his previous attorney who did not file an appeal timely now asked per the requirements a lozada the former attorney wrote letters to the attorneys to give them an opportunity to respond problem experience that you have a much better shot at a grand if the government join senate or what's the story on them while you are of the right to file in motion jointly as provided by the regulations it's a right given by the regulations and he followed that now waited long time yes but he inquired with the government repeatedly he called to say what's the status of my request and he got no response from till six months later why wouldn't you just because you know you're already small and again it's there is it must be agreed upon by all parties and jointly file it doesn't mean separately filed it doesn't mean filed and then hopefully the government will file and join later and says file jointly and that's the joint consent in my experience from what i've heard from the board of immigration appeals on equable tolling arguments you would probably get the night quicker then waiting for the government to respond to  join and in this case again he tried it the government the five without the government and while you're still trying to get somebody to take you get turned down to get turned down you would get turned down not the government said that we should've waited that we should have filed now the government wants to create a new standard for this regulation we welcome it because we have no guidance we have to follow what the regulations said and again the regulations has agreed by all parties and filed jointly and again there is no in between there is no exception there is no standard there are your argument essentially is that the proviso is the government doesn't have to agree and knew which case you would not be able to file jointly as a right exactly a go if if they you know if it's a clock starts running and while you're trying to get the joint agreement on the and you don't know one way or the other whether the government's going to do it this was options actually comes a loser and you're saying if you have to file go ahead and file a protective motion to reopen solo you will get  d before you ever get a chance now let's suppose you did file solo and it got denied with this proviso if still still allow you to get around that denial because it would waive  because we have to follow what the regulations says well this doesn't say you have to do it says it will you will avoid it but that's not to you you can still move the board can't you for a motion to reopen without you he can certainly tr any at any time to file with the board on it but what i'm saying here is that the council the previous council write the regulations for this file jointly he tries to do that unfortunately if the government would have said in the week we don't agree we're not going to join in that in the motion then he the doors are open for him to fall directly with the board and then we wouldn't be here talking about due diligence whether or not he was diligent enough but the government in this case kept the case for six months before they  filed a one page letter saying we don't agree the motion to reopen was filed ten days after that denial so again the council was acting diligent but for the government basically holding on the request for six here i don't think you got yes i understand that but again the board doesn't look at those cases favorably and it's very difficult to try to win a case on a global tolling usually it's not until we get to the ninth circuit th untimely so my client in this case was basically prohibited from having an appellate process in this case by the way he was going through all the steps with respect to the first council meet was days after the discovery in that case we didn't get a response from the attorney in this case we do get responses from the attorney and there's are several letters that interchange between attorneys so the attorney has to investigate the cla circumstances how you look at it if he had filed a protective motion on it had thrown himself on the mercy of discretion to reopen not as a joint filing and whether they would agree one or if the board does deny in the meantime i'm not sure if they would have any incentive but there isn't if they did agree the regulations provide that the time in the numeric bars are listed or they're not they're not put in place so essentially if they agreed to the joint motion to reopen at that time even if the board had already written rules on what we're calling a protective motion to reopen then  record that i have overlooked or didn't understand i'm thinking back to private practice one possibility is you call the government lawyer and you just never takes your call another possibility is you call and he or she talks to you and says yes or no the other possibility is you call and the government lawyer says i've got to ask my boss i don't have a car and then you call again in three or four days when they haven't called you back and say to a yes or no another possibility is you write a letter you forget about it then get a letter and they forget about it because there's no penalty and no why despite his having repeatedly called there was no answer i believe that it would only be our i believe that it would be because they are so busy but again there is nothing in their record which which indicates why they did not respond bright line say what council if you are moving under the you're not going to get you're looking for a joint motion if you don't get a response in five days assume presume you're not going to get it follow your motion cower because you know you'll really is a profitable matter never get an answer from the government in time for it to be better just go ahead and take your shot with the the motion under than regular due diligence talk about things that might be done to improve the system out you know we used to be in practice i never represented i never was employed as a government lawyer but when you represent institutions like insurance companies and you've got a case with great equities if as the government contends we should not wait then as i indicated before we would welcome a standard we would welcome some guidance some instruction as to what we should do when the government is not responding and not returning phone summer fifteenth two thousand and four record because like if i give you a date