minutes for a bottle in two thousand and sixteen this court in the resendiz specifically admonished the board of immigration appeals not to apply equitable tolling standard to harshly because quote denying any alien the opportunity to see cancellation of removal when it is evident that the basis for his removal is now invalid is a particularly serious matter and quote yet in this case the board has chosen to do just that with respect to mr gonzalez his application and in doing so it committed three legal areas which this appeal seeks to correct both parties this appeal recognize mr gonzales as underlying deportation is unlawful the only question is whether the doctrine of equitable tolling should be drawn so narrowly that an individual who filed a motion to reconsider in reopen within twenty one days of learning of the unlawfulness of his removal should have his application rejected as untimely we believe that the immigration judge and the board of immigration appeals failure to properly apply the equitable coding standard violated that cap on tolling out of whole cloth when none is permitted under the case law of this court and rd they ignore the motion to reopen portion of a compound motion and we know that that failure to adjudicate that is part of a proceeding that is currently before the board of immigration appeals but we no here for reasons that we will discuss as to how it relates to mr gonzales his case but st context here is important because the petitioner here was as diligent as could be expected of any person applying for relief from outside the united states especially from a dangerous country like el salvador mr gonzalez did everything that this court and the board's case law instructs someone in his position to do he remains vigilant about the law he obtain counsel he filed promptly he did all of those things that despite having submitted his compound filing within three months of the supreme client was diligent as you just said i take the immigration judge's reasoning is of be that once he warned of the of the mob there was no longer an because instead of using what the court actually articulated was a learned of the quote unquote potential impact of demise so it learned that to my ahead occurred and it did not nor the board specifically resendiz that the stand the correct standard is discovered that his deportation was unlawful mr gonzalez did not discover that his deportation was unlawful until he was advised of that by counsel and that occurred on june st twenty eight when from when the point that his counsel was able to advise him of the unlawfulness of his removal this language is important because the unlawfulness of that deportation was not able to be determined by mr gonzalez simply by hearing a news report about the been taken was itself invalid it requires knowledge of the categorical approach of statutory interpretation the voided vagueness doctrine and those constitutional principles in the impact of to my have to be applied to mr date for measuring the tolling was incorrect this case involves one where even an attorney who didn't have access to mr records would not have been able to and assess it in that manner the potential effects test or the potential impact that the responded arguing is what is the truly novel here because not only equitable tolling is to be governed not too harshly there is no case law support for the potential effects test that they have never reach the issue of the when the equitable tolling needed to examine from because at that in that case it never actually reached it because mr cantor never provided any facts whatsoever into the record concerning her diligence or how the tolling was going to be evaluated so this court never reached it so to base and impose an incorrect potential effects test on mr gonzalez based on grounds of cantor simply is not supported by the case law and you know as brief which was issued two days after the divided citizen and in that case the board did their exactly what it was should have done to mr gonzales his case it examined the individually assessed whether the petitioner qualified for a global tolling it told the never imposed on itself a limit that only goes for thirty more days or ninety more days because in fact that's never been articulated by this court and nor would it make sense from an equitable tolling standpoint because there is there would not be a need to examine diligence if it were simply the reinstitution of the same thirty or ninety day period which is exactly why the controlling this circuit will resent it specifically says the bright line rules are not to be used of that and there are good reasons that equitable towing can be beyond the thirty or ninety days as a pick up which is because there are in this case there were two extraordinary circumstances one was the change in law and no  not as long as the core examines to circumstance and then another thirty or sixty days what we're saying is that the tolling is not limited because it didn't happen about his during which the which the court found it would be an equitable here but also because if if that were to happen if it were as they suggest you discover a change in our advisors of the unlawfulness of your deportation which we believe is the appropriate standard and then you simply add the next thirty days to that that's not that there would be no reason to examine diligence and and examine the full totality of the circumstances which is what lugar is and is requires that this court doesn't which this court has done in many circumstances in which woodward normally does there is no there was no article in the repeated  articulation of equitable tolling by the board and by this court it is there is we have not been able to find a self limiting principle of thirty or or ninety days now we note that many times individuals will describe how their diligence compares to someone who would not have needed equitable telling that notably a motion to reopen is that the statutory deadline for that had we not required tolling would have been thirty days and we filed in and they relate to how their diligence in those terms but that it's not a cause and we think it couldn't be cut off because for example mr gonzalez case the ability to even obtain the records for a motion to reopen reconsider extraterritorial to obtain the translations and all of the other materials that are required in order to make a successful motion to reopen for someone outside the united states is essentially de facto impossible for many of them mr gonzalez case is particularly now because he had the ability to do that because he would i would say he would went beyond what was required which is as justice breyer wrote for acquittal towing reasonable diligence not maximum feasible diligence we believe he more than did that but he was able to attempt to gather materials in a way that was truly extraordinary which would reconsideration that has been pending for two years but what the reason that we raised that issue here is that under their rares mat the case a motion to reopen and a motion to reconsider both  bases for challenging a change in law which everyone concedes to my is and either of them can serve as a basis to have the case opened again considered and terminated that's what we're asking for with the board and th here is they ignored one entire part of our combined motion and are penalizing mr gonzales for not complying with its new time limit as to the motion for reconsideration when the motion to reopen was would also require equitable tolling but we filed within eighty seven days of the supreme court decision in vs session and by doing that ray is my says that this came back from the supreme court to this case admonishing to this court and monitoring this court for can string one kind of filing for another where the results would render relief impossible and that's exactly what the board did here it construed it only took the motion for reconsideration portion i gnore the motion to reopen portion and by doing so it attempted to render relief impossible where mr gonzales his case fits so what he she is the different we have these two different motions two different procedures you would think that they cover some different thing what in your view is the difference between a motion for reconsideration and emotions rio in this case there's very little practical difference your honor if we ask for both because the practice manual pro for a nd generally speaking what is the difference between these two different procedures so for example to take one where it would make a difference in a post conviction released case is a if a person went back and had his conviction overturned that's a change glad i understand the argument because that is what the statute says the motion to reopen shall state but new facts and different from the way the motion reconsider statute written so what's your best best case order of removal executed sixteen years prior to his filing his motion st the motion to reconsider was not timely because even assuming the applicability of acquittal tolling as was the board here he didn't file within thirty days and nd the motion was not one to reopen because it alleged no new facts to be proven out of here i'll take these in term with respect to the on timeliness of the motion to reconsider it was consistent with this court's decisions and gonzales counts you ended the series which the court relied on  dollars and nine dollars of the record for the board to assume the applicability of equitable tolling up to the discovery of the change in law but conclude that mr gonzalez did not file within the statutory prescribed period in this case thirty days so let's walk through extraordinary circumstance stands in his way to protect his idol and record page one hundred and eighty two and the opening brief a record pitched twenty minutes the the extraordinary circumstance that prevented him from filing was simply that the supreme court ha myra that extraordinary circumstance was removed when and this is on record page two hundred and twenty two and two hundred and fifty six where respectively mr gonzalez and his brother admit that on the same day that  they quote unquote knew that the maya seemed to verify that his conviction was not a deportable offense how did they know that because by that point again the same day mr the maya's brother had messaged him and also had confirmed with two separate immigration attorneys but demin could actually help his case out and in addition to that the brotherhood even reached out to the immigrant the fence project who with obviously a mix of people he ended up filing a motion  will be at some three months later so against this financial backdrop and legal backdrop the board did not abuse its discretion in deciding not to draw a bright line rule or to draw a line in the sand at the point in time when the extraordinary circumstance  supposedly prevented mr gonzales from filing this motion was no longer so impeding him and at that point appropriately start of the statutory clock which in this case was for thirty days now the clock was for thirty days not for ninety because his motion did not constitute want to reopen why is that well it was consistent with the immigration and nationality act as well as with this court's decisions in sa your art you know what this court's decisions have clarified for example in south i doubt as we were as your your honour's were discussing with the fishes council earlier the difference between a real emotional reopen an emotional reconsider rivera six hundred and sixty eight federal appendix eighty one applied south to reject a petitioners argument at the border area in considering a motion as one to reconsider rather than one to reopen where in that instance relied soley on a change in law which is exactly what the petitioner is doing here to be clear to the extent mr consolidates sought reopening he does so only in a footnote that is varied on the penultimate page of his motion circumstances of and in fact i think it's always helpful to go back to the statutory language and it's clear that for a motion to reopen to be a motion to reopen it has to state new facts that will be proven at a hearing in contrast to the motion to but we've we've quoted that short it's not inconsistent to say that there is evidence you said evidence or changing circumstances which would have to support again falling back to the statute new affirmed on some alternative ground and that was surely as i understand it a change in law case really based on back to the agency because the agency had not discussed whatsoever very early steps whether a change in law warranted equitable tolling of the statutory motion to reopen period it didn't address though whether a change in law in  of itself would be grounds to reopen the case simply said we have to stop this that's what i want which is is this thing you can time because the agency entirely skep the operable telling analysis and we are not going to do it ourselves so we're sending this back down to the agencies that they can start from there determine whether it will tolling is out a little to begin with and then you know obviously it seems you think to me why why why you even get into that if if a motion to reopen can cover a change in law well so this is a part getting into a broader topic about kind of the efficient hours throwing a bunch of oranges into the barrel of apples and then asking the court to consider them all as apples a lot of times these motions unfortunately this is borne out over the is always unpublished decisions on the board that we're looking at and what have you it's not entirely clear how much or how little is encompassed in the motion it's not uncommon i think for a motion to reopen even where the only thing before the court or before the board seems to be this change in larissa as the impetus for it also includes new facts and certain fact that becomes a combination motion reopened motion to reconsider that was what happened in south where the court said listen the parties are saying one thing in another but we're going to just cut straight there's a change in the argument that's reconsideration and there's a new fact argument and that's reopening so this is both so i think what is often happening is that things get model because all those strings are not kind of teased out and certainly identified and what you have is someone saying ok look there's a change in law that undoes my remove ability also there's new facts the fact for example i've continued to stay in the country for a continuous period of at least ten years during that entire time up until the point i've i for us a cancellation of removal if you allow me to buy reopening the proceedings i can prove that i had good moral character ambiguity or confusion when we see something go back down like in luke or resendiz or like and other cases unpublished cases where it seems like the whole thing is about a motion to reopen and then they remained it to consider the arkle the ability of equitable tolling based on a change in law full stop and so there's just some context that's missing there oftentimes the next difficult difficult to engage in a comparison of counsel asking for of comparing these apples to apples when we don't know if or hav cases cited by the other side and by the amicus i mean there's one from twenty one thousand a b i a decision specifically on the maya and the it says because the responding quickly filed a motion to reopen when t my issue he acted within reasonable diligence in seeking reopening i mean that's the be i a saying to my it can be the basis for e g it just seems this is a recent issue why doesn't the board have a more consistent or  it seems to me that's an interesting well i think that lends itself to again the natural reading of the statutes that govern here it support the principle that a law passed by the motion to reconsider the statute and again this distinction has been drawn by the court ins now and apply for us rivera to reject precisely this kind of argument where the petitioners contending the board should have considered something emotional reopened when in fact all it did was cite to a change in law which school falls into the bucket of motion to reconsider and so for that reason it was not abused one contention are out there at differently isn't that the definition of arbitrary well there is i'm glad you raise that question your honor because another point i want to make is that it's it's again difficult to  is that if someone were to satisfy the statutory requirements for motion to reopen or a motion reconsider even under those circumstances the agency can so say well for as a matter of discretion based on you know the tally to circumstances looking at this as a whole we're still not going to reopen or not going to reconsider and frankly we've got a very strong sense that that's what the agency would do were this to have gone through and they actually consider this on the merits because you'll notice that when the agency earlier the supreme court's decision in teaching dictates that it has long been established that the final civil judgment entered under given a given rule of law may withstand a subsequent judicial change not rule so this principle while here was couched in a suicide attack contexts which is way down on review so petitioners not challenging aspects of the decision but i raise the phrase it's of the court's attention because this type of thing may very well informed why you have two cases that seem to be on all fours source or similar in terms of the procedural posture of factual posture and the court nonetheless makes a different decision because in its assessment one then there would be no discretion and they should never be allowed for that and i understand you're saying if it's within the procedural rules that are proper then there's this discretion i get that but how could the if your position is it has to be based on a change in fact outby agency ever allow a motion to reopen not a sewer spahn day but one filed by the petitioner under the ninety day limits how could it ever allow that if if a change in law doesn't qualify i think technically it couldn't but what might be happening were probably is happening there is that what's being glossed over is that there's also some factual underpinning in addition to the change in law that supports reopening and there is a fast and glossy decision coming out that says we're going to grant reopening based on this change of law but what's being skipped over is like the petitioners brother for instance which they were they rely on in their and their brief he filed based on a change in law that he would be eligible for cancellation of removal and so that would be a situation where the words uttered are change of law and then the end reopening and the court says ok sure we'll be open to such change of law and kind of glosses over the fact that what was i and the provisions that spell out motions for reopening a motion for reconsideration this court's decisions in same and sal that clearly delineate the differences between these two and the application  there's a new supreme court case then it requires also then some new facts to be submitted maybe like petitioners brother situation then you could file a motion to reopen it is that is that the position under which trying to figure it out yes that would fall that yes in a hypothetical situation where there's a change in law which would potentially provide a basis for a motion reconsider but to be sure the statute contemplates this is happening basically contemporaneously with the decision within thirty legally erroneous that would be the basis for a motion to reconsider only then if you wanted to also make a motion to reopen and technically you would have to put in some new facts that would be proven and hearing that would show you change of law as the basis only cited to the reconsideration statutory and regulatory provisions and both for one footnote that explicitly relied on the change in law as potential new facts doesn't provide any illions ability to have their case eventually have either cancellation termination or other relief from removal has been held by this court numerous times including most recently  sessions which was from two thousand and eighteen and yet evers is whittaker from again from two thousand and eighteen those were cases where it did not even specify when this court in deciding those didn't need to specify whether reopening a removal they do they if there is if there is a supreme court decision say an individual is or is ordered removed and there's a new supreme court decision the next day and the person is still in the united states it would be thirty day time limit because they're not seeking any tolling because they're not time on a new york for a motion of his consideration that's the statutory limit is thirty days of her motion to reopen it would be ninety days they would file within those and if they're outside of those and that's exactly what we're saying and once they see once they're outside that they're your ninety day statutory limit then the with either of those are allowed for telling the tone has to be done in an individualized basis but you don't get limited by thirty or sixty on the end of it what happens is the court takes into account both the diligence and and the count they have to count diligence from the appropriate date which again is the the judge duncan is saying is that you're just collapsing any possible distinction between the thirty day in the ninety day rule were not collapsing we've applied for both and both replied i know you got tied for both but what i'm saying is what you're saying is thirty days doesn't matter under your reasoning because there's really no very little difference tween thirty days and ninety days except for mr conversions case because we're twenty years after that now we're twenty years after difference in the statutes it would it would it may make it different for someone who had sought both types of relief but here he has already have but that's why we have so much confusion in the law and in fact lugo  to everybody seeks really thunder both statutes don't they i can say that we did because the practice manual allows us to do so and i didn't say it could but i did say there is a difference in the wording of the statutes and ultimately that out it means something except not except not for the extent when the the change in law is as this court has already held a basis for immigration relief and it's clear there may be other circumstances where there are differences in motions to reopen a motion to reconsider i explained for example if there's a post conviction relief you would have one but not the other here both apply both are available both sets of tolling continue and we believe that if the immigration judge had followed exactly what was done in but he said marino and followed what will resent is had would both of which would resent his control in law which says do not put a a a it literally says do not put a bright line rule if the immigration court had not done that in the board it integration had not approve that we would we would proceed as mr about marina did as well as as mr gonzales his own brother had the idea that his motion for a open motion for relief would be denied after two months