good morning again in line first and foremost thank you for the opportunity to be here today and present this case it's been a long time and there's finally a light at the end of the tunnel the appears to be a simple solution to an otherwise convoluted and complicated case a simple solution is that follows simply put the real i d act changed everything and is appropriately noted by the governments approximately a year ago  providing an update an update on the current legislation to this court petitions for review that were filed under the transitional rules of the ira i read that in illegal immigrant and immigrant responsibility act are now to be treated by th though they were filed under the permanent rules why is that significant it's significant because of the decision of this court and the decision of this court that makes that legislative change so significant as a matter of the starting three ninety four f third twelve seventy eight and in that decision judge reinhart writing for the court decision however in the court's point is duly noted in that decision the court pointed out that under check under the permanent rules the matter of shahr is no longer a pleasurable original bottom line what's your bottom line paul what do you what are you appeals and a request for stay is also made to the administrative court the expiration of that period prior to the adjudication of the motion is no longer a bar to the adjudication of the motion see what was happening as cases would be timely filed with the board because of workload what have you the board was unable to timely adjudicate the case if they did not adjudicate the case during the voluntary departure period no matter how meritorious the facts for the case would be denied by you believe the point that you just raised as are one in the same because the the board's denial of the motion to reopen was specifically for that purpose of adjusting how it's challenging the underlying order is a different matter  challenging the motion to reopen the underlying order was not challenged in this case the underlying order of the immigration court i'm sorry you're right ordered that found the appropriately denied that case but it's an absurd result so so legally the result is correct is that what you're saying it was that yes and why is that not correct now because you because of the decision that you said over r part more importantly however your honor it's because of the real idea at the time as i noted earlier this case was filed it was filed under the transitional rules specially fancy word for a different type of talking at the b s a level i'm talking at this level that you might my point is that that the rules changed and even if the case was adjudicated by the board of immigration appeals before the effective date of it's subject to the new rules are you saying that the real id act stands on the to depart voluntarily cannot render one eligible for relief is that what you're saying no i'm saying that pursuant to the rules as modified by the real idea says exactly what the court has this is a case of first impression the reason it's a case of first impression is because you have a transitional rules case modified by the real idea act asking this court to it interpret bars that were in place because of the matter of shocker that you make this argument in your br mean and please please forgive me the reason why it wasn't articulated in the brief is because this happened two years after we can't make an argument here that you didn't make a that's not fair because the government never had an opportunity you need not even deal with the issues of ineffective assistance of counsel however as briefed the lawyers who are the lawyer who filed the motion to reopen for the but soon family was constitutionally ineffective government makes the and apologize your honor and and what my point was is that the reason the courtney not deal with the ice he claims is because of the real id act if the courts not so inclined to consider the real id act despite the government's updating the court on the legislation i see is still around and it's not in the underlying order as judge rawlinson queried before but rather in the motion simply the former lawyer neglected to negotiate a liberally granted voluntary to a departure extension at that time under the old law and as such the case less than nothing has nothing to do with the adjustment of status applications the rel the morning on is may please the court my name is jeffrey bernstein i represent the attorney general the united states i want first power gys in the under the weather so if my argument is in a spirit as it might otherwise be that's that's the reason i first i just want to talk about  petitioners councils stunning announcement of the morning he came to me about two minutes before an argument because i got here only about three minutes before argument we talk about it as he was up here i was thinking about it and  also weighed he says he only found out about the these arcades only came out two years after he says he briefed it but the petitioners do and all parties have an obligation to seasonably apprised the court and opposing counsel of arguments so that certainly you know like the opportunity to to have ourselves heard based upon the study consideration of the argument although we would urge the cord not to get sort of the argument at all let me move to the merits if i may in the courthouse for the questions on this issue  counsel makes a number of arguments in his brief which were not considered by the game because the arguments were not made to the b i and as we state my brief and i to really get into what the referring to my brief the court doesn't have jurisdiction to consider those and exhausted arguments he also didn't make the arguments in the bar complaint would have in any event the field to satisfy was either with respect to those matters that he did not apprise the bar of so we must examine it seems though that the validity of the board's order through the prism of what the petitioner asked the board to consider they asked the board only to find that their eligibility to seek the discretionary relief of adjustment of status based on the marriages was prejudiced by respective councils failure to request an extension of their voluntary departure time after the b ice first decision in march twelfth two thousand and three which granted them a new period of voluntary departure b i clearly didn't abuse of discretion in rejecting assertions they said with respect to a king and her and her daughter eileen they said it really didn't matter whether or not an extension was asked for and didn't matter with an extension was granted as a matter of law their motion to reopen would have had to have been denied because the regulations require that motions to reopen be based only upon new evidence since the issu prior deportation order and that would be the deportation order order issued in march of two thousand and three and the basis of the most interesting one was on a marriage marriage or two marriages that occurred well before the only not to file an earlier motion to reopen that's the only strategic determination the board implicated and with respect to your conclusion that and again this is a matter that wasn't the race of the board so it's so it's so it's not exhausted but it doesn't matter because even if it were exhausted really could be granted there was a bar and yes there is a higher bar if you get married while you're in removal proceedings there's a very much more difficult bar i'm obviously the son did get his visa approved but the mother didn't and she still hasn't  kwan not to file any earlier application for adjustment of status because an application for adjustment status can't be granted unless there is a visa granted and in fact mr kwanten knew that and in his agreement with the petitioners he agreed to file a visa application and to file a motion to reopen when the visa was approved so clearly given he this was a absolutely no proof of that given that he has in this doubtless prejudiced there's also no proof that anything attorney rich did in asking for the fourteen day extension precluded the grant of an additional extension of voluntary departure the motion to reopen and the declarations all of ver that mr butt tunes current counsel went to the deportation officer and asked for an extension and the deportation officer said well you know i was told by churni rich that he's  thank you again i'm a please the court in rebuttal view a few points i did try to get the extensions on on the mother and daughter by the time we were hired the voluntary departure extension had already are the voluntary departure period had already expired the district director will not grant extensions in full when it's already expired therefore and this part of the administrative record i was required to try to get the office of chief counsel to do a number proton's a voluntary departure extension in writing it's in the a r it was never responded to i also tried for allan that didn't work because the officer felt the sea based on the prior conduct of the attorney if slough equal strategy you got us there's no strategy to waiting three years to file something that someone's eligible for there's no requirement that the visa be approved prior to remain ending to the court in fact the b i a occur encourages that because it lightens case load and i think you counsel thank