the second issue was a petition the second issue view was based on the motion to the border immigration appeals regarding ineffective legal counsel by the client's original trial counsel with that was denied by the board and that was to the second issue because if he is found credible we believe that the evidence of his rest in prison didn't torture would be sufficient to warrant asylum walker to be found credible when your argument isn't that there's not sufficient discrepancy in the testimony your argument of the discrepancy comes from the written applications being false or mistaken because the wrong information was turned on and that's the issue that we would agree you're out of that it's almost impossible to find for the response on the first  affectively speaking number one is pretty dead letter by the time it gets to the issues you're putting in front of us or number two i would agree that the second that this review is the important position review because it goes to the heart of advocacy was way below the standard that it greatly affected the case in that he never passed the applicant for the hearing there is a statement by mr reid that during the trial this after h in order to discuss with his client this issue because he says the judge i haven't had the opportunity to speak to about it yet he's not represent the two years at this time your honor it's been told to brief this issue there's no wreckage there's no indication the record they actually did brief it as the research said that your client didn't speak english and mr reed didn't speak farsi and they're not going to communicate effectively whenever they meet they need somebody who's a go between are understand your client's argument is really that the go between the assistant who didn't speak i'm not going to believe this that makes this adverse credibility germination absolutely your honor and what we're saying is that the tells us of this that the system is just going to make up a story and what indication or what record of you submitted in your motion to reopen to suggest that that what was put down by the legal assistant wasn't what the legal system understood from your client when they were interview mr ahmadi in a detailed affidavit that was submitted with his motions reopen details the fact that he did not meet with mr reed other than shaking his hand one time at the office and court that he told his true story as to what occurred what he tended to testify to at his hearing i what happened to mr resistance didn't and that he did not read the application of this part of the application without reading him in his native language that he did not read it since it was not in his native language that he did not meet with mr reed i think it's important that mr reid in saying that he has not had the opportunity to speak to his client clerk or another attorney who works for me sit there and translate with me and that everything is done it's not necessarily done without me in the room and that's and that's one of the the duties of an attorney he must know what his client's  what you're suggesting is that if you've been truly affected counsel he would have before the testimony so done with as quiet and gone over the application translated into forsooth so that  the stand that it was mr reed who had i mean if if if your client tells you as many witnesses often get on the stand they say things that we as attorneys never expected them to say wait a minute i just you just told me last a transcript and he's saying this is the i drink i believe question me and he was your asylum application that you signed and swore t sir you said for one day or one week right answer ten days something like that question now this is you were put in prison for two months in one thousand eighty one is that not true answer do you yourself remember in one nine hundred eighty one the for two months in one thousand nine hundred once or answer this belongs to twenty years ago question do you know the answer to my question or not answer there is a possibility because it could be ten days it could be three months i don't remember vividly now this is a part of my life that i don't want to remember each and every day is that it doesn't sound like something that mr reid had anything to do with i would disagree and say it does because  shows that mr reid had not prepared his client adequately questioned him to determine all the facts and circumstances this is the responded this trying to discuss an event that happened more than twenty years earlier he it appears he's never been questioned about it or lawyer's preparation of a client to remember whether or not governor escaped from prison and the fact that he can't give an answer and indeed what what what gives me concern is that he has never said that i found his declaration that the the written applications filed were incorrect were not his story and hear when he's being faced with the inconsistency see his response is well i don't remember her ever straight from prison or not me that that doesn't sound like someone who says well i never claimed by the state from prison if you want to i had agreed that increasingly his answers are not necessarily state but i think what he is saying is i don't remember ever saying i wish i was skinny from prison and the only where it appears is on his application the other issues i have one second your hon good morning your honor joseph sure for the response of the attorney general we agreed with what i understood counsel to say your argument this morning that credibility is what or burden to put forward support beyond the kid is own word for his position that the applications submitted on his behalf were different than what he had told indirectly through a member of his counsel staff his counsel in preparing the applications  reasonably would appear or we can reasonably presume there would have been mr has a room these notes and drafts that might indicate what he was told or if those were not present in the file that would be a fact that we would expect counsel to put forward in support of the application but in fact the only thing put forward in support of the application is the report and if i may refer to the record your honor at page he prepared the applications based on the information provided by the respondent now given that petitioners story obviously when he testified was different than what was prepared and given that it is apparent that counsel was surprised we have nothing in the record that indicates another course you know what case is that on them applicant that the affidavit of the person claiming ineffective assistance of counsel is not sufficient that is not the rule that i would contend your honor that is way too broad a statement given that the claim is that the finding of lack of credibility was based on an alleged or imputed misquotation misrepresentation you're saying there's not enough for petitioner to make that claim in order to have the board consider the motion he has to get information from the council he contact mysteries off of as he was trying to do things like put off for a month or so and then he was told in january two thousand and four informed that mr reid had died a few days prior so it sounds like fairly early in the attempt by mr poet to obtain the file and get information he was going to wall and if it turns out that the street is fatally ill then maybe it's not a surprise after the fact but he learns before he would have anything to go to the state bar on that that mr reed is no longer with us now so if that's the case then and there's nothing to suggest it's not then i don't know how he could file a complaint with the state bar i agree with you the claim the state bar would should not be required in this case given that mystery what he was what the issue was was his alleged failure to meet with his client to go over the application to determine whether trying to get the files mystery's office you spend newly hired you taking a case over from another attorney that's not always the most cordial of amps and so i don't know that anybody could reasonably expect the new lawyer to say by the way my client tells me that you screwed up big time and you're going to be in big trouble so i need to send me the file that i need to get get the evidence of that i mean you try to get the file before you get the violin the man is dead so i've been well i'm not sure that's correct either that is before you get the five you learn the man is that  is not entirely clear again because it appears that his declaration says on january fourteenth two thousand and four ms garcia from my office went to the law officer john reid to pick up complete copy of response file at that time we were suggests i mean i can understand your point but i also think that it's this doesn't fit neatly in any pattern as to as to how you would ordinarily expect the specific shortcomings of the first attorney to be documented because  that time you learn that he's dad you you take another route well your honor if i if i may illustrate my point with a practical point which is let us assume hypothetically that the court were to do what we don't want to do and word remand the case to the board perhaps ultimately the board sends it back to the i j a to it to make a determination what is the i j a confronted with he's confronted with a record that amply supports the original conclusion of the lack of credibility unless the petitioner is correct and the reason for have were not what he told the investigator or the building owner or whatever he was no legal assistance of some sort your honor apparently from the lawyers file you make an effort together you make any number of things we really don't know what you are running out and that let me give you one more question yes you're ok in the  performance before the board but it doesn't address the issues that they're raising in the motion i think your honor if i may venture to explicate that the boards me of words the issue that was present that to which they were speaking were those that council was competently representing the client with the issues that were raised at it hearing and in the councils appeal to the board the original appeal that he has resettlement timeliness and so on right the question of credibility now the question of whether the application did not represent the story that the petitioner told if you want to call him a legal assistant whatever he happened to later at least whatever that's the basic complaint and that he wasn't prepared for the hearing by counsel those are the two elements that basically make up the going effect of assistance crime he didn't say that the council didn't perform well at the hearing you know the council you know maybe gets an a for his performance but it doesn't say anything about whether council prepared the witness even met with the witness before the hearing or whether the application the council filed was an accurate application those things aren't mentioned by the board that is correct or on well don't you think those are the things that we should ask the board to consider i think those are the things that the board might have considered had they been properly presented by counsel in his motion for reconsideration you don't  motion for consideration raises those issues i don't think direct motion for reconsideration adequately raises them because it depends on the testimony of mr