time the government claims what do we do with that is that's something that should have been raised with the agency for a factual finding is that something that we would have to appoint a master to take factual evidence about what procedure would be found if we determine that there is an issue of fact i think that the point to be taken into consideration is that this this is something that the respondent has a burden to prove and certainly had ample opportunity to so it unresponsive to my question my question is i want you to assume that we find that there's an issue with the fact that somebody has to decide as to whether as to whether or not it was received if there is an issue of fact that r burden of creating a presumption of notice and the standards for for doing so would be difficult to establish factually at this point in time because frankly i don't believe that mr fratto who signed the notice the really is a trick question because there is a presumption that that things that in the course of conducting the government's business are done regularly and that things that are stated to be mailed are mailed and the affidavit  presented certainly to my mind just speaking for myself creates an issue a fact but doesn't have a calm presumption all by itself so i'm left not sure what was there is proof that it has sufficient postage and proof that it was properly delivered to the mails and with respect to those two to the last the latter two elements of the presumption there isn't any point nine percent of all the cases where there is no challenge for me to the mailing because the person got it on my attention timely and we're all here but i suppose theoretically that's true in every case that there's no i mean how do we ever know that it was male well i suppose that's that's something that the the b i a could certainly a remedy i mean for example there is no certificate of service on the bottom of the of the letter it certainly would be an easy process for the b i a to make a copy of the letter with sufficient postage indicated on the envelope and even though that may not be contested in ninety nine percent of the cases it's certainly an issue in this particular case and that's all it would take to  to establish the presumption now i'm afraid i'm putting my i'm getting into the soup in terms of actually talking about the facts the fact finder ought to be that's a prior question and a phone for me but you said the first one the government complied that is it sounds proper address how do we know that that is to say when you send a letter to him two years later i comes back sounds like he's not of that address so two years before how do we know that that's an address it's his responsibility to make sure th government has the proper address and maybe a senator that address but it wasn't a proper address so you're conceding that the government sort of the proper address is a concession in your advantage i guess i guess that's true in a roundabout sort of way  he's that's not a proper address well at the time that the central thing was sent out in two thousand and two i don't know and perhaps perhaps i might my declaration was was mis perceived but the position is in fact that that same address and i guess the only other thing i can say is correspondence from this court that was returned is intended to to help establish is that in the event that the court determines that a presumption does apply which we argue it should not that is concrete a concrete example to  been found not credible and listen until that finding is overturned he's not believe a ball so we are faced with his affidavit which if we believe i oath that his testimony under oath was not believable you just don't like from i'm not articulating it very well but it seems like a real sort of circular problem to me let me see if i can address it i think the way that this should properly be analyzed is first to recognize that it's the respondents burden of proof to establish that notice was in fact sent and that in the absence of being able to tell one way or another then the question should be determined on who has the burden of proof in here in this case the respondent has the burden of proof and clearly has not presented the evidence to to satisfy that burden of proof and in the absence of any controversy that evidence then i believe that the my client's appeal should be considered constructively time filed in the name of your answer is  this is outside the record but are you telling me that in fact he does live at that address yes your honor i am ok i know that i'm running out of time i'd like to reserve some for rebuttal that you're right thank you took up a lot of your time with questions so i will give you some leeway on the bottle and if you are may it please the court joan smiley from the department of justice here on behalf of the attorney general right acts have to do with us getting it in time not with the agency getting in time does that make any difference well but it goes to the issue of are there unique or rare circumstances that is sure that we're justify bypassing the jurisdictional requirement and then all of those cases it was a very narrow exception that was crafted and hernandez riviera there was a court found official complaints constructively filed on time well the critical evidence to the contrary well there is evidence of the contrary says he didn't get up and we may or may not believe that but he says he didn't get are you saying that if he if by whatever mechanism we can be sure and i'm trying to make this sort of clean rather than getting into burden of proof and so on if we can be sure number one that the government put it in the mail properly addressed properly for postage but we can also be sure he never got it in that event is and of course here are your comments not answering the question it's really it would be helpful if you would actually answer it because i think we're all struggling with the same thing which is what happens when it's properly sand but isn't re sack with the board partly what i should also saying that what he should do and this is contrary to what the fifth circuit held that the only thing that the petitioner could do is go back to the board and make a motion to reopen based on not having received the notice of decision is is instructive when it goes back to the burden of proof in the conclusion there wasn't quoting from the decision because the i in this cannot establish when it mailed the board's decision we declined to dismiss the appeal and there's been no effort on their part to to establish anything and certainly to jurisdictional issues are proper for consideration before this court but they have presented no evidence that would suggest that that they satisfied their requirements under the bo barge case in fact there briefing did not even cite that case or attempt to distinguish it in any way shape or form the  the standards for mailings and rosenthal versus walker were in fact a clarified by police getting worse and that is something that the court needs to take into account and really comes down to burden of proof issue one jurisdiction in the absence of the party with that two very very memorable events one is the death of his father in the other is being being taken away and beaten by the authorities fact that my client doesn't speak english was working through a translator and also i think the legal issue that's before the court it's instructive to look at this court's decision in april of this year discussing where issues of  discrepancies come into play and this court determined that that was a flawed approach to credibility is terminated and it is an extremely poor test the past truthful witness the substantive accountability it depends though i mean i mean i sure mean the difference between september tenth and september ninth i mean that's not going to and it shouldn't just like when somebody gets asylum or not but but these are two very critical dates and there's there's a direct contradiction in the in the year and not only that but the  distance between the two events in other words he's in the attic in the hearing that that they occur very soon after one after the other and you have the dates if you if you look at what's in the application and what the witnesses said so it doesn't seem to there in the case that this is a person who was beaten arrested on multiple occasions at least three times and experienced a number of traumatic incidents and the scientific hundred nine cause they need a ten year qualifying theory here whether happened in ninety two or ninety three doesn't make any difference to any legal determination the only thing we need to figure out is whether or not there was sufficient evidence in front of the  think you're a liar that's the problem right i think that's right and it's critical also to to recognize that literally everything else in the record besides the credibility determination supports and confirms my client's  eligibility for the relief requested and that was not only his testimony there was the documented independent documented evidence regarding the murders of both his mother and father only hand if anything that will help us figure out whether someone and again i think the best source would be the evidence relied upon the scene case in that regard but i also think it's important to take into account that that even even all of the documentary evidence that was submitted suggests that there were only as there were only a few hundred people in my client's position in the entire country at the time of the issue and there's also clearly established that people of that variety were subject it's a severe persecution it doesn't take much of a logical leap to conclude that my client was one of those people and nothing in the i j a is the termination contests the substance of any of the events it just gets caught up with the dates and i think all of those things make it