good morning here on ars very foden for the petitioners i would like to use my time this morning on this immigration petition for review to focus on the legal error that the board committed when it ignored  fi lopez one dollar and two dollars and its own president under a matter of m r a all of those cases teach us that upon consideration of a motion to reopen based on lack of notice the subject of is whether that whether the immigration respondent has actually received notice and the petitioners submitted three forms of evidence directly to this point at the st piece of evidence is the fact that the mail or of the hearing is winners there is no real dispute as to whether she got notice she did not have the mailings were returned to the immigration court so the question is is whether i think as the the board put it she should be charged with receipt of the documents and under the circumstances including actually getting personal service initially whether in its discretion the board reasonably denying the motion to reopen and we submit that that's improper your honor because she did not receive the notice and the mailers sent back said that it was under livable there are multiple reasons why a document may not be delivered to the respondent and in this case they were mailed to her at the address that she had provided correct that is correct yes but the case is state that the respondent may file a motion at any time indicating that she did not actually receive the notice so the question is actual receipt not whether the order was properly entered at the time but whether the respondent has the basis on her lawyer to reopen her case because it was not actually delivered writes but even why she had not for example appeared at the st hearing she stated that she did not speak the language as it was explained to her for which explained her initial failure to appear and that is something that distinguishes this from  the case that was and ban hot that the court heard a similar matter on a previous failure to appear in this case the respondent stated that she did not understand that she had been ordered to previously appear because that had been explained to her in the spanish language not her native language or portuguese was given the notice and it was in english the law does not require that it be given in which means she obviously would know w important and seek someone who could explain it to her mean that's the reasoning of the agency anyway why isn't that something that it was entitle to consider as part of the totality of the circumstances your honor when when a document is issued to a respondent it's supposed to be if it is given to her in a specific language and served to her in person in a language it should be in her native language thought the law as it well  of the m t a and we're not arguing that the m t a was invalid we're simply saying that that was the reason why to explain why she did not originally appear before the court and to show her good faith that she had not intentionally failed to appear she offered that as an explanation as to why she had not originally appeared so we were i think that the the court was conflating whether we were actually refuting the village idiot the n t a we were not the respondent was offering a reason why she had failed to appear originally use of discretion review so we have to find that there was some legal error in the agency's action or that it did not act within its discretion and i guess what we're saying to you is where she gets notice in hand of a duty to appear albeit not in her native not in are native language she apparently does not find out what's in the document she's been given she gets notice then  saying that she's living at a different location but she doesn't say when that happened or whatever on the totality of the circumstances why it isn't the agency of the discretion to say no we're not reopening in these circumstances the respondent did not state that or the not state that she had moved to a different address she's due to the at the time of these removal proceedings she was living at that address and she stated that she had received mail about our address and she had no reason to believe that she would not receive that mail so our submission is that it's improper affidavit says that she now state now lives in a different address but it doesn't state when she moved in i didn't think it ever explicitly states that she was living a benefit avenue around the gates the notice were sent is and that would be  what the record shows no she stated that she had lived at that address and that was in paragraph six of the areas page forty nine dollars that she had lived at that property for several  looking at it says we gave you notice in hand we sent you to notices to the address you gave us these explanations that well that's not where you were living it's not good enough to reopen and we don't find in essence that you responded in good faith to your situation when you were released so the respondent stated that she was living at that address and the fact that these documents were returned to the the court file demonstrates primary evidence that she did not receive that motion and there was other for further corroborating evidence in the fact of her conduct to me she had voluntarily appeared to ice she was faithfully checking in the moment that she she would but it's ultimately ten years before she's back right that is true your honor and the the regulations do not put a time limitation specifically because when there is a lack of notice the respondent is not informed of of the hearing or of her order of removal there is no time limitation placed on when she can reopen for that reason because we do not want to penalize someone who may not receive notice of her proceeding thank you thank god for a bottle  where as your honour's pointed out this individual was personally served with notice essentially that she was being placed in to remove proceedings and the notice to appear gave her the specific time and date and location of the so he or she is not saying and thirteen years later when she knew that the removal after you know a decade had passed and then the department of homeland security took steps to begin checking up on her and possibly trying to have her return to her  matter where the board set forth what factors to consider in a regular mail type case of cases and i think one issue that has become confused is that this court has case law and the lopez you are at least to my ear it's not always easy to hear you let me ask you let me ask you to explain again what you're trying to make of the fact that the daughter knew that she was in the proceedings knew that she had the obligation to update her address and then waited thirteen years to file this motion which goes towards the agency's considerations of factors of whether you know presumption that she had legal notice there the agency considered the fact that she had notice she was personally served with a notice to appear she knew that she had updated her address she knew she was being put in to remove proceedings yet she waited thirteen years and in her motion she did not specify for example what immigration relief she would apply for if it was rescinded and reopened or even back when she st crossed the border and receive it's just part of the evidence that the agency considered in her state of mind whether she was essentially on notice to show up at her for removal hearing and knew that she would then remove the feeding so although the agency doesn't exist i don't believe  your honor government continues to emphasize since i responded should have updated her address and that's not in the record here what she's saying was that she was on drugs and she had received other mails there and so the question is whether she's being held to prove documentarian evidence that she lives there by the immigration judge and by the b i a none of that is set forth in the teachings that this court has provided and that the b i a has provided it's not under the statu the question is whether she receives these documents and although there is a summary it's only a summary decision on presidential admittedly there was a case before this court turner beholder and which the court stated that  the notices the two notices that were returned as undeliverable on the record establishes that that that petitioner had not received the notice and that it supported the determination that although the notice was properly mailed it refuted receipt petitioners urge the court to focus on the receipt which is already contained in the court file and essentially if you have a if you have a case where is not aware that she was ordered to appear for a hearing and that she was ordered removed and she there after properly files a motion to reopen that is not subject to any kind of time limitation even when there is notice in the court