twice we made a motion to read that in which we submitted this evidence and then when we filed our pal a brief to the board we submitted the exact same evidence to the board once again we asked them in the alternative to the remain and or consider this evidence as part of the appeal  and time of this hearing does not amount to exceptional circumstances now on this point the board just ignored this court's decision in fargo that's three hundred after ten eighteen its ninth circuit two thousand and two where this court said that it would be difficult to imagine how our representatives failure to inform the alien ever need to appear at a deportation hearing would not constitute an exceptional circumstance excusing her absence the court reaffirmed this holding and more harass yes i believe written by judge paul where the court said that if an alien fails to show up for a hearing because of an attorney we can say that this is an exceptional circumstance biana control of the alien that justifies reopening the largest point is clear this man didn't evidence in this record that mr rudd failed to contact his attorney and there's plenty of evidence in fact that he did it when mr brown now appeared before the immigration judge for the third time because he appeared three three separate times his hearing was continued until april third eighty eight he was in touch with his attorney and prepared to go forward on that date but the immigration judge postponed the hearing on the government's motion until november twenty third one thousand nine hundred eighty then in september ninety eight while he was still maintaining contact with his hearing notice and then telling him to contact his office some fifteen days before august thirtieth one thousand nine hundred nine by which time it was obviously way too late for him to appear at his question there ever be a double switch then because the document that you profer through that was in the august document which was the other yes the other aliens hearing date which appeared to be a valid notice yes so apparently if any notice at all was to the other fella it had of the april one but he didn't show up and that and the idea made note of it like were is this person we don't know but we don't have in the record that i can see the explain that because we don't even know who this other person apparently council didn't recognize at that time the problem was just his client didn't show up exactly and in fact i think what he did there is he went in there and he represented to the judge not under oath but he represented to the judge he nailed that hearing notice to this person at this address on industrial avenue to our client on industrial avenue and this was i believe me get my chronology here this was i believe  there's two things that are that are clear here yes the board looked at the cover letter from mr job to mr all the while you are saying the following allegations are being made against you and it didn't include the list that mr job included in his complain record other than his statement that he didn't find out about it until later and there is no evidence of when he found out about it except that he filed his motion to reopen more than more than six months later that's what the statute says in less you have ineffective assistance of counsel such that it amounts to a constitutional violation such that tolling would be in place so the distinction between this case and all the ones that were cited by by mr job is all of those cases like as all of those cases the motion to reopen was filed within one hundred eighty days and this motion to reopen was not so we're we're in a different ballpark were in the constitutional ineffective assistance ballpark but that's but that's something totally different i'm because the lawyer says gee i sent it to the wrong person so we've now got a notice coming from the immigration lawyer who agrees that he got it and it was addressed to his client but it didn't get to him personally so we can reconsider the only thing that mr hill was contending that missed on the new evidence that was provided by him to the board of immigration appeals i agree with you because i don't want to be if we start going down your reasoning everything fails until satisfied ineffective assistance of counsel in this whole mess would be exceptional circumstances i would point out the only track that i can see that you're arguing that there's a couple of things first the board and knowledge that held the decision of the immigration just below that the evidence simply didn't support and effective system counsel claim below second we look at this additional stuff that had been sent in and the additional stuff included discover a letter with an affidavit attached it did not include any kind of complaint to the board there wasn't wasn't evidence of a complaint to the so this certifying agency but when the well then i lost i thought the record show that there was a letter prepared by prior complaint that have never been made to the so they certify you're saying if we if we check the allegations to the state bar correct check the affidavit attached to the letter check with your arguing now they don't try to get the only evidence in this record whatever that is the last of the withdrawal of the complaint what was in that complaint that you say is the fact and doesn't notice of the fact that that he was not told about the date that it went to his counsel whether somebody else i'm missing which which complain notified therefore it was not is not satisfied i believe that that's what the board is saying that we can do next step beyond that is there is no evidence on the record that i have in the letter stood by for your reference i've attached a copy of don't just look at that you don't just list here's here's what happened the allegations i'm making against you as he actually made them in his appeal to the board were specific the allegations that he made against him in and the cover letter and frankly you'd have to read into the the affidavit itself to draw from it that those are the allegations the board saying you just didn't do what we need you to do to specify what the allegations are to requirement but that but all frankly things on the fact that there is really isn't any constitutional finding it ineffective assistance of counsel from our watch is there anything else i can help the court with there's not i think we understand be excused because we will be discussing some sealed records and i thank you for your cooperation