that she was returned and that is in the record indicating that it was attempted not known address she then there was required at that time under two forty two of the act that there be a registry of mailing of the notice of hearing that's on appeal to the board and presumably after that if you don't get relief you would say it's not up to the circuit directly that's correct and it could very well be that to hold your decision in advance for that would make sense in this case and  absentia order in august two thousand and three the issue in this case therefore is that even under the regulations the immigration service seems to have reconsidered any intention to  good morning mr olson hunting for a w i'm sorry i can't hear you but you're not you're not working right if you could do was a michael post about now can you hear me now joe i can hear you yes ok i think the microphone turned off ok i want to clarify one point before briefly responding to the three claims that the station raises in our haiti a petition it appears that a number of the arguments that are presented today go to the validity of the original deportation order in january of one nine hundred ninety seven and the reinstatement of that prior order in september of one thousand nine hundred eighty eight but the only place to make those arguments isn't a petition for review to the ninth circuit from the reinstatement order and that's not what this is this is a hevia station and the fact is the only place to raise those arguments in official freeview with the ninth circuit is clearly stated in castro court tends so for purposes of this appeal i would argue that you have to presume the validity of the reinstatement order and then address the primary arguments but fisher races that are hideous station those being whether or not the ins can rely on a reinstatement in order to deny an application for adjustment of status let's assume you're right about that what do we do about the fact that the motion to reopen is pending before the board i think that's exactly what the petitioner should do is file a motion to reopen with the board  the validity of the in a sense you order so should we just hang on to our case in the see how that plays out and see how that plays out but i don't think there's any reason to stay just appeal pending the motion to reopen before the b i a because the speak definitively on how the ins with proceed on an application for adjustment of status that was denied based on a reinstated order in light of the fact that maybe at some point the reinstatement order would be rescinded asked in this case didn't address the merits really of the adjustment status that location just said in light of the reinstatement order under the reinstatement statute you cannot apply for relief so you know it if down the line well the troubling thing is that if we examine it piecemeal it may lead to a different result than if we examine the whole case is inspiring and because the the end of censure proceeding your little more troubling marriage to us citizen and children right i understand your concerns i will say just sort of backing up a step in light of the the allegation that she was not aware of the deportation order were not contesting that but i will say that she was aware that she had been placed in a deportation proceedings for us even ordered to show cause she received she provided and dressed florida she knew that at some point she would have a hearing she may not obligation to keep the price of her current address so it's not as though she had no indication that there was a deportation proceedings and left the country completely unaware of the fact that she was at least in proceedings are trying to figure out what we should do about the pending motion to reopen would you would you think we should go ahead and decide this case but hold the mandate until the motion to reopen has been resolved with the with that make sure it's what i would propose judges that the panel decide the case and i wouldn't even suggest withholding the mandate or keep her from getting deported in the meantime well the petitioners saying that there's an automatic stay in effect i can't confirm that stay is conditioned on it that's a state condition on this appeal or that state conditions on the motion to reopen are worth presumably the status condition on the motion reopen it has nothing to do with the pending haven's petition in reliance on the the prado hernandez case from the western district of washington in that case aliens forty five application was denied on the grounds that the alien had illegally reenter the united states after being removed and under the because her original deportation order was entered prior to be effective in a vacuum but castro per ten is the case which he realized simply hold that that that you cannot be applied to an alien who really enters the country before the effect of the statute it does not hold that it can't be applied to a petition or like in this case where they original deportation orders entered prior to the effective date but then answers afterwards and in fact it's the issue was actually addressed by the ninth argues in the heyday of petition that the ins now i should be equitably stopped from denying her application for adjustment of status but i think this argument fails primarily because she hasn't shown any affirmative misconduct on behalf of the government the i forty five was filed after her reinstatement order not before she was married after the order was reinstate d the i one thirty feet the petition was filed by her husband afterwards so she if she had an expectation somehow that the ins down the line would grant her application for adjustment of status it wasn't a reasonable expectation she knew she was subject to being staving order and that she was not immediately removed from the country after the order was reinstated because her son was and removal proceedings so any expectations she may have had i think here and she's following the course of action the only course of action that the immigration nationality act provides by filing a motion to reopen it she didn't file a petition for review the reinstatement order itself and in that case she could raise some of the arguments that she's trying to raise today to under equitable example there is an alternative argument that it could be that it's incredible tolling which does happen not quite such a high standard rather you need to show that there was a reasonable reliance and with due diligence you could not have  really don't have that here do you have to concede that you don't have a credible spot i would argue we could we could have an equable tolling argument given that there is a lesser standard on that in which reasonable diligence on the part of those who announced to discover that she could not stay here for the five years she stayed here when in fact the service allowed her to do that how could she have been that discovered otherwise that she could not do that and could not go ahead and carry out of her life equitable tolling argument i think she the facts would gave her a form that's called a notice of intent last order and on that it explains that she can make a statement contesting and there's a box to check which she did on the voluntarily right that's called decision order and officer certification you don't regard that as reinstatement well it's not clear to me given that the regulation allows her to make a statement to contest and that the officer may then reconsider and then in fact allows her to stay for five years on supervised release allows for temporary protected status except for one thousand dollar penalties be to apply for adjustment of status given an approved piece of petition she did make her statement which was also