immigration judge did not properly evaluate mr hasbrook house competency to proceed without counsel or any other procedural safeguards and because the immigration judge and be applied an incorrect legal standard in assessing mr s open house cockley claim on the up examination of mr housekeeper now additionally it appears from the record at least that there is a regular met routine wellness check up that happened and when mr afterward all st appear before him for the immigration judge he was actually being housed in the  mental the mental health unit at the ice facility so would be very odd i think if there were no subsequent mental health records here he was being detained he was being treated he had just been die diagnosed with unspecified psychosis pretty odd if there was no other follow up or mental health records in the ensuing year that took place between of the submission of the franco gonzales notice and the time that the marriage hearings took place but he did tell he i didn't that he was not receiving any medical treatment at the subsequent hearings that he had mentioned that he was not currently seeing a psychologist he stated surely there after that he had seen one that past monday i believe this was in one of his earlie hearing but he had explained to the immigration judge that was no longer taking the anti psychotic drugs that he was prescribed the immigration judge asked that the doctor tell you to stop taking it he said no after i was moved out of segregation out of the mental health unit my cellmate said he was also hearing these voices and that i should stop taking taking the drugs that have been prescribed by the facilities doctor so we know that he was moved out of the mental health unit at least based on his testimony and that he had stopped taking any medication as i mentioned it would be i think we necessarily reveal it's hard to say we don't have them but i think that's the precise problem here and i think it's notable here that in the entering prove gauge as has pointed out that has alleged at least that there's no hard final hearing in august those are basically the two i mean those are the two main claims i do think there's an argument that the i g lacked substantial evidence for its competency finding but i don't think we need to get to that because of these procedural errors that  for common she hearing with with a full record of any other evidence that might have developed in the meantime and of course i'm am acknowledges that competency can change over the course of time maybe you've got to now maybe he was never competent maybe he was regulations and under vi and i and i think that it would be i would argue of course that he would be able to further develop the the evidence regarding that conviction whether it's a particularly serious crime or whether it's otherwise  petitioners concession there were records there were that's correct so there was documentary evidence that was produced and it was discussed at some point i believe in the january hearing two thousand and seventeen there was a continuance in order to allow that documentary have evidence to be produced at the try to figure this out so i mean whether that would be sufficient to  affirm i suppose the denial of other forms of relief is i think still an open question and not really presented here if you will if mr eisenberg i was not competent at these hearings it does raise a question whether there really anything that happened when it was correct as the immigration judge herself recognized on may th to quote her i do need to ask questions in regard to an m a m situation and in every hearing where he is presenting testimony and that is especially so here  specified psychosis a few days later he was diagnosing anti psychotic drug and by june th he was had that push that goes it's doubled and again this is just over the course of six weeks which is less than the amount of time b decision here is that the mexican government would not acquiesce in any torture and for that reason i'm going to focus on that issue and the b s a erred as a matter of law by considering only whether the mexican government was willing to stop torture but not whether it also able to control private torture them quoting both require examining the efficacy of the government's efforts to stop the drug cartels the b s a relied on garcia one million but which held that a government is not acquiesce in torture of its citizens to merely because it's powerless to stop it that case was distinguishable because it held only that a mere general inability to stop violence was insufficient even when combined with instance of a single  i also found that there was no past torture and in fact in several instances government officials assisted mr bringuier there was no evidence of past torture of the court how the immigration held the question here is whether it's more likely than not that he will be tortured in the future and i think these instances of obtaining a little bit of help from government officials while those officials would be lauded for it is prove rather than disprove the likelihood of future torture he's had three instances in which he narrowly escaped members of this cartel shooting at him he was carjacked and narrowly escaped he got lucky a few times no doubt and some of that was due to the assistance of  you know he was inside this is on page two hundred and thirty six of the administrative record the police told him to file a report or better yet to leave when he was in mexico city they told him it's a very big cartel if you have family in the united states you need to get to the united states federal police told him no one can help you it's better that you come here in the united states because all the federal police have family and these people do not touch their hearts and when it comes to family and his last stop and check them all  affect stablish i think at least a very strong likelihood that they are unable to spite their best intentions or anything like that to protect them in a situation like this i have you want to say from time yes exactly thank you aren't thank you please the court i'm christina greer on behalf of the united states government so there are three issues in this case as they've been presented st is whether the record compels the finding that mr bernanke was mentally incompetent to participate or represent himself  the nd is whether he has made a due process claim based on perceived errors in the immigration judges competency evaluation and rd whether the record compels the conclusion that the government of mexico will acquiesce not just be unable or unwilling to protect him acquiesce to his torture ultimately the agency properly found mr bernald competent and found that he did not meet his burden to show that the government acquiesce to his torture  and matter of mam under the settlement agreement and franco the applique a detained petitioner or i apologise a detained non citizen who especially here there was an a notice  class membership and so the immigration judge said there's a notice of class membership i have to have a judicial competency inquiry under the settlement agreement the immigration judge did that he probed competency to participate under mam and competency  self represent under franco and at the end of the hearing found mr bernanke competent in fact concluded consistent with franco that there was no reasonable cause to believe that despite the diagnosis of psychosis that he was suffering from a mental disorder to a degree that impairs his ability to meaningfully participate in the proceedings or to win form in the there are several hearings you're right yes your honor and what you were just reading from which hearing did that take place that have that took your competency determination at that time a new immigration judge did now a new immigration judge make another competency determination of the yes your honor and did they obtain all the medical records that were available importantly under franco the detained individual class member is only entitle to one judicial competency inquiry so importantly the settlement agreement doesn't provide for multiple judicial obligated to assess the competency throughout the proceedings throughout the proceedings but it doesn't state that at the beginning of every hearing unlike the immigration judge stated that there is a requirement that she consider that medical records it seems to suggest that there was another scheduled appointment it said that there was a follow up on june th and then he testified on june th so about two weeks later that he had another follow up  but that he's no longer seeing any psychologists and then a year later during the st merits hearing on may th two thousand and seventeen when the immigration judge asked whether he was seeing anyone he stated that he was not  had in the past but he's not seeing anyone and that he's not on any medications for any mental competent mental issues it was i think i believe high blood pressure and he was taking some medication for that but he wasn't on any medications for any mental the record that there was a mismatch between the documents that the applicant was presenting or the non citizen the petitioner was presenting and what i said presented so ice presented assert one list of medications and then a little bit later calderon presented his list of medications and it didn't it wasn't compatible so there was evidence that something was going on during that time period so there was evidence in the record that there were more records but here there's absolutely no evidence in the record the petitioner never stated that he was adding any sort of problems of a mental competency needs or during those subsequent hearings in fact it's important to note that  many of what are termed as delusions he states you know they kind of misunderstood me they thought i was saying that there were people crawling in the ceiling but it wasn't that i heard people stomping and i heard noises from upstairs and they told me there's a gym up there and they're dropping weights and he makes several of these statements where yes they thought that i was talking about just voices in the air but what i'm hearing is the other detainees speaking through the air vents and that's how we communicate with each other is by speaking through the air vents and so there's a question about you know is this a competency issue but ultimately the immigration judge during the judicial competency inquiry which was the only one required by franco because as i said franco does not have any sort of which is a negotiated settlement agreement it doesn't have any provision for subsequent judicial competency inquiries after that initial inquiry the only subsequent reviews that it discusses are about restoration of calm but in c it doesn't have any provisions about judging whether a year later you know that after a certain period of time a no it does go alongside matter of mam and so it would still apply on correct matter of mam does still apply but it does not state that at every hearing there muscle in story but it says it throughout the proceedings the make a determination systems exactly and while there were three hearings a year later at the very very beginning of that st master calendar hearing a new immigration judge came on on may th she probed into just sober and all competency  at the next hearing she did it again at the rd hearing she didn't explicitly do so however she had just observed mr johnson barnard for many hours testifying over several recent months and so it's understandable that a fact finder would be able to gauge whether someone is a little different today than he was three weeks ago and a month and a half ago she'd already seen him for multiple hours testify at length his testimony didn't in the record that shows will here's an indication that things had changed in that rd hearing and so it's reasonable to rely on the immigration judges observations of mr yahshua bernald whom as i said she'd already observed for multiple hours over the course of several months and then at the end of that hearing is when she found him competent and again heard to the determinations in this case withstand substantial evidence review because as noted mr bernard was able to he filled out his own application for asylum without any help he wrote it in english he wrote several declarations he was able to petition or appeal to the board on his own  he submitted documents that even i said they had difficulty obtaining and so he did a good job representing himself he presented his claim and there's nothing in the record that compels a contrary conclusion and as to  process claim there's no petitioners failed to make such a claim and in the very in the imposition brief that was sort of how the claim was being termed as a due process claim and so we responded with there's no due process violation here as well as her and also no prejudices been shown so st he did not show any due process violation there is no evidence other than speculation that there were any other records except perhaps that one mental health follow up on june th and there may have been another one on a monday in the two weeks span but unlike calderon where the record that the i j a relied on was a year old here it was a couple weeks old and then he said i'm no longer seeing the psychologist and so there's no any and there's no indication that after that june judicial competency hearing that there were any other records of his competency or bearing on his competency and so nd he's alleged no prejudice he hasn't said what he would have presented differently he presented as hours of testimony on his claim his claim was deemed credible and even further than say in jr re which says that as one safeguard can be deeming someone credible as in they sincerely believe their claim the immigration judge actually treated everything he testified to is true and so that even goes a further step than what safeguards are generally available for someone who's incompetent he was found to be credible his claims were taken is true and his claim was evaluated on those grounds on the grounds that he presented  the immigration judge also gave him multiple continuances the reason why this case took a year was the cuz mr johnson all kept saying well i can go back to this city in mexico or if you can remove me through the city i'll be fine and so the immigration judge continued to help him to allow him to work with ice to see will could they remove him through another port of entry and this is frankly something that i've never seen it's very unique that ice was willing to work with him to try to remove him through another port of entry they were able to offer him one location he said that was not all right and so that's when they went forward i just wanted to i was just looking here at the yes he made a comment about some of his explanations that he had offered or about hearing noises yes sir on the nd page there's a paragraph that says detainees spoke at length about the way he's been hearing he went through a variety of possible explanations for this such as another inmate crawling around in the ceiling and there's a semi colon then it says he has been informed by ahead so the immigration judge asked him now you were told one of the mental health people that interviewed you that you'd seen detainees crawling on the ceiling is that not correct and he said i was talking to the officer when i was placed in the medical unit i heard on the ceiling like metal like a rock that was going to be allowed to fall on me so i told the psychologist to have the move me but then i was later told that there was a gem up stairs and that noise were weight ok and it says i told them because they made me believe that up above they were walking they were and you know he explains that it's noises from the gym up stairs and so that portion it doesn't indication that he would have presented any different evidence or argument or a different claim it's entirely speculative what would have been different here so the like i would argue there's no he hasn't shown a due process violation and finally as to cat the standard for cat is acquiescence it's not unable or unwilling with acquiescence the government or an actor within the government or someone acting under color of law must know and be willfully blind or consent to the harm that's occurring and here every time mr bernald went to the police they helped him he alleges multiple instances where cartel members he believed cartel members were chasing him or they shot in the air there's no evidence that they ever shot at him and every time he ran to the police and the police helped him they got him a taxi to go to the bus station they gave him money he was allowed to sleep in the police station and there was never a time where he went and sought assistance from the police and they said no thank thank your honour's and just a few quick points to make here counsel for the government indicated that there was in fact a nd floor and the detention center i would direct the court to the mental health review that was conducted the day before the one you cited  the matter submitted at this