board of immigration appeals issued a summary dismissal of the appeal for failure to file a timely brief mr reed not to have learned about this say that in in all ineffective assistance of counsel claims it is not necessary to file strictly adhere to the laws out of criteria because the purposes may be served  is the ineffective assistance we are in apparent in the record is there and in this case that is clear and when you look at the case you can see that the attorney failed fail to provide effective assistance he didn't file a brief and it's tremendously clear from the record i never know about that what has always struck me about a one sided compliance is you find out what the lawyer has to sing and sometimes it can be something like i told the person i would represent them and file a grief if they came in and told me their story and brought me whatever paper thing hadn't paid me the amount of my retainer and they never came back so i never found anything i agreed and now that that's one of the purposes of was it gets you into the attorney client relationship and what transpired  perjury where he said i miss trail under the day i miss calendar the date and that's why i didn't get the grief there by my due date he told me when i asked him what happened he did i didn't know i didn't even know about this affidavit until i got the certified administrative record there were pieces of the file coming in i made a judgment that i wasn't going to participate in filing a bar complaint until i knew request for an administrative remove or to the local district director i was fighting to keep him in the country because if used if he's gone you know at that point what rights does he have what i don't believe i don't know that that we have to decide in this case here today or in this decision whether his asylum claim and it has merit and whether he gets asylum or not and i have for those cases talked about when you have any effective distance of counsel you're essentially deprived of counsel and it's and due process violation i think on the president i don't know if the word law and i are thinking about the same thing but what i'm thinking about is if you get to the merits it's hard to see what claim you had that that would have been effective and his lawyer been wrong in the russian orthodox part of it because of the changing country conditions parent lee the russian  property private property his ancestors had been involved in the russian orthodox church had property confiscated and had been murdered by the stalin regime he had requested the rehabilitation and return of the private property to his family and the immigration judge found that was not a political act to do that  and i can't conceive of how requesting a return of private property from a communist regime could not be considered a political act both by a communist regime or that the country was in flux the country nine he comes into the country in ninety two for six years he's not given a hearing in interview years and then i want to point this out when he gets this interview the the  dramatic change in circumstances in russia since the response to the party and secondly in that he talks about other things but relying on changes of circumstances raises raises a whole line of places about relying on change country conditions and when you do that there's a line of places in the ninth circuit there was that they must rebut the presumption and and  change has persecution will give rise to presumption of future persecution and they're relying on change country conditions but they don't address that thank you ca good morning your honor terry's gathering again for the respondent i'd like to begin by clarifying what is before the court in this case on this petition for review and the board's march two thousand and two decision motion to the board properly dismissed mr ignacio's motion to reopen because it was untimely that it was not filed within the ninety day period now it clearly was filed long after the ninety day period expired and there are only two ways that that motion could be deemed as timely first whether the equitable tolling rule that this court has recognized in cases such as neither applies in this case that's all that the court needs to consider with regard to equitable tolling mr ignacio didn't just missed the ninety day deadline by a couple of days  he did not even retain counsel nine months after the board's march two thousand and two decision and the motion to reopen was not filed until eleven months after decision there is nothing at all in the records indicating that mr zorra did not inform mr ignagni of of the board's march two thousand and two decision that the case that in october two thousand and then a week by october eleventh the petitioner retained new counsel i'm new counsel diligently pursued the evidence he needed to file a motion to reopen and then ended up filing it six days late is nothing like the nine month delay in retaining counsel that we have here here if there is a mr not to have waited until after october of your hearing counsel you still have to do that within the three month period allowed by the statute for emotion to reopen and here you know that period had tripled before he even looks for new now the other means of filing beyond the ninety day period of course is a motion to reopen based on changed hundred conditions this could change conditions must there materially upon the that about two sentences relating to restitution of church property and that's not even i'm confused about something that starts with you from for property it's truth property i don't get why there would be personal queen by not ts to own it but it may be that i just don't understand the nature of ownership and for property i don't know that the church property has anything to do with m sorry but i i don't know and i don't think there's anything in the record that explains that and there would have to be some sort of connection there to have this state department report have any bearing whatsoever on his claim the the merits of the original asylum order are not before the court but we will know if that seems like a fairly solid just isn't that there was no hoof of nexus between the governments and willingness or recalcitrance in returning that's what appears to be private property and any ground protected by the act  court if the motion to reopen was filed within the ninety day period and then the issue would be whether he was hampered by ineffective assistance of counsel because that client has to be raised within ninety days and last equitable tolling or something again is the motion to reopen there's nothing indicating that his representation extended beyond that appeal arguably counsel was informed of the allegations against him by mr starr now but again there is no bar complaint in this case and the only explanation for a lack of our complaint was mr cells on suggestion that they needed further investigation to see whether the conduct was serious enough to warrant of our complaint on the reason why lozada has that requirement is to ensure that claims of ineffective assistance of counsel and immigration proceedings are serious enough to bring them before the agency