you this is a withholding of remove hope and convention against torture a case that the court should remain and the board of immigration appeals for further proceedings the main reason that this court should  an educated he does not speak english he was detained during the course of the underlying proceedings and he represented himself proceeding because he represented himself pro se this court must construe his submissions in a deportation proceeding liberally when construed liberally mr whereas pro se notice of appeal did apprise t that notice of appeal is a found at the record it a are two hundred fifty and to walk your honour's through the notice of appeal the very first sentence in the notice of appeal states the immigration judge neither my case based on my medical records mr where there is specifically pointing to exhibit seventeen that was submitted to the immigration judge when submitting this document at the end of the merits hearing mr guerra described it as my medical records at the proceeding which the due process violation that that sentence the due process violation is that the immigration judge did not consider the medical records that mr  a sentence says that the judge denied my case based on my medical records so how is it that the he saying that the judge ignored them well and how could you possibly get that out of the  decision as i read it deals extensively with credibility problems doesn't deal at all really with medical problems so i don't know what the b i a supposed to do with this well your honor the medical records exhibit seventeen show that mr  been tortured at the hands of a drug cartel in mexico the immigration judge found that mr guerra lacked credibility in part because of the medical records that he opinion specifically on page fifteen of his opinion which is found that the record at eight are two hundred and sixty eight the immigration judge cited exhibit seventeen which mr gore referred to as his medical records at the proceeding and said that the applicant stated that he hadn't had a medical examination at that time the court noted that in the medical document dated in may the applicant began to suffer hernias an apparent problem with his testicle and the court then goes on to describe the questions asked by the immigration judge or mr guerra so what what could that be i possibly make of  that what due process problem is there in that paragraph if that's the reference by the i j to exhibit seventeen and even at the b i a could link up he denied it based on my medical records could could figure out that he was referring to exhibit seventeen and then thank you your honor the problem is that mr garrett was proceeding prose i got that i understand that and we'll we'll we'll cut him a lot of slack but but we've got but he also told the b i a that he was going to provide a break and and requested extension after extension after extension which the generally granted him failed to file the brief this is what we've got so what does the b i e do with this what what it was to be what what would you like us to find in this paragraph that would that would tell us that there was a due process violation specifically the court referred to exhibit seventeen and after the court had reviewed exhibit seventeen he said on the record that he only reviewed the document briefly and that you not read all the pages of the document and he then reached the conclusion that exhibit seventeen did not support the fact that mr ware had been tortured that's the same conclusion that the immigration judge reached in his written opinion and by proceeding pro se mr gore does not have to use exact just because you're going to run out of time quickly what's number two what's number it well because this one is not your strongest i would say maybe the next two sentences get you closer to a due process motion thank you your honor the second and third sentences in the notice of appeal specifically refer to the lack of time mr gore had to submit evidence in support of his application i now also refers to the hearing that was cancelled the separate september twenty third two thousand and fourteen hearing that was cancelled so mr where is referring to his evidence of his service in the military he was tortured by a drug cartel because he learn certain skills in the military that you refused to provide to the drug cartels the immigration judge at the underlined hearing specifically asked mr guerra to corroborate his service in the military and he asked on july thirtieth two thousand and fourteen the first day of the marriage hearing and he asked again on july thirty first two thousand and fourteen the second day of the merits hearing mr blair explained that his sister was looking for that documentation that she was in utah and if the documentation existed it would be in mexico mr grant walked out of that hearing thinking that he was going to have another hearing in september but that hearing was cancelled without explanation in the immigration judges final orders so garratt had effectively one day to find that evidence of his service in the military and mr gray has continued to search for evidence and i can tell you today your honor is that i've been informed that mr guerra has found photos of his service in the military that should crime rate his time in the military wouldn't wouldn't be a would be appropriate procedure then be a motion to to read to reopen with the it's not going to be timely he might but he might offer some some explanation your honor that would be one option mr where some appeal this case to this court pro se so if given another opportunity he might be able to consider other options for reconsideration of his case and the due process violations that occurred at the immigration level and also at the board of immigration appeals notice a was the was the i j a obligated to hold the record open for unlimited time i do not know the answer to that your honor that's that's a legal question right yes it is a legal question what are your instincts tell you no i don't think the i j a was obligated to leave the record open the case open for unlimited amount of time as soon as the i j a issued his final opinion then it became a case that with appeal still the notice of appeal is filed in two thousand and fourteen and we are now hearing today for the first time that he's obtained the military records so that would be that would be four years later so what's the due process problem if he doesn't get the records for another four years your honor what where more time to search for the evidence the court has found that five months is a sufficient amount of time to find corroborating evidence once an applican on notice of the need to find the corroborating evidence here mr going to have one day and he but he had that he had months while his appeal was pending in which he might have gone to the b i a and said in the interim i have i'm just letting you know i have found the records with additional time i could have found them this was a violation for the i g to have done that now it's four years later and we've now you know wonderful appointed counsel who have come in and now tell us that o argument that he's got something which i take it you haven't seen but we understand there is something that he thinks can correct can corroborate this so i'm still trying to figure out how what the b i was supposed to do here the b i a should have looked at the record before it which included clued mr gryce notice of appeal which had three specific due process violations identified they should have also looked at the i g s opinion and compared it with a notice of appeal they should have also looked at the other submissions by mr where in the case he also submitted a motion for extension of time and that's it a r two hundred forty one and in there he used the phrase due process he specifically wrote that he had made the quest for more time to quote ensure that his due process rights under the constitution the united states can be ensured and secured well i thought the answer to judge by these question about what the b i should have done here was actually a much simpler one than what you just said could because i don't think the merits of the due process issues are before us i think all that's before us is the question whether the be should have used the summary dismissal procedure or instead should have been forced to resolve the merits of the claims itself so as i understand what you're asking us to do is nothing more than some this back to the d i m a with instructions saying that this was not a summary dismissal case you must actually reach the merits of whatever brief and by doing that it put well i just because that brief is pretty much useless so i don't and i actually don't think there was an abuse of discretion in not giving him more time but put that aside i still think the question is well did properly present and i'm the other question to you is whether or exhaustion cases have something to say about this but does the notice of appeal itself put aside the later late file brief does that properly put before the identified in the notice of appeal i would if there's one case i would have the court review it's garcia cortez versus ashcroft and that case is directly on point factually the petitioners sentences they had in the notice of appeal and the petitioners there pointed to evidence that was before the immigration judge that the immigration judge did not spend enough time thoroughly examining or explaining why it was not relevant  it is also within this court's discretion because due process claims have been brought up to consider the entirety of the record and when it remains to be i e if it remains to be a two issue directions process was properly invoked and if we say that it was not the most it seems to me we can do something back to the p a and say resolve this on the merits your honor i i would submit that the notice of appeal goes to miss it reasons to do that and i'll first sentences the i j a denied my case based on medical records that's insufficient to put the board on notice of the issues on appeal ok i'm a maybe maybe i'm with you on that but what about the next two sentences next sentence he did not give me time to turn it on my hey i'll get around to following the brief but never did no doubt we would uphold a summary dismissal but i think our case law says for pro se petitioners that this isn't enough this is the most we can expect to be able to do is to alert a to the problem and the problem he's saying is that hey i thought i was going to have more time to submit additional evidence and it wasn't given to me and in fact this hearing was counseled without notice to me and that's that's why i'm in this you know predicament or what happened was that was a two day merits hearing he testified he was the only witness that was on the july thirtieth thirty first and at the close of the hearing the judge asked him for evidence which he said he didn't have and the judge said he will case ok well so maybe the claim fails on the merits but i guess all i'm asking you is in terms of the summary dismissal profit per process i just don't think that that can be invoked when the petitioner has identified for the be a in a concrete way the thing that he or she says went wrong and if it's approached a person we don't require them to cite legal authority and to spell out in detail exactly you know what the particulars are just  is put on notice of the general defect that the person is complaining of and i guess i don't see why those second and third sentences don't don't accomplish that well in the garcia courts as it says conclusory generally statements are insufficient they have the person has to g cited to the partial portion of the i g story that i didn't have time to turn in my evidence regarding my military service if that's the evidence he was referring to we don't know we're forced to guess i'd whether it was medical records whether it was the letters from his friends and clergy that he submitted in that motion for a cancellation of remove he submitted a number of documents along with that who knows what evidence he was referring to  is basically the standard that governs whether summary dismissal is appropriate in other words if the if a pro se petitioner has done enough in the notice of appeal to to exhaust a claim and i'm thinking of ran in particular maybe you could could s case law to say that with respect to process a petitioners we don't demand a whole lot of them right in terms of all the particulars of legal authority we don't demand that all we demand from them is that they put the b o j on notice in a general sense of what the defect in the underlying proceedings they're complaining about and i'm saying that for exhaustion purposes we have cases that are pretty lenient in saying that something as general as this you know once the case comes to our court as long as the person kind of said this to the  we will deem the claim to have been exhausted and so i guess i'm saying that if if that's the case then i don't see what exhaustion as is shown or that standard would be mad i don't see how the f b i can use the summary dismissal proceeding because by definition it will have been put on notice of the defect that it was supposed to correct and then that means it has to resolve on the merits and that would be then what you were about to say would become relevant well i think the case law says that they usually look at the notice of the the appeal and the brief with it to see does the briefs sure any defects in the notice of appeal here there were quite a few defects in the notice of appeal and the you know like i said there was no idea which evidence he's referring to and i saw the military letters of references medical records and in the record was very very basic one thousand and sixty two pages and here he filed the brief the board had an opportunity to look at the well if you want to call it a brief the most motion for cancellation of removal they had an opportunity to look at what he wanted to file and the attached evidence ribbit and they said this doesn't address the adverse credibility determination it was insufficient it didn't it didn't overcome the basis that the i g had identified so what you're suggesting is that the standard is never is not  correct and the defect he was already laid out for us in that it was simply wasn't specific enough that he needed to not only tell us the specifics within the medical records for example within the military records what was missing in his notice you you cannot discern those issues from that for sentence notice of appeal the issues that they're now saying well can i just direct you to rand because there we have tell me if i'm remembering this right i petitioner who filed a notice of appeal that no brief just like here and the notice of appeal i think said nothing more than i believe that i did establish that my wife freedom my life flash freedom would have been threatened in china on account of my strong beliefs and practice of christianity full stop that's the sum and substance of what the person alerted the b s a to is the supposed error and i think we held there that yeah that was good enough it didn't have particulars it didn't say this insight legal authority but that that was a nuff to exhaust the claim that and that therefore allowed our court to reach the merits and it just seems like well my goodness if that's enough then why aren't the second and third sentences the evidence well i i fully agree with you but i'm saying that in rand the petitioners didn't they never filed a brief at all so all we had was the notice of appeal and all it said was the sentence i read to you and we said yeah that was sufficient to put the be a on notice and therefore the claim was exhausted and i guess all i'm saying is that let's pretend he never tried to file a brief all he filed was the notice of appeal would we be compelled to say that because he's pro se those second and third sentences do adequately alert the b i a to the process claim that he was trying to raise now maybe it's not meritorious but the at least put them on notice of what he thought went wrong in the proceedings below does the fact that  was that i did not get an adequate opportunity to present all the evidence that i had and in fact i thought i had this second opportunity or third opportunity whatever you want to call it in september and then the judge canceled the what he thought was going to be another hearing with no know that would be highly unusual for an immigration judge to hold evidence open to almost two months past a merits hearing and in this case the immigration judge who told him to have his evidence in by july twenty first ok but that goes to the merits then your claim is not meritorious but it's not it's not like the b i hasn't been told what the problem is that's all we're trying to seem to me that's all we're trying to resolve is whether summary dismissal was appropriate or instead should the disposition of been on  seems to me that he said enough to alert them to that to what he was complaining about at least in that respect and at that point they can't just say well because you didn't file a brief we're not even going to look at the merits and in your you're out of it is a was the brief and the medical and as the board said the met they reviewed the evidence they set the medical records to another stablish how a medical reason prevented him from filing for earlier so in some because the sentence notice of appeal was in artful but also recognize that it was written by a pro se applicant but it's pretty clear in looking at the statement the judge watford read to the government that that he was challenging at least that th it was pretty squarely challenging it on the basis of i think i provided some subset sufficient evidence and he referred to as chris is christianity and it is not much but you can look at that and say ok i understood what the problem is he thinks he thinks that i records and that's the same the medical records is probably not going to get should get you home on this one at all the other two sentences are the ones that i think the court is focused that thank you on he also specifically pointed to his time that he needs time to search for records and hearing that was cancelled the government does represent something the fact that mr didn't have records of the military service and said that at the hearing he did not say that if your honour's would look at a r four hundred thirty six that's where things were left off with the immigration judge and mr where there specifically said that his sister was searching for the documents and his sister lived in utah the documents were if they existed in mexico and it was from his military service that occurred over twenty years ago b i have known that they were that they were looking for but he was complaining about not having time for the military records with the based on the two sentences in the notice of appeal and then a firing his lack of additional records about the torture that incurred that required surgery over a year later because the injuries were so significant and that was also something that the i j a question and mr ware's credibility on further proceedings on the merits of mr blair as appeal thank you your honor can you the court wants to acknowledge your participation the pro bono approach project this is a great service to court to have you take up these cases want to thank you for that thank all counsel for the argument the case is submitted