counsel christopher cross he committed ineffective assistance of counsel in order to prevail in such a claim petitioners must show that prior that competent counsel would have acted otherwise and that the outcome of the proceedings may have been different so i'd like to focus  and the first error that cross he committed was failing to properly document the persecution of russians in the ukraine the second was in failing to advise mrs hoots you have to file a separate application for withholding of removal and the third was failing to file for her there would have had to be a separate application for withholding of removal and of course she had an independent claim she herself had been assaulted on to different occasions based on her national origin in addition her daughter had been sexually assaulted and physically assaulted based on her national origin and of course her husband mr holmes yet have been assaulted and she missed this post yet also was subject to discrimination at her job and lost her job as a result of her now origen however none of that was submitted because and her claim was never heard and in fact karate in his response to the allegations against him does not even address that issue at all he never addresses his failure to do so something that she didn't want to testify separately or something correct rather he states that she didn't want to testify and there is this factual dispute in the record on that issue but as far as the allegation of failing to submit a separate application for her she never addresses that and in fact cross he states that she didn't want to testify about her husband he doesn't address the allegation as far as the country conditions the immigration judge concluded that there was no evidence in the record of serious ethnic conflict in the ukraine and that decision was of course affirmed by the board and its direct appeal on the direct appeal decision now clearly there's some sort of  because if the documents submitted in the motion to reopen established overwhelmingly that there is evidence of serious ethnic lot conflict in the ukraine especially towards russians jews and other minorities in the ukraine because of this rise of the ultra nationalist movement and cleanse the country of all people that are not pure ukrainians at the time of the hearing before the immigration judge in fact there was a sixty minutes show that had aired years before to over seventeen point five million viewers who watched a show a result of the russian nationality that was never submitted in addition there was a number of other documents that establish the arson of a russian cultural center the murder of a prominent russian professor and the rise of the austin nationalist movement all which were available at the time of the hearing before the immigration judge and which were never submitted clearly had these documents been submitted the outcome in the proceeding may have been affected now as to the issue of the withholding application again and no claim as to fact it should be sent to the immigration judge but i do want to direct the court that even in its position if mr kraft statement is taking is true there is no dispute that he failed to file a separate application for withholding and there is no dispute that he one more statement as i'd like to address the failure to i'm sorry the boy's decisions including that there was not a change in country conditions if the court concludes that crossties properly represented petitioners and properly documented their case then the court m conclude that the border area in finding that there was not a change in country conditions because as the evidence is overwhelming that within the motion to reopen it's clear that there is a serious ethnic conflict in ukraine as far as the treatment of russian nationals and that was never  does make that point and i actually go through in a reply brief to go through specifically for instance the sixty minutes report where i've posted references to the treatment of both russians and jews and that there is their treatment of minorities in general by the course by the board in the motion to reopen and so as far as if firming a decision on the motion to reopen the case the court cannot affirm the decision for reasons not stated by the agency now as far as the direct appeal to the immigration judge never went through to determine whether or not it is pages eighty two to six eleven the supplemental motion to reopen is on pages seventeen to fifteen i thank you counsel and the second supplemental motion to reopen islam pages six to  and as far as crimea is concerned it looks like ironically the russian and the russian ukrainians are the aggressors of their just to present my argument there's two petitions for review here before asylum and not russians he also stated that he could not find an attorney in the first consulted an attorney in april of two thousand and one yet later and he later at his hearing he testified  if you have temporary legal status in the country that you should have a reasonable time to apply after that expires  immigration judge did not feel he had he had i understand what their immigration judge did but the ordinary person might think that well you have one year to apply for asylum so here is the end of my confirmed that he was retained in april two thousand and one and that the delinquency was due to what petitioner heard namely that only religious russian refugees were keening asylum and ethnic refugees so from the asylum interview show that the question was asked of him why were you late why did you file after the one year and the and mr who says you have said well i didn't think i had any chance and then it was asked again and the other reason what other reason did you have for filing after the year and he said why couldn't find an attorney at that point you would think that if he had spoken to someone who was a paralegal who was going to file his asylum application on time that story would have come tumbling out nothing was said either to the asylum officer or to his first attorney so the immigration judge in the board who affirmed the immigration judge came to the conclusion that the extraordinary circumstances that he tried to after the year had run yes it was mentioned and i believe that when they talked a little the government presented a preamble to the regulation and the immigration judge took note that that was what the government was representing but then he went on to feel that there still was not a reasonable period of time certainly if you have one year to file an application and then your visa expires you would necessarily get another year it may not be six months to the day but certainly he took much more than even the six months which is recognized in the preamble and that's what the immigration judge concluded even though he had no asylum claim because he did file in an untimely fashion he did have a withholding claim that he could have made again he was not credible he started in the middle of his at the beginning of his marriage hearing once the merits hearing had begun he talked about fifteen political speeches that he had made and that weren't mentioned at his asylum interview were mentioned in his asylum application and wasn't mentioned to his first attorney and wife had been assaulted and assaulted and insulted there's no question that that that was all commendable well the immigration judge found him not to be credible in a excellent jobs high ranking jobs so certainly he testified very thoroughly very clearly you filed affidavits one of which was forty six paragraphs he presented all the evidence he felt he should yet for origin i understand i would say not i would say that what the judge found was it was discriminatory behavior but didn't rise to the level of persecution and under withholding the burden the flavor from reading the immigration judges opinion that that he was trying not credible because his wife wasn't credible this mr haraszti the second attorney was ineffective none of which hold water this is mrs who did not want to testify she was on the witness list page twelve twenty five so obviously there was an intent to put her on she didn't have a counsel me ask you this opposing counsel made a distinction and said that trying it was an effective for failing to file a separate withholding application for the wife what's your response to that it's true that you cannot be derivative on a withholding application you can on an asylum application but she would have had to a filed her own withholding application she didn't have enough there to meet her burden mr whose you have didn't have enough she had much le dead she filed an application after the fact as part of a motion to reopen and the board in reviewing the motion to reopen felt that her application was skeletal what wasn't and would not have met attorney her office and we responded in our brief to show that it wouldn't have made any difference in the board's if you can see i said that took appropriate when she had no opportunity to make her case because it wasn't an application filed you're saying that there's no prejudice because you just look and see she didn't have anything but how do we know that the attorney when he submitted an app in response to th are papers that were submitted against him explain that she didn't want to testify that she didn't want to come forth and and and also that the application that it was  testify so i'm just assuming here that maybe that's one of the reasons why he didn't have her file a separate withholding application in any event as the board found remain any difference were there any referenc of credibility between within and mr motion to reopen because at one point to mr hurst you have said i told the attorney about michael little speech or the front page three thirty one then he flopped and five filed another affidavit after the attorney responded i think that i told someone so that was a credibility issue but not necessarily from the first hearing except well not necessarily from the first thank you first i'd just like to reiterate that on a motion to reopen the standard for this court is whether the outcome may have been affected and not whether withholding or asylum or any standards actually had been met as far as the sixty minutes report goes the board never addressed the existence of the sixty minutes report at all so certainly there's no question that the outcome may have been affected had the report been submitted by cross as far as jurisdiction a motion to reopen there's no question there's jurisdiction on the issue of whether or not because the immigration judge concluded the application was untimely because it wasn't submitted within six months of falling out of lawful immigrant status relying on the two thousand regulation and of course as we briefed petitioners never could have complied with that bubble on the issue of whether or not they paid boris kaplan five hundred five thousand dollars but that credit there's no credibility issue or no factual issue at all on the issue of six months after the requirement to file six months after falling out of he concluded that there's a six month rule you didn't need it now let's look to whether or not you had exception extraordinary circumstances because of kaplan and not that was the factual inquiry but as to the first there was no factual angry six month my point little differently you say well he never could have complied with the six months thing but if the rule was you have to file within a year then we come in with a role saying well if you had legal status you have a could have been offered to corroborate that they were eyewitnesses to these political speeches and that was never done in fact petitioners were never advised of the need to find corroboration and certainly crafty was on notice of the need to do that under this  very clear that since the political speeches had not been referred to at the asylum interview there would be an issue of credibility and corroboration was necessary and in our motion to reopen we have nine different declarations from people who were eyewitnesses to the political speeches but yeah always yeah