person claiming protection under volokh has a right to do a self petition to the agency and seek protection under that statute however and at that point had she done so there would have been some assistance in that regard question though she did make that request in the motion to reopen and i realize it's not in the form that normally would the agency would occur but you but her attorney said were in a defensive posture here asking special cancellation of removal right here to the burden and that regulation let me spin out the practical problem understand your technical the senses but here's a here's someone who alleges that she's a battered spouse and i know your position is that's her burden to come forward but in fact if if what she says this true it's really practically impossible for to go to the battered spouse and say provide me with  l p r i mean not just not going to happen so the only way for her to prove it is spies a service records and if the agency then says we're not going to give you those records you and then leave town the fact that she hasn't proven that he was an al p r  it is essentially preventing her client like they were if you if you if you follow what i'm saying i do your honor i don't believe the agency refused to give her that and i would point i want to point out a couple of things were the agency response to the request the agency could have said well go ahead we're on the record did anybody respond to the request that was made in the motion well first of all by the statute those claims have a this motion reopen with first two very distinct purposes and i think it's important to to recognize that because both we had a motion to reopen on grounds of asylum withholding and cat and we had most of the holding for special cancellation there there was at each of them there's very asking is explaining why the motion was denied my question was where was their response to the request well i think the record squares that there is no response to that request pacifically am i  fact did not come up with these claims which are actually horrible graphic to read and disturbing in the ones that she wants you to focus on because that's the part that is so compelling in this case however those the first time those were brought to anyone's attention is two days before family she did petition ultimately to ask for the court to dismiss that voluntarily and allow them ninety days to leave the court granted them that that privilege they didn't leave a couple years later they're still in the country and at the end of that point they do get served the bag  and baggage letter two days before they're supposed to report to that they come up with these again horrific allegations of abuse and battering that had never been raised before they never brought a claim before the agency in a way of comments i mean the paf and homeland security has just published you know newgrange the president has made statements sympathetic to the whole issue of vanderjagt women and here was st with a procedural finding in which the agency this is not a situation where the petitioner has access to information i mean the agency and to be blunt about it every time i come into this country they put my passport through the thing they tell me right away and they even now when i'm a judge well you know welcome home your honor it's you know i can't believe it when that difficult for them to if in fact she again i would point i would point out that her vowell claim was untimely and it was not accompanied by an application for that protection and that's under section two forty cathay but in fact if she had attached a green card or facsimile of a green card to her motion to reopen the b i would take a look at it right well certainly she made she would have qualified made one prong of the late filing the way that is it needed to be accompanied by the application again the board was looking first like i said first and foremost that  the most to reopen the grounds of asylum withholding cat was untimely i think it's undisputed it's five years later after the board's december eleventh of two protection and she did not come forth with change country conditions she alleged that her husband was in you suppose we started when they were dating as you read through the allegations and she had no interest in seeking any protection until two days before she was but somehow you know that she didn't have any interest i mean at least these on a garcia again was was untimely i haven't says clear she has no idea what her husband's legal status is i don't insist posture in this proceeding i don't believe the burden was on the government to go and find that out for her well i don't believe that again her case was was an administrative self petition by of i was petitioner i and i believe that that's you know it's under those circumstances i don't believe she asked for like  this i'm fairly certain and you can correct me as you review the record if i'm wrong i don't mean to mislead i don't believe there was any kind of like requests yes with the h s during that proceeding to stay or allow that to be explored i don't i don't know that there motions not accompanied by the application and under that i would also like to address again just to clarify the timing this is the first by the grand never really never reached the board never reached the prime a safety issue with respect to asylum withholding and removal the the board said even if we were to open it it's on time to do it even if we were to your you or otherwise wouldn't be warranting of release as a matter of discretion and just as one of the reasons said that they suggested or say that you didn't show up for your bag and baggage hearing or that you didn't comply voluntary departure discharge briefs you make numerous factual allegations that in fact you didn't have to do that but that wasn't what was in for the board at the time i mean in fact in her motion she's telling the board's help i need an immediate stave removal i'm under imminent danger of removal she doesn't tell the court two days ago or the board of sydney i went to the night circuit and asked for an immediate questions of taking you over your time i wonder if you wouldn't mind when you leave here today your client is the united states citizenship and immigration services department homeland security  yes if you wouldn't mind checking with the chief counsel for the citizenship and immigration service and ask them if they are comfortable with the position the government is taking in this case you don't have to respond with a valid just like you to do that order and yes it's last two days before the bag and baggage are and we didn't get the case until a couple of days before that so in terms of practice in that us rising wants to do the best job you can and if you have to put something together really really quickly you don't have the time to put everything in as you could to then you had in the cemetery defense because any creation court ok we understand your argument thank you very much the case just argued granted certain has seven circuit in bank decisions saying the court of appeal have no jurisdiction over motions to reopen and it may be that will hold this case pending the supreme court's decision on that of this if they say we have no jurisdiction we have no jurisdiction but i would appreciate you following up counsel on my request i and i think we'd like a response after you check with the chief counsel sure somebody have a cell phone take it out don't intel and then write back to us and all you have to say is i've consulted the u s c i s is perfectly comfortable with our position or they've decided to take another look at this case or whatever and if they would like