mexico as reside in the us since one thousand nine hundred and one is odd it was a us citizen and but for the fact that he went to mexico for a brief visit in two thousand and four he would have become a legal permanent resident many years ago equitable tolling should be applied to the filing deadline for his motion to reopen the a knowledge mr boult used as told in claim however it did not properly address where the motion to reopen should be subject to tolling under this court's standard proponent claims whether an extraordinary circumstance prevented timely filing of his motion and whether he exercised reasonable diligence pursuing his case idea that tying me nyssa of the argument it's certainly there and so coppens all is clearly makes it makes a very clear that it's not necessary to use that actual wording of equitable polling i mean we analysis that they needed to do to address whether he should be given that benefit of equitable i mean now we have the right wording but i really don't think that was necessary terms as the ideas being there and there was a there was an agreement between the cia and mr about that he would get deferred status deferred action status in exchange for dropping his appeal and so as long as he had deferred action status he could be taking any more action against you know to to challenge his his removal is that and so so it would have been unfair it was unfair to say that it was that his mission to reopen was un timely because he course had to wait until after he was stripped of deferred action them to for ice to arbitrarily take away his deferred action and at that point there's an extraordinary circumstance that occurred because the deal so you're weird that whole lot so you're saying so again i mean if i was having a little hard time wrapping my mind around your own argument and i think i said can i have construed it the way i just described it which is drops his th circuit appeal in exchange for deferred action status there is of course no promise about how long that further actions this is going to last but so long as you know that he has deferred action status he obviously can't continue to challenge his move all because that is sort of the deal that they reached right that that you know in exchange for dropping his appeal he would get this deferred action status and that is so i understand that the now you seem to be saying something like well you're equitable tolling d argument depends on the unfairness the alleged unfairness of the decision to to not to renew his deferred action stat and to the extent that your argument depends on that yes and i'm having a hard time understanding i think is it because it's entirely up to the the that the agency to decide whether  actions well i don't agree that it's entirely up to the agency because one thing is renewing it yearly as agreed with no other circumstance occurring such as a criminal record that would make them stop renewing it but another is to arbitrarily take it away when there was no circumstance that would permit or that would make that otherwise you  end up having this situation where they could make an agreement and we're in a deal you deal was only to get deferred action status for a year without any without any promises  renewed unless something intervened such as a criminal record that well that might have been that might have been the expectation but that was the deal i mean the deal was just that he would go into deferred actions i don't i don't understand why i mean i guess i don't understand why you're focusing on it seems like it seems like you're you're going to probably have a hard time convincing anyone that the deal was anything it was anything other than to put him in status for for a year because it potentially subject to renewal without any conditions attached to that but you know it also strikes me as a you know potentially unfair to say that you know you this is untimely when you previously had a deal to drop your challenge and that deal presumably remained in place until until the agency within its convince me that you know part of why this is unfair is because it was unfair for the agency to not renew his deferred action steps at so what is your equitable tolling argument assuming yours that you're never going to convince you of that i just want to make sure i understand then what the argument is that because of the deal he didn't have an opportunity to pursue a motion that had been found in federal court and therefore once said you ended his ninety days should told to it should begin at that point and that would give him an opportunity to to bring his claim forward in some court and was reading a supreme court decision they want to ask you another quick question about that about your case and i see that your time is almost running out and i want about it's very difficult to say that somehow years later when they just unreal you know that was that was breaking some deal because it just wasn't the deal but it seems to me like the deal was even even focusing on what the deal was at the time th he he had an appeal going i recall right and he evolved terribly dismissed out appeal in order to or something but what are the again i think he has what he traded for and it seems to me the trade it not for some certainty that i  be i won't be removed ever or that i'll even get a lot of process before i get removed he traded it for a further earth deferral of that removal that was a guarantee a year i think and a possibility of you have built into it some implicit idea that he wouldn't get sent out unless he committed a crime or something i just don't see how that's that's anything in the record supports i do believe that was the deal it was our understanding and i believe that is how we we understood it that they would not put that in writing but that was our understanding of how that was going to go forward and it did in fact happen at waynesville arbitrarily in two thousand and seventeen the and it was actually quite interesting because the ice agents called me and they were very sorry that they weren't able to have been made by a completely different branch of government to just deport everybody who was on different acts and they didn't take into s but dr barnes had entered a very similar declaration in the two thousand and thirteen cases cited in the getting the names the cases cited in and the on pockets credit score if you actually go back and look at that very similar decoration she pretty much says exactly the same things except for there she actually like points to some actual things where she took those out this declaration and she in the period she's talking about is two thousand and nine and so it's not true i don't don't think it's plausible i don't think dr barnes's declaration in this case actually supports the conditions worsen since two thousand and nine to now certainly doesn't support what i think you just said which is you know things weren't that bad at i don't i we did in fact present some evidence at that time of the hearing and there was some evidence i think that the report that d barnes presented now does worsening of conditions and says worsening from his right to be real clear worsening from women is there definitely this this backlash theory this worsening conditions is a theory and there is some evidence actually show change so i could this is you have to show not just that things got worse from two hundred two thousand and nine but things actually got worse of two thousand and nine to now they're worse now than they were from two million two thousand i'm not seeing that in the well and shoot really clear doesn't actually give the evidence of their events that happened before that two instance you talked about in her earlier decorations had to do with the earlier periods so it's not she doesn't actually tie the backlash to those events she doesn't actually show that there's gotten any worse because of those backlash to that but i don't see any evidence of any of those events that there are no other reports because there are there is that two thousand and thirteen report that talks about the forty percent and exactly what is happening and in fact we ended up using evidence that remember it though it has to be it has to be we're changed country conditions it can't just be we've got reports of continuing  continuing bad like for instance i think actually the country report for two thousand and sixteen that you reference in somewhere or maybe in the west that the dr arne's referenced talks about discrimination persisting  two thousand so i'm struggling to see the things that actually shocked me worse well i do think that the two laws that passed it doesn't tend to doesn't fifty are clearly linked to the backlash again mexico which you haven't shown they're worse essentially so i don't think you can just cite to the laws and say hey this is do really good things happen therefore there's a backlash you actually have to show us about or show that but it is for declaration that because of those laws that things not worse ironically for hiv and l g the same thing she said and in two thousand about the two hundred two thousand and nine period is exactly that is pretty much a cut and paste job from the other declaration so in that  happens to conclude you know conditions to change for the worse in mexico and as i sit here i don't i'm not sure i know what the answer to that debate is but i that is a thing i don't know whether the assertions about what's happening in mexico are true but i thought that the that we were considering the denial of emotion unless they're inherently unbelievable and that that if the is to be a doesn't do that to be ideas it's just fresh and so so that it seems to me the real question here is not whether dr barnes is right or maybe they didn't but almost wonder if that's beside the point because they were supposed to accept dr barnes assertions as true unless it reached a conclusion that they were inherently unbelievable and i don't i did they did the b i am reach a conclusion that the assertions are inherently unbelievable or did it just conduct the weighing of the evidence and decide that it disagreed with d that there is conditions and we did to be i also did not say that we don't agree we don't we disagree with this back plastered with the b o h that is we don't we don't see any evidence that you provided the conditions that actually worsened since two thousand and nine and so then when you go and you look at dr barnes affidavit and defamation and she says there's this backlash theory and conditions have worsened in mexico s not actually inconsistent with the b i hear because like i it wrong i don't see the cherry picking that you talked about and i don't see her d disagreeing with what she says they're just saying she hasn't said it's actually worse it's two thousand not respected disagree that's typically says that increase the rate of human rights violations perpetrated by health care professionals against hiv positive individuals since mr bush has this hearing one thousand and nine and i i don't have exact it's interesting because if you go to the beginning of that  and the page before he talks about there being a five hundred and fifty seven complaints in two thousand and seven and in two thousand and nine to two thousand and eleven he talks about there being one hundred and sixty one dollars complains and then she talks about it in the st half of two thousand eleven there being forty nine dollars complaints so it's an odd it's an odd thing to draw from that that there's an increasing rate when when i look at that the rates going down on that now i'm not saying that places everything or anything mexico's national human rights commission until you can vote the persistence again not that it's getting worse but that is the same thing the same thing the the i a e a said here so i i think what it comes down to is it looks like she wrote this author look at this more of yes i do think that they don't consider all of the statement that she makes and that do support worsening conditions i mean it's true that she might have written the report with this in mind of the two thousand and nine date but she definitely points to specific instances of worsening conditions and just the funding itself she shows the cutting in funding is part of the worsening conditions that's not considered by the great impact on on us as well if there's a constitutional right which which is part of your argument is very clear on what the b i is supposed to do because we get requests for stays in immigration cases and lots of other things labor disputes  property foreclosures and we have one line denials of those so i'm very i'm very concerned about a constitutional argument about the process and that that be i didn't do enough because i'm afraid it may have an impact on are that he now has a superseding order of removal from april th of twenty eight you know so this case before the court theoretical matter well maybe i do about i after went on this one as one of those and so it doesn't move this one out necessarily may be that he's got a huge mountain to climb but if this is part of the mountain it seems like i don't see how it's necessarily fine but by you raising it hear it and then saying this is an additional you know this is additional atmosphere as to why you should deny his claims i think that's a low blow that's a that's unfair oh i i understand that if this wasn't happening as a low blow this is coming to what i mean to the court which the court often asked us when we have here for argument because these cases have gone stale for a while much has happened to provide the procedural history here  he this this court the th circuit granted him to say every move will based on him saying that he filed an application with us yes so an affirmative application for asylum so he got a stiff removal from this court based on his coming back to the united states and having filed that application and as we said at that time without knowing about these other removal orders we informed the court that his twenty's had an order would be subject to reinstatement and that would therefore mean that he's no longer eligible for asylum u s c s doesn't have jurisdiction you know that's the reason the courts is nice the removal but also just to let you know that he's not to say also still that if this were to be remitted to the board he could no longer possibly apply for a cancellation and he could no longer possibly apply for asylum so all that is left as you recognize that the beginning of this is withholding of removal or tat if if this were to go back to those just the sort of laying the foundation that some of these other claims that he's trying to get a remedy about are no longer available to him because they're no longer available that's part of the probable this is not that they're no longer available but that you expect that if you get the if you if you get the reinstated then they would be no longer available i mean if this is sort of not even right but so what  are you if you if it is reinstated before we issue an opinion i'm trying to figure out like how it affects anything if it is reinstated you want to let us know and then i feel not sure that would affect anything i think if we sent it back to the about that mean do you agree with what i said earlier that the law of the th circuit at least looked at the other circuits but the one longstanding law of the th circuit is that i did not find it incredible or unreliable necessarily ringback put it that way but the standard for getting around the ninety day bar here in showing case country conditions is are the conditions and then the backlash theory is in relation to you know that day twenty eight when the motion was filed how does that compare to conditions in two thousand not that it had that that  as bad as they were in two thousand and nine it's just that there's a backlash of improvement but what improvements and one of the backlash by was it by individual there was the by public official because the sound like a lot of public officials are applied by the standard that is that we just want to be clear it's not what i took you to be saying i didn't take you to be saying that i actually took you to be very carefully i'm saying we don't have b i did not disagree with her it's just that her report did not show you're careful what we hear what you're saying to us what are you saying to us is that yes that's exactly as i as i did try to convey earlier the board credited what was said it just didn't find it to be know the answer about so i understand i think i think the charges made a good point that you don't the b i a and this posture does not get to you i must say unless they go out and say they don't get this at the say we don't like us they basically have to take the evidence that's given to them and women are proper but seems to me like issue here is a slightly different one in that they it's what it's it's a reading it's an interpretation of dr barnes's declaration what is she saying and i don't know what the answer is how do what kind of deference do we give if any to the b i a on their reading of her declaration versus how we might read her declaration again assuming to be i not saying so look at what it says in two thousand and sixteen about the treatment of the l g b t community and the state department's point sixteen report and well it talks about rap you know there's ongoing discrimination but there's also been an increase in tolerance but very is something very notable here is there's nothing about the government acting against these individuals much less with impunity and while the social of the two thousand and nine report in our e board did not address it so i think if you think it was properly raised which our primary argument is that he did not raise it to the board so if you think he did raise it then the board would have you would we would say that you should re diligence after deferred action was no longer granted but it was touted and heard of that which he has affirmative argument was that should be viewed as the final removal order that triggers the ninety day either is a practical or a legal matter or it causes the appeal to go yeah that's right it's what your odds are it is certain to make sure i understand your argument on the equitable tolly issue you're the and if libya you're not saying this but i'm i'm sort of sunni you might say it maybe you would say it's a reasonable to the choir somebody just file a motion to reopen while they continue to have deferred status because that seems like it would bridge the deal and it could jeopardize the purse but none of that matters for actually were able to get permanent that through a document you know through you know marriage and whatnot or his work then absolutely file a motion to reopen and try and get back in you can have that with the i a e a to drop this appeal in exchange for deferred status then you would say the clock stops at that point once they reach that deal and it remains stop until he loses his dippers i wouldn't say you can pursue the p f are that challenging the board the motion to reopen is about something brand new is half and i'm now eligible for release that i wasn't so if that came up within the ninety days and you had deferred action within that ninety day period but you're eligible for something new like adjustment of status you know absolutely about allusion to reopen because that's not fair to nitty for permanent status but you also had a question about whether or not deferred action with that as by brick you of filing a motion reopen and that's what the home of the carrot that's not some sort of rule that's under the board and i need you to get motion to reopen so i can't speak to you know the the board would not do this say that deferred action is over and it wouldn't have that that exceptional circumstances but that's not the court's standard you know the courts the courts standard is that it relied on some sort of misrepresentation or fraud by the government or that it was able to find out about the statutory wasn't raised i mean they were really addressing something else but of course i would say absolutely was raised and they recognize it in a footnote so because of that they should have had a more in depth discussion and that's why th absolutely we still do have arguments we have plenty of things to say about the removal orders itself and i would like to just comment that we did file our motions before we had received information from the foyers so it was brought up but having when we did we did receive that information at some point and i don't think it affects this case in any way worsening conditions i discussed is from two thousand and nine i really do believe that if you look at what she says that there are there are grounds for seeing many reports of worsening conditions because primarily because of the funding but also because of this backlash and she does specify those states after two thousand and nine i really ask that you take a look at tha