thank you thank you honors your honors we are here on a denied application for asylum withholding of removal and withholding of removal under the convention against torture out of the detroit immigration court your honor as we believe that there are two fundamental issues before this honorable court with respect to this denied petition one is whether or not the board of immigration appeals as i will likely refer to as the board from here on after may committed a legal error in holding that the respondent asylum application was not deemed timely filed based on exceptional circumstances and to whether substantial evidence supports both the immigration judge and the board in the board's decision to deny the respondents petitioners applications for asylum withholding of removal and withholding of removal under the convention against torture your honors i'd like to start with the application and the reasons that the immigration judge in the be a or the board denied this particular application and your honor one of the statements that keeps coming to my mind is because of the way the immigration judge worded as it was that the immigration giant judge found a number of inconsistency is with respect to mislay as i was testimony in her multiple our  individual hearing before immigration judge hacker your honour's the immigration judge however with respect to those in consensus inconsistency indicated that the most glaring inconsisten as to the petitioners claim related to how and when the petitioners came to the united states and garners they came to the united states in two thousand and three obviously given the age of the children the children didn't have much recollection with respect to how they entered when they entered what documents they did or didn't have so the only testimony in this case was that of the mother by about slaves are your hono it's interesting to know and the reason that we bring the crux of this appeal before this honorable panel is the fact that petitioners asylum application was not filed until october of two thousand and five this would be outside the one year time frame that statutorily is required to file an asylum application from the date of entry now mind you your honour's the discrepancy in the data ben trees at issue in this case are may ninth two thousand and three and may twenty second two thousand and three we're talking about a discrepancy of thirteen days we're not talking about a discrepancy of years again the immigration judge found the most glaring inconsistency is with respect to the testimony of admit when and where are i'm sorry when and how these folks were garnered admission into this wonderful country honour's the immigration judge found that based on any collateral application for adjustment of status that was filed with united states citizenship and immigration services the administrative branch of the department of homeland security was there was an entry indicating she entered on may twenty second two thousand and three the respondent or of the petitioners testimony at her individual hearing before the immigration court was that she entered on may ninth two thousand and three now your honor this is exacerbated basically on the level of two errors by two different prior counsels your honour's the first is that mr sly is our retained attorney simon edelstein from the firm of barry mormon up near detroit on may nineteenth two thousand and three which would be three days before the admission date listed on the i forty five application to adjust status what makes this problematic is at the individual hearing mrs sly is ours new counsel who represented her at that individual hearing attempted to introduce a legal contract an attorney client contract or letter of representation wherein simon edelstein in the firm of barry mormon acknowledged in for the sum of four thousand dollars that they were going to file in represent the petitioners with respect to an asylum application before the requisite governing body there was also a letter of august twenty eighth two thousand and three which is it in the record as well as an attachment to prior councils brought to the board of immigration appeals when mr edelstein sent the petitioners a letter indicating he was actually working on the application as the petitioners believed he would be doing believing they are understanding they had retained him two months prior that the me interrupt that yes there's no doubt everything that you're reciting is a correct version of what occurred but what seems to be the answer to every argument raised in this case is the credibility that seems very even asked to timeliness that seem to be the resolution of it so i sort of boils down to what if anything  we can do in reviewing credibility terminations and what's the standard down there well you know that's a great that's a great question and we address that in our brief and you're correct judge that this honorable court generally la jurisdiction to review the denial of asylum based on timeliness however your honour's this court can review one timeliness if the applicant raises a question of law or a constitutional issue this is what we can spend the petitioners fall with then in the instant case your honour's again the sly is our family retained counsel they relied on an attorney client privilege they paid money they received a piece of paper that said we're going to do x y and z for you they received a letter two months later saying we're working on it they received the bills from the four firm in june july and august i believe if my memory serves me correctly of that year for services that were allegedly being rendered it wasn't until february of two thousand and five that mr edelstein actually acknowledged to miss sly as are you i didn't do anything that we told you we were going to do nor have i done anything that the contract indicated with did you guys ask the question and it's very essential your client must demonstrate credibility as a threshold judge was incorrect i do judge in the i'm not going to say that there were other in consistencies but the reality is when you're in a trial of multiple hours and there's an application over here i mean this administrative record is quite substantial with applications that went both to u s c i s and that were presented before the immigration court there are errors that i've been doing immigration law for probably about a decade your honour's and it's inherent there's just inputs of information that are wrong somebody relies on somebody else to do the paperwork and the other errors aside from the credibility issue and what the judge i mean the immigration judge says out of all the inconsistency is the most glaring error with respect to her entry which gets back to this whole i i did or i didn't retain prior counsel which then gets into it would have all been rectified had the second attorney actually her third attorney had that attorney complied with the requirements to submit the documents within the requisite time period prior to the individual hearing so all that attorney had to do was take that attorney client contract and take that august two thousand and three letter and take those three billings and say here you go i'm giving these to you fifteen days before trial everything's good unfortunately he walked in on the day trial and said hey i'd like to submit these to corroborate her testimony and the judge denied that and what is exacerbated more by that is than when the immigration attorney for the department of homeland security was engaging in the line of questioning the immigration judge actually proactively on behalf of the immigration attorney said in order to provide to prove that her testimony is inconsistent wouldn't you like to introduce the i ninety four that says she didn't enter until may twenty second since she's saying she entered on may ninth wouldn't you also like to introduce the i forty five application which is the adjustment of status to register a permanent resident or adjust status so that you can also prove on that application it said may twenty second not may ninth that she alleges so the immigration attorney didn't submit the supplemental documents and the requisite time period before trial and in fact the immigrant the immigration attorney or the government attorney didn't even on their own volition move to have them in minute so after denying miss science sizer tourney's attempt to get something in outside the purview of the advance filing deadline the immigration judge not only permits the immigration the government attorney to do it but actually informs them hey you might want to admit this and then does so despite the fact having just precluded petitioners from doing the exact same thing honor what is to say well you know i believe that's an abuse of discretion i believe that when you have one attorney on their own volition saying i want to submit proof that she retain that's and she was under a reasonable assumption that things were being done then she didn't find out till two thousand and five and she filed within that within believe it was nine or ten months after she found out which was give me one moment just to find the case  gonzalez your honour's this very honorable court ruled that the requirements of lazard are not necessary when the record discloses that counsel was clearly lacking in competence and diligence and if you follow the fact  it was basically that the attorney was unable to introduce witnesses or documentary evidence because he didn't comply with the local ten day rule requiring advance admission that's what we have here the attorney trying to get the attorney  contract in the letter two months later in the three billings in but he didn't comply with the advance submission of evidence so the fact pattern is the same albeit instead of a witness list it's an attorney client contracting communications it please the court clear work then for the attorney general to respond in this case the agency's adverse credibility determination is the only issue properly before this court the timeliness issue is not before this court because the board did not address it and did not need to address it because the adverse credibility determination was dispositive of all of the petitioners claims for relief and protection but miss understand that this court's jurisdiction to review the un timeliness finding they claim that this court does have jurisdiction because they're raising a question of law that's we dispute that but that's irrelevant to this case because it's a bedrock principle of administrative law that this court only reviews the final agency decision the those are reviewed your honor for substantial evidence whether the record compels reversal of the adverse credibility finding and in this case petitioners have not shown that it does in fact in their opening brief they've waived their challenges to the adverse credibility finding they because they don't meaningfully challenge all of the numerous instances in consistencies that discrepancy can be relied on and because many of them do go to the heart of the came clean in any event but all together the totality of the other dence that does not compel even worked as a social worker in ukraine which was the basis of her all of her claims or whether she did not work at all as indicated on the materials with her adjustment of status obligation third if she did in fact work as a social worker there is contradictory evidence as to when and how she left her job forth the discrepancies about whether she hid in a village for about five months before coming to the united states and if she was in hiding how she earned a bachelor's degree during that time and she never testified that she was in school during the alleged events that support her claim and fifth the her former united states citizen husband when he offered to marry her because her attorney wasn't doing anything to help her her former attorney that makes no sense because at the time she thought that he had filed the asylum application for her and petitioners claim in their reply brief that they incorporated by reference in their opening brief the same arguments were for the finding to the adverse credibility determination but they in addition to not acknowledging that the board had no need to address the entitling us question and that it's not before this court none of the arguments in the reply brief overcome any of these numerous discrepancies that i've just they've never contested either before the board or this court the the contradictory evidence about whether the petitioner had a social worker job whether she resigned or was fired and when how she earned her to buttress degree while she was in hiding and why she never mentioned going to school and the nonsensical story about why she married her former united states citizen these and other insufficiently explained in consistencies are specific and cogent reasons for the adverse credibility determination that is supported by substantial evidence in the record with respect to the evidence that on pages two twenty two to twenty three are that the d h us attorney moved to admit the asylum application the i ninety four and a copy of the two thousand one passport and the council at that time did not object to this evidence but in any event the argument that that d h l should not have been allowed to submit this evidence was not exhausted  so this court can't review it and in any event also the the rules for impeachment evidence before the immigration judge they're not subject to the same now it's a fifteen day meet their burden it's their burden to show the likelihood of success on the merits which they didn't do it's also their burden to meet all of the other nican factors which they did not do so we would oppose  upheld by the board include the contradictory evidence about the date that petitioners entered the united states and and how they entered whether they entered on  passport or whether they entered on with her from a fraudulent passport in another name secondly the contradictory evidence about whether she actually worked as a social worker in ukraine  and because she stated on the adjustment of status materials that she had no employment in ukraine third if she did work as a social worker there's contradictory evidence about whether she resigned from that job and when that happened or whether she was fired and because she later claims and that she was fired when she was in the united states when she first claimed that she had resigned before she left ukraine and then there's evidence indicating that she she was released from her job at a date when she did not allege and also facts for this for this case and the other country the other two reasons for the credibility determination are  that whether she actually did hide in a village for five months before leaving and if she was in hiding how she managed to earn about degree during that time in wash never mention in testimony that she was going to school and then finally the offer of marriage to the her former husband from her former husband united states citizen who offered to marry her because her former attorney wasn't doing anything but she thought at the time that he was doing something that he had filed her asylum application so if there are no further questions i would ask that the court deny this petition for review because the record fails to compel reversal of the adverse credibility i will do my best to address all of the topics that respondents counsel proffered to this honorable panel your honour's first of all respondents counsel would indicate that the board of immigration appeals did not address timeliness and they only addressed adverse to credibility therefore the adverse credibility finding is not before this honorable court that's quite honestly the farthest from the truth your honour's the adverse credibility finding in this case as the immigration judge put it most glaringly reflects on how when when they entered the us which goes to the un timeliness factor because the documents that prove that they timely filed were precluded from admission before the immigration judge so to say that it's not before this honorable court they are so intertwined in this case because the immigration judge says i find various inconsistency but the most glaring i find are with respect to when she was admitted and when the application why the application wasn't filed until two thousand and five the adverse credibility finding is based on the un timeliness so therefore it is properly before this honorable court your honour's one of two things has to be true either the immigration judge addressed the issue of timeliness and the board of immigration appeals addressed the issue of timeliness and its properly before this honorable court or despite in the petitioners appeal to the board of immigration appeals wherein i believe on pages fourteen fifteen and seventeen of the administrative record prior counsel in his brief to the board of immigration appeals directly reflect directly talks about the issue of timeliness and how it was untimely found untimely because these other evidence this other evidence from attorney simon edelstein was not admitted so if that's the case and the board in its opinion didn't address it despite despite it being in the i j s decision and prior appeal to the b i a then it must be remanded so that the b i a can address that issue your honor as the reality is page two most of page two of the board of immigration appeals decision does  dress that issue so it is properly before this honorable court your honors as to the fact that respondents would argue that there was a waiver of the challenge to the adverse credibility finding your honour's as i mentioned in my brief the adverse credibility in the end timeliness arguments in this case are so intertwined that i basically would have repeated i could have cut and paste the same five pages rather than bore this honorable court with in essence reading what would look like a computer error in that i hit copy and paste one too many times we just incorporated our prior arguments by record by reference to you asking this court to do your honors we're asking this honorable court to do one of two things either second as evidence by an attorney client contract signed by an attorney in this country on may nineteenth three days before their finding that she entered and that would then we think provide an exceptional circumstance to get to get her within the one year time of the permissive filing outside of the statutory one year timeframe which would then get her back in the asylum frame which obviously the burden in proving asylum is much much lower than that for approving withholding of removal otherwise we're asking this honorable court simply to look at the evidence and look at the just horrible things that were done to this lady that i don't want to go into because her children are in this honorable court