i did not speak directly with tensioners counsel i spoke with someone in her office in her office all right well i think the time she's not here but you are so we will just proceed with  also was an abuse of discretion the court should treat this case as if it were a timely filed petition for review and the court has recognized that although the real i d act calls for transfer order it's not an absolute jurisdictional prerequisite to the court hearing a case when it has not been actually transferred by the district court the plain purpose of the transfer provision was to ensure that can cut off what would normally be an appeal from hey b s up to us and transfer it in make it into a petition for review now at the very beginning is  popcorn machine goes off we're getting all sorts of cases and we've got to sort them out they'll be much clearer later on have we had a case decided by our circuit published decision by our circuit where the of any published decisions your honor so this is the first time this particular fact situation is here and we have to decide for the first time and mr could at least whether or not that turns it into a petition for re here those cases were decided prior to january first so i couldn't of course cite them but i have seen that that scenario so you have to do your position is we have a force now as a petition a say in effect a petition for writ here for review now before the court is whether the board of use its discretion when it denied a motion to reopen the board denied reopening because it concluded that mr sin date that the motion to reopen was filed in november of two thousand and three the filing deadline had to have been told until mid august of two thousand and three so mr singh needed to show in order to establish equitable tolling that it would be appropriate to toll the period from the end of march until mid august and the standard that this court has articulated for equitable tolling is you have to have two requirements you have to show due diligence and you have to show that despite the due diligence and for circumstances beyond the beyond mr singh's control he was unable to discover that he needed to file a motion honor the simple fact is that mr singh had notice that he that he should do something in his his his relatives told him this the record also reflects in his in other parts of his declaration he was uneasy about the way the case of proceeded to that point he knew that the board decision had been issued and he'd been denied his relief and yet he didn't do anything i mean the motion to reopen doesn't show him doing anything at all so  establish that he although he claims in his motion to reopen that he relied on his counsel it doesn't establish any specific facts that he relied on them from the period after his after that period of time is now yes your honor he contacted counsel in september i believe september after the motion deadline had passed and i'm sorry how long ago how long decision i submitted twenty eight j letter to the court this morning regarding the human versus icicle seafoods case and this case is really directly on point this claimed injury and he knew he had a problem it was a question of which jurisdiction he should take his problem to in this case the question is when did saying actually no because of the lawyer i mean he knew we had a problem interview with him with the immigration service but he didn't know the lawyer wasn't doing what the lawyer supposed to do in the same way that mr hughes men knew because mr houston actually knew he made no effort nothing that could be called diligence i mean it and he was mrs hughes been did nothing to inquire about the availability or extent of federal remedies and until just before filing suit after the limitations expired never inquired of anyone about the process and timing for indications of federal benefits now is i guess the question is that we look at this on abuse of discretion as i correct that's correct we have any other cases a motion to reopen contacts that we could use as benchmarks it's difficult to say because many of the court cases that concern equitable tolling include situations where there's a stronger factual showing of reliance where the movement was truly relying on been issued and been denied he'd been told that he should get another lawyer and his lawyer didn't do a good job and what did he do in response and that's where the court's focused me that's where the board's focus was and that's where the court's focused