good morning my name is reynolds finn again on behalf of petitioner luis marie a soldier who is president cord today with his wife and i would like to reserve two minutes of my time for a bottle i'm wrong i don't believe  the main argument is understood by the coroner just one of the point out some facts for instance on page two seventy four of the record it does show that the early immigration court included the temporary file included with the record of proceedings which presumably is the supplemental package which contains the documents in support of his motion to reopen however it is these documents were not originally considered by the judge w initially considered by the b s a to why were they not initially considered by the i j ok because the previous counsel for a petitioner had submitted a request for thirty days she was dealing with the medical records gathering medical records it's one hundred fifty some pages of medical records and there isn't a response declaration he was currently detained at that time so that's why it's a counsel a little bit longer to get the documents ready plus she was request in the file saying we can't decide the appeal because we don't have the file so then the file was sent to the be correct yes the problem was it was it's actually two files as the regular file in a temporary file which contained the supplemental documents so the so the b i had before the record that was before the i j a plus the additional supplemental material that you had that you gave them correct so they could have sent it back to the i j a correct and under their under their own regulations and recognized in their decisions and our decisions they couldn't enter their own fact finding correct but under our decisions they can assume all the facts in favor of your client and then decide the thing is a matter of law that's the kind of thing that we do district judge would want to motion to dismiss or a motion for summary judgment is give all the inference in favor of the nonmoving party and then decide the matter on the law so what's the where is the error in what the b i a did because it looked to me like they assumed all the facts number one which is the record page five page three of the be a decision the footnote says for example the medical documentation submitted by responding on appeal does not reflect any hospital visits or doctor visits during two thousand and thirteen but it never left  here you're asking for an additional time to be excused for not showing up and during this entire year when you claim that you had medical issues there is no medical record that would show that you were unable to to seek counsel and provide additional information  if this is if this is correct factually then where's the legal er this you're not going to get a better finding of fact from the i j a so where's the where's the legal mistake here the argument is that they went on a fact finding mission and you're honor and if they've given but if they but if they've stated the facts correctly there's no factual mistake here then they never single where's the legal error well i guess if they said we're considering everything favorable for your client it looks like they're analyzing the evidence it doesn't look like they're doing that well but of course they can do that this is it's like a motion for summary judgment and on page on the previous page on page two of their decision which would be the record page for the last paragraph they said we will assume for purposes of this appeal that the respondent has adequately explained then they should be considering the evidence but this is strictly an appeal you please court my name is matt crable i'm here on behalf of the government in this case your honors the record demonstrates the agency gave full and fair consideration of all the circumstances that he's ever i think it is sufficient for the board to say that they've considered everything but even here they discussed a lot of the evidence so it's clear that they considered it maybe i'm down east and so are gary many case and i'm sure i'm mis to the immigration court and the court the clerk told me that my case was closed and i need to find an attorney in our to reopen the proceedings and at that moment my diabetes was so bad that i had lost my job i was unemployed homeless and with severe health problems as an explanation for why i couldn't get an attorney did that b i am a take that right but he had to go find an attorney and you could understand if someone was really sick and homeless and out of work how difficult that would be to find an attorney but he's never articulated what prevented him from doing so during the two and a half years at least that he had to file that motion reopen the only explanation that he gave was his hospital visits which the board clearly earned explicitly considered and accepted as true so they didn't engage in any fact finding but they considered the full circumstances and determined that equitable towing wasn't warranted under the circumstances he claims that he missed his hearing due due to being second bad and fellow he felt present any evidence with his most reopened he merely requested more time to submit evidence with the immigration judge in a actually considered the evidence in this case is they assume for the purpose of appeal that we will excuse the timeliness of this mission of this evidence and even accepting all the evidence is true we find that it doesn't  you know that the board clued in there it didn't reach the level of diligence or show that equitable tolling was warranted in this  this course case law anything submitted in support of a motion reopen has to be considered as true absent some you know obvious reason not to and the and the board accepted the fact that he had been in the hospital three times three or four times in i think it was three times in the emergency room it shows that he's he had medical documents in the in the relevant timeframe in january of two thousand and twelve march of two thousand and twelve and april of two thousand and twelve but there is nothing to substantiate that he had medical issues that prevented him from which would be within it's wrong to do and might have found out more specific detail and we don't really know well i think that's very speculative and the the board was acted well within its discretion to decline to remain and because in order to remain a case the board requires a petitioner to show that they've made a prime aphasia case of diligence and he hadn't done for diligence and he never the medical records also indicate that they cleared him to return to work and said no restrictions on on working so apparently he was he was he was back at work during the during this period apparently that's  true the fact finding question is is is simply a diversion because the immigration judge didn't make any findings of fact in this case i mean the board just assumed everything is true and said even if we accept everything that you claim  all the evidence you presented if even if we assume it is true you still can't meet the burden of showing that equitable tolling is warranted in this case and so whether or not the court i mean i think the agency gave him every benefit of the doubt by even considering the evidence on appeal his that he simply can't make that showing for equitable towing and the board acted well within its discretion to consider it because it could it although the board generally doesn't consider evidence made on appeal it will treat evidence made around people as most free man in its discretion and even under that lands he still didn't make a prime official case for diligence or equitable tolling and the board ruled on that basis so unless a court has any other questions for the reasons put forth in our brief i think know it may be speculative but it is a person's right to have their motions considered in accordance with the law and the judges to make their decisions as they see fit his declaration stated not it in addition to his health problems that he was homeless  that could have been a consideration in addition to the medical records but he was working during the time that he is for your medical records he did supply he apparently was working during that period yes or it's unclear how the board