a fair trial because the petitioners husband for health reasons was excused from testifying and all the testimony that yes he did there was a letter from a doctor indicating that for reasons of poor health he could not testify you don't dispute it was your contention that he wasn't in fact in bad health and could have testified or is it that something else should have been done and if so what well we think he could have testified and something else might have been able to done perhaps his deposition taken in iraq  what is a standard for failure to preside over here counsel and so that's come over here well i'm sorry what is the standard for failure to present a witness what what does must the government do in order to justify what do we look at whether or not it's fundamentally fair don't we look at whether or not the government made a reasonable effort to produce the witness that's that's that's part of the standard and did the government mak i actually rely on him mostly he went through all of her testimony and didn't believe a lot of it and the letter of the jointly submitted original letter and he did say he believes the agent but he didn't rely too much except in passing on and what the husband said  think the judge relied very heavily on the like where for example in the for example the investigator one point claimed that your repeated where does he rely on on me has been as opposed to not believe going through the testimony of  better thank you but it sure is an educated and sophisticated woman who married a man she knew was ill and elderly despite that knowledge the marriage fell apart almost immediately the immigration judge simply had little relatively not involved people like the past are not objective well i think in fact the pastor is a great example your honor when specifically pressed on a are for seventy four he kept saying we have mr bus  by the level of poverty in which the petitioner found herself with her new spouse that there was an expectation that she would forgo work and stay home and take care of him because home and taking care of the spouse because he was elderly and sick they're not requiring in a way that why you do such a thing but when the expectation of the marriage was this situation set formula for whether marriage is bonafide or not is this a marriage may be people of well most people want to know but people are allowed to make their own decisions about what they marriages that happens quite a bit and know that all the motivations are but does that necessarily mean it's a sham marriage the issue is not whether or not it's the immigration judge explicitly said it had nothing to do whether or not  there is an age difference or what the expectations were well i did i certainly had to do it i mean at least a lot of his they i g s debunking of her testimony was based on the what the expectations were the fact that she wasn't staying home in and taking care of her that was going out to work well the immigration judge she had what she had minimal evidence to suggest otherwise but the question about the other information from spouse well they went obviously the initial husband contacted the senator who then referred the case to ice when he's got the case they went and talked to the husband then they issue in order to sort of just blame the government why didn't the government do this why the i j a rely on the agent except because he didn't rely on the agent wants from the i g hurt him quite a lot and he did in that paragraph i read reliant a situation where you had direct contradiction and she was going to be greatly impeded in her ability in it because because she was there or they would try to do all this cross examination of her and then it was concluded that she was not credible because she could she said contradictory things or whatever if he'd been there the same thing might have happened to him but he wasn't there so it wasn't a fair and that sense it doesn't seem fair well except again she has the burden of proof and the immigration judge did not say well the husband said this case over what the immigration judge did she went through this again just to summarize the facts and try to understand what is going on here where is the evidence really compel were still there no joint assets and yes they didn't have a lot of money but difficulties when you don't have joint assets and the money issues get complicated because of the money that he gave her that we don't know what happened but ultimately the immigration judge and say the husband said  but didn't they have together along with they actually living together that was the part that troubled me it wasn't clear from the record that she actually lived with us now so well that i think that's a lot of the difficulty your honor is things aren't really clear it's nice to be able stand up years a lawyer and say here's a narrative that the government has for years and they're going to petition us i can't do that but don't record reflect regarding how long she actually don't remember whether he just agreed that for another year and a half she came there every day and cooked and cleaned and took care of him and her stuff there and so on and it wasn't till after the divorce that he threw all her stuff there the house and so on well the question is does that mean living together is that cohabitation when this unusual situation occurs i mean some sort of devotion i mean there's no suggestion she was getting paid for that well again there's no requirement that  which is also what she says and instead she was living right downstairs and coming up stairs in the morning and cooking and so on what it was that just proves that they had again a somewhat unusual marriage given the fact that i gather it was a one room apartment and that she was waking them up at night right except the difficulty is that she knew the situation that she was marrying into and yet she woke him up and she began working immediately after arriving in the united states on her green card despite knowing what situation was despite him already giving her ten thousand dollars she just may started working immediately and again the mom just someone walks into court the table argument in this case has been sitting here for five years i've years i've really can answer i just don't know your own i'm sorry i mean what about the fact that she's never remarried is that marriage not going to work unless this was clear enough now there's a good question your honor the difficulty is when you marry during removal proceedings and of course depends whether or not she's still technically in proceedings or not depending on the case law which gets complicated on that matter if she marries during removal proceedings the marriage is presumptively fraudulent so i also i thought it was also true that if her earlier health so that second part is eight based directly on him and be a very questionable aide it's based on the joint letter they filed she saw me she said it's not hearsay if you're on a on the question of how long the parties maintain contact they were married in december twenty second two thousand and three divorced in june sixth two thousand and eight that's in the morning she would get up cook breakfast and then meet with her husband and his apartment and this went on until june twenty five that was the day when the mutual agreement that was  her husband's direction and were in the record can we confirm that the husband directed her to live with her mother rather than with him it's in you it's in my client's testify and i think it also  i believe the testimony of the pastor and one of the church witnesses who were aware generally what was going on and it was mr continued you could i thought it was also one of his declarations i think that's right too but where in the record did he say that he agreed specifically where he said he agreed that his wife could live with her mother then rather than with him i just don't recall that from the record if he agree with that degree when it was in order that's what she was ordered to do what she was ordered to live separately from him  should should stay at the mothers because it was keeping her up at night and up at night but i'd have to find that the council could you answer the question i mean only could you answer the question that judge  about what would be the effect of the remarriage on her eligibility to adjust status i think that she would be treated as being married during proceedings and would have to meet the clear and convincing standard that the marriage is bona fide and what i would suggest to the court and one of the things i point out of my brief was that this case started bothered to look at any of the witnesses they didn't do a thorough investigation they didn't really talk to my client they really didn't talk to any of the witnesses and the exactly the investigator consider that is normal practice