watch the clock counsel sit your honor all individuals facing proceedings seeking to remove them from the united states are entitled to due process including a full hearing a notice of that hearing and yet to this day mr ma has never making two claims here with respect to notice first your honor petitioner contends that notice was not properly given here because the immigration consultant and attorney who advised mr mott to put their address on his asylum application never notified him that the notice or excuse me that the hearing was pushed up by more than two months but he acknowledges that he knew about it for a long time in any way take years and i mean or i mean a good way to look at that is you know these are the type of cases that there is no motivation to get you know to do anything about it because everyone knows that nothing ever happened so just wait till something someone find you know or whatever respectfully your honor in this case mr monti tried to do something about this at the time that he learned about his abstention removal order he confronted his immigration consultant c p i immigration and said that he basically found out that he had been ordered removed because his hearing due to been pushed up by more than two months and c p i responded even though they were the ones that advised them to put their address on the application that they thought that mr mom would receive separate notice and they also it but i am going to try to come to court so the reason why he never came to court your honor and he did not try to come to court at that time the reason why mr ma did not do that is because at the time that he confronted c p i c p i told him that the only legitimate excuse for missing a hearing was a medical excuse with a doctor's note and they also  advised him that if you were to go to court and explain why he missed his april two thousand and two hearing that he would be he may be arrested on the spot by immigration authorities and mr mom who is does not speak any english is  sophisticated in the legal system trusted c p i and also he didn't just take c p r as word for it he actually went and consulted with a second law office and that second loft office also told him that the legitimate excuse for missing a hearing would be a serious illness in which a doctor would say that you were too ill to attend the hearing so with that point mr mock did not believe that he had any other options or recourse to to proceed with at that time and he was afraid if you went to court he would be arrested on the spot now that your hours are correct that years to go by and for my decade it was that was about eight years your honor and what happened during that time is mr moggs around two thousand he learned that his father was suffering from a life threatening condition and mr ma is the only child in his family felt that he had the familial duty to return home and care for his father despite the consequences that he might face there gravely ill father how long these things and he was in china for about eighteen months and he only stayed for the duration of time necessary for his father's condition to improve and so when he returned to care for his gravely ill father he did so despite the consequences he might face because he was the only child in his family and he felt it was his duty to care for a spotter and this court has found that returning home to care for a gravely ill family member does not necessarily  to go back so based on change why doesn't it fail as a matter of law because the alleged change in circumstances was precipitated by his voluntary return to china the reason why it doesn't fail and what's your best case for that is that what you just cited that's correct your honor so in any coliban beholder case for example the petitioner returned home to the philippines for two visits to care for her gravely ill mother and then her father and the court found that she did not rebut a presumption of well founded fear of persecution in that case because she avoided drawing attention to herself at the time she stayed in her home village for only brief periods of time and she didn't tell her ma's allegations is true respectfully your honor i responded contends that the board was properly exercising its discretion by acknowledging the affidavit in supporting the law petitioner does not agree that that is what the board did here with the board in fact did was ignore maz uncontroverted affidavit which was all he was required under the law to provide mas uncontroverted at the david far from saying that mom remained in china for eighteen months without incident or without adverse consequences as the board found instead month after david says when he was there he had to hide in his friend's home he could not seen his family home he exercised extreme caution whenever he went to visit his father and is the board to error them that they failed to take them as true and they weighed credibility from your perspective is that your best argument your honour's on the change country circumstances piece of this argument yes the board this matter should be remanded back to the board with instructions to reopen the proceedings because the board erred in three different ways they're about why ok let's say if it if let's just say hypothetically that we agreed that it should be remanded to apply the proper standard and not waive the when this court has previously found in multi v ashcroft that such supporting affidavits from family members outside the united states are almost never easily available and just not required in addition the board's improper factual finding that he was there without incident remand to evaluate under the proper standard wouldn't the board then have to look at whether the new allegations are qualitatively different than the evidence to prove presented in support of his initial asylum application and if they weren't different then he still wouldn't satisfy the motion to reopen right that's correct your honor although petitioner contends that notice was also not proper and that ineffective assistance of counsel rises well all right i know you're a stand out but if assuming we don't morning your honour's please the court alexander loose on behalf of the attorney general your honors i'd like if i could to draw attention first to appoint counsel for petitioner made just a moment ago that echoes an argument the petitioners raised in the briefs which is that there was no proper separate ground on the basis of which and in absentia order for move on may be rescinded the first has to do with lack of notice and second has to do with extraordinary circumstances such as ineffective assistance of counsel now that second type of motion has to be brought within  hundred eighty days on that ground if mr moggs arguing that there was a lack of actual notice here he needs to establish equitable tolling of the deadline and as your honor judge callahan pointed out he waited inexplicably eight years before filing a motion to reopen after he knew admittedly that a problem had arisen and he knew what the problem was now if mr moggs arguing that there was a lotus tissue resolve the entire case or is it just one element well respectfully your honor it doesn't resolve the entire case because mr ma has effectively filed two different types of motions here a motion to rescind his in and censure order from of all and a motion to reopen his removal proceeding on the basis of change country conditions and we submit that he hasn't met the standard for either of those two motions but they are treated separately what about change country conditions i'd be interested in your response to counsel's arguments of course your honor and again i'd like to touch on a question that judge callahan asked just a moment ago about comparing the evidence that was submitted below with the evidence that submitted on motion to reopen now it's axiomatic that a motion to reopen a removal proceeding based on changed country conditions has to show an objective change in country conditions between the time of the underlying proceeding and the time of the motion to reopen so let's do a quick before and after and look at what mr monti fact alleged before his motion to reopen his initial asylum home slapped him detained him for three days and questioned him in two thousand and one that he was ordered to report to the police on a weekly basis and he said that page eighty four of the record and i'm quoting here policemen have been coming to my home since my escape since i failed to report to them as required and they want to get me back to get me punished now on motion to reopen he averred that the treatment of john gong practitioners in china quote has never been relaxed unquote he said that he returned and that he stayed at a friend's house but he never explained why he did that were if he never stated anything to change that caused him to do that he simply stated that when he returned he went into hiding and he said local authorities seem to realize that i had been home because they came to his home in september two thousand and nine to talk to his mother and his wife and told them that if he had returned he should turn himself in and if they were harboring him that they would be guilty of a crime your honour's were to change here he said now let me ok let me just tell you what my concern is in terms of that i mean we haven't talked about this so i'm not speaking for anyone other than myself right now but you're that i've made my comments about the notice part of it so let's just assume hypothetically that i'm not concerned that that the notice that he doesn't get relief on that but on the motion regarding the change country conditions here's a couple of my concerns in terms of in malti the ashcroft we held that the b i abused its discretion when it faulted malty for not submitting supporting affidavits and that was one of the things that that the a did that to be i did hear and that they really didn't make a determination they didn't get to whether it was qualitatively different so as much as it might pain me how is this court it appears that there was some credibility finding here that if that's was the wrong standard on motions and you know its  since we've got yang versus lynch and i'm not sure why that doesn't really foreclose us doing what you want us to do right here so why don't we have to just for a mandate to apply the proper standard and then make that qualit e analysis and they said they still could determine that he doesn't qualify for it to reopen for sure i think i understand and i'd like to make a couple of points in response to that question first of all yang is informative in this case because it provides a good example of what it looks like when the board second guesses of petitioner's credibility or second guesses of petitioners evidence in adjudicating a motion to reopen in that case the board specifically stated that the petitioner and i'm quoting now from yang has not shown why the board should now accept the statements offered or in another case called base and b h s i and that this court cited in getting the board said that the petitioners declaration and again this is a direct quote the declaration was self serving and not highly probative in situations where the board has violated where this court has held the board violated its duty to take as true a petitioners a verminous on motion to reopen we see the board specifically rejecting it were doubting it or imposing some kind of a credibility test but here we know the board didn't do that for two reasons number one they didn't use anything like the kind of language we saw on yang or in face and didn't specifically say that it was rejecting anything mr ma said and secondly while this decision certainly could have been in light of the plan language at that the eyes decision how is this case really different well because the plain language of the b a s decision there said the declaration was self serving and not highly probative here the board didn't make any similar comment about the affidavits and mr moss admit respectfully your honor i'd like to say that's not enough i understand you're honest concern and i'd like to separate out two separate questions here the first is whether the board takes is true what a petition or a verse is whether what the petitioner averred meets the heavy burden that's necessary to justify reopening the bright but if let's just say it let me say it another way if you were here and the and the board had said we accept everything that you say as true we're not requiring you anything additional but we're looking at what you allege before and it's not different than what you're alleging now so we're going to deny your motion to reopen would you have a better case i think we would certainly have a clearer board decision to argue from but i don't think that our case is weakened by the board's failure to say that because the lack of supplemental affidavits or rather let me put it this way the board's noting that the lack of affidavits or that the fact that mr ma was able to live in china for eighteen months without anything happening to him the fact that the board noted that is not inherently inconsistent with the board having taken everything mr ma says is true the board has to take the facts of his vermins as true but not the conclusion that mr mind now advances which is that his evidence was enough if that were the case i'm sorry your honor what about the columbine case that you heard ruse well your honor the cases that mr ma cites their color and small iack over those cases show that return trips to a country can't be the only reason that the board denies an application for asylum but those cases are an it were that's not what the board in fact did here here's the board took everything mr moss said is true but then in applying the law to determine whether he is a vermin it's were enough to meet his heavy burden for reopening the board said well look you talk about something that your family experienced when the police went to their house but you weren't there and you submitted no declaration from them about what happened and look also you were able to return to your home country for eighteen months without anything happening to you so your vermins here aren't enough to meet your legal heavy burden and i'm quoting their ins vs aboud you from the supreme court your heavy burden to justify reopening and also furthermore coun but the board did clearly in one paragraph addressed the issue of equitable tolling and that is a necessary component of an ineffective assistance of counsel claim in this case because mr ma went over one hundred eighty days which was his deadline for that type of motion by about seven and a half years without explaining what he was doing during that seven and a half years so it's our position that the board didn't address every aspect of that claim but the one aspect it did address is fully dispositive of that issue draw linson just spoke to the issue of addressing the ineffective assistance of counsel claim the board's decision doesn't reference it at all in fact and the respondent tried to justify that in the briefing by saying that ma didn't properly raise such a claim that is not the case here your honour's it's very clear from papers that he was claiming that the reason he did not receive notice was due to ineffective assistance of his counsel and petitioner contends that equitable tolling would be immigration consultant used their address on her asylum application and did not notify fargo of her asylum date or excuse me asylum hearing date and as a result she missed the hearing and the court found it was appropriate to equitably tolan that case for over four years not quite  appreciate that it helps on the issue and thank you both he did an excellent job in the case just argued will be submitted for decision in the court will hear arguments next  versus the city