good morning your honor has made it please the court my name is attorney kristina cologne williams and i represent the to snare in this matter not with me in the courtroom today  i would you please stand by the court thank you nothing else was ordered deported without having access to an immigration hearing literally never had his day in court in fact this morning represents the  time in twenty six years that nelson threw counsel has been able to present himself before judges who are committed to taking a closer look at this case this morning up and asking the court simply to grant him access to  necessary whether reopening is appropriate in this case the board abused its discretion because it confused the applicable procedure sensually the board's decision she did this case as if it originated after  and seven when in fact that originated in one thousand nine hundred and four and it does make a difference the context of this case is critically important to the matters at hand not just the nature of the proceeding at issue but the timing of that proceeding these are  and along with the expansion of in absentia orders there was also the six fanchon of procedural protections these mechanisms to protect against potential unfairness in these kinds of proceedings for nonappearance and these protection are spelled out in the regulations and the they provide this mechanism for bringing up any concerns about notice procedures in the context of an abstention proceedings because in absentia proceedings no it is everything there is fundamental concerns about fairness at issue if there is then the rest are a chance that someone got ordered deported without a full opportunity to be present on that day and this is why there is a unique process number bar that that the motion to read this kind of motion to reopen in this kind of proceeding is not numbered by now this protection is no longer in place in any proceedings after nine hundred and ninety seven dollars there is only one chance to challenge notice essentially the notice argument here that nothing is making is that the fundamental warnings that are supposed to be contained in the order to show the initiating document were never effectively communicated to nelson either in writing or orally would have counsel we know it's in writing don't we and spanish and it does include nelson signature but according to nelson's testimony and the case that he's presented before the board is that he on the day he was apprehended there were tons of people apprehended that day and he was handed the signature page of the order to show cause and told to sign it he signed that order but no one on that day actually read the contents of the order to show cause to him in spanish or english no one explained to him the fact that he was in to the board it says he's supposed to carry with him at all times correct i mean both print so you're saying that the agent lied or something right what we're saying is the sensually that the government did take shortcuts in the procedure and that's all we're challenging is is that the signature the signature on a on the last page does not accurately contain what happened so yes essentially the agent says through presenting this document with the signature that the contents were read in english and spanish that's what it's on the signature manged that is not accurate and we're also saying that the personal service was effective that that also is not accurate because he was not given a copy of the order to show on that consistently from the moment nelson has found out about this deportation order and in the various filings that have been submitted that nelson has consistently testified that he did not know about the requirement to update or change his address with the immigration authorities responsibilities however she does contradict herself in a filing and she she essentially says he received a notice to appear which was not a legally recognized notice at that time so essentially these types of confusions in the record and the confusions in the story that nothing has been able to tell in his st filing did for event him from fully expressing his concerns about notice but again under the procedural rules governing this type of proceeding from this time period nothing was procedurally entitled to a nd opportunity to articulate the concerns clearly and completely that he had about lack of notice in this case those concerns were fully presented to the board through the appropriate mechanism a notice based motion to reopen in that motion to reopen nelson did clearly articulate that he never received the fundamental warnings about the nature of the proceedings he was never told about his responsibility to update his address with the immigration court that's why he never received a notice of being an order or reaching the merits so essentially yes especially the b a s order does accurately summarize nelson's notice argument but it does not a valuated in any so significant way the board does not find so that was your essential either saying you had that shot and you've lost that chance if you want another chance you have to file a separate motion challenging ineffective assistance of counsel undoing the work of that st filing before we can reopen it also didn't give a complete decision nelson's motion to reopen was not only a motion to reopen it was a motion to reopen and in the alternative a motion for a limited remit nelson specifically asked that if the board was inclined to deny his motion to reopen based on lack of notice that he be given an opportunity to have his reopening request heard by an immigration court the board of immigration appeals is an appeals body it's set up to hear appeals of decisions by immigration judges it's not set up to find facts determine what happened on a certain day was that story a story b that's not what the board it would have been to allow the immigration court which is a fact finding body which is set up to decide what really happened which is and which is in fact the same immigration court that the same body that issued the st ruling to loud immigration good morning your honor is may it please the court my name is julia taylor and i represent the respondent the attorney general in this case your honour's the board did not abuse its discretion in denying m refused to consider the merits of this motion and simply discarded his motion because he had previously filed a motion to reopen alleging lack of notice this is patently incorrect we know this because the board directly acknowledged that a motion to reopen claiming that an alien has failed to appear due to lack of notice may be filed at any time that is contained directly in the board's order but in order to prevail on a motion to reopen an in absentia order  deportation proceeding and that is distinguished from an exclusion perceiving i'll get to that in a moment the movant still must demonstrate that he or she did not receive notice of the hearing and this is where the board found that consolidates fell short they integrate the board i'm sorry the board highlighted the fact that in his prior motion filed with the immigration court he alleged that he had received the charging document although it was referred to as a notice to appear by mr horace i would also like to make there's up there may be some back and forth about whether or not it important that it be called an order to show cause or notice to appear post your way or are we do call them notices to appear prior to our we call them orders to show cause ms torres corrected that error in her motion for reconsideration to the immigration judge she states again that mr received the order to show cause and again in the appeal to the board from denial of the motion for reconsideration before the immigration judge she states unequivocally that mr pino skins alice received the order to show cause so the board points out this difference in the narrative of whether or not he received the charging document and also states that he disputes the information in the order to show cause itself that he received it and that the information was read to him in spanish now a judge grants you asked a question about whether or not he was warned of the of the risks of not informing the immigration court about his moving that is it's going to come up and i think that counsel already alluded to it but there is some contention in the reply brief i see it repeatedly that somehow missed tauruses claim that he received the order to show cau phrases they never told me or gave me any paper to change my address now you judges know the context is everything and if you read the entire sentence of that phrase it says i told the officials of my intention to move to new york and they never gave me any paper to change my address now it's clear that what he's referring to is a change of address form which is what someone would be given if they told an immigration official i'm going to move theoretically is there such a form my believe there it percy i believe the ritz and then there's something else in this affidavit that is very key because this is the aspect that makes it consistent with what mr horace said in that st motion to reopen he said i never received any mail i only received from the officials at the jail a letter in english my friend told me it says a date would be coming for court but he could not explain when or if it would be in new york now he's in jail so we know that this is not something that was mailed to him your st word is a letter but it is something that he received in jail at this point the only document that cause that the board should have granted and the board should have granted the motion accordingly there's two problems with that argument the st one is that reasonable cause is not the standard under the regulation at eighty a far  and three twenty three before three little eyes big a and a two it clearly states that in deportation proceedings if you want to reopen in a potential removal talking about reason because here we are talking about a demonstration that he did not receive notice and secondly what counsel wants this court to do is to order the board to simply put blinders on whenever anybody comes before the court even if that argument is completely and one hundred and eighty dollars degrees different from what they argued before who or what what mistake did he make durham all these years  immigration judge and there after he was treated go on everything going well and self report and all that which he did and then all of a sudden david created in two thousand and fourteen he noted that when he did not receive any more paper again this is an implicit concession that he did receive the order to show cause when he did not receive any more was informed that he was in deportation proceedings and when his then wife filed and i won thirty visa petition and i've forgotten what happened to that he didn't show for the interview so his wife hi know about the actual order but he also didn't take any steps to ascertain what happened in his deportation proceeding when he was told he was in deportation proceedings no later than  before he broke up with this wife before any before a great many things he did not follow up with ins to find out what had happened in those deportation proceedings and indeed he didn't order of supervision which is how d h s s proceeds to remove people they get over they get their information and they discuss their priorities and then they make a decision as to who didn't correct to say that  mean having granted prosecutorial discretion in my office i know what it is and this wasn't it this was putting him on a new order of supervision and then assessing what they what the removal priorities would be and when your number comes up your number comes situation it was really incumbent upon him to either reconcile the narratives or to file an immigration in an ineffective assistance of counsel claim and he didn't he didn't do that and i just i think it's important to remember that integrity or competence is being impugn to present their version of the event and in this situation counsel has gone from out on the one hand calling her sloppy in the opening brief to actually in her reply brief actually calling mr pino skins alice his former counsel misrepresenting making out right and affirmative misrepresentations that's a very serious allegation and i think with the board was doing assessing the merits i don't think fact finding was really necessary i think you could look at the face of the record and say this is a completely different narrative this is a completely different story and there's no effort to reconcile them and yet at the focus on these factual questions what really happened should not be believed given the various pieces of paper and the representations written down but that's not your task today to decide what happened that was what the board  and that's what the board neglected to decide in its decision on a motion to reopen oh to hold the way you know artists to hold what what would a one sentence or one paragraph well how would you describe  know would we bring breaking new ground in making battle bad in the sense of the word that it might be a precedent that would quickly be overturned by a higher court so you would be breaking new ground but it would be good law