i think of this case as a pretty easy to decide case but it has these in coate issues sort of permeating the record in permeating both sides arguments that make it more complicated i want to start with the easy and move to the more complicated  part in my opinion is that the board didn't address exactly what mr camac was asking them for in his motion to reconsider he asked that the board consider the appeal deadline to be equitably told the board doesn't mention it we think that's enough of an error that the court could send this back on remand just for the board to say whether they agree it could be actually told and if so whether they would choose to do so as a matter of discretion here we haven't embraced equitable as we do have discretion and reviewable discretion and unreviewable discretion this context is specific and cannot be ignored and i don't i if if if the if the  says we are not going to exercise equitable tell we are going to keep this issue as within our so as bonnet discretion the self certification discretion they do that have that's an issue of will and i would only push back marginally in light of the parties didn't raise equitable tolling the board didn't mention actual tolling and this court didn't either because the parties didn't brief it they didn't ask for that  about whether that the appeal deadline is jurisdictional and this court in a lengthy i think well reasoned opinion goes through whether the statute mandates the appeal deadline and the court said it doesn't and then talks about whether the board is outside the bounds  of its ability to interpret the statute of its own regulations in requiring the appeal to find the man men mandatory but the board in light of and this court in light off never said it's it can't be equitably told more importantly though the supreme court has chimed in that was seven years ago the most recent cases the garcia much a case from the supreme court that cited in our briefing where they say the supreme court acknowledged that some deadlines can be equitably told in garcia it was the motion to reopen deadline the difference i think this one is actually easier told analogy that would last that can be not that it must be but with it so the agency has discretion to decide whether this is an issue that when the agency is silent that means it didn't do it or that it didn't get to that anything doesn't have to say i think we have we have we have expressed we decided not to this court case you say it does in the morning cases you know you i know th the argus case says this court must and i quote consider all factors presented by the alien so if he says i want equitable tolling and the supreme court says that's a thing that might exist you know that's not a liberal if you don't do it  request for one thing as a request for another and deny that in theory the court could say that's what the board did here the problem is you have a cursory two paragraph decision that doesn't say whether they're finding no jurisdiction to actually toll or as a matter of discretion they're just choosing not  but hadn't been addressed at the board it was about the availability of corroborative evidence and the this court said when the board doesn't even talk about that issue that you raised in your brief put them on notice that the at a minimum the board has to think so because the court in light of had no problem getting to that point they say whether they say we do or don't consider equitable total next or the next argument is well this is this is a this is an exercise of discretion that should be judicial it but this court is well equipped to review abuse of discretion it does it all day long every day but but not not if it's not if it's on fettered by principles that we can the knows that and they're taking advantage of it with silence well i think this court's cases say they can't do that but more importantly the supreme court's decision garcia masa says equitable tolling might exist it might be a thing we can ask m the agency said we're going to apply aquittal tolling and we're going to apply the equitable tolling principles as we read them in the united states supreme court but now we have now we know a discretionary issue that's reviewable under the a p a but  they know that the board hasn't spoken since march to say here's how we're going to treat this issue they don't which cripples detained counsel proceed in advance when i want to appeal the cases that they are frustrating you and i understand the prostration but it also know that it also makes this court's job almost impossible because if they don't address the issue of what is there to review it it's not impossible they are exercising on reviewable discretion which is within their prerogative so i appreciate the court's point i wanted to move on because i one more thing to make and then let my my colleague make their arguments there are real issues with the board's decision here the easiest to point out is that the board considered the appeal to be due on february twelfth in fact the appeal was due on february fourteenth because the twelfth w saturday the board's regulations say appeals or do the following business stage which was the following monday the fourteenth mr cameco gave his notice of appeal to his jailer on the twelfth after being confused by a letter he had received from ice about when it would be due the jailer sat on that letter three days they didn't mail it until the fifteenth the day after it was due had been mailed on time it might have gotten there or if there's no mailbox rule that the board isn't going to put one in place the remaining what i call the encoding issue in this case is what is ice required to do when they receive timely papers from a detainee but then sort of slow walk it to the be a until it's late they have attorneys in could take it to the board and file in person there in person career services they could hire i use that service almost once a week to file things the same day at the board where i think lie a dog is now old enough that the court should read every address it is the petitioners in my dog were not detained they had thirty day full days to appeal and this court said affirming the board's decision but that's reasonable the fact that you put in the facts on the work the day before it was due is not reasonable in this case you have a detainee not represented by counsel who has gotten a misleading letter from ice has gotten an order from ice not to be allowed to use the photocopying in the law library who turns in his appeal papers two days early and the sole reason it doesn't get there is that the jail waits three days to mail it we would ask the court to find that on the easy issue sin this case back to the board to just explain what what it meant for them to do would be the easy easy solution i would also invite the court  to talk at the court interpreting the petition and remain to get to the board to give instructions about this detainee in that mailbox rule it's important because this never comes up because folks can't hire counsel or not we're not going to we're not going to impose the mailbox has ever challenged the actual on timeliness finding by the board and the actual fact that it was untimely it was due on march fourteenth twenty sixteen it was filed we see by the board march seventeenth three days late  that there's been no challenge to that therefore the court should not i that petition a turning to the second petition the petition for review of the motion to reconsider the board was asked to construe and and analyze an ambiguous filing a finding that asked or it didn't explicitly ask for equitable tolling it did explicitly ask for certification and if you look at sort of the prayer for all of relief or conclusion of that request in the motion it matches up almost exactly with what the board actually considered when it analyzed the certification so you think it sen think that's enough no not not in this context no it is there any authority of this court that says what's enough no this would be something that's quite about the case i'm not familiar with exactly how that would apply here i haven't i haven't read it recently to be able to speak intelligently about it but ultimately this is a discretionary issue as the supreme court counsel and pro se pleadings as as justice thomas pointed out and the amount of dissent courts have to make sense of the things that are filed with it this pleading this motion for reconsideration use the words that  within it explicitly asked for certification which is something the board has the authority to do and that's what the board did it considered certification certification is also something that has no standards is a much broader doctrine a bunch of broader analysis than and equable tolling analysis would provide you know board's consideration of certification here looked at many if not the exact same factors it would have looked at if it were to have applied a formal equitable tolling and analysis looking at factors beyond the lid against the ability to control extraordinary factors beyond it and it due diligence type of analysis it would be narrowed into those things and if we look at what the board is cited here it probably wouldn't have merited equitable tolling particularly where the board points out that petitioner failed to show why he could not have filed a simple notice of appeal that's all he had to do in those thirty days he didn't have to file the forty four page brief that ended up finally now yes there may have been some constraints on his ability to research and copy that forty four page brief but petitioner never says anywhere why he couldn't a file of a simple maybe one senator that may have been sufficient notice of appeal on a form that already exist file these board appeals that sort of looking at that in an ethical tolling context that's probably not going to fly but looking at it in a certification context where the board is not constrained by those defined factors that is the more things come into play it didn't work out in this case therefore it is not going to get anything but ultimately he asked for a certification that's what the board analyzed and gave him and that's something that the court has held it doesn't have the ability to review does that be i recognize any kind of a mailbox will know as we cited in our brief it's  government agency and said if it were a federal government agency that's correct and the times at least for the first time this court considered imposing a mailbox rule on the board it was when the appeal deadline was was ten days where the in that case were complaining about only having ten days to do it now granted yes they weren't detained but here we have thirty days to file a simple notice of appeal with the board and then the board a briefing schedule much like this court does and when a notice of appeal is filed with this court a litigant doesn't have to file his or her brief along with a notice of appeal to this court it has to file they simply follow a simple notice of appeal this court now yes there are explicit prisoner mailbox rules in the federal rules of appellate procedure for detained litigants before this court the court has chosen not to recognize that and this court has explicitly said it's not going to impose that rule onto the agency back with back deck we're told in for a second what about the garcia motor case i'm so what was the difference between equitable tolling in the motion to reopen context versus say the board appeal context where we are here i'm not sure exactly where the actual tolling in the motion to reopen contacts which the board would i would agree with it and now they have now they have binding a circuit authority saying as long as we stay within our our own playpens so to speak we don't get review yes or no it seems to me that the the failure to mention this has to be taken in that ration that maybe not favorably but it is relevant it could be absolutely your honor and i but i would like to point out as i  is or isn't within the agency's prerogative the the board appeal the longer this distinction the board the board keeping keep limiting equitable tolling to what it wants to i haven't looked for that would would view you that x privat is one kind or unfavorably i think i have two points with it with regard to that but the board certainly could if squarely presented with that question decide that you anyway i'll give you give him a couple of minutes one of the that last and mr george said which is also in their briefing is if the issue is squarely raised the board could address that we think that settles this case because it is clearly raised he did ask for equitable tolling at a minimum the board should address it to put a bug in your judge loken on this question of what's the difference between a deadline for a motion to reopen or deadline first for a deal if anything this should be more than that because the motion to reopen deadline is statutory it's written in the statute you have ninety days and the supreme court said that is subject to equal tolling the appeal deadline of thirty days is in the regulations it's not congress didn't mandate it it's in the regulations so in our view if you look back at garcia much of that's a good reason to know other court has talked about this unfortunately you're forging a path all on your own but i appreciate the time to talk in the extreme and thank you that's a good point