it and referred it over to the immigration judge the petitioner as fled the poor job in india because he had his cousin and uncle had been killed and the police were searching for him as well he his first declaration from the petitioner in the motion to reopen the only real evidence that's in the motion is a declaration from the former attorney that simply says i asked the former attorney for the file he gave me the file and there's no letters in there to him there's no indication that he provided notice to the petitioner and that's that's basically how much evidence is that it's not much as you're absolutely right on it and our position is i mean page two of the i g decision which is in page forty six of the record the judge says there is no affidavit declaration from the former attorney so that doesn't really amount to anything that wallet says gee i looked at the file and didn't see something in there wearing it that's that's hardly compelling proof that requires a finding that the attorney did not make any effort to give notice when i think it's against him so little hard to hard to imagine well i mean that's that's a good point except that the i didn't use that as a basis that would be a basis for the i j a to say from a discretionary standpoint he waited a year or so you weren't diligent i'm going to deny your motion on that separate and apart from that whether the the applicant to the current petitioner can justify his personal failure to appeal because he didn't to appear because he didn't know and that's something he's going to have to overcome because there's no question but the service was adequate and it's kind of hard to overcome that with a declaration that simply says i looked at the file and there's nothing there period end of story it would have been so simple for petitioner himself submit a declaration saying i was never told i didn't know and i'd be kind of helpful if you'd followed up to explain what he had done to enquire because after a certain period of time you've got to suspect that something's amiss there's nothing like that so i'm not sure that there's anything that the idea could be expected to speak to in this record well i mean i mean i mean as far as the actual makeup of the motion i mean i think this is a controversial figure next time it was said you go to battle with the army you have not the army you want i don't want you you got the hand that you're dealt i'm saying that if somebody sits around for eight years and gee nobody's called me i guess i'm home free you kind of taking your chances with that position if after the eight years you get arrested and apparently it's in custody it's not like he doesn't have time to prepare a declaration we we don't have anything even now as to what's gone on well i mean he thinks of it i don't really know what to make of the state with the problem i think here is that the record is so bare and your client has declined to do anything to explain the story so we're left reading tea leaves and the tea leaves don't line up in a provide evidence i mean the i j could have simply said well i know this former attorney i don't believe a word he say is going to dismiss this he could have said this is no different than statements in a motion that i don't think that they constitute evidence but it is some evidence and the i j p's this is question w ignores the evidence well if it's an abuse of discretion there's got to be more than wrong it's got to be so wrong that violates some law and given what we have in this record i don't see why it is that wrong i guess i'm trying to figure it out if the guy if your client simply supplied an affidavit upon which to say where he was why didn't get it what he was doing what the situation is in the least give us an inkling about what to do he said nothing one and one affidavit second attorney there's nothing in the file of says no this was sent there's nothing in the files suggesting that there was just indicating that he had looked at the record eight years later and didn't see that evidence that the hearing no this was forwarded to him to move saying what the immigration judge did was look at the representations of an officer in a court things first counsel indicated that he had made numerous efforts to contact thing there was a letter from saying shortly after the hearing date that indicate he seemed to be aware of the  hearing date but had left that allegedly had left the country and then you have an affidavit eight years later and not from seeing himself but from seeing his counsel indicating that he had looked at the record and didn't see any direct evidence that the hearing or this had been forwarded i'm not sure whether i should address things other contention about the order to show cause he didn't really address that in his opening argument i will say that our position is that he also failed to exhaust that the version of th notices to saying both van and orally and the note that he received from staying after the fact i am indicating he had left the country and that was the evidence that it was before the immigration judge and that is not sufficient to rebut that pre just a couple of things  the court said an insult a person signs that this inquiry contemplated by salta regarding whether or not the service was proper and the alien overcomes the perception is that there are many types of evidence that are relevant and the court should consider all of them in at the at the course of the presumption requires the i c in the v a to consider the evidence submitted by an alien which supports the defense of non delivery or improper delivery in another case that it favorably you've got a little different situation here though because service really isn't contested there's now no doubt but the attorney receives service that he showed up so the question and there's not a claim as you've acknowledged ineffective assistance of counsel so you've got to hit the sweet spot in between that that there was justification for your client not to appear and as to that i mean is there an obligation for the court to do anything more than the immigration court to do anything more than a death i think i mean i think there is an obligation for the i j a to address whatever little evidence we have whatever circumstantial