two to be transcribed ice that that's total speculation and as the the court they simply cannot speculate mr pena denies that he made any statements whatsoever to officer anderson at the garage area of secondary he spoke to a different officer whose name was monica officer ray says monica told me this monica was never identified mr bay it was not the person he said there's no contradiction and in who gave the documents the i j a said that there was and it just doesn't exist mr pena wife consistently testified that she had all of the talking points with her in person when she took them out of her purse the officer grabbed them and one of the officers actually used this word grap we grab him so i don't think that's prejudicial there's just so much here