we argued should look at is number one whether the petition is motion to reopen should be considered timely in that case looking at this is that it's a regulatory motion to reopen the respondent was ordered removed and was physically deported back to argentina that was in two thousand and ten approximately five years later is when the motion to reopen was filed with the immigration court in oak hill that we see him and is part of that motion there were the petitioner claims that she had received ineffective assistance of counsel in that regard based upon the fact that her attorney had not contested at all that one of her criminal convictions was for that of an aggravated felony  the one of the things of interest in this case to be noted is that prior to two thousand and twelve september of two thousand and twelve on this court decided garcia pariahs she was barred by the departure bar so really when you look at this it's not really a five year term from when she was ordered removed you have to look at this really short of from september of two thousand and twelve so it's more in the three year ranges of as a practical matter  as a practical matter you have to apply the facts to the law to determine whether or not the board properly applied the law and our position is that the board has not properly applied the law in this case right when the case got to the board of immigration appeals the board essentially decided in terms of equitable tolling as a practical matter they were going to sidestep the issue because this court had night issued a precedent decision at that point in time recognizing equitable t the citations that we had to the present decision from the other circuits to be in the board which i believe unavailing at that point so the question before the court is i think number one is did the did the board properly apply or of matching up with with legal resentments right you have a situation where the elderly in had already been removed from the united states i was interested in coming back to my client did state in her and this is one of the other issues that comes up we were talking about the ineffective assistance of counsel whether or not the she comply with the requirements for maddow was up we believe that she did there is not an actual affidavit and the board has recognizing the case matter of cheek is that that is the equivalent of an affidavit and so when the immigration judge denied the original motion to reopen one of the reasons she denied it was she cited the fact that  has been pursuing his rights diligently in that some extraordinary circumstances to the way response motion is not supported by any evidence of the respondents alleged emphasis evidence of responsible as efforts to secure reopening and then the next paragraph assuming arguing oh that's not right well just looking at the part not getting beyond that is a fact finding the district judge looking at what was happened you said five years three years two years whatever they looked at those facts and said that there was not a diligent pursuit she's we that's a fact finding that we are potentially barred from reviewing regardless of what other bases would support the to be are used to support his ruling so what we beyond that barrier i think the board says ok not supported by any evidence that is not true because there was a declaration from my client's rights as legal error when they said there was no direct correct look if you look at the record and you go through the certified administrative record there is documentation in there there is a declaration from her within that where she said spores that since she had been deported she had contacted in her family numerous attorney seeking to try to find a way to get back to the united states and pursuing her rights it was not until proximately two thousand and fifteen when she learned that there was a possible way for her to return in which case  at that point within ninety days of when she knew of that possibility she filed her motion to reopen can't that's one of the cases which i believe it was the my case where this court found that look there wasn't any due diligence at that point because more than ninety days are gone by since the alien that particular case learned of the right to file a motion to reopen that declaration she set forth that she had been continuing to try to to find a way to reopen her case and get back to the united states when she found what appeared to be a viable way to do this she immediately took action and filed her motion within the ninety days so that to me is a say arbitrary and capricious manner because of disregarding evidence in the record that they failed to consider this is factually incorrect statement actually is no evidence of a diligent pursuit to who will be the sole that and did not think that supported that and as a practical matter this goes along with the fact of what the prior council actions that he failed to take during during the during the removal proceedings as well as the fact of the what evidence that the department of homeland security presented to establishment of the building and in this particular case the department presented basically a record of conviction which was the indictment dollars and the total of the counts were approximately i think approximately maybe about thirty thousand but she was only convicted of one count but there was a restitution order of approximately two hundred twenty five thousand dollars and the immigration  relied upon the fact that the restitution amount was two hundred twenty five thousand dollars right however the court cannot rely solely upon the restitution there has to be some sort of other evidence presented  department in order to establish that the model was to the victim was over ten thousand dollars thereby making her an aggravated self when there was no other evidence in this case if you go when you look at other cases decided by th court there's always some other type of evidence if you look at the national one from the supreme court right there's a p s r ok there's a plea agreement there's something to tie the amount of restitution to the loss to  can't make whether she's an aggravated felony if she's removable because of her two other convictions terp or to enter controlled substance and discretionary relief is not a liberty interest so what difference does it make well number one she's been number one ok the with the other grounds remove ability to take the aggravated felony out of the equation then she would have been eligible to apply for show that she would be guaranteed that she would be granted that relief in order to reopen she has to make a prime aphasia case establishing that she did do that as part of the motion to reopen she complied with the regulations and board case law attaching a copy of her application to the motion also provided evidence establishing hardship to her family outstanding equities the case law you know says basically that you don't have to show that you would be guaranteed release but you have to make a promise facia showing that it will appear that they would be that would be viable and maybe there is to be a hearing to determine the end and ultimately that's what happens right but just because just because of that that's not that's not what happens now that she's an aggravated felony and the reason this is important is because she statutorily barred from cancellation of remov so in this in this particular situation right the government didn't provide sufficient evidence but right her counsel of their point didn't object to that he just basically stood mute didn't say anything when the government handed over the records so as a result of that she says she had substantial presence and so that that's the second issue that we want that we need to look at the third issue being ok whether or not ok she actually established ok and as judge southwick that you brought up right was there substantial prejudice again at this point once that she had that that there was a terminations she was aggravated felon she was done ok as a practical matter there is no other relief available to her right the immigration court had no alternative as a practical matter at that point let's order were moved right which is what happened right there after after discussion with counsel she was told hey there's nothing else that you can do right and ultimately she was removed from the united states ok now there was an argument to be made at that point right it was a tactical decision right it wasn't t record was not clear and unequivocal evidence he didn't take any actions in order to address that he just lay beat right the judge therefore said this is the evidence before me i'm going to find that she's but he didn't take any action about that and that distinctly different from a tactical decision because there's nothing to be gained by doing that ok you know he could have made the argument a different story if the judge overruled them at the point but that's was from the u s attorney's office entirely sure i was the foremost issue in this case is jurisdiction and all that is a criminal and the criminal alan bar applies there are two independent bases for dismissing for lack of jurisdiction one is due diligence and the language and live and does is particularly important here because the court said that there were no bright line rules quote the court must consider the individual facts and circumstances of each case and determining whether as appropriate the court i want to talk about the ordinary man rule has even more force here because it is a call fact intensive determination of whether equitable tolling is appropriate the court also in that case stated that it was adopting its heaviest law with regards to tolling and there's also holland v florida which is a supreme court case where the supreme court said this is a fact intensive inquiry there is in terms of her diligence i know he's doris departure bar but that was not briefed before the board and that i was operating over this court so that's an on exhausted argument turns as other arguments i mean basically both sides disagree about her level of diligence and whether she provided any information and or the specific information necessary to show that she diligently pursued her claim during those five years i believe she retained opposing counsel in january twenty fifth when i she did not file her motion until october of that year so there's even some space of time there not quite the ninety days that he's just the petitioner is seeking right touched on one of them there is no prejudice here aside basically squarely on this issue that if it's a discussion of form or believe there's no liberty interest that's all we have here she's and i think we've touched on the due diligence but there's really simply not enough in her affidavit to show that she diligently pursued her claim during the intervening five and a half years after she has room but primarily for us we believe that the i think your argument counsel thank you very much did as part of the motion provide a copy of the complaint that was filed with the florida bar is part of that which is which both the board and the judge said were not attached it was part of her case that was submitted in and one of the things it's interesting about this is that right now the case law doesn't specifically state the amount of time or anything that should transpire between all of this right generally speaking of course if we're looking at the ninety days we have a rather compact amount of time right in which to file the motion right one of the things that the department of justice has done the executive office of immigration view which is which of which the board falls under in the immigration courts and is part of these regulations they've indicated that look you should submit it ok and give the attorney time to respond but if we don't ok you know you can explain why so they recognize that there are issues in there in terms of whether or not there should be response you know waited for but you have to deal with the ninety days no those are just proposed regulations right they were put out of the notice and comment they're not finalized they're not a political to this case but it does show  that there is not clear as to the specific timing that the elements of those either have to have to follow and so you know the other thing within is that  you have to show right that not only did you file with the board right in that you gave the opportunity for the attorney to respond right but what that what was supposed to happen right ok is part of that relationship right which once again within her declaration my client stated what that was and also was part of the complaint that was there so she clearly comply with the lazaro requirements right if the board is now under takes the position that she did it the more takes the position that she didn't but when you go back and you look at the record right there clearly ignoring what's in the record right so our position would be ok that she did actually comply with the