remand for just one if that is based on the following three reasons first the board's decision fails to consider petitioner's testimony or individual hearing regarding the manner in which he last entered the united states second further fo to consider evidence in the record in support of that testimony by petitioner and third the motion to reconsider did not require an affidavit from petitioner stating that the voluntary departure of mon had not been posted yet as first the board failure to consider the petition as testimony in the record amounts to abuse of discretion in this case the petition to testify at an individual hearing this she first entered the united states in june of one nine hundred eighty five but she also testified that she later left the united states on two separate occasions that she left the united states in november of one nine hundred ninety and a member in one thousand nine hundred one for family emergencies and that when she returned to the united states she was inspected and that made it upon her return to the united states but using a work  had been issued by immigration a work permit that was later taken by immigration when that application for legalization i'm in the under the honesty program was denied the us where in the record we find that testimony yes or no that's going to be found at pages four fo four and four four five of the record and in that testimony your honor petitioner's counsel inquires into her entry and her departure from the united states yet that information is nowhere found in the board's decision information which is vital in assessing whether or not petitioner in fact entered the united states lawfully which were then entitle her for adjustment of status under on a section to forty five it's also important to note the timing of the statement when the statement was made there was absolutely no immigration benefit to the petitioner claiming that she had enter the united states with that work authorization in one thousand nine hundred ninety one had no relevance to the underlying application for cancellation over removal at that time at that time the application was cancellation and the issue with continuous physical presence under that particular section and for that particular application manner of entry is relevant and i also think that's important to note that at the time the that the statements were made there was no motive to lie  petitioner no motive to provide that information it's also important to note that her daughter was only sixteen years old at the time that the statements were made and that the application was filed in fact the daughter was only fourteen years old when the application was filed and that information was provide again at that point in the record the possibility of finding and i went thirty petition the us citizen daughter was not an option the respondent was at least seven years away from not an option that possibility was not consider that i don't even have i'm looking at four fo because we're looking at it it's not trying to be difficult but did did you point this out to be a that's a touch clifton's trying to figure out of we did not point to the page in the record but we did say that that information was found in the record so the flaw for the following a motion that they read that the motion doesn't cite to the page in the record where this information is found but the motion does contain this information regarding that lawful entry to the united states ok you're on i think it's also important to note that the immigration judge made a finding regarding the petitioner's testimony the immigration judge found that the rebut the petitioner is a person of good moral character the judge did not find this you have provided false testimony for purpose whatsoever and again those findings are not mentioned by the board in this decision in assessing whether or not the petitioner is eligible so your motion referenced the fact that the card was taken away from her but not that  didn't fight to the record yes your honor that that was taken away from her and as she had use that card to enter the united states unlawfully your honor in addition to the testimony in the record there's also an application in the record at exhibit two which supports the application exhibit two is the application for cancellation of removal and that application provides that and back there were two departure from the united states one in november of one nine hundred ninety and one in november of one nine hundred ninety one which is also consistent with her testimony in that application she also provides the she was again inspected and that minute upon her return to the united states yet exhibit two and a record is nowhere found in the board's decision that information is completely ignored by the board in making a finding regarding her parole the court seven she conceded to the charge that she is present in the united states without being admitted or paroled into the us but that's also inaccurate if you read two twelve a six day one it's entirety it says that the person is present in the united states without how much time left and i would hope you could do you have anything to tell us with regard to the other problem that your client has which regard to the posting a bond yes or first first and foremost of the petitioners benefit ten years on not last since that failure to post the bond issue arose and so even if she had posted that bond the is now moot because it's been ten years and so that bar has been satisfied but in this case your honor under the regulations of a general rule motions to reopen require the motion to reopen and the same rule regarding affidavits and evidentiary evidence does not apply to motions to reconsider at ac of far section one thousand three point two because the petitioner was not required to submit that affidavit because the information was already in the government spot regarding her failure to post a voluntary departure of on i would ask the court to find that this issue is not moot and moreover that there is at a minimum at best sufficient information in the record that requires additional that would provide evidentiary support for the proposition that she did not post the bond i stand corrected your honor it is in the government's file not before the court in its record but i would note for the court that after the government file the opposition the government had six more months before the board issued its decision not into motion to reconsider on that basis the government not submit any documents in no way am i arguing that alleviates the petitioners obligation to provide information to the court but the government did discussed as far as pointing out her testimony about entering and entering reactor in the united states and being inspected and admitted so that information was not before the board when she filed her motion to reopen or motion to reconsider they could i ask could not the board have taken judicial notice of that information had you in your filed the a file had that information sure exactly what the timing of this hearing was before the b i had a but in denver says holder didn't this court hold that the government has an affirmative obligation to provide an alien and removal proceedings with a copy of or a file requested her file but i'm just i'm troubled by the proceedings in this that went on for almost ten years and that request not specifically being made and references in testimony at the hearings and in all of the motions to represent that it exists but she does not have a copy of it it's in the a file they hope where is it when is it that someone so we don't know and you're in a position of arguing that well the the boy didn't know so is entitle to say the burden is on the party that's the petitioner in front of us and i understand that but if in the end it turns out that factually it is true that she did not post the bond and factually it is true that she had the work permit that it permitted her to come back and enter the country through inspection but would seem to put this case in a different posture if that was in the record now we now have strong suggestions that think maybe it isn't the record what are we supposed to do about it your honor what do you mean well suppose it's true that that's just who wanted to time suppose it is true that she did not post the bond so the failure to voluntarily depart does not serve as a disability and leave aside the tenure issue for the moment if it's not a disability then the board's basis for and that's what the board was pointing out that the statute does require that she support her motion to reopen with evidence so she could have supplied an affidavit so that so the problem is really not her fell year but frankly her counsel spell you're to submit the affidavit which would have been a simple matter to submit is that something that she should take the fall for well your honor that the statute does i i don't know which case he's referring to as far as i believe you mentioned that it was a case in the ninth circuit so you're not familiar with that rule is that your response yes will confess the argument you heard this morning didn't exactly seem to track the argument we got in the opening brief so i can appreciate that that maybe you didn't anticipate that particular challenge but we're sitting here trying to sort through this and that the best i hear is that well it may be that in fact she did not post the bond so that disability wouldn't apply and it may be that she in fact entered with inspection and there is some evidence in the administrative record that seems to support that her testimony in the form that was referred to though that wasn't pointed out to the board and we don't expect the board just as we don't expect just records to prove the record on its own without help but if in fact now we know those appear to be the facts what do you propose we do about it well your honor in this case what the issue is is whether the board abused its discretion in isn't the rule that in that circumstance if that that her the facts she alleges are being true under that circumstance where she has not there's no no adverse credibility finding well there's there's just as i mentioned she didn't provide any evidence as far as so so i'm asking a different question i appreciate that she didn't provide the evidence she's made the statement she made the representation i don't think there was in had any adverse credibility determination and at this point i think i'm just  it's readily i can readily determine it but i think that is the rule the she made a representation in her motion to reopen right and opposing counsel's argued that because of that representation wasn't contested and there's no and i'm adding there's no adverse credibility determination i think the board's rules that is that it treats those facts as true but the board's rules yes well i believe that the representation in her motion to reopen was that she had her not represent there i don't want to take any further afield because i think of them for at this point you've i think you've answered my question i'm struggling with the inability to produce the a file routinely without a request where's a requirement that it must be formally requested by the petitioner for the a file to be turned over routinely in cases where there is documentation question now the testimony had been apparently accepted to a certain extent and that should satisfy you or could the petitioners pramod facia responsibility it's also could be interpreted that that would shift  burden to the government but without even going there the government has a file they can answer questions why can't commonsense rule here and in fact this wouldn't be the first time it was contemplated the case i mentioned earlier dent versus holder was decided in two thousand and ten and it even when so far as to say there isn't a good reason for not producing the a file routinely without a request but didn't rule where it's not specifically requested but of course it would answer questions negative or positive you are sorry i just wanted to clarify do you mean that she should've or the government should supplied it below during the yes proceeding before is there any authority that addresses this or or policy or rule that addresses whether whether the government has that or assumes the duty at any point to produce for what is what about twelve twenty nine a today and the government if the government is requested they're obligated to provide an alien in removal proceedings with a copy for a five ok and your problem is you don't know if that was done here as i was unaware it was not ok is there anything i'm guessing that probably was not because i'm looking at the opposition the government filed granted in nearly ten years ago to the motion to reconsider and it says because the government was given very little time to respond it is unable to request the a filed to confirm by the time they had to file so i suspect throughout there was never a report least at the time there was never a request and the the da just counsel said she didn't have time to get it and so everybody's been sailing along for years in a state of ignorance as to what's in that file ok so we're there we are yes your honor so i'm glad you pointed that out that that was in the record as far as the d h s counsel did say that there was not enough time to produce the record  government affirmatively opposes the motion to reopen the board abuses its discretion when it dies when it denies a motion to reopen for lack of supporting evidence in this case would provide the basis for this court to allow the proceedings to be reminded to the board requirement regarding the affidavit and the supporting evidence only applies to motions to reopen it does not apply to motions to reconsider and so for those reasons roger i would have to score to remain the proceeding thank you thank you