we have found to process violations any authority for that specifically on that issue i don't i can't think of anything right offhand so aspect of it probably has to be held until we have the result of the in think hearing tell me why you think not referring to the asylum i know that there are certain additional benefits that you get from correct the reason that we the people the cat claim is you know in the case that in the future there might be changed circumstances there such it gives him the chance for a stronger case for for you know defending those changed circumstance before it closed in the future of raising no i think you're maybe taking a risk here i guess they could still argue if you try to raise it later it was resolved before you didn't issue so long as there's a constitutional questions involved with that one year well in that you can more fully analyze the facts we're not asking the court to relay to get the one year issue here what we're asking the court to do i question regarding this he stated to department of homeland security council that he didn't believe him he said before he even allowed him to testify as to why he didn't file as application in time he said i don't he's not he's not a credible witness  as you know them as to why the application wasn't filed within the one year period well he was in status for at least one year following his dat to apply for extension of status and had his attorney follow through with those status extension requests he could have been eligible for an exception to the one year bar and that's that's that's the most important factual issue here in addition he also could have qualified for change circumstances because his father was killed approximately nine months before he application because his his fear but he testified that before that date he had hoped that things would get better and he was to open distain status and not have to file for asylum but after that it became so severe that he had to follow the lead up location court my name is abraham simmons same here representing the attorney general in this case and we need to review the record and take a look at a couple of facts that are pretty clear in the record in order to understand the answers to some of the questions that you pose i filed my brief in this case almost a year ago actually a year ago yesterday and for the next two months the status of the law did not change much but then there was the ramadan case the ramadan case does change a few things but nothing that issues that were discussed there and the ones that were discussed on rehearing don't really think the facts and the actual result in this case in the ordinary course a person gets one year to file an asylum claim there's a well when did you file your claim those are usually factual determinations and that ends the question and then there's no jurisdiction in this court to can to reconsider those facts in this case the i j a found that in october o nine he entered the united states he didn't file a claim until september of two thousand and two well beyond the deadline wait as the petitioner there are some extraordinary circumstances and here's where it starts getting a little funny we start talking about dates ultimately the dates prove that nothing really changes he says i saw an attorney in the attorney didn't help me but it's undisputed in the record that he did not see that attorney until november of two thousand  says let's take a look at back up tobar two thousand to november two thousand and one it's still doesn't matter and only timidly thing around with those dates don't change anything do not recall from the record exactly when the father died your honor but even assuming that that becomes an issue you have another two hurdles to come over before you can actually try and make the argument for a change circumstance and extraordinary circumstances you still need to decide to show that the the council should have filed something within the year he still did not seek counsel within the year he still if he did seek counsel within the year did not comply with lasagna in order to give counsel that opportunity the notice and an opportunity to respond in order to demonstrate why he did not try and demonstrate that his father was list statement as to whether there was a reason why when he was accused of ineffective assistance there was a good reason for doing that and that again factual determination something that this court should be very careful because before trying to take a look at all the facts to figure out whether there's a different decision that would come out and go out with so for all those reasons we think that the in this far as the asylum claim was withholding to it to deportation to india there is nothing more i think that he gets from the cat claim and so that doesn't seem to be necessary to to address that not for a number of reasons first of all you need a colorable constitutional claim in this case the facts as found by the i j a which we really don't want to mess with make pretty clear that there is not an actual opportunity for the court to review statutory exception that's correct and to the extent that he has already conceded he's not making a legal claim that's a difficult argument to make now there is a will work the courts as to how much of an ineffective assistance of counsel claim can graze under the constitution but i think that the that's the proper approach and the right answer in this case is to recognize that under the facts of this case all we really have is this is a legal claim based upon i in that the i g failed to consider how he would have been eligible for the exceptional circumstances and changed circumstances because he his decision was so tainted with his negative determination negative credibility determination  importantly as petitioners former counsel filed the extension he would have been eligible and to remain in status up until the point he said he met with his new attorney the the regulations allow  digit government to to award an extension under grant an extension even if there's a late filing under the discretion of the officer so a prudent attorney would have done that and he would have been in