cannot be here today as he is in mexico having been deported from the united states after the board of immigration appeals rendered its verdict evident there its decision ordering him  of discretion i believe that lead from this circuit and the interpretation of the board by the board of regulations and and evidence is under the substantive evidence standard the heart of this is for seizure all due process and where the proceedings before the agency fail and just in this case they were not from the outset mr cruz rodriguez was detained in two thousand and seventeen by the court account in the court of county by the west mr cruz our biggest came here is a minor he he began working here in the united states built a family built his life and then in his forty's this event occurred ice detained him took him from the jail and co to county and then did not permit him to appear in his criminal matter despite for us from the state of minnesota obering the department of homeland security and ice to produce and record their excuse was we don't have time we don't have time to for this individual his constitutional right to appear in criminal court that let these allegations which were false untrue and not substantiated by the evidence to be used against him causing him to have to produce to make himself prove himself innocent of the allegations but the i j a and the board could consider the underlying conduct correct regardless of any conviction they could your honor yes that's correct however the underlying conduct testif to mr cruz rodriguez described in the court the underlying contact and how he differed from what was in the police reports what wasn't permitted was his wife's what was in place a no contact order i'm sorry your honor there's a no contact order so the immigration judges will not allow her to come to court to testify is that in the record it seems that seem interesting if i'm asked understand a no contact order between him and his wife given the charges but but why couldn't she come into court as a witness because they cannot by the terms of the no contact order be in the same vicinity of each other it is in the record i can the why could there but i mean did the elin ask to have her heard without him in the room they will not allow right to present so she could be you're representing him in state court there's no way for you to interview the witness the key witness if there's a no contact order i can discuss it with the prosecuting authority what does that mean you could talk to the prosecutor  criminal case about whether or not i can talk to their witness and have the press in to speak with that i have they're the ones who are controlling their witnesses and that contact in this context because there's a no contact order in my communication with the alleged victim could be construed as communicating through before it to strewed i'm not permitted to do so i'm not permitted to call her up and say can i talk to you about what these allegations a rd party made against my client who is also the defendant that case made against you so i cannot do that and furthermore wonder she ever and i don't think the cap the court you just said that you could do it if you like use a prosecutor right but i was not a party i was not here i couldn't do it as his immigration attorney i do you know di try and try and try to do was have him produced at the criminal proceedings before the judge and resolved that i could communicate with the prosecutor so i did commit i i retract that there is a record it not saying that was previously available apologize the evidence was not previously of fail a bill because we could not resolve the matter of danko the result the matter of communicating with her guarding the situation circumstances about their marriage for twenty plus years and their children which inhibited the ability of him to have a fair a fundamentally fair hearing to fully cites again the cucumber decision due process violations occur when there is fundamental unfairness and a court cannot prohibit the respondent from presenting substantial evidence  evidence in support of his claim for relief here the i'd hate determined he had met his burden for cancellation that the board reversed based on number one his tax returns his tax returns which are outside the scope of the the expertise of the board of immigration appeals an immigration judge they are not and should not be allowed that decision should not be allowed chevron deference he testified that  he went to a prepare the person prepared his taxes based on what he had told that these people claimed this a pen it's were supported more than fifty percent by his finances they were in mexico that's permitted by the i r s under regulations we had submitted in tablets and so but it was a continual argument of the department and the respondents in this matter that was tax fraud immigration judge word correctly noted that tax law is a very complex matter and it's a very convoluted complex issue and not we respondent argues this course does not have jurisdiction in the fact that the cancellation of forty two b is involves discretionary relief again discretionary relief opportunity present a phone call to fully present and litigate his request for these for this relief and the evidence that would have been submitted would have likely change the outcome  that cannot be sustained and so the argument that this is not before the court the court does not have jurisdiction is not true the board even acknowledges that in  the in their decision on a motion to reopen quote the it this issue regarding ice and their violations of law the lawful orders of the state of minnesota is beyond the purview of the when all three from two thousand discusses administrative exhaustion vs issue of exhaustion in that we fully went through the administrative exhaustion part and that issue exhaustion is not required for this court to take jurisdiction over due process arguments and lastly is that the cause there's an issue about sovereign immunity immunity of with the department and the respondent acting in violation of the law they violated if any individual went back in and just flagrantly disregard order of the state of minnesota they be arrested in the taint the agents for ice in this matter act outside of their constitutionally mandated authority they have the right to detain and  rights in dealing with his criminal matters in the state of minnesota and this is nothing more right now as are the rest for very well as well hostile here for real good morning and well have for respondent united states attorney general bar   it held that on the facts and circumstances of this case the titian or was not did not warrant as a matter of discretion the relief in the form of cancellation of removal additionally  the the board also said that he did not warrant it as a matter of the statute he didn't didn't comply with the statutory requirements either one of those would fully dispose of his cancellation application when you say the statutory requirements are you talking about the good moral character conclusion yes the board held that he did not satisfy that under the catchall provision of section eleven a one as there's several categorical exclusions but  they're not exclusive and i ask you about that the board says that it reviews the i j a is determination that de novo is there or not does the board not review the i j a fact finding underlying that did it did it come out and and expressly say where it disagreed with the fact finding of the i j a and where i am i believe that the if a did not disagree was the fact finding all the bird disagreed with the wit to put on the evidence and the ultimate question of whether or not he was entitled to discretionary relief but the facts were there was no where didn't make any new or different facts findings in expansion of the fact finding you think that the i j a did well no i think if you read the immigration judge's decision where he did initially grant relief he says he's very disturbed by the by the way  the immigration judge and b i a correct yet the issue what he did as tax return wasn't something technical that required expertise he called dependents his children when they were not his children this is not a matter that this is a smart man he has run businesses he keeps accounts he's not he called that unsophisticated all the nieces and nephews children heard he called them dependent he called them children on the tax return and when asked why he did this he said well we didn't know we were doing when we st got here in america but he did this for fifteen years at some point he had to figure out that  people who were not living with him at all weren't even in the u s were not his children yet he did fifteen years he put that down secondly i would note that the immigration judge the notion that not supported by the factual record in this case in fact if you look at the administrative record at page two hundred and ninety seven the judge specifically asked he says hey you have to and i want to clarify mr nielsen was also petitioner's attorney in the criminal case he's uniquely positioned to communicate with the prosecution and sure whatever needed to be done on the criminal side to get his witnesses together could be done he was police report and he says to petitioner on page two hundred and ninety six and i seventy says look i want to understand the nature of of exactly what happened here there certainly appears to be probable cause to believe that he engaged in this conduct alleged beating his wife the judge says that i understand there are allegations in the report but i want to understand the nature of these events and you specifically tells him that your page numbers must be off limits a record to ni brief the judge you will see the judge tells petitioner attorney you need to do what you got to do to get mrs cruz over here to testify i know there's a protective order but you should f some kind of a motion or there's there's got to be a way to do this and petitioner's counsel says to the judge yeah i'm trying to resolve everything like that with the criminal court  immigration judge tells petitioner he asked for a copy of that protective order just because he wants to know whether it does preclude the testimony and any documents that are related to the current charges  and again petition or at least two places in the record petitioners counsel a tells the immigration judge he's working with the prosecution to secure her testimony but he never does he never shows up with it he does show up with r minnesota and it would be most prudent and the judge did that in this case if he has made aware there is a protective order he did tell petitioner i don't want her to come into the courtroom until you can secure release from that on the criminal side and i think that's prudent i don't know if i i don't know that i can say it's in the immigration judge manual but i mean that's just kind of sort of makes good sense why wires are made but if if there's a protective order and they're not supposed supposedly find him at the bottom line her testimony not received exactly what you're saying she did not come in and testify we don't know why the judge encouraged it and said please work with the prosecutor to allow if  she wants to testify perhaps they can modify the protective order and she can come in and testify and he never did that and the judge even told him the inhibition said judge said without her testimony i'm going to have to draw negative inference you're talking about mr rudd reviews saying this is his testimony mister i'm sorry the police report was in evidence and basically th file a motion to say you need her testimony there could have been some way to get her testimony and he just came back and in fact the judge told told titian's counsel that my biggest concern are two things th s you need to come back and and tell me you know you did you know you can do it took to proffer her testimony because the judge really wanted to know what exactly happened during this incident they uses the immigration judge then we're going to judge was in i believe you'll finally read the record bending over backwards to accommodate at one point he told petitioner how long do you need to try and get doesn't seem concerned at all there's not that immigration judge is not rushing this along the bird the the bottom line is a petition immigration judge find a way to get testimony from someone even if there's a no contact order in place the lawyer can't for the alien can't necessarily control what the state court is going to require as far as contact or no contact doesn't the immigration proceeding have some mechanism they could use to hear from or even if there's a no contact order well i suppose that they could have issued a subpoena or something but i think the judge was trying to be sensitive to the situation this is a woman who  and he he made there's no record evidence that he made any efforts to bring her into court to put a subpoena to her he didn't do that he didn't he told the judge he was working with the prosecutor to get the then possibly follow a motion to get the protective order released so she could come within x number of feet of him and testify but he didn't do that what about the state charges were and why wasn't he transferred for purposes of ok this or is he in a different holding facility for immigration hold than he would be in the state the petitioner was initially apprehended and held by the state then released on bond and turned over to ice custody there's no factual basis in this record to say that that ice defied lawful state orders oh you have a few e mails where in order to do this we need x y z language there's no i think it's very there's no factual evidence that ice was defying any court orders i mean putting aside the sovereign immunity and jurors the issue of whether fact no it's not on the record at one point at two different times in the administrative record transcript at the immigration trial stage the immigration judge asks petitioner was he that with the prosecution that there's no indication at all during the immigration proceeding that there's any problems whatsoever with one petitioner trying to appearance criminal case your time has expired i'd ask you to take a look at your page number somebody can write the record here ok you say page three hundred and fifty eight i see a wells fargo bank statement you're quoting things from page two hundred and ninety seven and then not on the page to ninety seven certified record that's filed with our yes it does and this is where the judge asks how much you stand the pagination and we've got a electronic copy of a certified record and it doesn't match what you're quoting from so i don't know what to say about that other could be it could be that the two parties filed different things i don't know why why would you file an appendix that different pagination from the certified record you file an appendix mr nielsen i f please very briefly judge kelly yes i believe initially you were asked about the expounding by the be a on the factual record i think that is correct unfortunately i didn't have enough time to go through our lead but yes the findings by the address the government counsel's statements regarding my representation of mr cruz in the criminal matter that is correct i represented him when she states that i was attempting to get him in that is correct page in the every single time every single time they refused to the sheriff in the court of county says i don't know why ice is doing this it's in the mail i made a record i was incredibly frustrated throughout these proceedings at the lack of cooperation and lack of response i percent clarity the register of actions in here i did not know if it reflected but i know on a present i was there he did not make his criminal court appearances because ice refused transport it just i don't know of the court well i mean one little the offices to the state facility because because of security and baking sure he has property and all these types of things it's a very systematic proceed then he's transferred into coast state custody taken to whatever county in the state of minnesota he needs to go to to make his appearance he stays there for as long as is necessary once that's result then he goes back to ice custody in fort snelling minnesota is redressed and reassigned