good morning me please the court i'm in kill shot counsel for the petitioner the issues that are in this case is whether the board of immigration appeals abused its discretion when it denied the petitioners first motion to reopen based on special rule cancellation ineffective assistance of counsel and change country conditions for purposes of asylum withholding and withholding under the convention against torture and whether they abused its discretion when they decided when they denied his second motion based on change country conditions for purposes of withholding of removal under the convention against torture the first motion was based on special rule cancellation as the petitioner started that he was subjected to psychological and extreme cruelty by his ex wife janica combs his now ex wife and within the context of the special cancellation the motion to reopen brought up arguments that as part of the military in piru did not constitute persecution contrary to what the board said our office did not asked to relay to gate his prior asylum claim but we brought up the issue of persecution within the context of the special  n for special rule cancellation as the court is aware the one motion rule does not apply and it can be filed untimely as long as the petitioner shows that there are extraordinary circumstances and there is extreme hardship to his or her  yes we did mention that there was a new there was a new case supreme court case in nicky's which included a possibility of a duress exemption for the persecutor bar we did provide evidence that the  petitioner as part of the military in piru was forced into the military service there was mandatory conscription in a rule conscientious objection was not allowed and we did bring it in the context of the case we also  brought up the kumar case which this court decided where the court relied on a two prong test to determine if someone was a persecutor whether there their duties were active or passive or whether they were material and we  provided proof with the motion that the petitioners activities in petrou where he was he was in several different positions as an errand boy and as a guard were not material and not passive that they did not contribute to the torture or persecution of anybody that he basically was not able to leave the military because of the forced conscription laws into to and left the military as soon as he was able to use an excuse of his father being diagnosed with cancer to leave the military even in the original proceedings the expert that testified mr thomas makis davies jr a professor who was a country conditions expert in peru said that if the petitioner had objected or try to withdraw from his service it would have had no effect on the torture that would have been committed on the individuals of the shining path members and that if he had objected the expert further stated that he would have faced imprisonment death what do you point to as new evidence the new evidence in the context of the second motion is we provided i thought we were still talking about the first of this for a first motion in the first motion we provided a declaration petitioner was trying to gather new evidence for his motion but because he was detained and his daughters where the his daughters were minors were the only people who were able to help his case we won't provide able to provide any proof with the first motion we were only able to actually discussed this issue with even his attorney that represented him during the original merits proceedings unfortunately because the file was old he couldn't really comment on it but yes it would have been his duty as well to provide this and for some reason they didn't provide have decided cases that in the one nine hundred eighty s within the context of the civil war there was going on in central and south america between leftist rebels and usually right wing governments that many people that did engag cancer and that was the only excuse that they allowed him to use his father was not sick prior to that time and he asserts that he tried but he did not find any other legitimate excuse to leave the military and they wouldn't allow him to and he says that if he had he would have been targeted specially because members of his family had joined the shining path movement and the peer reviewed military would have associated him with those family members so within the context of the ineffective assistance of counsel mr alexander submitted a three page motion for him in two thousand it didn't really discuss any of the issues that we just addressed to the court about how the persecutor bar provide the additional evidence that showed that  that was said that he was going to change his status through her and he was only able to discover the fraud until he was arrested in two thousand and eleven by ice officials the court has held that if someone does it does allow for numeric tolling and in the second motion we also brought up the issue of change on the first and second motion we did bring up the issue of change country conditions and yes sorry i just lost track of time yes error because it would have to be since that's a legal determination of whether or not he said to an eligible for asylum because the prosecutor bar it would have to be a motion to reconsider which the board properly considered that's the case and in that case it has to be filed in thirty days the says that i mean that was the one major problem i had with your brief which seemed to claim that there was any collateral stoppel problem and could reopen it that doesn't make any sense but that's what a motion to reopen is it's to read to the earlier decision so the question is whether there was a basis for rejoining the earlier just my understanding of what he is arguing is that that because of ineffectiveness he would have filed a good motion to reopen but to reopen but it's not a perfectly good answer to say we already decided this but the quote the problem is there he's never presented evidence that wasn't available and his are you know that are hearing it's not that they've already decided that correct or am i maybe i misunderstood but that is correct that that's the that's the  years after the fact and after new that all the sudden this new information arises that all the said now there's a conscription that he couldn't get out of the that was never provided at any point whatsoever until after the facts so it's how many times can this petition get a bite of the apple to reformulating really to get the same argument that's before the court and so that's why the the i c claim the asylum to change contributions all of that doesn't matter because he's not eligible for any demonstrate that you had a good motion to reopen and have a good motion to reopen you had to have new evidence that could different presented originally just don't know what that was the new evidence was that there was forced conscription military laws and carry one for some i know it was new but it was an introducer properly put in the context mr davies the expert did allude to it but it wasn't brought up in the proper context with his proceedings and that you have much traction effectiveness with regard to the original we tried to but we couldn't