have to do with the conduct of counsel during removal proceedings what exactly did counsel do that was ineffective during the removal proceedings your honor he his actions my argument is that his actions taken prior to the removal proceedings prejudiced the client during the removal proceedings by not filing the appeal that he could have filed that the client paid him the file although and that  judged assuming that that's true five the appeal if it's true that the employer didn't show that it had the ability to pay that appeal wasn't going to succeed not necessarily your honor and in fact the the for whatever reason and again showing more ineffectiveness that the a prior to counsel late filed a motion to reconsider and in fact an appeal of a denied i one forty allows you the opportunity to present new evidence were in the appeal and he could have shown in a variety and he attempted to shown that late filed appeal which is part of the record other ways he tried to deal with that inability to pay issue in other ways which may or may not have been successful we'll never know because it was late file hasn't the jurors prudence considered ineffectiveness during the course of removal proceedings and isn't it clear that this visa application was not part of the removal proceedings in any way shape or form your honor i think it is in especially in immigration proceedings where you have a relief that is can be presented before you're put into court relieved that if you're denied get you enter into court it's very difficult to say where one begins and the other and in my opinion especially here where you have the same counsel that there represented him before before the government representative in court so i have a very very very serious problem with how counsel below acted in this case repeatedly did not appear a new lawyer every time not even being for me what was going on i think it's deplorable it's not there's no way around that but in terms of that effective representation or the lack thereof actually what is there is there any president that says we can extend this beyond that hearing excel will your honor i think the the figure case just merely says was know i think on their hand there's new case now which says it's a matter of roger that the we're just put this out that says the pendency of the labor certain minus additional but the question is when does your due process rights kick in i mean that's the beginning that was judgment else question and you know you've got a ninth circuit case from a weight balam clock that says that it only kicks in at the time of the removal proceeding itself and that what her occurs before that time such as in this case you know would not apply is there any case that extends the due process rights to before removal proceedings i mean i soon as policy the court we are the policy arguments for that but i don't know of any precedent ineffective assistance of counsel outside of removal proceedings is something that can be brought up but i think you're asking us to be the first circuit to do that your honor i think under the circumstances where there is such a close relation between trying to obtain a benefit before us yes and frequently having the same identical applications renewed in front of an immigration judge oftentimes the same counsel that just go to the facts let's assume just for the moment that you do have due process rights outside of the removal proceedings and even with that assumption yes counsel did a lot of things here that showed clearly not a great deal of understanding or seemingly a great deal of care but counsel initially filed the application what route two weeks or so before the deadline for if the  employer applications are correct yes sure so what else was counsel to do let the deadline go by no your honor but he he did if he clearly knew that there was an inability to pay issue he didn't have a right to file that application if he was still in the evidence gathering phase because it was ok so then if he knew that there wasn't the ability to pay on behalf of the employer he should not have filed which means that there's no way your clients could win from the get go if that was the but but your honor if you if you allow me there was there was also other opportunities usually there's notices of intent to deny that will be issued i could not find those in the record in this case but they'll say you we've shown in a bit inability to pay can you address this and there are a variety of ways you can address that there's no proof that that was the only proof that was ever done was in italy but let's go back to the employer the employer either was able to pay or not able to pay i believe the the the original inability to pay issue came about because the employer was relying soley on his tax returns and the bottom line on his tax return but there are other ways to plea under the current income then then i think that's an additional and that's the argument now i mean clearly council would have messed up if the contrary says had followed the suggestion of somebody in that office that you should accept voluntary departure but they didn't accept that so even if they leave the country now they can still file an application for to come in and say ok i'm willing to pay what but the employer didn't didn't didn't step up to the plate isn't that correct your honor we have a letter from the employer saying he was willing to cooperate throughout that was that was the ineffective council's position but we have a letter from you turned your honor if i may also i think it is there is evidence in the record that those employers applications were were backed up and even in i think two thousand and eight need filed in two thousand and eight they were still dealing with things that were filed in two thousand and four how how can you show that there was prejudice here surely this i j wasn't going to leave this open until they got through four years of these applications will your honor i think coupled i think there would have been an excellent argument on appeal that coupled with the attorney's ineffectiveness of the i think that that was an additional persuasive factor that the chief should have used that this wasn't a case where someone came up with the properly filled out forms and and then had to just wait six years for everything to be processed this was a case where they may be wouldn't even put in proceedings if their attorney had acted appropriately but isn't that a reason why going before the more mobile proceedings and talking about ineffectiveness you're then talking that we have to kind of into it something that was not even in a formal record in a formal way that that we could examine it it's impossible to review ineffectiveness without proceedings isn't it i mean i you know i'm sure you're going to say no it isn't but i'm just thinking of a of the practicality of attempting to review you know what was done what were the options what was the prejudice in a situation that just doesn't have any record doesn't have any context  i can't think of any analogous situation in which we would perform a review function in that in that setting for give it just add on to just an example if counsel you say counsel failed to appeal the denial of the i won forty occasions but isn't it true that if that had been appealed based on the record it would have been futile no your honor the the appeal gives you an opportunity requesting a continuance on their hampshire i think he should request of the continuance because i think the the the judge it in part said that the reason she couldn't continue the case was merely because of her clock and i think she failed to consider anything else such as the attorney's ineffectiveness which was well known to her i'll hear from you on rebuttal thank you clause and so that it there don't have a due process right at this point but what is the policy reason for having the due process requirements extend only to the removal proceedings well there's a couple  before the board or the immigration judge is that the board has no appellate jurisdiction over the i one forty petition to proceedings the board doesn't have the authority to tell the h s to reopen those proceedings or reverse the denial of that visa petition and so it's a simple matter of the board doesn't have that authority and petitioners never point it in your thought what the board could do even if they were able to show that  couldn't counsel be ineffective i mean as a practical matter outside of and leading up to the removal here absolutely absolutely and i would note that both the immigration judge and the board recognized that their prior counsel did it was not entirely familiar with immigration law but you're saying if the b if that result can't be changed if they have no authority to reopen the visa proceedings then i mean you could read the  learned of the denial of his visa petition in november of two thousand and seven but he didn't ask the prayer counsel to file an appeal until january thirty first of two thousand and eight at that time is already too late phone bill and there's nothing in the record that shows the employer toll asked the attorney to appeal the denial and as i note in my brief the employer is the only person that has the regulatory right to a file that if we look at a record  say even if counsel was did not act competently there's nothing to show that they would have ever been able to the employer would there's nothing in the record to show the employer has the ability to pay or they would have been successful on that certification but they never shown or never submitted any evidence that would show that they that the d h s is ability to pay determination was iranian my question is as with the employer and with mr and m well i would say that to the extent that they had an issue before the h s in the visa petition proceedings prior to remove the proceedings there there is they ineffective assistance of counsel and and the other avenue of relief is to file suit the district court under the a p a and challenge the denial of the visa petition and even though the the petitioners in this case didn't have a regulatory right to appeal there are several course that have recognized that they are they have standing under the a p a to challenge the denial of these petitions so there is an avenue of relief even though it's not properly brought before the board the board properly didn't refuse to consider the ineffectiveness that occurred prior to proceedings because it simply doesn't didn't have the authority to remedy any situation and finally the bottom line really is that the visa petition noted that it had offered them an option to submit new evidence to demonstrate their ability to pay but they had not submitted any evidence that would change the outcome of the decision and and the fact that that they just sat on their rights and then didn't timely seek any kind of any type of reconsideration before the h s and finally even though it is excruciating read the record in prior counsel before the immigration judge that there's no doubt about that but there's they've never been able to point to any kind of relief that competent counsel would have been able to get for them welcoming maybe company counsel could have lasso the was wrong in deciding that they couldn't demonstrate the ability to pay what if they could but if they could demonstrate the ability to pay what it meant to keep in mind they waited that decision came what six years later after the file actually know that well there's uyghurs a three step so they're being punished because there's the bureaucracy is incredibly slow now i don't believe that's the case that they were even put in removal proceedings until the visa petition was denied that they weren't before the immigration judge until there until there i won forty petitions the night before the attacks so they i mean they were in the country throughout that period of time  approximately eleven months to decide the visitation if the i had thought that when prior counsel had suggested that there be a voluntary departure that it was and had they accepted it was that that would have subject petitioners to the ten year bar of it in disability absolutely not your honor and i have the ok so you're saying that that doesn't do it it's the fact that it's the fact that they had accrued more than one referred to you're right there i mean is it or is it not correct that there's nothing to say that even if the visa petition had been properly filed and processed they would have been five so it has advanced almost an entire year since the brief was submitted in june i believe but that but that priority date can go forward and back it's all the priority date for his employment visa would have been the two thousand and one date when you originally asked for the labor certification now if you scale back right today and file a new labor certification then he would be years away ok and that's what they suggest the prior council should have done is told the employer that he should have filed a new labor certification and start the process over from from step one but then the concept of prejudice would have to take into account what evening when we get it right would you mean they didn't hold but when that became effective in ninety seven that's when and they would have started to accrue because they entered without specs and so they were so out and how could you re up this application when you said they could bar as i stated it's triggered by their departure it doesn't matter whether it's voluntary departure doesn't matter whether it's removal it doesn't matter they just left the country on their own if they were to apply for  so i don't think it's directly applicable but even in roger the board noted that even if they had a pending labor certification that wouldn't generally be sufficient to warrant a continuance and especially given the lack of these availability i think i just can't see that there would be any good cause for if if they would have asked you it's because i don't know what i'm doing well i think i j the immigration judge did grant her fish didn't know what she was doing the immigration judge suggested a continuance so they could review their case and see if there's anything about all but the simple matter fact is that petitioners are not we're not and never have been eligible for any form or relieve from and despite the fact that their prior council was not entirely familiar with immigration law there's nothing that they can point to to say that complicates would have been able to get them this one really and i would further note that the immigration judge did not deny that and based solely on the docket she gave several reasons particularly with respect to the ineffective assistance  to conclude i would just argue that the record demonstrates that the agency properly deny their motion to reopen because they could not show that they were prime official eligible for relief even if prior counsel requested the further continu immigration judge would have retained the discretion to deny the request because no visa petition had been approved and they were basically waiting on a speculative form of relief sunday maybe becoming available to them if certain steps were taken and several years down the road and this years have never shown that the denial of the visa petition for inability to pay was erroneous or or had any basis for arguing that the appeal would have been successful what was the basis for the inability to pay i mean assuming that the the daughter had been paying had been paying at least prior to two thousand and two thousand and one well the  analyzes from the year your priority date is set started so it was two thousand and one when they first filed their labor certification until the time that they finally adjust status they have to show that they can the employer has short can pay the prevailing wage throughout that time period and in that decision they reviewed the tax returns and some and the fact that they were paying him some some wage but it wasn't the full wage and they found that from two thousand one to two thousand and five there was they couldn't show they had the ability to pay and there's no contradictory evidence in the record and with that i would just ask the court to deny the petition for a thank you  know i would just like to point the court to the late filed appeal or motion to reconsider filed by the ineffective counsel it's on page eighty one of the administrative record if yes your honor there was multiple chances for that attorney to challenge that inability to a finding could have done it as prior counsel said there was a notice of intent that the nie where they said we're going to deny because of this inability to pay shows why we shun it but why put it on your colleague says that the b i a doesn't have jurisdiction over the visa proceedings so how could there be relief afforded with relation to these visa create n t a proceedings i'm not sure sure i understand your honor but i think what you're if the i one forty petition is approved then there is relief of elbel at that point there are but how can we go back and get into the weeds of that proceeding if you don't have jurisdiction to undo them or review them this would involve a review of what went on in those visa proceedings if if if the b i e doesn't have jurisdiction over that how can we say they were wrong in not recognizing an infected mosquito name arising out of th were caused prejudice ok that's within the context of the appeal of the i one forty that's still part of the pre notice to appear proceedings but the filing of an appeal alone without even going into the underlying legal issues is something that this court i think it has enough expertise to realize is in the ineffective assistance of counsel i think it's not a question of whether we have expertise is a question of the review the power to say to the b i a you were wrong in not recognizing ineffectiveness in the visa proceeding and they say wait a minute we have no jurisdiction over anything before the notice to appear is that right or wrong i think it's more complicated i think they will i would just go back your honor to i can't think of an instance off the top of my head where they would that would be interesting if counsel wants to give us some supplemental a letter about that issue of the jurisdiction of the b i a to do to get involved if