can you hear is ok yes i can ok go ahead then thank you very much good morning your honour's good morning this case is a brought to the ninth circuit by way of transfer under section one  based on the admitted ineffective assistance of prior counsel the second issue is that the way also abused its discretion when it refused to allow the petitioner's case to be reopened or reconsidered when first prior counsel was alleged to have been effectively assisted him by failing to notify him that he had an individual hearing on a specific date in the year two thousand attorney i am arguing this case under a waiver of my conflict of interest the i was the second attorney b after i found that i had been effectively represented him by failing to me the deadline and my motion to accept the late filed briefs was denied by the board i prepared an affidavit i handed the affidavit to the petitioner i also brought him a bar complaint from the state of arizona and he y assisted him by failing to file in a timely basis as compliance with lozada ok i guess that you would you would concede on some level that that would be an he was eligible for cancellation every fogel he was scheduled for an individual hearing before the court in january of two thousand and his cancellation application which had been price previously filed by prior counsel address because your honor he had moved to new york his wife who had just recently married was pregnant with a very difficult pregnancy he added biased his prior counsel that he was now in new york and would be there for an extended period of time he told him is address he told him his phone number and prior counsel did not notify him at that address he chose to notify him at the oakland address which was his last address and that is revealed in the record i believe so yes if you can cite to me that part of the record it would be helpful you don't need to do it now but if you could cite it to the court it would be helpful to me this is  as proconsul in this case first counsel had withdrawn immediately preceding the date for the individual hearing as well he his notice of withdrawal was from december of ninety ninety nine and judge teacher the immigration judge granted the motion for him to withdraw on twelve thirty nine twelve twenty seven ninety nine and he is the next individual hearing was on january twelfth of two thousand that's right  multiple prior counsel and the ineffective assistance resulted in a holding that petitioners due process rights were denied because of this ineffective assistance and in this case actually did my work for me i was about to do that when i got the waiver and she had already done it thank you did you want to reserve any time for rebuttal no i do not think you are right so you just want to use all your ten minutes right now so i was ok go adjudicate whether or not he would convince the immigration court that they should grant a favorable discretionary grant in his case and that we would we would submit to the court  initial matter although it was not expressly argued in the opening brief there is a jurisdictional issue that has come to light as i was preparing for a large human i was not the briefing attorney in this case but given the fact that he has a fire removable under to thirty seventy two c based on that given section two forty two only constitutional claims and questions of law would be properly before this court i just wanted to alert the court that  well i guess maybe that dovetails into my question i said what cow can your client prevail is in my view is there any is there any way that  of rejection of his motion to reopen by the immigration but you know we have to get to a lot of things but at the end of the day he would have he might have to show prejudice if you got to that point and to show prejudice you would have to be able to show that you can when i'm some level or something you need to be entitled to some relief is there and is the eligible for anything well your honor i think the government's position is that he first has a show prejudice in the did in the refusal to reopen his case that is the relief that he actually filed in this case and from which he took  what's your position on prejudice then you say there's no prejudice in this case with that regard the hearing notice was sent fourteen months prior to the hearing now what hasn't been presented is the fact he showed up for immigration court at one point the case was actually continued in the record reflect this because he had pending criminal charges that had yet to be adjudicated by the criminal court therefore with respect to your claim on cancellation there is no evidence in the record as to how those cases have been decided by the criminal court so i can't say with certainty that he would have even gotten the immigration court in turn when they granted the motion to withdraw sent a subsequent notice of over a month before a guest a little under a month before the hearing to the last known address provided now petitioner obviously knew the obligation to provide notice to the court because i believe earlier in the record i think it's on page one thirty two he had filed a change of address form before he changed apartment numbers in the building at a prior you know i r thirty three which is the change of address form had been done there for them or although he says he might have filed a change of address form his counsel says so in the motion there's no affidavit from the petitioner here there's nothing in the record support that the h s certainly didn't come forward and there's no evidence that they have to show that he did file with  you see on the record of compliance with one's daughter that was actually addressed in our brief your honor we would say that it hasn't been complied with he didn't self report there's no reporting under lazard here there's no affidavit of the alien at all which  would be an extension of our present case why do you want to respond to to that the when the board created a lot of factors it was providing an outlet for anyone to found themselves with ineffective assistance of counsel to prevail on a client if they presented those factors granted this court has said that substantial compliance is sufficient but here you really have no compliance to speak up moreover he's only so all he said was i'm ineffective they didn't actually file a motion to reopen in this case if you look at what the board had jurisdiction over in the board's first decision when it said if you want to file a motion to reconsider file it here if you want to file for substantive grounds for relief or you need to file a motion to reopen were to argue that if you got through those data and we applied a that there was some presumption of prejudice there's not prejudice in this case because he has not established any possible ground to get that in absentia order vacated in addition i would like to say that they could have followed it with the board of that with the immigration judge excuse me and could have even done so as a basis for the motion to reopen but if you look at the motion to reopen that was filed with the immigration judge is just not there he says i didn't receive notice but there's there's no real ineffective  communicating with him counsel mr it is mr vander help provided the last known address that he had to the immigration judge so the decision of statements that somehow he provided additional or a change statement  in the briefs that he somehow provided mr vander heart with a different address the evidence is not there in the record of the evidence in the record is that the last known address that attorney vander have had and that's what he signed in a statement to the court when he filed his motion to withdraw from the case even when it extra stop because it was a month before the hearing they filed an advisor to the last known address the even set like a second notice even though the first notice to counsel would have been sufficient and counsel attested in the motion to withdraw that he had if we get to the due process or ineffective assistance of counsel claim in this case if the court has no further questions part apparently you've answered the question so we have thank you for your argument thank you did not in the record your honor i i misspoke i have the bar complaint and the affidavits from the respondent but they never made it into the record and i will give the court the reason why when this individual approached me to represent him he was in the process of being moved from florence arizona well i guess you know what i guess i'll have to defer if either of my judges want to hear from that but we don't really want things that aren't in the record if if if you're going to tell us something that's not in the record that's really not something that we can consider understand the other point i would make your honor at one thirty five i would point out to the court that this case was rescheduled from its initial time