would would mandate reopening would mandate this court ordering that the judge reopen those proceedings the four of them in concert your honour's makes it absolutely mandatory that court order that the proceedings be reopened the first are your honors goes to the ineffective assistance of counsel issue and i think that that is probably the biggest issue here let me try to get ineffective assistance of counsel is the overarching issue in that had he been given the opportunity i believe his application sought withholding and asylum and had he been given the opportunity to file that application he could have potentially had the opportunity to apply for all of those but the asylum issue has has the separate issue of the prior conviction  year issue as well doesn't the one year issue but that goes back to the ineffective assistance of counsel because it's one year unless you can show changed or extraordinary circumstances and since he never got the chance to argue his case never got the chance to file the application he couldn't show whether either of those were the case that would excuse the failure to apply for asylum when we even need to reach that issue if we grant the petition on the jurisdictional question and find an error compliance with lozano is just not necessarily first of all this court has said many times most notably in low versus ashcroft that those factors are to be applied flexibly in all cases and when you have a case like this where the ineffective assistance of  and apparently with the petitioner had gone to see weevil assistance and then the root of the problems with the legal system and so on but it's not quite as clean a case as we would normally see where there's an actual appearance by someone who purports to be acting as counsel for the petitioner who then ignores the file or all the other problems that we see but respectfully your honor i don't think that that makes a difference he appeared to say at the hearings then chose to go back and get counsel to help him through the process of application and i think that the florence project paralegals affidavit gets around the problem if you didn't have counsel who appeared and failed to file something you've got counsel saying on the record yeah i was retained to do this and i made the mistake and i failed to file the application and that is what causes the ineffective assistance of counsel show up plain on the face  a in the face of that still said no i'm not going to reopen it was just another error piling on top of the other four the findings of fact were not made on the record like the i g is required to do and i think that you have to reopen the proceedings to permit my claim to to go ahead and get what you know is entitle to get more than reopening u agree with that it is the withholding correct there was obviously air here oh no not obvious ineffectiveness oh no not that that well that's what i hear two different questions running off to break them out one by one first with regard to the motion being a joint motion and that that's fine but satisfy himself that there are questions that matter of us ought to were met and looking at the case that immigration judge said even the agreement between counsel aside those requirements were not met so the attorney general could have satisfied himself that support of the motion one letter by a paralegal for the florence project indicating that she missed the deadline but earth where the suspect the continuation there no the third requirement animals out is the filing of a bar complaint or at least an explanation of why one was not filed and that's a requirement this court has never existed never disposed of entirely or it has found that it can be satisfied in other ways for example in rojas garcia this court noted that the attorney turn himself in to the bar so the fact that the alien didn't file a bar complaint is of no with the concert i mean it's pretty unusual for us to see an no sobriety attached to that it's just you know yeah i made a mistake but there's no consequence at least in cases like lo which you heard my colleague cite letter serious consequences here you are serious consequences purposes you're either the first is one the affidavit is required so that the board or the immigration judge can have a full layout of what happened and that's why also there is a requirement that you say really just want to make sure that there's a go to serve that we've said repeatedly and consistently they're not inflect they're not rigid acquirements that is correct your honor but this court has never excuse the satisfaction of the purpose penalty of perjury well what you're saying under a is versus that's prof that's one problem your honor the other problem is that there's no statement regarding why or whether of our complaint was filed or at least an explanation of why not now this court has excuse that in circumstan or explanation whatsoever as to why a bar complaint was not filed and for that reason the board the immigration judge did not have to reach that same judgment that same conclusion you know august just because but this is site for a moment because i'd like you to address the jurisdiction correct on your salt let me transition that if i can with my remaining time in this case there were two grounds of dismissal or denial of asylum or finding the union was not eligible one was the fact that the immigration judge found it was an aggravating felony the second was immigration judges finding withdraw that statement as he's been so clear with him on you better have it filed by this date or that's correct the poor that's correct but i but i still need to turn to that one the court turns to the aggravated felony finding of the immigration judge there's one particular fact it's important explain what's a due process claim you know it was not given an opportunity to make a claim which would still require a showing of prejudiced now in this case because the withholding application which is also an asylum application was not filed in a timely manner it still provides that there is no prejudice resulting from that finding by the immigration judge had the application in file and timely manner perhaps that would that fine would have to be changed but it wasn't so there's a second alternative reason why  that what happened was he told them you're not eligible for asylum because you're an aggravated felony but if you want to file an application for withholding of removal notwithstanding the fact that you're not eligible for asylum you have to file the application by this date certain or i'm going to remove you that what happened that is correct your honor ok so it was different relief even though it was filed on the same for know it's related relief filed on the same form well if holding of removal is granted that's not the same thing as giving him asylum that is not your honor but when it comes to filing applying for that type of relief it's the same forms of the you were given the same deadline all about the form well again with regard to prejudice argument that's what there is on the government side wrong ok ok i see them  period as if they are two different forms quite likely are like to start out if i could with the asylum issue because counsel has just said there was no prejudice that stemmed from the inability to file an application for asylum that that just respectfully doesn't make sense to me my client is at his removal hearing doing everything that he can to comply with the proceedings and he is told incorrectly you cannot apply for asylum because of your aggravated felony but you can apply for withholding he then takes the application for withholding which is the same form as the application for asylum he proceeds to seek out household philadelphia or him he fills it out council screws up get it filed on time and he is not able to seek either asylum or withholding there would have been prejudiced anyway because had he filed that application which is the same application the i j a would have just struck out  asylum because he already said you're not eligible for this and my client would have been prejudiced by not being permitted to apply for the relief that he's entitled to apply for but let's assume in a perfect world that you were representing him at the time and you had filled out the application and had filed it on the correct day wouldn't you include it with your application and the arguments with a proof that he was in fact eligible for asylum in order to try and convince the immigration judge to afford in there really well on the application sets out the facts that would make him eligible for asylum the well read well founded fear of persecution if the specific fa going with my questioning is prejudiced doesn't doesn't mean he didn't get the relief he wanted and therefore he was prejudiced it means something slightly different as well prejudice means that he didn't get the opportunity to seek the relief  that's exact that's the attitude that is absolutely correct and going back to your question your honor that loops it back into the ineffective assistance of counsel issue yes in a perfect world the attorney or the paralegal would have filed the application setting out the factors saying we don't have to strictly comply you know this is why the aggravated felony isn't an aggravated felony and then this all might have been avoided but that didn't happen the application didn't get timely filed and that ineffective assistance of counsel prejudice my client as well because he never got the opportunity to present his case to the immigration judge you have any further questions