ok just let me i don't want to start the clock yet i just want to go over so all right my understanding on this case all right so we have two people arguing right now and then we're going to do the  my understanding is you have a total of fifteen minutes each side but you're each giving five minutes on the key argument that will occur at the end correct yes and at the  argument at the end that's going to be ahmed for the a c l u and stewart which i believe issue for the government cracked all right so here you each have ten minutes and that the ten minutes then would include your rebuttal time too as well yes i would like to reserve two minutes for ok all right now we'll start the clock and state your appearance and so you you're only going to be talking about sort of the merits of the case and then on the at the the government count you know of the government paying for counsel and the right to counsel and all of those will be at the end as they go through all of the cases correct right so we won't ask you any questions or not so you can and you are probably worried about that because judges stray so we want to ask any questions right well save those tell me on ok go ahead state your name and your  persecuted in an institution ok so on his persecution part of it he's got undoubtedly a lot of bad things have happened to your client but the only thing that you have happening  mexico was before he was two years old but his pregnant mother correct yes or so my understanding of the law is even though bad things have happened in the united states you can't use that to establish persecution in mexico yes your honor but in this case the there was severe domestic violence to his mother and this court has found that past persecution to a family member can be attributed to a child but he was too up until when he was two years when the mother was pregnant so it's pretty hard to this was before and after she was she had already had him and they ended up having to flee to the united father's abuse of his mother and mexico what's the evidence in the record here well here we have heard testimony his mother's testimony and in other cases such as beholder and herna is we have also used only testimony in rusalka all we had was the testimony and mendoza publicly holder all we had was the testimony of the petitioner as evidence here we actually have his mother testifying as to the fact that she was beaten threatened mother we tried to attribute harm from a mother to an infant child that she was materially impeded to provide for the basic needs for a child and forced to flee an immediate threat of severe physical violence or  exactly what happened here you came to the united states right right because she was forced to flee an immediate threat of severe physical violence or death i notice there also in the record it appears that mr pett has changed the descriptions of both his proposed social groups in his petition and before this court so why should we review any new claims when they do not appear to then raised or exhausted before the agency well your honor we feel that we have  these issues the purpose of the exhaustion agreement is to put the agency on notice of the conflict contested issues and in terms of the mental health argument the immigration judge in her decision stated the delineation that we have now added which is those who exhibit erratic behavior that is different and so if you're talking about putting someone on notice it's when the first when what your first what was your first group persons with a serious and chronic mental illness ok and so when that didn't work then we said with erratic behavior but that was right in the middle of the hearing right well your honor the immigration judge actually brought that up in her decision she was the one that referred to the case of ten you get older in which the particular social group is individuals with bipolar disorder who exhibit erratic behavior and she actually did in fact finding on that issue in matter of w y c n h o b which i would like to point out was just issued by the b s a right before the answering brief was due in this appeals stated that they were worried about additional fact finding that would have to be done and in this case the immigration judge did state that she did not feel that mr pres would exhibit erratic behavior and so she made fact finding on that issue in this case conclusion without conducting factual factual findings in their decision now we're not even if you have a good argument there but if there's substantial evidence supports the conclusion f  you know we're not we're in a different position when we review that so we're not able to pick how we would have decided it in the first instance you have to tell us why it would compel that conclusion right am i wrong or i'm right and you're right your honor and i could be wrong but i think i'm right you are right and i do think i do think that our strongest argument is that the court committed legal the agency committed legal error and not considering the harm to the mother because this court case law has shown that we should take that into consideration and harm to the family but i do think that there was not substantial evidence to show that people with mental illness or not i change not consider it or to be i chase say it didn't rise to the level you weren't stopped from putting that evidence on just it's different if you say no i'm not even going to listen to what you have to say as opposed to i heard it but i don't think it rose to the level persecution of course and what happened here  did not make any of those statements and actually in her in her discussion of the particular social group she does state that people those with bipolar disorder who exhibit around ironic behavior or those with mental illness would have a well founded fear for future persecution she just does not find that mr price would have that because she doesn't think that he would exhibit erratic behavior in mexico so i don't think that she thank your honor i'll start with asylum your honor since this is kind of the lengthiest and and most extensive issue here so president the mother i think were found it credibly testified to violent abuse she entered this pregnant with him or well i guess i'm wondering because i think she cited in pablo versus halter as her best case so why don't you tell us why do we have to since it was under  two part of the time pregnant what what is the i j find and why why is that supported sure your honor i think the key distinction here is that in mendoza in mendoza pablo you had a situation where the child was at the time in utero during the most significant or during a significant portion of the abuse to the mother and that affected in turn how the child proceeded thereafter in life he was there was abuse to the pregnant mother that to that abuse plainly harm the child impeded the in that case given the mother's pregnancy that led to harm to the child that was there was just different in kind and just different factually in this case here your honor you have a situation where the agency reasonably looked at the facts that look this is not that kind of a don't we hear what the petitioner saying factually in the end and we accept the medical testimony but there is no evidence that the father was the idea who who would be the the would be actor here harmed edition or personally in no memory of the time in mexico he was only one or two when he came to the united states and their position has not been pointed pointed evidence that he was physically or emotionally affected by this abuse in mexico so i'd say those cluster factors make this evidence did not compel the conclusion that the petitioner suffered past persecution that's a starting point your honor of course the big agencies here had alternative grounds and correct ultimate grounds your honor to to reject the asylum claim before i know that i'll just know briefly no this that that lack of past persecution also as we've said in our brief does away with the humanitarian asylum claim the alternative grounds are the absence of a protected a social group of course and the lack of a showing of that petition or would object of lee and reasonably fears future persecution on account of any such social group i'd like to take off the point where i believe you're on a bus focusing the exhaustion issue  it's mandatory and critical i want to emphasize that exhaustion is even more important in the particular social group context in the decisions it's emphasized that to be i am repeatedly emphasizes that particular social group analysis is inherently factual undertaking that makes it critical for a petitioner team articulation fine particularly in really delineate the group they're talking about so exhaustion you really need that presented effectively clearly in cleanly to the agencies with the agency can look at the facts and say ok you know how is that human society is that particular is it is it distinct doesn't is it meet the criteria and we have the absence of that here and it makes a situation where this court can't effectively review the new the new york to collate social groups and with that i'd also add that the new articulations are a concession of sorts at the that the agency was correct to recognise that as articulated these sorry not on different large groups with many folks with different conditions who may have different perceptions in society may be more recognisable that sort of thing and i just emphasize your honor that in addition all the points why these are not i think it's really important to emphasize this court's cases seem to seem to i think support the idea that going in front of the agency is not a test run to try out of social groups say ok here's the problem with your social group and then just tack on amendments when things show up here to try to correct those in order to get every man that's it's not a good incentive and particularly in this case when you have the case law that supported sort of the addition of who exhibit a rather radically havior team who was was out and that could did so in showing that the actual group that the petitioner presented their petition represented by counsel presented was not as the court put it respondents proposed group has no objective element that would render the way i'm just asking whether your adversary argues well ok so we didn't we didn't raise it but the the i j raised that and decided on the merits i don't think i don't think that's right your honor i also emphasized shimon was also different because he was he was not just serious and so i would just say that i don't think that the immigration judge kind of disposed of this particular group i think they're still the exhaust my recollection of these three cases to keep them all in mind was that the th two of the i just decision that addresses he knew and really i think it's more about look here the distinctions from team knew which make this not a cognize of all social groups i don't think was an affirmative rules on on the group that is now raised and what about basically the conclusion was he just doesn't there's not enough support in the record to support if a likelihood of torture claim i mean here i think we we have a number of good reasons why the record supports  first we have we have the issue of no direct even passed persecution to to petition or putting aside any nexus issues and anything else you just don't have the harm that would support an asylum claim wrote withholding a removal claim and you certainly don't have the more severe you i would like to point out that in terms of the physical evidence that the government would like us to show regarding the past persecution  child here in respect we hold her and we have brought up bruce actually holds her and if hernandez ortiz even by this court in our briefing the court has found that link evidence linking abuses to parents to their children is not necessary and also internet is ortiz where there was no injury to the children in that case and the children were not present when their father was beaten and their brother was killed after they left to a refugee camp courts found that injuries to the family must be considered and in that case there was also no physical injuries to those children neither in the holder as well and so i think the argument that just because there was there is no harmed and so that creates the ten percent chance here that we are trying thank you both for your argument in this matter and i am point to i do realize in these cases i think we have at least three pro bono attorneys that are and while we appreciate everyone that comes to court i know that i speak on behalf of my colleagues we do appreciate when people accept appointments because on difficult cases it's and i think also meet so many as well so i just want to in case i forget i want to thank everyone that has participated in these series of cases and donated their time  all right just matter well on this particular case in the papers case is well i guess it will be submitted at the conclusion when we finish the i'm a key part of it so then the next case for argument is and solace verses matthew whittaker one seven dash seven zero one zero five and on this  similarly each side has ten minutes that we're going to argue right now and for the titian or the ten minutes to include rebuttal time as well and  indicate that will rather than dealing with the right to counsel and the reimbursement issues will be dealing with that the merits of each of the cases and all right so good morning and please state your appearance for the record hope i think your separate him from the same syndrome where it's what specially when we have video can you speak a little louder and maybe push those together so we can make sure we both to patients and it's mental health care system but i ask you this though some of the things in terms of you know keeping our standard of review in mind i know one of the areas that you're going to argue about was he was kidnapped and  your client claims that it was actually inflicted by the police or at least with some acquiescence rather than a and but apparently the i j a didn't see it exactly the same way so and stern says i think that there was some discussion in the record about your client said they were police officers that forcibly kidnapped him and come and committed other terrible acts upon him the i j a seem to say that look at other things and say that people claim to be police officers when they are not in fact police officers and was not convinced that it was the place in that situation what do we do with that if there's two ways to look at it and we're not the fact finders what do we do with that when we get up here i think that's a clear error that the board of immigration appeals failed to correct and don't necessarily agree that there are two ways to look at it the police  people boy it can't there can't be two ways because if there are two ways it wouldn't compel finding in your favor but if there are two ways to look at it and the i j a and the fact finder looked at it a different way that supported by substantial evidence our hands are tied right by the standard of review but as your honor says here there is not to waste a look at this but the people who said not mr president are us they were in uniform they put him into a patrol car he thought that they were going to take him to the police station and they had badges all of that evidence compose the conclusion that these were police officers so even under the substantial evidence standard of review i think that's part i find that they were it strikes me that if there's more than that there is this joint declaration which discusses the risk of victimization by the police the going to be the that and that was not discussed institutions visited the delegation heard as the money from detainees who allege that they had been subject to some type of physical and or psychological abuse by the police at the time of their arrest or sometime during the tension human or degrading treatment by police and doctors who examined many of the things we do in these documented injuries consistent with the allegations of those people so there was evidence  evidence that the police even gauged in and this kind of behavior and that evidence which is described in the joint declaration was not this time but this is this this goes directly to the question of whether or not out of thin air the are saying that well even though that he testified and they say there's no adverse that they made but there's clear there's clear evidence in the record i'm what i'm suggesting is is that they they didn't consider it they just didn't consider it and explain why rejected a claim nearly identical to herat so i need you to tell me how cases just certainly are first to address the yes that case did not consider the types of evidence presented here like the joint declaration that presents life threatening conditions of confinement and policies meant to harm those that harm and punish people because of their symptoms of mental illness and also that bianca's was published in two thousand and eight a actually conducted a case by case analysis related to that particular petitioner in this case the b a a does not do that and so they make a broad generalization that things like fact claim an immigration judge made that intentional over solace considering the joint declaration the only conclusion that they can make from that is that he would also face torture in the future because he remains an individual with mental illness right i'll give you a minute f part of your rebuttal time but i'll give you a minute thank you we're familiar with the facts or the the record sure your honor this case is that narrow case in the sense that we have withholding of removal and convention against torture issues i start by saying substantial evidence supports the agency's conclusion here that the petitioners proposed social group as presented the agency is not cognizable i don't think the panel has has pressed too much on that but i would just emphasize that again we have an exhaustion issue in this case the individual severe and from a chronic mental illness in mexico who exhibit erratic behavior or not is not the one presented below not properly exhausted as explained previously i'm happy to do it perform for purposes of this argument it's particular social groups are just critical to giving the a failed to do that what do we do i think your honor on the torture issue i don't think the b a reached the square conclusion that there was past torture what the what the ins instead i think did was say i did have some misgivings about the conclusion with respect to to past torture but just but i think what the agency's decision here reflects your honor is that although the agency recognized that petitioner faced tragic and ruling turned on the fact that they didn't think it was the police who did this to him i think your honor i think it was a collection a collection of factors i think that and i think the record supports those and i think that the details of petitioners kidnapping in that tragic but isolated nature of it shows clearly show supports the view that there's not a clear probability of a future torture or the question is do you agree one of my specific question is is the  dispute that this that that he that the chopping off of his finger was done by the police or do you take the view that that should be rejected out of hand because there could have been people who are fighting the police i don't think we need to object rejected out of hand your honor i do i think i think my position is that we're not sure we're not convinced i think the record supports the conclusion that it's not necessarily a likely future government sponsored persecution here i mean but what i mean george bush had touched upon this i think in his first question but what about the fact that he was tortured there is do you dispute the fact that that he was that this was done by by the police do you support a finding that this was not that this was done possibly by private persons and he hasn't met his burden i i think he hasn't met its burden on that your honor but i think i think what i'd i'd try to emphasize more and i think that the best kind of most readily available grounds here your honor and do you agree just i don't want to lose this point because i quoted from the joint declaration isom you're listening to it and and there's clear indication that th police actually engage in terrible conduct when they arrest somebody and it's based in part the straw on interviews that they conducted with prisoners and on the other hand the whole notion that there's no specific intent in general in these cases to the torture is based on interviews with with the with the alleged torture as you say we didn't have the intent position of the petitioner that that the police did it i'm not suggesting i think i'm not suggesting that we necessarily have to resolve that finally as opposed to remember that but it seems to me that they ignored clear evidence that would support the proposition that police engage in an outrageous behavior and they pull out of thin air the notion well there could have been it could have been people who were imperson understood let me see if i can present a way that that may be more directly allows for the court to reject the cat claim without without needing to wait and maybe more or more difficult i'm waiting hearing that are white is what you're saying is that even though they acknowledged it might be past torture the kidnapping incident in tijuana and all that it entailed but that  finding that corrupt that prasco failed to establish that a past harm he suffered was inflicted or instigated with the consent of public officials or is that that it's likely not to happen again or what what what are you saying or i'm not your honor i guess we're not really pressing that piece of it i think what we're we're trying to emphasize that fisher is if you look at the circumstances of this tragic past incident it's at the petitioner he suffered he suffered harm over the course of days but he was ultimately really released after a ransom was paid he checked into a different hotel where he didn't have proper he didn't have problems  he didn't report the crime so we don't necessarily know what that might lead to one way or another in the future since that happened neither he nor his family have apparently at least on this record been contacted by by those responsible  question was whether if it happened if that met the definition of torture then there's certain assumptions or presumptions that arise from that that at least have to be considered and so and so that's why it becomes critical what seems to me as to whether or not he was in fact this this this treatment that he was subject to was was by police or whether it was by people dressed as police  your honor i don't know that it's necessarily get operates as a full fledged presumption necessary i think it's if the court wants i mean doesn't feel if you find past torture it puts them in a different position when you analyze future right now i think you have to your own i think you have to consider the nature of the torture i mean neuro the court said past torture is ordinarily the principal factor in which and which we rely and i think it depends on the nature of what happened what the panel's asking you and we're kind of it's like i'm understood it's like ok if that is not if they if the b i a didn't clearly articulate whether it was it seemed to take exception with what the i j a did say well i don't think you might not be right about that there need to be a definitive finding does there need to be a remount to go back to the dea f b i a to say it was torture or it wasn't torture and then go forward and complete the analysis or are you're trying to say that no it doesn't really matter whether it was her or wasn't that doesn't matter with what the lenses that you put on to analyze the future i think that the answer to question is that there doesn't need to be a based on the particular circumstances of this case the effort and quoting the effort is not demonstrated here more likely than not would experience similar harm in the future and the board goes on to say the applicant was the victim of a severe or a serious crime in mexico but we don't find thier error in the i g f finding that there wasn't enough evidence that he's a personal risk of being tortured in the future his main fear is about a kind of generalized violence that unfortunately ended up being visited upon h we know from the record that that gave him the benefit of that it was torture in analyzing the future because i think the the board specifically acknowledged that possibility your honor but then went to emphasize the particular facts of this case emphasizing engagement with the record here and what the record here affirmatively or what the i g reasonably concluded that the record here show so i think there's it's not a cursory dismissal saying oh you know where said we're going to assume that it was torture and then make the analysis because but he failed some product to let that be better i think it's i think it certainly would have resolved some of the panel's questions and concerns your honor i think i think you can say it would be better i think i mean you're saying that's not fatal but i think it would be better i mean it may have been helpful here you are i think it's it's the rare case that establishes a cat playing and i move forward different do they get a presumption does that help them i think it's it's ordinarily the best i would say is i would use the language from the if there's no torture then it's if there's no torture and then you move forward isn't it different how how you look at it is the law different or not i think as a general matter you have to give close attention to what that passed torture finding is wrong but i just don't think the issue was presented here because of how the how the bord that argues and i have as indicated i'm going to take we're going to take a short recess right now and i would say it will be in the area of five to ten minutes so it's enough time for you to use the restroom if you want but not enough time to go have a meal haha be that the people in the next case should stay close all right all right that's what your rebuttal time is  press your honour's to begin with this is what is not in dispute here here there is no dispute that workers in mexican psychiatric institutions and state actors for the purposes of the count as the i g found intent to can't you can't just ignore it you're right ron and in fact a matter of jr g p is my case and we're actually challenging that case for this court because we believe it may commits the same error that's present in mr of issues happens and so under the cat ok i'm confused he said it's wrong terse but then you said we don't have to call it right in there in that case the review that i just findings for clearly erroneous and found similar to the i about the mexican government specific intent to harm benchley ill patients correct but it's based on the records the record present there it's not a categorical finding and in fact if it was that would be contrary to the requirement that every protection be clean be provided to individualized analysis and a determination to be based on the record evidence submitted in each person's case ok so besides the fact that these massive jurors these methods are still sometimes use is there anything evidence in the record that many mexican mental health workers resorting to these methods understand they are harmful and not appropriate and use them because they want to inflict harm on the patients that's well first john i think it's important to point out that actually it's not the case that the record evidence shows that these practices are widespread so it's not sometimes and in fact the i g herself made a finding fighting that they are one twenty three well it first went to the b i a it because there was a discussion of all the deplorable conditions and to be i sent it back to say well ok if that's the case address the intent issue right correct who actually  conditions and conditions are due to budgetary economic reasons the board corrected the i j a into that that doesn't make and that's not logical you cannot explain how the conduct that you yourself have acknowledged exists is the result of economic budgetary issue case based on a distinction between condition based and conduct based cat claims given that the i guess court consider both conditions and conduct how how is this different actually your honor and  could be singled out targeted and good medications would be deliberately withheld from him here to take your time so i don't want your counsel of counsel to be pricking out there so i'm not going to let that go you still get your whole three minutes ok that day and all give you two minutes for rebuttal thank you ok and then well if we have additional cap questions at that point after will carry over so let's put it back to what i'm going to give her two minutes law from under close in this and you represent me in this and with a few moments that i have we wanted to make a simple point on behalf of medical and human rights organizations that i represent and that is that the conduct which mr strength we talk about forced medication and invasive procedures but those are clinical terms and they mean something very specific it means an individual being tied from head to toe to a wheelchair permanently as for twenty four hours a day for many many years this can lead to ulcers again greens for not having a mouthpiece to involuntary with a medication refers to forcibly giving medication until patients uncontrollably shake and suffer hospitalized the first is that hospitalization in mexico is the standard treatment for people with people who are schizophrenia secondly in order to get any sort of treatment whatsoever he will have to be admitted to mental health hospital in order to get any conduct to which you will be subjected and in those institutions does rise to the level of torture and finally in addition to those facts there's also the fact that he does not have family in mexico which is the key factor is the expert explained in determining the length of institutionalization well let me point out another factor about your client if that may say as your client your clients also and over a chief are in criminal convictions of all the defendants that we have here right he's been a presence several times right yes he has an answer and committed fairly violent crimes as well i guess and so the combination of him honor regardless of the past conduct for which he's been convicted that doesn't change the legal standards under the convention against torture which is a categorical prohibited on torture and on this record i guess i guess what i'm asking is that there's no doubt that how we treat people with mental illness is better here ok but is are are we when you're asking for a standard is then every one that has mental illness despite the fact that they have the ability to go to present here several times commit a lot of crimes and are probably really you know as a judge i would say quite dangerous to the population at large that they're entitled to ca to be here and be dangerous here your honor what we're not trying to make the point for a categorical finding as to all people who suffer generally from schizophrenia rather on this record given his specific conditions his place of origin his family conditions he will almost certainly be subjected to torture if he's returned home country and we're also not trying to ask that overnight somehow mexican mental health institutions overhaul its  practices to meet the standards of what we've set out here in the united states recently we are only trying to say that the types of conduct that are at issue in this case are are positively inhumane that we are decades removed from one of these types of conduct or universally taken out of the spectrum of mental health treatment ok i think we i think we've gone over but i think everything that you've said has been useful thank you thank you very much you're right we'll hear from the government false ok if you need just said to be closer that will not be taken as a sign of disrespect but i still need to see you about that's that it's not a very big spring ok completely at the end with just stop the clock her second mr stewart are you going to deal with all the criminal justice so you don't need to talk about that ok foremost substantial evidence supports the grecian judge and of course terminations that effective alternative remedies that the petitioner has not shown that alternative medications are not available in mexico oh th medications are other fillable in mexico or that they would not be affected for cornell for failing to present evidence clearly established in the specific intent of mental health workers is that is that a problematic no your immigration judge and board both applied the more on specific content clearly there was evidence presented in the record of the deplorable conditions and everything that happens what is the evidence in the room because if there are alternative views to look at the evidence and the way that the agency determined is supported by substantial evidence we can only change that if a different result is compelled what is the alternative evidence and how is substantial evidence support that would have no other option but to restrain persons because they're not aware of any alternative major or therapeutic methods and also your honor just returns the joint declaration it should be noted that the country reports that the immigration first students are the worst of the worst according to the petitioners own expert declaration fifty percent of persons who receive mental health care in mexico receive medical care so that's the baseline here on the fact that there's a few students absolutely ask a question that's going to take you over but i want you to answer this is that in terms of when you look at the tortures that are alleged that they were analyzed but did anywhere in the record was it analyzed as to what the aggregate risk of the torture was the sources and i think  conduct that would otherwise constitute torture saying in effect we didn't intend to cause punishment isn't that what comes down to basically relying it's my mind  sort of the equivalent of concentration camp guards saying i was just following orders do you expect people who are engaged in conduct that would otherwise constitute torture to say that they  is being read into that case but from that can use in two thousand and eight till virtually today there's no indication that anything has changed notwithstanding all the motives for good motives that are attributed to the mexican here the board specifically didn't address that i raised it in my appeal at a r forty four the board says that we're not going to address the aggregation of karma because we don't need to there after every time we raised it was never addressed by the board and there's no mention of taking it from the here just yesterday the fourth circuit issued a precedent decision relying on this court's decision that requires that torture claims be considered in the aggregate and there they talk about the fact that you need to take the communi analysis of the probability of torture and here that would have required the i j a to look at both the history fear of torture at the hands of healthcare workers at the hands of the police and gang members there was never an analysis done of  asserting a fear of deplorable conditions which is what the issue was in vegas nor and he has a deuced evidence of specific intent he is he is he fears torture at the hands of the health care workers and that it is in this case it's not the mexican government at large herself found that these health care workers subject patients to sexual and physical abuse to pit patients who exhibit erratic behavior to a whole host of the piece of practice states and each side has to be a mickey have i guess ten minutes for the benefit of the court and the government ten minutes for response is my understanding these the government was going to argue this person before and also your but you're the one that but but it was all brought up by the petitioners it wasn't brought up by the government right your honor so we're flying to go first and i happen we'll see ok i mean i think the way that we've got this go and i don't think that there are any sort of strict rules so i'm just going to see what the court needs to hear so  quiver here ok it's out ok and i might then go back to the other side if i feel that that's the case because i don't think that they're we just want to get to the bottom of this person ok thank you go ahead they have please the court here for two main reasons first all petitioners were found not competent to represent themselves and without counsel would have been deported without any opportunity to challenge their removal orders in federal court well let's think that is sort of what happened below let's face it here everyone's there's been competent representation throughout so and what happened below was really a response to a district court order kind of a settlement that really isn't binding on us but the way the government responded to it was they on the qualified representative they set up a program that allowed people to have lawyers yes or no so now we're really talking about on appeal rights your honor we're only and on appeal these petitioners are also not competent to represent themselves and would be deported without any of opportunity in this petition for the winner hasn't been specifically finding asking to be compensated asking for the government to pay for them so you've got to tell me you've sort of got your pulling together the already the c j s that this that other that as your i'll get to i'll definitely get to that but for the purposes of this argument i don't think there is any dispute that the petitioners are not competent to represent themselves and wouldn't been able to file across a petition i don't think it matters they'd have representation so now you're asking for pay so don't think your so your honor the pro bono program is not an adequate substitute here first of all the petitioners in these cases their counsel only accept that appointment under provo and under the pro bono program without prejudice to wrong with that but he's due process rights and not been violated and essentially where you're asserting is your right i don't mean you personally but the right of the people who are brought presented him have given him the counsel but he's entitled to be paid and i don't i don't know what the standing is the right word for it maybe it is what you're standing since it's the right of the friend and if this court requires an eye on us for things here that there has to be some judicial review moving and none of these petitioners were able to file a petition for review without counsel the pro bono appointment under the pro bono program without prejudice to raising these arguments and therefore what the proper procedure for this is for an individual to follow a motion for appointment of counsel before they had counsel appointed on the pro bono lower court district the district court decision that set up the qualified representative was based on five o four it was rehabilitation acting it wasn't it's not it's not a c j anything intended the petition for a view process to be an adequate effective substitute for what came best people on haiti have their walk up in prison there's third citizen set of committed crimes they're not the same as people that have been that are not citizens yet any of these clients could actually say ok i lost i got my qualified represented i got my counsel and then i lost and they could just go back your honor this question is well settled the supreme court and i and  statutory scheme says you have a right to counsel but not at the government expense there's also that your honor that statute only applies in removal proceedings where in a petition for a view if you look at before the petition you j was repeatedly used by federal courts by individuals who are challenging the removal orders in federal court do all sorts of petitions for review in the ninth circuit of people that don't have representatives i understand your honorable all these individuals were found not competent to represent themselves also the second point i was going to make all all their cases how likely american they're all complex and so to wonder if this court decide on a case by case basis if we need someone to assess just in deciding this case as opposed to everyone can file something and say oh i have a mental health problem therefore appoint me counsel at the government want to make sure that it's the due process clause in the court's question there and i may also want to touch on some some points on the pro bono program and some some support from that is an initial matter your honor i think some of judge callahan's questions petition for review that therefore is is that binding on us for a qualified representative then no your honor that's a rehabilitation act a claim it's kind of a discrete set set of folks seen in three different states it's a little bit  but let's say on the due process if we accept the fact that they do have a right to file a petition for review if a person has a mental health issue hyland a petition for review is on the record that's already been developed is it isn't possible that there might be some instances that a court could decide that without having lawyers i mean we do it all the time with people that don't have mental there it's not like there's a lot of immigration cases we decide without lawyers and people find they don't do a well aware of the argument if they were if they thought that there was something to this argument one would have expected to have seen it in their in their rather lengthy briefs the parties did raise in one case mr cross a consultant supposedly disclaimed making the argument further i'd say that the f after recognizing that that point i'd say a few things kind of kind of follow one is that that goes a long way to basically defeating any substantive due process claim that there's no long history of prediction of this kind of appointment no fundamental right on procedural due process and i want to be cautious in this because again this is just callahan and the court is aware from from the c j l g case regarding right to counsel for minors to government expense and removal proceedings under the due process clause of the matthews v eldridge analysis is very involved it's it involves a careful look at all of these factors here we don't have the presentation of what what with this group b do we really need counsel in this context when we're not j again that does not i don't decide there that even even my friends on the other side emphasize that the provision for them is at the interest of justice or require present representation may be provided this indicates that there's there needs to be some affirmative indication as a statutory matter for this court to have authority to appoint counsel that provision doesn't give it to this court and the immigration nationality act itself strongly cuts against this sort of thing if it squarely provides for no government appointed counsel in immigration removal pre proceedings at i j a stage or the b i s they've given those kind of specific c j and i any dealing with a council issue there's no basis for reading into  provide for counsel i would also just say that i just there there isn't a showing that counsel is is needed in this case i mean taking just the pro bono program is as an indicator alone is as i understand it i in a former time i participate in that pro bono program those invitations go out to a great great many people who seem to be very eager to get in court and step in usually when you're when you have a situation where there's no statutory text that authorizes something where the court would need to reach and constitutional type of ruling potentially you don't do it unless it's absolutely necessary and we just don't have additional hasn't shown that people's cases will who are in the circumstance would never reach this quarter there isn't some other way to to address any concerns editions have been represented by counsel throughout and gotten all the arguments presented and you know a sweeping ruling of the sort they claim is surely not warranted i would add that suspension clause i briefly touched on this before but again what saints here is about is is about a saying that look you can't completely close off additional review you need an adequate forum judicial forum to to test certain kinds of claims the petitioner has that here he was able to pursue it here it was an option there is no showing that you wouldn't have had counsel had it current counsel not not step forward and so for all these reasons your honor that the statutes don't authorize it and they if in fact affirmative because the issue has not been adequately raised but because there's no basis in our history traditions or grounding in fundamental rights to announce this right in the procedural due process point is it isn't involved analysis you wouldn't support here especially because  appointed counsel and compensated counsel under the all writs finally which are meant to go back to your argument about standing there is definitely standing towards all of the motions for counsel which is what we're arguing and then the compensation issue is right and we do believe that there is a dock to take for   or the already i just want to make one final point about the pro bono program it cannot be adequate these cases all these individuals are not competent to represent themselves they could not file not only their petition for reviews