and may i say that i don't know why you've decided to divide the time up it's not a good idea but if you're insistent on and i guess you watch your own time that's right good afternoon please the court they have a scan on behalf of  incompetent or that it wasn't clear and further safeguards and evaluation were needed and to the petitioner was prejudice without counsel and deserves another chance to prove whether he merits relief petition or presented in disserve incompetency through medical evidence as well as testimony on june eleventh two thousand and fifteen the date of both his competency in crete and his merits hearing he submitted a written statement listing several medications he was taking including one hundred fifty milligrams of tallit another anti depression medicine this is triple the dosage of the medication listed in the d h s mental health review from july two thousand and fourteen which only listed the transit on at that time and double the dosage of his february twenty fifth teen prescriptions of psych telegram he went on to describe some of the effects this was having on him he wrote i feel like i'm under the influence of drugs i need an attorney to help me i feel like i cannot represent myself like i used to when i was center of your argument i mean it seems to me if there's a procedural problem here so we don't have carter that they didn't bring far sort of relevant medical information because was it from the wrong time yes or its status as well as the disregard of the evidence that the tissue or himself submitted it the judge wrote in her decision that the responder did not claim to suffer from a mental health issue that affected ability to participate in the hearing at any point in the proceedings yet he testified on june eleventh as well and wrote and said that he said his p t s d was affecting him considerably it was in some way overcoming his limits and that he would like to contribute more effectively but believe me i feel like my mind is sort of closed what exactly what exactly are you saying that the immigration judge should have done is it just she didn't ask enough questions or that she should have done something outside of the hearing there's a lot more tha the judge could have done your honor she could have held each as to its obligation to produce more records that were evident on their face that would they would exist and where are you getting us out occasion from that's from twelve forty it's your far twelve forty point two eight as well as thousand fifteen in her decisions you think the judge actually thought it was more recent than i was i think she did your honor which is why she may have repeatedly been referring to his prior p t s d and not understanding that what he's talking about this is a current condition she also feel to help develop the record when she when he expressed that he had been persecuted she just left it at that without informing him of his ability to renew his app cation for asylum in withholding  considering it as a factor in her discretionary determination for cancellation but on the on the question of competence though what exactly more should she have done got got updated the d h s file or asking more questions or what exactly yes she could have asked her more questions about  as confusion over what she was expected to do in fact even setting the case straight for merits begs the question it assumes the premise of competency where where were present to inconsistent testimony regarding his waiver of counsel yet one point said that he and his wife couldn't afford counsel another time he wrote that he would need to proceed on his own because the northwest immigrant rights project attorneys were going to be able to help him yet in between that wrote a letter to the court saying that he would need time to find an attorney and again on the day of the he submitted a written statement saying that he needed an attorney to help him this doesn't amount to a knowing involuntary weaver of the right to counsel and in i mean the problem is that there's at least absent some rights under the fran decision no right to counsel in the criminal sense so my understanding of what he was saying is i can't do this myself but i don't have any money to buy a bail or direct your honor but as some point don't t have it may not be willing but it's knowing and voluntary if you just say you can't afford to pay it it's unfortunate and maybe not the way we want to be running the system but it's still all running the system but where there is also an issue of potential represent himself he didn't really present evidence that was relevant to discretion on remand which would have been difficult to do since the i g refused to define what discretionary factors meant she said you certainly know the discretionary factors as i fully discussed in your prior proceedings and to expect a pro se applicant with limited education and potential and competency issues to be able to adequately recall and apply a legal definition from two years earlier is unreasonable as i mentioned he didn't know to renew his asylum withholding application and the judge didn't assist him with that despite her regulatory application the other evidence that could be developed on remand with the assistance of a counsel would be for absent an independent psychological evaluation a petition where his mental illness could be a mitigating factor against his convictions he could establish proof of rehabilitation fifteen any documentation regarding the treatment of people in el salvador who suffer from mental disorders and whether he would have access to those medications in all salvador all of these types of evidence could be available on remand with the assistance  counsel mr calderon presented in addition of competency that triggered the rigorous procedural requirements of matter of m e m and franco versus holder the i g committed clear error in failing to find the petitioner was incompetent to represent himself and had not knowingly or mam and that he was not a class member not that the fact that the information she had was a year old was apparently not accurate because he was at least because he was taking other medication and although i can't find it it appears she got the date wrong is that right  got the day i believe with regard to the date she mentions the date that it was filed which and got that correct but does not as far as i can see and i was looking to snow specifically she's listing the exhibit so you're but you're right you're absolutely right it's in big us and that in her actual substance where she's not listing the exhibit she notes that petitioner was first seen by the mental health provider when he came into detention in two thousand twelve that's when he was diagnosed with active p t s d and then that after the ruling the end of his case from this court and it got remaindered back to the immigration judge the d h s s requested another mental health review and that's the one that says that was filed in twenty fourteen but was actually from a follow up i mean excuse me was filed in twenty fifteen but was from a follow up appointment in twenty fourteen and that one says that he has no active p t s d symptoms has some situational depression and so on but we know we know that there was some change absolutely we know he was really clean that year any year and this period we know that he was receiving on going mental health treatment you know he was getting more and he was taking more and more of a dose of the one medication he was taking another medication which hadn't even been mentioned in that earlier report right we know based on what he was fired yes that his medications had changed but the purpose of the mental health treatment in the medication is to treat someone not to you it doesn't necessarily mean that someone is incompetent just because they're taking that we have but i think the fact that he's on more his mental health issues were impacting him and that's when he took the time to read a written statement and discussed in context he says that basically that his mental health him had impacted him substantially because it impacted his alcoholism which had impacted his his whole situation but he goes on to it speak at length to his rehabilitation his desire to be free from alcohol and it's relevant evidence that the immigration judge took and considered as evidence to his to the discretionary merits of his application for cancellation of removal he also presented a lot of other relevant evidence and he actually met his burden of proof for all the statutory elements he had already done that before that i mean right when he had counsel right but then he had to update it and he presented the testimony of his wife and was able to continue to me that it is a continuing serious mental disorder or defect that may render them incompetent and then specifically define serious mental disorder or defect not because of the dates not because of the dates because there's a certain list of under the franco class action everyone is required every detain me is required to be screened by mental health and then receive if necessary receive a diagnosis but that diagnosis the franco implementation order emphasizes that for the purpose of treatment however if someone receives a diagnosis that's on the list that gets them into the franco class then the mental health provider notifies the ice attorney who has to file something with the court saying this person is a class member it's not this person maybe we're going to argue about it that diagnosis automatically makes the person a class member but that list of diagnoses in the franco implementation plan order don't include p t s d or situational depression so he his diagnoses simply didn't put him in the class now he could have become a class member even apart from one of those diagnoses if the immigration judge had a bona fide doubt and that's why i only remained at multiple master calendar hearings she's talking to the d h s attorney and says what do you have evidence of his mental health diagnosis because i have no doubt that's not her expressing frustration it's her understanding that whether or not she has a bonafide doubt is one of the ways he could become a franco class member and she didn't the bonafide doubt is supposed to be informed by observations and interactions and it recognizes that someone even apart from one of those diagnoses might just be acting off might just seem the immigration judge might have these doubts and then it gives the immigration judge a mechanism for talking mam what standard would be applicable under that under a matter of in the am if there are in  incompetence then the immigration judge has an obligation to address the competence on the record find whether or not the person is competent in addressing the safeguards that's why this case was originally reminded because there was that diagnosis of p time of the at the five it was asian after the remain and what it means is that they have an obligation to present what's relevant and changes and he can also present that certainly they could have fired all of his medical records and i kind of wish they had but they have an obligation not an obligation and he has an ability should he some choose but not an obligation yes sure he's got access to those i don't know as i'm swimming aska i'm not one hundred percent positive but i believe so it's him going for treatment before the mental health providers in the facility and i believe he would be able to request and submit his records but i don't know what hoops he would have to jump through in order to do so let me ask you one more thing your time so you may and some argument i and we aren't going to argue that he failed to exhaust so i would argue that the mam obligation to assess competence and find whether he's meaningfully competent to meaningfully participate the immigration judge complied with that or remained and franco didn't apply because he wasn't a franco class member and at the end he presented relevant evidence as to everything and the immigration judge in her discretion denied his application for cancellation removal respondent mentioned that petitioner presented testimony of his wife and while she was available in court and he mentioned that she would be able to testify better to her facts when the i g asked if there was anything else he wanted to produce from that witness his response was silence while the the case can be remanded under i understand perfectly why is because there is really no problem and he failed and i'm sorry there i mean he didn't pressure some in any way because prove that it was incompetent no but it also showed that he wasn't able to exercise his real rights in how to present this evidence that would be relevant to his case henri i don't understand that while they would have been relevant i mean he was already in perfectly good shape on that a good lawyer would probably not have put her on again because she didn't need it perhaps he could have asked her about his condition as well but he didn't think to do that that was have a weird thing too because he was putting a lot of evidence on about her condition and almost nothing about as but that is probably because he was detained the whole time and it was possible and someone else was getting collecting the information about her and he wasn't detention and this and this is why what really bothers me here is the absence of his medical records exactly and i don't think he understood what he needed to provide to be able to prevail the other point is that that he would be able to prevail under either standard whether it be m e m or franco and that he couldn't have been able to submit more medical