over his procedural history which will show how mr de vere was deprived of his day in court on august one two thousand and twelve mr appeared with his former counsel and in immigration court at that time he requested attorney prep time the immigration court allowed him twenty nine days to come back to court and take pleadings and also to present any applications for relief at that time on august twenty ninth when he came to court mr former counsel admitting that he had entered without inspection and then disputed that he had been convicted of a crime moral turpitude the court asked if he had applications for relief at that time and mr davis former counsel said you know your claim for ineffective assistance is that he didn't seek  would i just want to make sure we're on the same wavelength the only way he could have gotten relief was if he'd gotten either adjustment of status or gotten i would thirty correct no your honor so he was eligible for cancellation of rule for certain non lawful permit resident so he still would have been eligible for twelve h waiver under the adjustment of status provision right so we would have to determine that the failure to pursue that avenue of relief what's the standard of prejudice that we have to look at so let's relief requires a discretionary waiver it's you know i understand how to measure plausibility when we look at cases where we're looking at a discretionary waiver by by the attorney general if you will how do we measure closure well of our position would be  possibility is that there was a reasonable basis on its face without any more angry without any more digging into it at that moment in time was it reasonable for the judge to say ok he looks like he's eligible for cancellation of removal again he'd never even raise there he all had to prove his extreme hardship he had three u s c children one of them was severely sick he would had diabetes took insulin all the time had three to five times he had to take insulin he had to see a seizure disorder so he the extreme hardship would have been much easier of course grant a petition and remained to the board of immigration appeals for further proceeding because if there was a prejudice which the this case of the case law here in this court so there's a presumption of prejudice when there's a failure to file applications for relief when tell me what you're seeing right so normally what happens is we would then if this case was reminded to the board of immigration appeals we would then file all our applications together the justice that is the to twelve h waiver and then ask the b i a to remain back to the courts of the court can entertain that to pursue his claim before the administrative law judge says that right yes your honor in addition to that the he didn't even get to argue he didn't get to present his case before the immigration and we all understand the word was in effect know much time left if there is a crime involving moral turpitude you can't get cancellation of removal no charlie or so if we did if we concluded that and gave you relief we would send it back to  even if there was a crime involving world turpitude the i j a may conclude otherwise but why should we why shouldn't we let mr rebate pursue that course because he hasn't shown that he would be eligible for just minutes that he for just one of those you need to have an application for adjustment have an immediately available visa show that he be eligible to receive such a visa and be admissible and assistance he's not in the same tonight so as ability of the possibility standard is the use may and that's how we had that's how we conflate the discretion of the agency into the possibility standard is that it's a may have been eligible for relief standard it's not unmarried son of a p r or united states citizen father he submitted tax documents indicating that he has been married and has been married as early as two thousand and three so in light of that it's uncertain that he would be eligible to receive such a waiver patiently he never had a chance to put his claim on the marriage to the agency and its that's why the standard is really cut quite low it's the may standard not you know has a viable quite and it's also up to the agency in the end to determine the merits of that claim you're honest thus the he was able to submit evidence with his motion to reopen suppose they that has chosen a conviction supports against the course and how do you think that's not the question the question is let's assume that his lawyer had acted competently and asked for a continuance to pursue adjustment of status i don't think you can get cancellation because you did that with your for adjustment of status he'd have to get a waiver because of his crime involving moral turpitude are you telling me he's ineligible for any waiver that be uncertain without having an application for mr really hasn't demonstrated prejudice because his application in the motion to reopen doesn't doesn't show what his doesn't contain what his original counsel should have filed had he were heavy operated effectively doesn't he doesn't have not show conviction i know you all tried to put in the plea agreement but the i j a didn't let you do it but it's only one crime attempted forgery right it's not three counts or or several counts it's what tempted forgery in violation of several statutes yes or so is it a single sentence yes it was a nine month sentence yes but i mean it's not it's not he wasn't sentenced on two counts he was just simply sentenced for attempted forgery correct honor she's correct that the motion to reopen did not include the adjustment of status and that is because at that time when we filed the motion to reopen there was no visa vailable at that time however for a motion to reopen based on ineffective assistance of counsel you do not need to for submit all of the applications that's what a regular motion to reopen when you submit new facts if you reopen this case this is what i would submit but not on an ineffective assistance of counsel claim a motion that only requires you to identify the deficiencies in the proceedings which  at the application we didn't file it in two thousand all because it was only one month later or a few months later and there was no reason at that time so we couldn't a filed a motion to reopen with to include that other application because it wasn't real but the time we just identified hey there is this relief available in the near future and we near was just like a year or two out and that's why it wasn't submitted at that time so it wasn't in effect on our part for not filing because it's not required i did want to also just address the other issue about prima facia that's the wrong standard your honor the standard is just plausibility of plausible grounds for relief not prima facia which is a much higher standard when you have to show that you know he meets all of the requirements and then give it to the judge to see if as a matter of discretion he's going to