april fifth two thousand and one now that's five years so the exact date on april twenty fifth he had to change a waiver from i now as it's called a waiver under the statute i need i to forty two forty five what that waiver does is that it allows september thirtieth two thousand and one and then in november of two thousand once he advanced his basic category might his mother becoming a naturalized citizen in september september third two thousand and two he married his present wife and on september twentieth of two thousand and two she found a family petition for him throughout two thousand want two thousand and two he was acting diligently to to put himself in a position to to adjust status that petition was pending from september thirtieth up and up until the recent present during this time that when he appeared motion the court to reopen his case he explained in his motion to reopen this case his failure to appear in his heartache but he also and more importantly he explained that now i am presently have eligible to adjust my status under this new form of the relief during that period from ninety six to two thousand and one he was quickly from doing anything by statute to forty to be the one clue to him for five years but when that that time elapsed he took diligent steps in which to secure a lawful status in this country while his while a limit may be told where there is a justifiable reason and also where the petitioner has acted diligently and this in this case it's clear that the petitioner acted diligently as soon as the statutory bar five years passed within twenty five days he obtained the waiver of a waiver his lawful presence at that same point his mother father petition for him several months later in in our motion to reopen we did put forth all the facts and put forth the fact that presently this individual is eligible for new relief and we articulated well what efforts he's taken in order to whether or not the opposing party is going to be prejudiced by the equable by by the tolling of the state what we have is  know that's not an issue here but i think that what's important about that case is that it gives us the guy posts in which to determine whether or not we will equable tell the purpose of acro tell him to make sure the right thing happens in these cases in this case win the motion before to the judge the content of the tally of the circumstances look at the totality of the circumstances here we have an individual who's residing in ited states for nearly twenty years his children are united states citizen his wife is united states citizen his parents are united states citizen he's presently eligible for the relief and then he takes he's taking every due diligence effort to apply for the relief the importance of that nice board that argued anything other than the rescission statute and the question of whether he missed his immigration proceeding for exceptional circumstances there's a big problem with that and the big problem is that he's out of time under which ever statutory oral notice so he was barred for five years that doesn't help him out all because he was always an under under the under and that he was always and remains on the get to file a motion to reopen either you're suggesting is possible that he just has to go under the radar for five years then that would be an incentive for every you know and nobody much cash you mean if it doesn't mean that what it is this can apply for five years what it means is there are other avenues there are other there are other question on that if there are not deportation proceedings or if the deportation proceedings have terminated or if the alien has been deported and then has come back into the country so there really isn't anything to reopen is no way to implement what appears to be a statutory permission after five years to apply for adjustment stance on iraq about that no i don't know what what he could do is he would leave the country which is should have done he's been in this country hundred eighteen years illegally i you're not eligible to apply for this for five years i just need some way to make sense of this well because you are either one of them applies or the other applies in his case he was required within one hundred eighty days because he had an in absentia order of deportation to have that were rescinded at which penalty because under no circumstances may you get these discretionary form of relief it doesn't mean that you may then thereafter ignore the timeliness requirements for motions to reopen but let me just ask you procedurally because i'm trying to understand the this country if he's in this country he remains in our final order of deportation now called removal and he leaves the country and serves whatever time he's required to do to the statutory bar he can then have under the right circumstances of these otherwise  premise that the government has an interest in finality in removal proceedings let's look at this petition hours time on and and talk about you know why would be fair to find that the mere existence of a five year bar means that after five years you may  relative he would still be out of time under any motion to reopen timeframe so there is no relief for mostly open based on this petition as motion there's no there there's no construction that could be given to th didn't he didn't cite to matter of an ass and he didn't he did not in any way challenge the application and he pursued it under the believe clearly that he was required to show exceptional circumstances under the one hundred eighty in two thousand and one there was a provisional law which provided that individuals who are in the country unlawfully there's a way we will be available for them and from december of two thousand and two april thirty first of two thousand and one date that provides them with a waiver of their unlawful presence and on april thirtieth two thousand and one exactly five years and twenty five days after the preclusion obtaining that waiver pain that waiver through the petition his to adjust so the immigration judge was on notice that he was asking for this case to be open to be open on to the separate round one because he had an exceptional circumstance to explain why he didn't appear but more importantly because presently he has