good afternoon your honor smith please the court my name is helen morrison foerster and i'm here today representing christine mediation is mediation as a law abiding person who has resided in the united states for ten years she's been married to a u s citizen for seven years and is the mother of two u s citizen children and entre she fled armenia ten years ago this nation filed for asylum as soon as she came to this country unfortunately she did not do a very good job representing herself and her and it doesn't have to the government has made serious mistakes in handling with mediations case as well and this brings up the key issue in this case which is jurisdiction the government now the copy of the decision to ms mediations sister but not to or although initially we asked the court to reverse and that would obviously be fine in addition under the jurisdictional analysis the court also has the option or you know i would say is is actually required to make a finding that the underlying case is actually open and go ahead and dismiss this appeal for lack of jurisdiction this ultimately would basically saw visitations problems as her voluntary departure time in that event also would not have got to run  house is still open because there's been a decision was never actually legitimately served on this mediation it was mailed to her sister but it was never meant now to her she's an individual and she's entitled to individual service w for all the names on the letter no they weren't if you look at ninety three in the records it shows that it was male just her sister in fact i would say that's the key document the case it shows that the decision was ma and in this case it's particularly important because basically you know as you can see from the record for whatever reason when it was mailed to the address neither ms mediation nor her sister was aware of the decision for whatever reason here and additionally she instructed her counsel to file an appeal and then accounts of the appeal late so even if even though she only had two days to leave the country she actually you know went to see a lawyer and instruct served and therefore the motion to reopen is still pending right not the motion to reopen in that case well then her line case right there only case is still open so she could still file a well that's where i'm not asking for the code for the court to look at this from an equitable tolling standpoint where whether she was aware of it or whether she you know found out about it or whether she didn't show up diligence in following up afterwards mass in the court to find that that the i am required and under its own regulations to serve each person with a copy of the position it's especially important here because the decision doesn't just cut off her right to appeal if she misses the deadline but being aware that that decision was entered into the court's docket actually stopped her time running to go back to armenia you know and here as you can see when she finally found out about the decision she she literally had two days to do situation you have a lead petitioner but the leave petitioner was identified as a lead petitioner by the service not by the petitioners as i understand it so might be slightly different but the fact is i think that's my question any scenario where they put the wrong name of the person but they just send it to the right address but then they try to say no harm no foul because the petition that the correct petition with a near the correct decision within there and you should have known that your time started taking and actually if you look at the  would you like me to approach or do you have it on record it's that see a ninety three really and what it was is what it says is you an us department of justice letterhead and it says up at the right hand corner guyenne mediation two or three west maple apartment two or three in the rest of the address and then it i mean it has information about the case and it kind of a rail line and then it says enclosed is a copy of program coordinator for the problem a program some information about the proceedings that occurred during the original asylum petition proceedings and the government brought that out and its opposition brief and then the court asked the government to cement those documents and those documents do show that ms may send receipt and she received a copy of the decision but they did they do not show that the government served on her properly so basically that she went to an attorney who looked it up on the court's docket and got an administrator to send a copy to him and as i mentioned earlier you know she that was two days before she was supposed to have voluntarily departed if you use the original issue date that was three days late that's correct chronology is that then she hired another attorney who filed another motion to try to continue to proceedings which was rejected and then she filed after the five year bar pas usually you don't have a lead petitioner unless you have some unless unless either the service is consolidated for family reasons or not and it would be unusual to have two sisters having separate consolidated fish unless one of them was a minor at the time and the i j finds christine who's now eighteen which that at the time of the filing she was not an adult so that's her that's right your honor i didn't know exactly what page you're looking at and that's actually in our opening brief is that she was eighteen at the time and i think to that page and one forty eight as well that she was eighteen at the time appealed to the b i at least i think it indicates in the record that she was eighteen during the original proceedings as well but any that she was eighteen she was that an adult and she was entitled to individual services eighteen ok and then when she went to get a lawyer the lawyer filed an appeal too late where does like that you where does that get me the appeal well i think that's where the best argument the best argument is basically that she's entitled to individual services i mean she's an individual and she the regulations say that a party if  representative must be served she wasn't you know along with her sister she had a lot of her sister hired a lawyer in which case you know service to the lawyer on behalf of both of them would have been cracked i mean there's i mean i have no reason to believe that her sister w it wipes out the ineffective assistance it wipes out the p i a s decision and it's fair it's especially fair in this case because that b i is decision doesn't just affect whether someone has a right to appellate review which is that important right  i mean we all know it's not it's the same in the notice procedures are the same as you know your initial hearing underlying hearing but in any event that well then she then she didn't have to depart mean that her clot hurt her time for departing hasn't started yet and she can apply that's correct with two children so and the bottom line is that the b i is decision is different in many ways than you know either other decisions say in bankruptcy court or even district court decision that might have been in the sense that that's a solution is basically in order to someone to leave the country the thirty days understand them but if that in fact we do allow service on on leith histories if they have a derivative petition so i give them my question is was  three different orders to show cause a notice of a hearing to show up at the same hearing date at the same time so they showed up before the i j a together as a group and then at that point because they were making the same claim they  got placed into a joint joint hearings the evidence was going to be the same for all three of them so they got placed in joint proceedings when it came time for the merits decision in front of the merits hearing in front of the immigration judge the older sister was the only one who testified what is what is there to privacy history no well there it will of the right to receive notice of the solution and we would say that she did receive notice of the decision but the reason it stayed the reason they didn't mail it to her you didn't mail it that the sister did not our petition here today did not receive notice directly from the service your claim has to be that that service on the sister was sufficient right well  why is notice to one notice too long as a matter of law well that was before the immigration judge when they got to the board of immigration appeals they filed one single joint notice of appeal form which is that your form twenty well that's not that's not correct either your honor that the names of the sister and her son are typewritten in the in the appeal aliens walk and then the petitioner speil number is written on the i want to get to it quickly and that is that the the letter sent to her sister lists only her sister and then it doesn't say just list the other three applicants that encloses the decision that's true but and in writing the board of immigration appeals the final number she references at the top is her sister's name and her sister's file number in other words the petitioner in writing to the board this is how honor i mean the government has no objection to placing the case back in mediation but you don't show any flexibility is an order for removal which will effectively negate any chance that someone has for a legitimate us with a status and that's why we often put these cases in mediation so because that often the left hand doesn't know what the right hand is doing  position of the attorney general was not to separate families if if it's a legitimate situation it's i guess we're wasting our time and sunny mediation we have no objection coarsening fact mediation and what w ten year statute that she refers to which i think is to twelve a ninety two would not apply to her because she was in deportation proceedings so she doesn't have that the fact that she's in a miserable for ten years  well i would invite petitions counsel to directly contact the district director and see if he would be inclined to do what exercised his discretion in her favor so and then you you know when you're here i appreciate the court's invitation i would ask on his behalf for more time for view the facts of the case i think that he probably could be more likely to exercise its discretion