reasonable educator would be compelled to conclude to the contrary i'm here to show you that the evidence in this case established just that the fact that is an issue now that i could to thirteen is called a record of deportable word inadmissible aliens exactly what happened in this case a great deal of evidence to that effect st we provided the medical records from the cherokee county criminal court that had medical records concerning mr lay about just two weeks prior to the preparation of the i two hundred and thirteen there was a medical diagnosis saying that the patient was very ill they declined to process that they declined to prosecute him on the grounds that he was very not not competent that on the grounds that he was extremely ill the medical records from the chair pay he county said that he was hearing voices there was an affidavit submitted from has a criminal attorney william wilder who said it returned it was thought to have a condition with war and in his buying and there was an affidavit submitted by  attorney who overheard one of the employees of the church pounding church county district clerk's office saying oh yes retard i have worms and his friend this was just two weeks prior to the preparation of the i tunes thirteen what this immigration judge did was eventually find that he was incompetent to proceed without safeguards under matter of ma'am in fact the immigration judge at st found him to be competent but then later after he had said that he was in social security proceedings and criminal proceedings and then later that the immigration dog had agreed not to by cam the immigration judge found him not to be competent to stand to to proceed however v i choose thirteen what's at issue is that he was found not he was found by the immigration judge to be competent at the time that the i to thirteen was prepared and that is not permitted well if he was incompetent at that time given all of that evidence if he was incompetent at that time he could not admit t the immigration law under matter of man and competency repliers that you understand the nature of the proceedings against you that you be able to cross examine the witnesses and provide evidence scuse me that you be able to participate that you can cause consult with your attorney and that you can reasonably cross examine the government witnesses well he was appointed ok i'll take that then my point is that is in competency and generally speaking it's a different issue than mental illness oh i also wanted to withdraw one of the arguments that i had made prior i would like to withdraw the argument that the three judge panel was required in this time when the information was given is that a you on have your client don't attack it as an aircrew or b there's no showing that he was incompetent at that time  including that he was hearing voices and the records from the other individuals who said that he had perhaps a parasitic brain infection and he hand those and those who are two weeks prior to the preparation of the eye to thirteen young to thirteen is selfs just simply states that he is from mexico it doesn't include on there even though there is a place on there as to where i mexico it has a his incorrect age it has that he has no mental it has on there that he has no health problems which in fact he had epilepsy and diabetes and so there was plenty of evidence that not only was the eye to thirteen and accurate but higher immediately prior to that that that he was facing severe mental problems mexico however that was prior to having an attorney and that would go against that regulation that disallows the immigration judge from taking someone's we have no idea who has something in the record about him having relatives and states and so on so where he does state that he had relatives in the state he did not if he's found mentally incompetent he gets an attorney and can still deporting right exactly but his his statement as to being deplorable cannot be used against him if he is not represented by the attorney where he where is he now your honor i'm afraid that i don't know where he is however that does not move this case given without prejudice to bringing it again in the future what's wrong with that i would have no problem with that is that if that's what the court decided that re therefore under this under the clear and convincing standard he was not removable and therefore he should be or bird on behalf of the respondent the attorney general the court should deny the petition for a view because the proceedings were fundamentally fair and because the agency properly admitted the form i to thirteen as evidence they could do what they did yes your honor my argument is that the proceedings were fundamentally fair and we heard we the immigration judge found that he was not competent and prove parent were that's the only evidence the government has that he's from mexico and here was here legally that seems to be the main issue in this case and i would know where you address that yes so the regulations that represented or someone who is not competent and not represented and in this case that's if the pleading stage so during immigration proceedings there's a pleading stage and then an evidentiary stage and what that regulation is saying is that you cannot sustain a charge and that an immigration judge cannot sustain a charge of a movability based solely on a pleading just i admit i'm removable if someone is not competent and not represented here the immigration judge did not sustain the charges based on pleadings in fact pleadings were not taken as you said he was given several continuances it did prolong it but continuance as are actually a safeguard given continuance is to allow him to seek counsel and to allow the department of homeland security to file medical evidence and then at that up to her th hearing he was found not competent and then the immigration judge obtained pro bono counsel as a safeguard it was not until after a program counsel was a obtained and was representing him that the immigration judge actually took pleadings to the charges and he did not write the charge of remove ability through counsel so that regulation september th when the information from two hundred and thirteen was obtained from you that's right and that is october court rely known for seen as and holding part of the hoarding was that miranda warnings didn't have to be given prior to collecting the information in the form i two hundred and thirteen and it reiterated that before my to thirteen is admissible evidence of alien age or of place of birth and it adopted or quoted a th circuit case saying once the forms have been properly admitted then the government's prim portability has been made and in that shifts the burden of production to the alien to show that they are lawfully present and this quarter adopted that little bit of for my to thirteen is admissible and reliable evidence of alien age and then that burden of production shifts since since he had he's had counsel for several years now right that's right his not during the immigration proceedings but yes he said counsel for quite some time and the whole ever raise and any doubt about the facts to which he testified in october no there the point to me in my point is law does recognize that i would say there's a difference between incompetence which the board defines a matter of in and has been it a rational and factual understanding of the nature an object to the proceedings and that is the definition of incompetence for immigration proceedings medication i have a family experience with schizophrenia ok so very very smart and be schizo phrenic absolutely and the board recognizes that in matter of m a m which is their seminal case on competency in immigration proceedings and says there's a difference between mental illness and mental illness would be in disha which would mean that the immigration judge would need to inquire muar but that's all it is it's not fundamentally a find not but we have a finding a month later but the identity is one million gone right and that goes back to your question earlier which i think was raises a very important fact that even if he was mentally incompetent at the time of the for my to thirteen and sixteen he could still give accurate information as to where he was from as to his place of birth and so that is goes back to that matter of bar scene as case where determination that he was still confident to give graphical information well that is matter of burst seen as says that there has to be evidence showing that either the information is incorrect or it was obtained by coercion in order to undermine the i two hundred and eighteen and that would be we have evidence that he was incompetent ima right but that does not that is not a rd exception that because incompetency may mean it's incorrect we just don't exactly we don't know because there's not any evidence that it is incorrect and someone could easily be incompetent and yet be able to provide correct defamation so we would need more evidence say for example something saying that he has wavered and has sometimes he thinks he's from mexico sometimes he thinks he's from just seems odd the government is the mover here to you know believe i mean it's there so even sort of say you know probably a shoo in to thirteen is there but then all this other stuff happens but it just seems odd to me the government has no other corroborating or other us this court held that that you don't have to present that testimony because of that because unless he shows evidence to you that it's either incorrect or obtained by he's it's says that they ran it through several databases and these check revealed the reveal to the criminal and immigration histories above and also ask a question though once he had counsel they sort of redid the proceeding did they not they they did not even take pleadings in till he had counsel so that's what really started to notice to appear right after and then they had more proceedings right and didn't he didn't his counsel have every opportunity at that time to suggest that he was not removable absolutely and that's why home has the burden and that time and those are the most proceedings the burden initially is a live government to show an itch and once the government has shown alien it it shifts to him and then he declined to present any evidence alternative pleading that would normally be made right and representation by counsel was the safeguard that ensured that he was able to exercise his rights in proceeding and argue at the proceedings that he not because there was no proof that he would counsel pleaded not not removable but based it wasn't an argument that he's not from mexico it was a i want to hold the government to it was born in mexico which he has never stated that he was not born in mexico and he didn't present any evidence to undermine that the correctness of that statement or to show that he was incapable of regulations is not the immigration judge is not allowed to accept a pleading an admission of remove ability but in part says hernandez the board held even though we can't accept and in mission of remove ability we can take that person statement contain uniform lie to thirteen as to where they were born because that is basic biographical information of the board said that what if he wanted to get that statement out of the record the statement of where he was born he would have to show that his age impeded an accurate exchange of basic biographical information and in this case the board relied on that published to sit it decision in ponce hernandez and said just looking about this record it is a business record government business record and the only other option would be to require the government in every case that they think someone but if someone on some one is from mexico to go search out their birth pursue a petition for a view even outside of the country now the fact that mexico they were accepted him back if he's not in contact with his counsel i mean one of these issues came up in a case i sat on a year or so ago and the fellow had been deported but his counsel knew where he was and so could locate him and i'm just you know this must happen more than occasionally and i would like your expertise as to how cases like this can continue in theory when the counsel is not  contact to the client and the client is not to be found well i did not know until i got here that counsel was not uncommon asking for your experience in other cases in other cases to be honest i'm not sure i'm sure my office  handled that i own i don't think it renders it necessarily but i'm just not sure i could file something if you'd like the radical cases you know one of the fellows men deported he's probably back here illegally somewhere but we'll never know if he doesn't call his council if his council can't find him we'll never know so why should we just suspend the whole thing i'm afraid i don't have a good answer to that i don't know the answer i can find out if you like me to well and again i mean it seems to me it would be interesting to know whether these things happen very often and what the normal legal consequence do know that normally someone can continue to pursue their petition review even after they've been doing i mean if this were a tort case i've had this in the context of i guess it was a constitutional case post katrina where someone came into our court in a public interest sense and said that louisiana's laws of the rising requiring certification of forest one constitutional i said where the forest where your clients he said were one of them dropped out of business and another one  such and moved out of the state and another one i've never been able to contact and therefore it was not obvious to us and we dismissed the case as mood and i don't see why it should be any different in immigration situations than it is an ordinary civil litigation well i can see that i don't know for sure and i do think the court can deny the petition for review because he had safeguards and he had an opportunity to present evidence he declines to present any evidence but he had that opportunity and this court's case law and the board case law state that a for my to thirteen can be relied upon his alienation in that shifts the burden of production to him and he declined to present anything on the fact that he may or may not have been incompetent at on september th when the information was taken simply isn't enough to which is what he argues isn't enough to create a bright line rule saying that anytime anyone's incompetent they're incapable of giving accurate information as to their birthplace only people who are apprehended and i refuse to say where they're from and the government runs a yes i think so i can't think of a specific case but certainly people sometimes refused to say where they're from and then the government has to produce other evidence now in immigration court proceedings w fusing to say silence can give rise to an immigration context what other evidence is the government required to produce when the person says i'm not i'm not talking once the person is in court if they refuse to then there can be an implication by their silence in the immigration conduct that the government's relieved of its burden to prove they're not here with the government would still have to submit the form i two hundred and thirteen or other evidence explaining why they believe the person to be ok with your case is no circumstance that i tutor as we've checked federal databases is adequate i don't know of cases off the top of my head where from the very beginning the person refused and thirteen got challenge all the way up i just i don't know that's not what happened in this case in this case they did check databases but he also i'm just saying i hear what you're saying and i'm sorry i don't have a better  law is that the government if they suspect someone and they have reason to believe and they fire we're charging document charging them and then the person comes in and refuses to denies everything but refuses torres what happened was that the ambien wanted to cross examine the person who had created the i two hundred and thirteen and was not permitted to because they were not available at the time however they of proving by clear and convincing evidence that the individual is an alien so if the i to thirteen can be admitted into evidence just because cases like bush the us and have held that it is inherently reliable in this case it's not inherently reliable if the person is found to be mentally incompetent at the time that it was made that document on its face has his wrong age it's not factually accurate it says that he has no medical problems that is not factually accurate the government could have obtained a birth certificate in this case but chose not  so you have the and the immigration judge according to her is entitle to use it against her client yes john but the standard is clear and convinc his opinion he found that he was competent at the time of the making of the eye to thirteen and what effect what he would hear that he wasn't all of the evidence that we have that he wasn't competent was that the statements that he had was in his brain that he was very ill that the criminal charges against him in cherokee county were dropped because of his illness and that he was being picked up  exact same time as the notice to appear by the deportation officer and under a car to be shaughnessy i would say that they have to follow that regulation again ask you one was the last time you were in contact with your client your honor it would have been at the time i visited him another number of times while the case was on record that says that he added i have the exact record only hage but there's an email saying you guys supported my client without advising me how is that a safeguard and that was twenty thousand one hundred and eighty two thousands i believe it would have been two thousand and seventeen this case has been pending for quite some time no no it must have been two  eight thousand and eighteen if so but on the record yes you're on ok so you so it may have been now may have been two years yes shawn since you were in ca or more since you were in contact with your client now are sorry you're in a have if i may one other thing is that if he were children or turn to this country he faces the potential of criminal prosecution and that is why this case is not