psychological evaluation that was required and asked for by the immigration judge and that his attorney without any explanation failed to submit and which mr transmitted with his motion to be opened in the past the board of immigration appeals to reopen so that psychological evaluation wong said i know you're gay however when ten asked whether he should provide this evidence in court one told him not to when you understand that the conversation took place that conversation according to mr chan and speculation took place one week before the final deportation hearing in april two thousand and one and it certainly did arise late in the game however it rose before the final deportation proceeding and it could easily have been for scented with evan asked as to why it was being presented so late in really proceeding he never told consul that he had been mention you were gay and surely he never mentioned that he was being persecuted correct well looking at the port of immigration it's kind of appeals decision i think it's really important to look at that decision because i'm not sure that the v a did all that i mean their first finding  in this four years of representation says that you know i had to hand hold them of course you would have advised him and then it goes on to say we find nothing in the record to support tan's assertions essentially that he told his counsel that he was gay but can never even made that assertion one of the errors of the board of immigration appeals is that its entire factual basis of the decision is completely climb and this court has held that when their decision is so completely flawed you can't even rely on it and that's what i would argue in this case is that there factual basis and it's completely flawed and the dispute that that is actually totally true the question is though whether his attorney whether there was a conversation between his attorney and hand and what we have here is we have hans detail declaration where he has specific memory of what occurred throughout that upon to support your argument that in the context of a motion to reopen the person speaking reopening has to be given the opportunity to rebut any implicit promise credibility determination w relied upon for that argument i would say or don't i don't use that the strongest case on that issue that's not a motion to real it was a motion to open your eyes and there was a motion to reopen to provide evidence that occurred evidence that occurred after the proceedings and what the what the board did in that case is that they said that they thought some of that evidence was discoverable prior to and therefore they didn't believe the evidence that i was trying to solve that it wasn't that and uncontroverted declaration that we were looking at in that case  honor and there's also you're right your honor but it was still the same concept of an implicit credibility when i would say the living case is the best example of when there were two declarations it was a declaration by by african and there was a declaration by the and that's true he never did tell his lawyer that he was attacked because of his homosexuality so here are put through his lawyer that there was any problem there of that nature and so and so they say we don't think counsel was in effect on that basis i don't quite understand how we can say on no consuls in fact that when he never even rated even in criminal cases we say you know if you don't tell your attorney about a witness for example  is unaware of immigration law relies on an immigration attorney to advise them of the possible options that are available to them and tan explains in this declaration that he went to mr long with the intention of learning his options and applying for to stay in the united states and that one that failed even at the initial meeting to do any investigation to even ask a simple question are you afraid to return to indonesia and if so why on what basis throughout three and a half years of representation one never asked han tell me why you were afraid to return to your home country and this case i think is stronger than other cases because there is so much evidence that shows that there was a relationship between mr k and and how d mr tan showed up at almost every hearing with his attorney with his partner howard plus there was the psychological evaluation that said mr tan is gay so his attorney was on notice that was constructive notice even if you don't knowledge you know is the basis for signing the attorney has an added minimum duty to advise the client if you are gay and you fear of returning to your home country because the persecution based on being gay you might have a basis first time and at that point if he doesn't come forward and say he's gay there m wong's affidavit or declaration and base their decision on that evidence i don't think they specifically said well you're not you're not showing truth and you are i don't think it was like that i didn't want to have to choose one version of events even if they had to believe the declaration petitioner or the declaration of the attorney in order to resolve the factual dispute i don't think it was necessary for them to one or the other in order to make the ultimate determination in this case which is assuming we go past the constitutional issue all it's important to remember in this case that in his original no obligation to follow up on that no not necessarily i'm just saying that in this case he wasn't told it was too late in the pursuit and this these were not this was not just in the course of a month this was all i believe this was in the course of several hearings but just and what happened the answer i suppose was that what happened was they knew there was an emergency room visit and reports were made at the visit and the judge said get those reports and the psychological support is critical because in the eye james decision the i g said specifically the problem in this particular case is that we do not have concrete medical evidence in terms of expert opinion as to respondent's current psychological condition and so i would say that this decision that the i j a deny this case in part or perhaps totally because he did not have the medical report the psychological evaluation he gave long a year and a half to obtain the psychological evaluation wang went back to that court with the the hospital reports he's given to the judge he took them back and he said your honor i will make i will give you my opinion of these reports and the judge said clearly your opinion is not expert testimony and then he went on to say well we don't really think that his psychological state has anything to do with this case in any case there's a direct quote from the immigrant from the attorney saying we don't think his psychological state has anything to do with this case and then and he totally contradicted tan's own testimony which said the next case on today's argument counter as you know