me it please the court my name is steve toltz and i represent petitioner fetisov who is present today with his u s citizen wife i would like to reserve three minutes of my time for rebuttal the board's two thousand and twelve decision denies petitioners case based on t grounds that there was no ineffective assistance of counsel and no do due diligence for purposes of equitable tolling both conclusions constitute an abuse of discretion and ask of or in two thousand this court acknowledge the deficiencies united states in march of two thousand and five and within five months he applied for asylum because he was afraid to return to armenia and russia he spoke no english but sought out assistance from an individual who turned out to be a notary and she fabricated and  based on sexual orientation i ask you told your client told that person about the the valid grounds for seeking is he did and she said it wasn't strong enough and if you raise it he would be deported so why but why wouldn't he then have basis and because the notary had told him that he would be deported if he raised his claim he didn't affirmatively raise it but our claim is that she never inquired into the actual facts of the case and she never says that she did under the court's decision in lynn that's required and the feeling involves of a minor and obviously a minor isn't going to be expected to know anything about the grounds for seeking asylum in your client apparently knew enough to tell this person at the very out country as the record shows he had faced past persecution based on his political activity he was you know it's not in the record but there's an understanding that he was just trustful of government so he goes to what i thought he and does what she says he tells her the claim is not that's correct and again in order to have a reasonable tactical decision it has to be reasonable and her definitely was reasonable if your client told her that the ground asserted in this application fraudulent correct but then the next inquiry would be are you afraid to go back to your country and that done ok but no i think that's right on the on the record we have here but i guess i don't understand why why do you think it was the lawyer obligation to i guess inquire as opposed to your client is sophisticated enough to know that they these things happened to me they might be relevant to this process here in this new country i mean because he already told someone that before but he was told by who the person he thought was an authority that if you tell this claim you'll get deported so why would he then go to a lawyer and raise it again i thought you well maybe you can point me to where in the record i thought all he was told is that this i don't pin of whoever this person was i don't think this is a strong enough ground i've got this better ground which turned out to be completely fabricated but i don't remember him being told that if you say this again you're going to be removed yes in the declaration i will come back on rebuttal to give you the cite for that so just going forward the limb requirement is there but the other issue is got the petitioner informed ari on that he was getting a us citizen and now and again disputes this but the idea that she would recommend voluntary departure over ride there's a new case that we twenty eight jade called salazar versus salazar gonzales versus lynch from two thousand and fifteen and it's a very similar case involving a pick an appeal that was not filed by an attorney where the applicant was eligible for cancellation of removal and the attorney said we'll just take voluntary departure and you can console process but the advice was wrong and based on not the court found that there was ineffective assistance of counsel are you sir are you saying that her that he had a valid claim he never told her the true facts of what happened ok so that is a correct statement he never told her he had a valid claim correct ok emissary and then recommended that he would drop the f application and pursue voluntary departure that's correct which would have preserved his ability to eventually adjust status and reenter the country so so no i'm thought ok so if he was married to his u s citizen wife in the us then he would apply for adjustment of status he never would have needed voluntary departure it's an easy case to do he would have needed a fraud waiver based on the misrepresentation by taking voluntary departure when you depart the us you trigger a ten year bar to coming back for being here unlawfully and having worked without authorization so if you had left the us he would have had a very very very difficult time coming back here even if you got married correct right because the act of leaving the country triggers that unlawful presence bar but he would it would have still preserved if you waited i guess the ten years as required he would eventually be able to adjust status just not as soon as he would like well when you overstay voluntary departure it converts to a deportation order well but if he hadn't overstayed the voluntary then he would have left the us and triggered the bar triggered which would be unlawful presen right so because he was here he overstayed his views that he applied he worked for asylum and he worked when he leaves under voluntary departure he triggers the unlawful presence bar to coming back so even if he was married he'd have that problem but then after ten years he'd be able to come back after ten years correct but he's going back to a country where he was beaten and stand up but we're going to based on what he said but eventually i mean this is some of this you know is it's very difficult because of the challenges that are presented to someone who's just arrived from a foreign country especially if they have no familiarity at all which is most of the people but we're trying to work within what the law and the regulations are just trying to figure out what his out that asylum is discretionary adjustment of status counsel process and all discretionary so because he lied and he admitted to the line it's very possible that he would be ineligible for discretionary relief right but withholding of removal and convention against make sure i understand because it seems like your client's declaration certainly suggests that i'm sorry left him with an incorrect understanding of the consequences of voluntary departure seems like that's what and that they were told that once they got married they could just close their case and apply in the u s and wasn't any you know misunderstanding cleared up at the immigration harry when the immigration judge clearly described the the judge says you have to leave and if you don't you'll be denied forms of relief do you understand he said yes but the key is that the judge is obligations are not they're not the only obligations i understand that but you're saying that he was misled and then so then that takes me to the next question because it seems like the immigration judge did tell him and so even if you can establish that his lawyer was ineffective in the by the advice that she gave based on what she knew it seems like your client should have become aware of the ineffectiveness at the time of the immigration harry when the immigration waiting more than seven months to begin consulting with other lawyers or and investigating the options to remain in the country so so as to this issue again he wasn't married at the time of the decision right so according to our ins advice  him to write so i just want to point the court to salazar gonzales again at page one twenty two it's hardly rational to think that someone with a high school education would have where the wherewithal to know that he should ignore and override his lawyers advice so even when a judge i mean does that have it meant so i don't think it's discussed again there's no transcript so it's hard in these cases and we don't have the full transcript here to really see it but i do want to point out in the ineffective assistance of counsel contacts in the criminal contacts there is an obligation by a judge to advise on let's say the consequences of a plea for immigration purposes and that's separate from the attorney's advice and those are two bases for reopening and so they are independent obligations that's also recognized i think with the decision from the supreme court but would you address please the the delay so as a delay to reopen right so they were following the petition as wife now wife for filing aryans advice so they got engaged within about seven months of the decision and then play into waiting for a february fourteenth all nine in that time before they even get married which was what they believed was required under aryans advice they go start seeing lawyers at that point they're told you've got a problem and that's when they get to my office in january of zero nine so they were acting diligently because in there they're based on aryans advice there was nothing they could even do until they were married because once they were they could wait years before getting married they didn't think there was any clock running right because she had said let's close the case you guys get married and then we cou immigration judge both determined petitioner failed to exercise due diligence from january two thousand and eight to august two thousand and eight as he stated in his declaration he agreed to withdraw his applications and accept voluntary departure based on his  alleged understanding that he can remain in the united states but come january two thousand and eight when he went to do exactly that he was informed by the immigration judge that he had to leave that he could not return once you turn lawfully and that if you did not application was false but given that that mr percy wanted to marry his girlfriend as highlighted by his counsel and stay in the country i guess why was it sound advice to recommend y accepting the former council version of it is it was effective assistance your honour's as both the petitioner and his of former girlfriend now wife stated in their declarations former counsel believed that the case  seen i suppose the documents that he has present now have you not support or that he is he has to submit why he should be granted asylum have you seen  troubling in terms of you know what kind of conduct and he faced in his country of origin and pretty compelling so really focused on whether or not there should be equitable tolling here and i'm just wondering why would the lawyer not have asked him if there was anything else that he had that seems like a sort of common they sic representation question that the lawyer would do especially an immigration case so i think context is important in this case the petitioner knew that he had filed a fraudulent application while it was in the mail he knew that it was a fraudulent application when he appeared before the exam officer he knew when he testified before the sam officer and perpetrated the fraud that he had followed fraudulent application and that time didn't disclose his allegedly now legitimate claim he further appeared in immigration court over the course of over two years appeared six times for the immigration judge submitted various documents supporting this fraudulent claim and then at some point he tells attorney i'm sorry it to establish a more general duty on the part of an immigration lawyer to at least inquire and do a full investigation of any potential grounds that a client may have well the issue is effective assistance and in lynn there was clearly a deficiency of that you had east coast counsel who never interviewed or spoke with the west coast miner detained petitioner and when he appeared for the individual hearing east coast counsel there wasn't even expecting to represent the detained and at the time and as this court stated in length and the facts of this case are just like the facts and when because they're not so i don't think it does any good for you to run through all the different is what i'm asking is can't lin be read to establish a general duty on the part of any  immigration lawyer to at least inquire of the client are there any other valid grounds on which we can seek really know your because the lens with which this case must be looked at as all ineffective assistance of counsel claims must be judged in the immigration context of an ineffective assistance of counsel claim work to look at what the lawyer said well according to this course decision versus in case decided in two thousand and eight one of what is one example where in this court stated that unless the you turning gave an exceptional nation and then that was inconsistent with what the alien claimed was the reason why he was prevented from filing similar to this case what the aliens claim here is not inherently implausible if so should be accepted and that being said the immigration judge's decision does include analysis of both version of events one in the text which is according to this court's precedent alien's version and one in the footnote for for the sake of completeness your honor and on the issue of voluntary departure statutorily ineligible for that type of relief that's not the case here had petitioner accepted voluntary departure he would be he would have he could fly for waivers for four inadmissibility so he does not have to wait the ten years if he's granted the waiver ok that's what i wanted to make sure i was clear on so you're disputing your opponent's statement that had he accepted voluntary departure and left the country that he would have been barred for ten years there was no way even if he had married his fiance there's no way he could have come back sooner than ten when you say waivers what is that i guess i'm not familiar enough with what you're talking about what is what does that entail what would he have to show well if he if you were to leave the united states for example he's been here a lovely for more than a year so he would be bar is that she could have accepted voluntary departure and at the time it wouldn't have made sense to apply for adjustments as because he had not even proposed to his girlfriend until seven months after the judge had entered the order of removal so this is not a case where there was relief that was available and foregone by former counsel there was no relief at the time he had a fraudulent application and he just failed to exercise due diligence in this case and where he has failed to do so and there's no ineffective assistance  there is no ethical tolling well and you say failed to exercise due diligence but i got the facts straight on this if we credit his version of events as you're saying we must he's saying that his lawyer told  him go ahead and withdraw this island application the judge is going to order you to depart but you don't have to because you're planning to marry your i don't know if she was his fiance at that point but you're you know they're already talking about getting married and so her advice to him was just go on about your business don't leave the country go on about your business plan the wedding and then once you got married sort of come back in then we'll take care of the necessary paperwork right so if it isn't to his version of events it's unclear your honor he doesn't give details about what exactly he was advising the immigration judge and board both stated that there is probably not an allegation of ineffective assistance but really an allegation of some misunderstanding you but that being the case the immigration judge still corrected that gave the proper advisors told him he had to leave he answered definitely yes definitely is what he said he didn't just say yes he promised to leave he said if you can't come back the immigration judge told you got to leave by april or you judge walker just to get back to your question on the record page two fifteen to sixteen of the record deals with his conversation with the notary and the belief that he would be deported if he told the truth as well as the conversation with the attorney yeah but i looked at that and she did not tell him that if you state these grounds you will be deported what she told him was after you have filed this application if you now try to change what you said and deny that you're gay you will be deported soon that was before he was going to do the asylum officer  that's correct so she said that if i did not say it was gay would be deported but yeah but you said she said that if you stay these valid grounds for asylum you will be deported she never said that i thought ok i think it's in the earlier part of the decision  just want to point out the board's decision well laws on aryan statements not the petitioners and this goes back to the chandra doctrine right that the court can only affirm for a grounds here by the agency so the board doesn't credit the petitioners declaration is truthful it actually relies on aryan point out as an immigration practitioner when somebody comes into your office after having filed with a notary for asylum the first thing you ask are the contents of this application truthful and is there any other reason that you are afraid to go back to your country that's what competent counsel does and that's not what was done here thank you thank you thank you both for your arguments excellent arguments in this case the case of the sea versus lynch