it's your honor they previously may please the court my name is you think glass and been appointed by this court to represent the silly he family one thing i'd like to know at the outset is this is not a case arising from any criminal proceedings i just don't see why we should forget about the lows out of procedure it seems like a useful procedure because you get the lawyer side of the story in a lot of cases asylum cases all we really get is the asylum seekers side of the story and then sometimes we have the i j a poking holes and effective assistance case it really is possible to get both sides of the story and you're of the application itself it sounds a little bit like our simple rules that when you move for a new trial you have to show that you've got a cost relief it's not just enough to say i've got an excuse for what happened the rightly or whatever why don't we start with why don't we have to ignore this regulation in this case to provide relief to your client no your honor you do not need to ignore it an important component to start with whether there was attached to the application to the motion to reopen an application for relief with supporting documents where there was not your honor but so there were so there was not compliance with the regulation i just spoke you well your honor i'm correct there was not compliance with the language of the regulation but if i can point to why what circumstances and i'll stop them once you finish why should we either ignore the regulation about the facts of this case that show there was compliance with tell me why we should not enforce this regulation your honor it's two parts one the government did not oppose the motion to reopen and under the you once in case the board of immigration appeals on president when the government does not oppose a motion to reopen it is deemed to have joined that motion and therefore alleviates the petitioners of having to submit and follow that rule so that's the first component the second component is this court has held on numerous occasions require the family to submit an application and to prove that they have a meritorious asylum claim at this state was essentially require them to show prejudice which this court has deemed shown merely by the fact that they were deprived of their full and fair lawyer saying here's what's alleged what's your excuse or disagreement you know there is not that but there is practical points this was an attorney who was disbarred by the time that these reopening proceedings were were undertak this is a record that shows that i had over the course of my career actually known some disbarred lawyers and asked some a more crooks and somewhat more grants and various reasons but nevertheless there were cases where in some particular case they handled it just fine so i can't infer from the disbarment that the lawyer is guilty ineffective assistance in any particular case well your honor you can and disbarment record and you can see from that record he has conducted himself in a very similar manner to what is shown by the record in this case so you can take from that that there was no need to actually send a letter to mr brownstein because other wouldn't have responded as he didn't in this case or he would have responded by saying i didn't appear like rebirthing the guy a burglary because even if we never asked them whether we committed this when we know we committed to others in the past well not exactly your honor it's like giving a petition a relief based upon inferences that maybe in and of itself might not prove that the attorney committed some sort of crime but based upon our record here burton i'd just say asking them well your honor it 's not great although this was an attorney who the record shows that he was not appearing and there was no accurate address to get ahold of him because there was good cause and attempted been made to what the guy could not be found that are probably be a good excuse for not complying with those on the record shows what the attorney i'm at the immigration court and the board of immigration appeals submitted to the courts was that this gentleman was disbarred and that his address of record was not his current address anyone looking phonebook no your honor not that i know of not in the record net services not that i know of you are transcript that they relied upon him to appear to act hearing that they were excused from and to submit their applications he didn't do so there would be no reason why they would ask him not to do that well you know these requirements are a little bit like that because it's obvious that he lives in california it's obvious that he lives in the northern district or whatever but there are purposes for these things one is to show that there really was an internal point relationship between the in this case the family and mr brown ein but it's you have to touch the bases and or have a very good excuse for not touching the bases we understand your argument the record shows that there was a relationship that he did undertake the duty in fact he promised an immigration judge told the immigration judge i think that he had the documents all prepared all all the have to do have his clients sign them and then he would file them that afternoon and yes your honor if this would be a case such as your honor mention the last case where some small technical requirement which is more or less satisfied by the record would prevent these people from getting a form fair hearing on the merits of their case it would be in j no indication anywhere in the record that he ever withdrew that they consented to was with her all that snow and one of the interesting things about the record in this case was that to me this was an extraordinarily patient and understanding immigration judge the late things are times there was a time when brownstein was supposed to show up and he wasn't there even sentence clerk out to look for a correct yes and got brownstein to say on the record i've got the asylum application it's all filled out i just have to have the family sign it and i'm going to file it this afternoon right i am not sure about the i believe there was one on the on at least one char charge that formed the basis for his disbarment and failed to respond to it i do believe that can i answer also your honor that if you're talking about the are you talking about things on the judicial notice yes i would suggest that the court should not take judicial notice without having the the attorney have responded that it would be perfectly fine to have a judicial notice of this conduct outside of the record possibly if there had been a determination if there had been in a contemp was looking at the record your honor and i believe that it wasn't clear enough to the agency as to just what that document was and what official imprimatur it had  eternal three should be excused because in this case the government did not respond to the motion to reopen and under the law of the the board of immigration appeals they that's when we finish that's an acceptance of the my understanding that any oh i think what he argued in there of similar rules in civil practice among the local districts at least in the ninth circuit that if an opposing party files a motion and the other side fails to respond where you're not even allowed to oppose it for example you can't emote oppose a petition for rehearing and our court unless we direct you to you're not an opposition doesn't indicate any concessions at all and there are others still where you don't have to file an opposing grief but if you don't file an opposing brief will still look at the appellant's brief and maybe turn it down argument briefing well if we need it let me ask you about something else that's on my mind that twelve year delay that's really dramatic all this business with a lawyer happens and then the salafis just stay here with no right to be here for twelve years but if they had no idea there was anything wrong with their being here as far as they knew their water is taken care of everything and they have a right to be here well then an exclusion order that the attorney that in not appearing at all during that time that you can assume that that exclusion order went away that there was no further problems with that but i find that is what knowledge of the salafis would have had about whether they're allowed to stay here whether they're required to go unless they do something my point is that  they got quite a bit of notice they did have an attorney talk with them for some time they they they knew they were excluded i mean that they were going to be they didn't show up for certain things during during this twelve year period of time correct me if i'm wrong about the following no notice of any emanated from the government to the family isn't the most reasonable inference that they thought everything was ok also have that four years later someone looked into what was going on with regard to the asylum application and didn't come forward with any anything else and for them and for us to think me shows that something should have been done a very very early one and that's what the agency made a point of that if something had been done in a very early point maybe  told them about so it wasn't in other words i think you're saying that they should have generated maybe another back in there with the because of the new address at that point they didn't know the council didn't receive i mean that the iranian didn't receive the documents full council so it no reason for them to have done anything additional at that point can i make one more point to see i'm out of time and that is that i wanted to make the point with regard to the supreme court precedent with regard where failure to appear or fall in opposition is of course this is an affirmative joining that same case interpreting the predecessor to the statute cited by the government so that because they are from fully joined the motion the requirements of the regulation have been satisfied to like to address this argument about diligence i think it's important to know your honour's that excerpt of record thirty until two thousand and one when they were brought up before the immigration court nothing else in the record contradicts this and the government cited the parents of misty and said in the record it shows nothing there's nothing to show that didn't show up i was making excuses i was dodging around i was delaying myself in the hopes that would show up i mean well is that possible on this record no your honor it was actually slightly different respectfully happens sometimes i remember sometimes a client doesn't show up and the lawyers god is all around the order to avoid having bail revoked or whatever this is slightly different your honor this was a case in which an immigration court expressly excused the slaty family from appearing at the hearing the only person that was ordered to appear was mr brownstein mr branson failed to appear in fact several times during the course of the day as the transcript show i told the court that he would appear and he still failed to appear this is not a case where the sleazy family was was not going around the courthouse or mr brownstein would be able to respond with anything this is shown by the record that mr brownstein being the only person who had the show did not show i don't know what his response will help this court with all this is a situation in which mr brown also like to respond to the government's argument that there has not been ineffective assistance shown i can't imagine a case in which there could be more ineffective assistance mr grasso was ordered to appear the this is a case where he clearly failed to satisfy his obligations as an attorney and that failure immediately resulted in prejudice to the client's i'd also like to respond to the government's argument that we have an affordable surrounding arbitrated respond first mr brownstein didn't feel it didn't show second that the government didn't oppose this in front of the immigration court and the board of immigration appeal if the government thought that this was something that was important to develop the record any for them it was an ineffective assistance of counsel issue it did not reach a need to do so and it failed to do so it cannot now use that failure to oppose the motions in any