central is a board of immigration appeals misapprehension of the due diligence pronk of the equitable tolling analysis in this case the board wrongfully required the maximum feasible diligence of mr lawrence and pursuing his claim rather than the quote reasonable diligence that has been required by the supreme court in holland holding mr lawrence to this unlawfully heightened standard would work a gross miscarriage of justice that standard comes directly your honor from holland  or stand so with the board did in this case is to present a cursory approach to the diligence analysis first presenting centrally a smattering of facts and then jumping right to a conclusory statement that mr lawrence had not exercised sufficient diligence never once did the board ask or answer the one central question what do you say that corporations standard of  reasonableness fails to articulate what the standard is and then in conducting its analysis applied in a lawful a heightened standard what the what the supreme court has said is that the board should have asked the question would it have been order before filing a motion to reopen it that's an absence of pretty good explanation that's not exercising reasonable diligence the exercise of reasonable years right well your honor there is a appreciate more than a pretty good explanation in this case and we remember that the equitable telling test is a two prong analysis the extraordinary circumstance promised is the more stringent  last forgiving of that of that test and that is not at issue here under china really we're only looking at the diligence analysis which is the more forgiving of the two prongs to even have jurisdiction over this case because is really a question of law or simply a plain potato discretionary call it is a question of law and in fact regardless of how the court looks at it whether it's the misapplication of a standard the application of the wrong standard the diligence and analysis is a question of law every circuit court to have looked at the question of alleged error in the application  know where you get this maximum possible bill which is a rule of the board's decision and i didn't see the well what it is your honor is is an unlawfully heightened standard and this court has looked at other an now the board focuses in on the the amount of time that has passed the number of days that has passed and says that the two documents it references only two documents of the many submitted in evidence do not sufficiently show that the responde any reasoned explanation for why in mr lawrence acted and reasonably and in tasse view holder under an abuse of discretion standard that's what this court must asked in the board provide a reasoned explanation and in fact  fairly long paragraph that seems to go into some detail of the board reciting items from the record provided by the respondent including correspondence with counsel and meetings with coun and they do put those items in the record and use that as a basis for decision obviously you disagree with the decision under stand that it is not it's not that they have omitted it it's either that for reasons you need to articulate there was a legal error in that it wasn't longer or you simply disagree it is not the length of that of the constitutional question before we you know i think you have two hurdles to get over first of all you've got to create a question of law or constitutional question to establish the court jurisdiction and then so let me try to leap both hurdles let me try to leap both hurdles if i may your honor first the error the error is that the board never asked the central question was mr lawrence asking with reasonable acting with reasonable diligence and fails to look at the facts that relate to the most central components of that analysis i'll give just one example which is that this court held in c l r performance horses that access to courts is  central component of whether diligence has been breached and this court in this case mr lawrence of course had been deported in two thousand and thirteen so it wasn't just international borders that separated him from this court it was the fact that he literally and he stated this in his affidavit lacked access to any international communication question of law over whether the board had erred in determining that mr john had or had not demonstrated good moral character in the context of a discretionary decision and so what's important about that case of course is that the board how this court held that what we were looking at there was the application of a legal standard to uncontested facts and in that case this court held clearly there is jurisdiction in another case this is an unpublished case but i think the nature of the legal question it's interesting from today hersey is the name of that case the court was looking at whether the board had erred in determining whether it whether the border area in applying an lawfully heightened standard to the question of whether the petitioner had filed within too long a period after the one you're filing deadline for has a sigh i let my application and the court held that that is a reviewable question because it's a is a question involving the application of a legal standards to uncontested facts and so it's really interesting from what we're looking at today where we argue where mr lawrence was held to an end permissibly high instanter and i would hate to be reviewed at the supreme court when i use the words of the standard that they had given me in the court to use the word due diligence and then it proceeded to apply override the a factors which w under the totality of circumstances bear upon due diligence including how long after the intervening moncrief decision it took to file the motion to reopen how long did it take to contact counsel hell long did it take after a lawyer was contacted to follow the decision you know they didn't just brush it off sometimes we see these board decisions they just brush it off in a paragraph or page or a paragraph or even a sentence but here the board went into some length explained in a footnote that there could have been contacting  family members to receive documents the word the word diligence has to mean something i see that my time is up but if i may briefly respond the word diligence certainly has to mean something and although the board may have spent a paragraph analyzing it analyze it without looking to the actual standard that the supreme court has put forth which is reasonable in this and relied on four cases none of which were analyzing the reasonableness question to answer your jurisdiction concerns here i would just note that as i mentioned previously and as we state in our briefing six other circuit courts have looked to the diligence question in this in this context in the motion to reopen contact and have all found the diligence and now assists itself to be a question of law regardless of whether the proper standard was applied and each of those cases the courts actually dug into the board's diligence and alice's looking thank you honor and may please the court i'm kristin mcleod ball i'm representing and nicky the american immigration council and the national integration project at the national are skilled today the court has the opportunity first to preserve meaningful access to statutory motions in which the supreme court has recognized as an important safeguard in immigration proceedings second the court can recognize that at a minimum when unsophisticated claimant facing extreme barriers to accessing the courts due to deportation disagree with with what congress did perhaps as a matter of court access that picture that period should be lengthened but my problem here is that we have a ninety day period after the decision and it's two years we have a ninety day period from the time of the final administrative war two years from the fire from an intervening decision two years that's what it's a ta the statutory limitations period end of number one point five years elapsed since march first contacted a project attorney i mean with these kinds of delays if you know if we rule the board abused its discretion it just opens the floodgates your honor there are several points of that i'd like to make in response to that first your last point in terms the floodgates i think it's very important to know that equitable tolling is a two part test you must show both extraordinary circumstances and due diligence what we're looking at here is simply the diligence probably of that two part test additionally and terms of the the role of  obviously and setting statutory deadlines congress legislates with the awareness that there's a pretty presumption that statutory filing deadlines are subject to equitable tolling which is the case here decision i thought you had a review petition pending from from an order of removal of the board and so i don't understand why you couldn't at that point have asked for remaining to the board to reopen at that point or to ask for some sort of relief if they're poor because there was actually a review petition from honor i believe that is in terms of the facts of this case with petition as attorney may be more prepared to address mr lawrence while he was still in detention in the united states filed a pro se petition for review in the incorrect court he was unaware of the correct court in which he was supposed to file and it went to the wrong court subsequently he was deported in his declaration the evidence that's presented to the board he made clear that he began looking for ways to continue pursuing his case immediately following deportation and that despite the extreme difficulties that he was facing living more than forty five minutes from an internet connection to be able to communicate with anyone at all not being able to make phone calls and communicating with his family only through prerecorded messages dollars a week salary traveled by taxi to an internet cafe in order to research immigration law he lives able to locate one of the very few organizations that assist people who have been deported in terms of trying to figure out if there are any additional claims in their case sought them out he cooperated with them and and showed diligence through that process i see that i'm almost out of time and i just want to emphasize that had the board applied the proper standard in this case which is reasonable diligence would have is there any discussion of reasonableness which is the key question in this case thank you but nothing could be further from the truth petition was properly removed in january two thousand and thirteen to be i had a final order of removal in two thousand and twelve december two thousand and twelve in which case they found that he was remov contacted the communications were sporadic and this is that minces however these documents do not sufficiently show that the respondent acted with due diligence during a period of more than two years since april of thirteen zero one one and a half years since september two thousand and thirteen in other words the board applied the right standard it didn't say that the respond t failed to act with extraordinary diligence or that the respondent failed to exercise maximum diligence it comes right out and says we're applying the due diligence standard you're absolutely correct your honor in this it's clearly a factual matter that the board considered that they apply to do diligence standard and found that he didn't meet that standard he wouldn't play he didn't he didn't exercise due diligence there couldn't be anything more factual about their analysis they basically went petitioners asking the court to do is to is as the saying goes dress up a factual issue is a legal issue and that's just not what we have here this is purely a factual issue which is why th not have jurisdiction primarily because this case should be barred as a criminal bar case because he was convicted of two offenses they were found to be aggravated founds but they're also found to be c i n t's and two controlled substance bar because you still have the offenses were still c i n t's and they were still offenses related controlled substances for this if their same offenses they could be classified if you say they're classified as aggravated felonies that would bar the application for cancellation of removal thing but if there c i m t s they would not bar cancellation for removal that's correct your honor what i was getting at when i first  mentioned this was a this was not a wrongful removal was at the time that he was ordered removed and at the time you file the subpoena far first with the second circuit and subsequent transfer to this court this was all before mark prefer and there was actually nothing wrong with the decision the board's decision the agency decision at this time therefore because there is he would have been able to bring his case anyway because his p a far before the second circuit was late it was not timely and therefore the second circuit when he transferred this court the government filed a motion to dismiss based on an untimely p a far this court didn't rule one curious to me about these sorts of cases and is the get the courts to do a lot of work attorney general could do in the first instance by saying look i have discretion on this regardless of how it comes out my discretion is not going to be exercised in favor of i'm sorry i didn't mean to cut you off but you heard general do what the judge will kids and has suggested to me seems like that would appeals of this nature and you could move on to the i mean it just declaration i mean the government files declarations in cases all the time just saying you know this is not a situation where someone would be eligible for removal i don't know whether that is this case or  know some circuits aren't as how shall i put it are different from ours and maybe some circuits wouldn't look kindly on that kind of preemptive approach maybe just speculating here maybe maybe some circuits would review would view the attorney general's attempt to sort of cut off consideration in that way as something that shouldn't be done i'm just speculating here i mean we would never do that but some circuits consider this thing concern but they don't specifically say what wasn't considered that would have made all the difference in the world in this case they don't address that and so that's a very high standard under couscous that basically use the word year in the board to look again at something that it's already looked at once and that in this case it correctly decided at least as of the law of that time  we if the supreme court said you've got to start explaining these petitions for rehearing on exactly why you're denying i mean you're going through a couple of pages and even after you've gone through a couple of pages in or no you've got to go you should done more despite the fact it isn't pointed out exactly what the board should have considered i mean i sometimes think when we are reviewing other bodies then we need to be cognizant of what would be a fair way for us to be reviewed i kind of look at it in this case is as you mentioned is maybe even somewhat unique in that the board actually does go through a fair amount of analysis of the system's evidence in this case next is a pretty good explanation of why they felt they didn't feel the exercise d if i may part of the challenge for you here i think is that quite know how to ask this and i don't quite know how to ask it in a way that's not offensive or misinformed but from my perspective the petitioner seemed to have had resources available to him himself his family i mean this was not someone who came into this country two years ago and didn't speak english and knew nothing about our legal system  knew more than the average american about our own legal system i mean he had a good family he had a solid upbringing and so i guess what i'm getting at is in terms of due diligence the board i believe the board looked at all of that and so this argument based on him being you know sort of lost somewhere in jamaica and i respect that but surely you see what i'm getting at ideas that i do sort of incoherent here you know i appreciate the question because i think of it in fact brings us to the heart of the case which is which is that this is a challenging diligence assessment because it well so i first want to make a specific point and then i'll get to the more general quote no no no i don't i do appreciate it that the specific that point that i want to make goes to the error that was made by the board and i want to make sure we don't continue here which is to assume that the burden of diligence can be placed on anyone other than mr lawrence himself and in fact this was an issue in holland the district court in holland rested its finding that there was not diligence in part because of the fact that mr holland had not relied on family and supporters to help him and the supreme court clearly said that was error difference between saying that the the emigrant's family didn't help him or that his friends didn't him and asking the question well did he ask them for help it seems like that's a reasonable question to ask in the inquiry on diligence so i don't think you can be quite is blanket assessment is understood you to make the error that the supreme court found with regard to the district court's decision in holland was exactly that that mr holland the district found it to be a problem mr holland had not asked for support for frank for help from his family and that was an error but getting to this bigger question i do think it's difficult if that was in and of itself but to be in a place where the only way you could quite literally access any communication by cell or internet would be to take a forty five minute taxi ride to the nearest internet cafe while you were trying to locate yourself in a new country where you hadn't been since the age of eleven and had no friends or family that's what mr lawrence was facing he literally could not make a cell phone call he had to take pay for him take a forty five minute taxi ride anytime he wanted to do to that to be a barrier to access to courts if there ever has been one and he did he did and he made the i would argue eminently reasonable decision to trust her to listen to her assurances that he she was researching his case researching the viability of the cancellation claim that you discussed with my opposing counsel and then to try to find an attorney for him because she herself was two hundred resource being the only attorney doing this sort of work that she could not take the case herself as soon as she let mr lawrence know that she had found an attorney for him he proceeded with his filing so this is a case where there is not a there are not attorneys clamoring to do pro bono but in closing because i see that i'm out of time i think it speaks to actually the heart of the equitable telling analysis right which is this the supreme court has reminded us that this is an analysis that allows courts sitting in equity to avoid unconscionable miscarriages of justice that apply when a filing deadline is too strictly enforced and in fact what happened here is that that did preclude mr lawrence from having his day in court just an opportunity to present an application for cancellation of removal to an immigration judge that is all he was seeking and that is all he would be able to seek if this court were to remain and with an opportunity to reopen his proceedings discretion would still remain with the attorney general that time and i want to thank you very much and i thank you i would like to come down and shake hands with all three of you then we'll take a brief recess