good morning everyone in i believe the hell is lawyer has not appeared yet so we'll see if she arrives while the st case is being argued we also have a case that song submission  properties incorporated and will take that case on submission i believe that we are ready to proceed to proceed with our st argument we are not asking this court to declare that mr hussein was rendered in ineffective assistance of counsel by his and since disbarred attorney were also not asking this court to determine that mr hussein was incompetent at the time of his proceeding the relief that we're seeking before this court is relatively straightforward in modest what we are asking for is a rematch and back to the agency for proper fact finding in the st instance pursuant to see if are one or three as well as matter of mam  the fact finder by the board's well established precedent is the immigration judge the fact finding with respect to both of the issues ineffective assistance of counsel as well as mr hussein's com companies he has not been properly done and that is all we are seeking before this court with respect to the ineffective ineffective assistance of counsel claim the board's decision it makes absolutely no mention of his ineffective assistance of coun presented to the board as a separate as a claim separate and apart from the competency claim yes your honor there was a motion to reopen based upon the fact that prior counsel denied and for mr hosain of his the initial board decision thereby rendering his ability to appeal to this court the then once the board reopen the matter a nd ineffective assistance of counsel claim was made by mr hussein through new counsel asserting that the asylum application that was prepared by prior counsel was not properly read back to him was not explained to him this undoubtedly is intertwined with the nd argument that was raised which was his competency given the fact that mr same was diagnosed with schizophrenia and dimentia two months after his initial here and before the immigration judge can i ask you following up on his living since question and i was looking at that nd motion  remain and and although there is mention of ineffective assistance it's sort of motion and sort of in some places buried it seems under the competency discussion and in particular i'm just looking at the last page of that which is  the conclusion of that motion reopen and it says for these reasons the board is urged to grant this motion and remain and for further proceedings to afford the respondent his right to have issues of competency considered is not say to afford the respondent the right to develop an ineffective assistance claim the ineffective assistance was certain adverted to in the introduction that there was mention of it very briefly in briefing that was submitted to the board of immigration appeals but it was certainly raised and respectfully honored is not a requirement that the ineffective assistance of counsel claim be mentioned in the conclusion although admittedly counsel should have have mentioned in that doesn't absolve the board of its obligation to consider the record as a whole which is statutory regulatory and precedent requirement and so because this was raised in fact all requirements of of a line by the board were met and were raised before the board the board should have addressed it in some way or if the board wanted to indicate that because it wasn't included in conclusion or wasn't a separate argument section in the briefing that was not sufficient to raise in the board should have done so and if that is a question that remains open whether or not that is a requirement for it to be a separate entire section in a briefing then remain would be appropriate for the on that in the st instance rather than for two to presume whether or not in fact the board deemed that insufficiently raised rather than ignoring it you're suggesting that it might be was not the basis of the board's decision as this court said in her eye which we said in our brief that it's not for this court to speculate as to the board's reasoning the board needs to provide explicit  reasoning for reaching a germination and since the board is silent on the ineffective assistance of counsel claim this court shouldn't presume that the board deemed it insufficiently raised and at the very least it should be remanded for consideration of that issue i'm not sure if this is a matter that can be decided on the present record why we would remain on the board have you argued to us that one conclusion was possible well certainly i understood your initial argument that the board would decide in the st instance if what happened was ineffective assistance but i'm not following your argument about  decide if it was adequately preserved help me out yes or so st it is our position that it was adequately preserved as a matter of law you want this court to decide that because i thought from what you said that you were that was not a basis for the board denying the motion to remain that was submitted to the board and maintain it remains our position that it was adequately preserved however if the court does feel like there is a question of whether or not it was adequately preserved then it would be appropriate to be remained to the board to make them to terminate determination in the st instance because that was not the basis of the board's decision the board did not reach the conclusion that it was inadequately preserved and so my my position is is that if st even though we do think it was preserved if the court is unsure whether was preserved then that determination needs to be made by the agency in the  that's a determination that could be presumably could be made on the record its legal determination that we should ask since the board didn't give us its reasoning on that ground we should ask the board for its reasoning ineffective assistance claim that you believe was adequately preserved because i mean it can't be that just by saying the words ineffective assistance anything that your lawyer did wrong that you think of let's say we have that if we were in and it can't be that you know  i don't know something else that wasn't mentioned you know he has climbed over the head or something that wasn't mentioned so it's fuzzy to me what was raised before the board could you outline to us just very succinctly what you argue the contours of the properly preserved ineffective assistance claim yes or no that would be that the as mr hussein states in his statement that week met with him for less than forty five minutes so when you're talking about a statement that is i believe it's thirty three dollars paragraphs long entirely in english for hearing that took about two hours based upon a transcript that he met with his attorney for less than forty five minutes and was not prepared he further states that he was not that his attorney did not review the evidence that was submitted so he was unaware of the nd inconsistency said by the had earlier told counsel his entire story and counsel read his credible fear interview which recounted january two thousand and nine attack it seemed to me that was critical to your claim because whether honor and it's important to note that the immigration judge specifically said that she was not relying on the discrepancy or the omission from the credible fear interview him they were not but you were saying that  had no had adequately reviewed the affidavit he would have realized there was this discrepancy absolutely correct in the affidavit in other respects absolutely or that that's definitely i just want to make sure i understand what the claim is yes or and that's that's absolutely correct i am out of time i just want to know very briefly that again this is also the ineffective assistance of counsel claim is tied into his mental competency issues issues must be determined what level of competence was maintained by mr hussein and in fact when you look at their cited in mr hussein's motion authorities and your garden section those cases not your guidance is all about competency so i mean that said i mean i did point out it wasn't in the conclusion but he does if you read this and it's not that long it's only what thirteen pages the motion to reopen and this is the nd motion reopen i'm talking about i mean he does talk about the composition of the asylum application being flawed and he said this is on the from the st page it says that his errors meaning ministers wives errors led to the about you know performance prior and he doesn't talk about prejudice but it seems like in those two sentences he gives us what can only be construed as an argument very concisely that he was incompetent because the composition is silent application was flawed and the prejudice he says his errors led to the i j's perception of inconsistency his his these errors his lawyers sloppiness cause the adverse credibility determination which i mean that the two issues are in fact intertwined that what mr poe saying argued in the motion was that his lack of competency prevented him from noticing the omissions in his statement and this was a statement that mr hussein in fact provided to his counsel now that appears from the record that mr hussein had a friend prepare the statement for him but mr hussein's you know argument here is that this counsel's fast reading of a statement that mr crossing himself provided to his counsel prevented him from recognizing the omissions that were in that statement that he provided to his counsel and he says that the reason that he felt no sense omissions was competent then again what he is arguing here is that he the petitioner didn't recognize that there were omissions in his statement that he provided to his his counsel and so in terms of you know what the what the what the i just want to make sure i understand what your argument is on the ineffectiveness so so if if one assumes or takes as a given that the council's performance here was deficient and we know so we don't flushes out in detail in our brief but we do have a footnote where we where we talk about this this is so if one assumes that councils performance was deficient and the basis for that would be saying that his review of the statement was too too fast in problems with the interview earlier and if it was different so i'm not i guess it's not it's not necessarily clear from there that are saying that the that is counsel didn't review the credible fear interview with him as well but going back to your question your honor again what the argument would be if mr hussein  competent and if one assumes that his counsel's performance year was deficient then again the prejudice would have to be that mr mr hussein did not notice the errors in his  statement when his counsel reviewed them with him because he reviewed it too quickly and isn't the whole point that there would have been no discrepancy to begin with and his lawyer and incompetent is pretty simple i mean these are this is you've got two pieces of nine which the lawyers preparing and as long as he's making sure that everything his client had written before it winds up in the application then he doesn't have to worry about his client being subject to an adverse talking here about what the board did here whether there was a you know a clearly stated claim here if the board abused its discretion in the way that it rendered its decision here in addressing the competency issue but not rendering a separate decision on the ineffective assistance claim in terms of these these these  say whether they find any merit to this ineffective assistance claim or not necessarily saying that they use their discretion in not finding an ineffective assistance so the center of cow case is readily distinguishable from what happened here with regard to the credibility determination gal says that in assessing the probative value of the omission of certain facts in i j should consider one of those facts are ones that a credible petitioner which he says he was attacked in a way that required him to receive medical treatment and the letters if you submit it from family members do not mention the attacker robert them in the way that they did get your honors abuse of discretion not to address the ineffective assistance and and maybe that's the argument we should be focusing on here assuming it's adequately preserved but just on the merits of the ineffective assistance claim it's your position that it is it is ineffective in the circumstances here maybe in any circumstances to fail for a council to fail to notice discrepancy a significant discrepancy between something like the the initial credible fear interview and an asylum application and bring that to his client's attention yes or no and that's ineffective even if the even if the practice and i'm going beyond the record here i'm just exploring the merits of the ineffective assistance claim hypothetically a little bit with that even be the case if the practice of law firms office was to have the statement make sure the statement was gone over in the native language of the  asylum applicant and make sure he or she says it's complete everything's here yes your honor because the the law permits an applicant to explain any discrepancies that in fact the action requires an immigration a difference in explanation absolutely because that is a requirement that they they provide an explanation so obviously the turning can't change any discrepancies but the turning needs to give the applicant them an opportunity to provide an explanation to the stabbed in january of two thousand and nine when he has this hearing that's what he testifies to he didn't mention being stabbed and beaten in january of two thousand and nine in his affidavit he only said that that month was when his parents home was looted and he went into hiding i thought it was the omission in that statement of the beating and stabbing and omission i thought you were saying should never have happened if counsel and been competent because the credible fear interview mentions the two thousand and nine beating and stabbing did i misunderstand something i mean you're now saying he needed to be prepared to more about the discrepancy in the year of an event from the credible fear interview in history when trying to figure out what you think the incompetence was here and if i'm understood your answer to judge livingston it was not preparing him at the hearing to explain the omission from his affidavit i had thought from your papers that the ineffectiveness was not reviewing these papers to realize that there was an omission from the january th document which if you'd gone over with his client according to your client he would have said oh no no you're right i was stabbed to be there and the the affidavit would have been amended to include that so that there never would have been a discrepancy at the time of the hearing is that correct is that not your position that it is absolutely i can't be both it can't be both what you've said to judge livingston ever what you're saying to me now so i think at least for me you have to make clear what your what your in effect of assistance claim is yes your so the ineffective assistance of counsel claim is and the general issue of the  prior turning not properly reviewing the entire file the statement and doing what and failing to understand mr machines clean the fact of the matter is  that with respect to the two thousand and nine incident where he was beaten and stabbed included in the submission if counsel had been what would have been different that mr hussein would have properly understood the contents of his written statement the fact that mr sweet prior counsel submitted medical evidence showing that mr hussein was treated for a beating and stab wound in january two thousand and nine but it wasn't included in his statement that alone is an infective assistance of coun is back up there just to follow what i think it is it's one thing to say well the client would have understood this but i don't think there requires there must be one additional step in the real world for his understanding to have a consequence for the outcome of his hearing and i think that's a question ok he would have understood it better therefore what would've happened what would have happened that would have altered the factual finding regarding the  credibility determination because it seems to me that the on off switch for his case so the question is if that's prejudice right when we're talking about something that would alter the outcome of the proceeding what is it about his understanding your client transpired with prior counsel and that is that he was not made aware of the full contents of his publication nor was he made aware of prior i get it so let's assume he had that conversation he was fully aware and he was now a mission now what he should be have an opportunity to actually correct his statement prior to the hearing where he could have included that relevant event the january two thousand and nine beating and stabbing you saying that had they just read it to him spent more time reading it to him then you're saying to your client would have done something different which is he would have spoken up and said hey fix my application was incomplete so now of a sudden  seems like you're saying it's not that then the lawyer would have done something different you're saying the consequence is that had the lawyer acted more thoroughly your client would have done something differently yes that's that is in part but that is not entirely that's a little different from head around that as an ineffective assistance claim because that's something the lawyer should have done allegedly but if your argument is more that he should have put the client into a better place where then the client's lightbulb would have gone off in his head and he would have noticed things well that's that's and it's a rather unusual ineffective assistance claim i would assert that it is not doesn't need to be in isolation that it is a combination of all of these things in your honour's describing that led to the ineffective assistance of counsel that the lawyer didn't properly review the file that the lawyer didn't make mr saying aware of this inconsistency the lawyer didn't make mr hussein aware of the fact that his statement didn't contain information about an event that was documented in the record with medical records all of these factors so it is both the lawyers failure to do the i take these steps  to fix these omissions or inconsistency is or gives more mr hussein notification of the potential missions an inconsistency just prior to the hearing that led to the negative credibility determination and so you can't take all of these attention if your client had been shown the discrepancy and realized there's something missing from my asylum application he would have said we need to add this and would and it would have been no adverse it would have been no inconsistency at the hearing essentially that is certainly part of our argument but not at entire the other part the other part is that the lawyers insufficient attention paid to mr hussein led to the follow the things that followed and the the two main factors of the immigration judge cited in her negative credibility terminations and also certainly cannot be isolated from it the competency issue i'm sorry could you just be a little bit more specific when you say the things that followed so identified which things specifically so the immigration judge relied on two bases to reach the negative credibility from a nation and that was the mission of the two thousand and nine attack from his written statement and whether or not he became the secretary of the bangladeshi national party in two thousand and seven or two thousand and eight those were the two factors that were found to be inconsistent by the immigration judge and because mr hussein was not properly least mistaking me is you're still your causal chain is still flowing through your client that because the lawyer was ineffective and failed to prepare your client he failed to explain away or correct notch i to have more perplexed by your suggestion that the problem here was that your client didn't know what was in his english language the fact that he said that his application was reviewed by his attorney does not equate to the fact that it was not his testimony that it was it was reviewed with him and it was true and correct i would think that if he understood it in an up to say it was true and correct he would say well  and correct but it doesn't state that there's this time when i was stabbed i understand you're honest question and i think that's why it's important to look at the record as a whole and what followed from that hearing the motion to reopen the motion to remain and which both asserted that page one hundred and seventy six dollars the separate statement for the ineffective assistance of counsel how it was reviewed and he believed it was true and correct at the time he made the statement at the start of the hearing because he didn't realize that it wasn't containing that information so at the start of the hearing when he says it's true and correct as far as he knew it contained all the information he had provided to his friend who helped him prepare the application and supposedly had been reviewed by his lawyer once he got to the point where he was  asked about the january two thousand and nine incident which was documented with medical records at that point he no longer understood or he hadn't understood up until that point that it didn't contain information in his statement about the two thousand and nine incident you couple that with the fact that two months later he's hospitalized for schizophrenia and dimentia and put on medication that the board didn't take into account when reviewing the ineffective assistance of counsel claim