two are to i was confused as to whether it was to reinstate or reopen as far as what the petitioners asking for the court to do i'm sorry what are you what are you asking us to review we're asking the court to review the so that was the one where that was basically where the board affirmed the jays decision that the transcript based on the transcript that the respondents withdrawal of her application replications was intelligent made right and that your argument that it wasn't intelligently made yesterday i see today ok what we believe is called into question here is the proper legal standard under the mendez case and whether the movement in this case the petitioner must show new evidence that was not previously available in order to have her asylum application reinstated before the immigration court it is our position the immigration judge presented a improper standard requiring that the petitioners showed that there was some new evidence or new reason why wouldn't the appropriate place should not be the standard i mean otherwise a person could just tory with a court they could decide to withdraw their claim and then reinstated based upon the earlier earlier a situation  and she answers yes yes and yes and it's over within two or three months of that she files a motion to reopen and reinstate her application for asylum where do not have the benefit of what happened off the record judge  with the petitioner is not sufficient to show that she had a full understanding of what that withdrawal meant and i don't think there's any argument that it was a strategic decision because there was no other relief available to the petitioner withdrawing the asylum application  only real form of relief from removed from the united states well what's the basis you see what what is she shown any basis for her and entitlement petitioner felt secure enough to return to guatemala there's a plethora of information that was argued in the motion to reconsider that in fact conditions had not changed to such an extent that the petitioner felt secure in returnin correct in other words she would have no motivation to withdraw her asylum claim because it was still not safe for her to return to guatemala but she did withdraw yes you're correct there is a withdrawal and it's very brief and it's off the record there's no discussion of the reasons or decision i mean it's not off the record there's a record isn't i mean didn't didn't didn't the i j a ask ask or do you understand that if you withdraw this application you will not be able to obtain asylum  or protection under the convention against torture and she answered yes and with that understanding and wish to withdraw the application from further considerations on the merit of merits of asylum withholding or cat yes when you know simply wish to withdraw some claims and that's and that's what they did well the case law i could pull out from the brief we did cite that the we believe the legal standard is clear and convincing evidence that the withdrawal is the court with a written declaration regarding your basis for asylum that's not a requirement and we don't know whether petitioners counsel or petitioner took that into consideration deciding withdraw the application from the record before  this court it looks exactly like that's what happened with the application of that legal standard that judge simpson stated which the route that which the petitioner could not complied with she decided to withdraw replication for asylum and then seeks to reinstate it within  available for and there certainly was no benefits or her withdraw  know the record shows that the idea is to says all right in your particular case i have a request for asylum in the united states however your counsel indicated at this particular time you for judge setting a certain threshold here which does not exist under immigration law there is no requirement that i reject the ration you understand the struggle i'm having that's not an unequivocal assertion that you have to file desperation all the i j a is saying is your counsel tells me for whatever reason you you can't do it can't do it whether you need it or not you can't do it maybe she didn't want to live we don't know but there was a radio speculate she just didn't want a lot we don't know now should we require the council to tell us she's been my an uphill now and we don't want to perpetuate the lie who want to dismiss our petition we don't know how far do we go in that or have to go well i think one of the facts of this case considering the application was pending for since ninety one until two thousand and three for some twelve years and then within two or three months of the withdraw board of immigration appeals decision can only must be upheld unless it's found to be arbitrary irrational or contrary to law and we are dealing here with a motion to reopen excuse me we are dealing here with a motion to reopen can i correct your honor  unavailable material evidence and three they're not entitled to a discretionary grant of relief now petitioners arguing that because they they claim that they have prime the facia eligibility for relief that therefore the immigration judge was required to her counsel told her that she needed to provide declaration in support of her africa asylum application this is on page eight of the administrative record she now claims in her brief to this court that it was either her counsel or the immigration judge judges authority i mean the immigration judge has to proceed on the basis of facts and if the immigration judge has a we are to believe that you know there is you know this maybe it's claims that either the immigration judge or her counsel told her that it was required to have the declaration there's no evidence of that in the record as as you are honest pointed out earlier what the immigration judge does say is for whatever reason you're not you can't complete this declaration and we don't know if that was a strategic move it's not the immigration judges duty to examine the strategy of counsel it's an immigration judge a duty to explain that you have a right to apply in a for that right to apply and the immigration petitioners right to present that you know their own testimony or expert witness testimony or documentary evidence and that's just right but it certainly could be decided only on the application that isn't and in the immigration office the petition no other relief available isn't correct either that she did have a voluntary departure which is a form of relief she was granted voluntary departure which if she would have proceeded in if it would have been found to be a struggle application she would not have had that really  important relief is not that is important it has collateral consequences should you are come back into the country that's right that's right voluntary departure if you are ordered removed then you have certain bars against you you can't return for three or five or ten years but if you are granted voluntary departure then it's easier for you to return to the united states and seek other relief as i stated the immigration judge fulfilled his duty by allowing the petitioner to withdraw explain why you have the right these are your consequences but the immigration be able to attain asylum or other forms of relief and it goes above and beyond in stating do you understand three times in future says yes as i stated she was under oath she was there with an attorney she had a translator and i don't know what more the immigration judge could have done to make sure that her withdraw