issue it presents is whether this court has jurisdiction over the legal issues in the petition for review is a court concludes that transferred is required then it cannot address the merits of the petition for  it concerns the motion to transfer there are two in my opinion two large issues there the st one has to do with whether the citizenship claim was waived because it was not raised in the principal  the nd issue has to do whether the evidence submitted race is a genuine issue a fact that mr stay is is a united states citizen as it concerns the merits of the petition for review i think it legal issues for this court to review and therefore there is no bar to this court's jurisdiction i'd like to start st with the motion for transfer last week we filed a motion to transfer this anymore and we would have signed dismissal of this case in fact we filed a motion earlier i think it was made perhaps in late july asking that the court of bay proceedings pending a decision on the end six hundred and so it wasn't until i believe august th roberts th that we received a decision from the u s c i s at that point i was on vacation and it wasn't until i returned from vacation that as i was able that i was able to meet with my client and do some research whether in fact we could go ahead and ask this court to transfer to the district court so that it could hear that that court could hear the citizenship entered against aliens it and so if a citizenship claim is raised that fact if established defeats jurisdiction in this court because there is no petition for review to review there is there can be no final i think respondent would agree we don't deport or removed or order or enter orders or removal against united states citizens for this recent report made that point in joseph versus holder that a said citizenship is a jurisdiction this court and so it can never be waived this court always has the power to review its own jurisdiction for purpose of subject matter to restriction and so there is no waiver of the crewe states his father was born in the united states there is no debate on that he was born in gregory texas on july th one thousand nine hundred and eight census records submitted to this court show that the family at a minimum were here until family the dishes father in the family return to mexico it's not in the record but i know from talking to my client that his father didn't even know that he was a u s citizen and he was coming back working in the united states anywhere from nine to ten months and returning as an adult we didn't have that evidence at the time that we filed the the motion to reopen we have census we have the social security records we had the census records we had birth certificates and so we could cobble together approximately seven years that petition us father was here the reason for that is  because some family members for that position family members were unwilling to to help out with the citizenship claim it wasn't until about a year ago that one of his aunts his father's sister younger sister was willing to come forward and say ok yes i will help you i was there in mexico in in the city of los and i i was living in the same dollars and i knew that he would come back with dollars and he would give money to our mother and he would give money to his wife my sister in law and i would talk to him and so she was willing to give that statement to us a year ago which is when we were able to follow the that he would be if this was in the summary judgment context and so therefore i would i would ask the court to transfer this case in the district court because that congress has made it mandated must be the one that has to  the citizenship plain notwithstanding whatever the u s c i s did in reviewing the application for certificate of citizenship moving on to the petition for review six t to go into the us i mean is that equate to living in the u s the fact that you go to the u s the statute for transmitting citizenship is that the person must demonstrate the us citizen parent must demonstrate physical presence not residence or long and so in this case since mr hussein that counted i can't physically present in new orleans a lot i wouldn't really say i live here proper the issue boils down to whether this is the court is reviewing the question of law or a factual question we submit that what we're asking this court to do is to review a question of law nothing standard for equitable tolling as it concerns both prongs the reasonable diligence standard and the extraordinary circumstances circumstances standard as it concerns the reasonable diligence standard again we're not asking the court to yes so so the evidence is there's a declaration that he submitted it's attached the motion to reopen he visited with four attorneys before coming to see me each attorney told them there was nothing to be done that is partly true there was nothing to be done because of the legal disability that prevented him from filing the motion to reopen and i decided an asset right i'm not on that since two thousand you're arguing that the beginning at the at the relevant time clock begins with the issuance of vehicle decision so my question is what have to be put on following the hinkle decision so the evidence that he had is that he consulted and it's not clear in his declaration but he consulted with one other attorney in probably in february of two thousand and seventeen again he's not a lawyer he has a he doesn't speak or read much english doesn't like mostly people probably consult the this court's website for the opinions that come out of the court reporters so he would not have been aware of the decision until he met with lawyers he met with one  in february who told them there was nothing to be done and then he came and met with me his family came and met with me and i went to see him at the jail and that's when i had started to talk with him he hired me and i started to do the research so and we can reach it i just have a problem with the notion that well it's just when the guy finds out about the case because and i don't mean this mr cheney is maybe the most honest person the world so much time at him general but everybody else is just to say i found out about this case within ninety days of filing this motion to reopen and then we really have no time limit anymore the timeline is just kind of out the window because any i mean that in twenty years from now somebody could pop up and go i just found out about him and what would you say to that i mean so the person could say i was sitting in a farm in mexico and i just had not been looking on the internet and then all of a sudden a friend of mine said hey guess w the single decision came out twenty years ago and you would say that's fine that's ok and i just have a problem with that because again i don't i'm not saying everybody is dishonest but it would seem to breed a great deal of dishonesty if that's all i took your honor i would put it this differently a credible tolling doesn't apply in all circumstances it's incredibly fact specific it doesn't lend itself to bright bright line rules and so all we can do and all the court can do is look at what happened in this case and what did he do i asked the court to look at his declaration he went to different lawyers everybody was telling him there was nothing to be done and it wasn't until a few months six months after after u s forces think lee that was decided that he finally found someone that could tell them you know what you were never an aggravated felony you never should have been deported on that basis you always were eligible for cancellation for review this was your one and only conviction and you know given given your history and the length of years that you will you are here in the united states you may have been eligible oh we can do  it yet but if you're asking us to establish you're saying it's a legal question what the standard is you haven't told me a standard i'm saying i have a problem with the standard being oh i just found now and then that triggers the they will lose them they have to act that is the point in time when the when the clock is triggered and that's not what the b i a said the b i said the ninety days is conclusive that's all that matters i would survey for  fact the documentary evidence that was submitted establishes that he had at most three and a half years in the united states before he returned to mexico and then it demonstrates approximately but less than three years in the united states prior to the birth of petitioner to fill those gaps he attempted to submit affidavits from both himself his in his a the claim has to be more than colorable or it has in the claim has to be significantly ever going to be anything other than self serving you're not going to as the potential citizen put on a bunch of evidence that your dad was never in america you're going to put on evidence that helps you and i don't mean that it improper or dishonest but you're going to seek out the ants who can say oh yes he was going to america all the time during the fifty's and get them to do an a it it's self serving because it helps you but so what i mean most evidence that people put on helps them and the plaintiff is going to testify for the place again and maybe also make concessions that hurt them defend it same way so again i'm not six he went to the to america but why would it saying you know he's going he's working he's spending money through friday then he's coming home on the weekends why isn't that in general specific enough  again a couple issues one his aunt did then testify to provide more details and u s c has found that her testimony be inconsistent i would further note that his statements he present three different versions of his father's presence in the united states so if you take all of the evidence the there's the documentary evidence and then there's the affidavit and his statements and they are simply not significantly probative to warrant another trial but what would be this if we sent it to the district court what would be the standard they would apply relative to what the u s u s c whatever the acronym is yes whatever their determination was how much deference with the district court have to give to that timing it would be an overview ok so you're saying there's inconsistency is in testimony there's perhaps it's true that not perfect i would expect it to be when we're talking about going back to the fifty's and people's memories of that but couldn't the district court then make a different terminations of the credibility that goes to the concern that this is just an attempt to form shop in just this could have been raised at any time even before the immigration judge in two thousand and had it been done so he would have a stronger case because he would have the testimony of his father but he didn't now he says he didn't know that he wasn't told he could do the so called again that's i don't know that we're going to resolve that question like why didn't he i i don't know we don't ask that you do it's a question we would just simply say that the evidence that he has presented now before this court does not equal genuine issue of material fact and that is consistent with what this court has held both in the other cases that we cite in our response do you agree that it's  that if he is raising a sufficient issue of fact which is what we will decide the fact that that cuts off are our jurisdiction and that it's it's it's not waived  yes we would just know though that this claim should have been raised much earlier to allow the parties to fully address it without that that was the purpose of my question even if it should have been even if they knew a long time ago and and well that's not so much whether we have to do it whether we can i mean we could have an entire trial in the district court at st appeal go back and back and back and back and then somebody suddenly points out the diversity jurisdiction is missing i you in the absence of committing treason or you know becoming a citizen of another country or something like that can you ever waive your citizenship well that's where we did focus mostly on the in that case there was a specific factual issue that this court determined had been addressed whether or not the parents of rizal as had been divorced while they may have been married prior to his birth the question is could they have been divorced prior to his birth and this court the term of the i j a had never fully addressed that and then it transferred it to the district court but here there is no one a dicated question u s cia has adjudicated the and six hundred on the evidence that petitioners submitted to you to a week ago and the evidence there is simply vague the testimony did not sufficiently provide details to allow us as to determine the petitioner met his burden of proving citizenship and there is no new  evidence he he simply requesting yet another adjudication of the question there is not the documentary evidence as we said do not does not support does not demonstrate that he has eligibility for citizenship  turning to the motion to reopen due diligence is a fact question this court has explicitly stated so repeatedly and because it is a fact question and the criminal alien review bar applies because regardless of the aggravated felony issue he is still removable for a controlled substance violation which triggers the bar and therefore this court has no jurisdiction to review the determination that he failed to establish equitable to d with respect to the evidence that he did present there is simply no evidence of the efforts he undertook prior to his removal ok so let's get to that question if we were to conclude that we do have jurisdiction to address the legal standard for equitable tolling when the claim is hey there's a brand new case and because of that the world has changed what kind of standard would you articulate let's assume argue endo that angle is an extraordinary circumstance i know you debate that and that's fair both assume that and then let's assume that we need a rule that's something other than when you just happened upon it what would the gaining actual knowledge the movement must show the efforts undertaken to learn of that decision and here yes there is some evidence that he consulted with lawyers after he illegally returned to united states but there is no evidence of efforts undertaken while he was in custody and the courts have repeatedly held that when there is no effort during the time sought told that it is there is no due diligence ok so i would imagine that if we're going to say that it's necessary that you be doing something other than just one day it pops into your you know facebook page that this happened but you're having to do something to discover changes in the law and so forth how much do you have to do is it every month you have to call lawyers in every six months or days every what what would be enough so if i were a an immigration lawyer and i was instructing my client that's now back in mexico how much they have to do diligence to find something that would give them another chance what would that be well i would point out that that is a very factual question and so there are no lights it would be impossible to say you must check your court's website every month this court as it has explicitly said that there there can be no bright line rules and it is simply that something that has to be adjudicated on a case by case basis but with respect to the efforts undertaken during the initial tolling period there has to be some effort and here there just simply is no effort rebuttal i just want to respond to something maybe i misheard opposing counsel that there were no efforts during custody or didn't understand i don't understand what that means but he got into he went into custody in february of and seventeen it was a matter of days after i was retained and i did the research and advised him of what could be done and i had to go to houston and listen to the hearing tape because i wouldn't be wasn't provided a a tape of my office in san antonio and so i'm not sure that's what's what he was alluding to so anywhere anyway peace before going back to the issue of review over the equitable tolling issue the b s a is a question of law because the b a employed the wrong standard as it concerns reasonable diligence this court said in the resendiz that the ninety day rule is not conclusive it is a faulty premise to rely on that on the deadline as the one as the start point starting point in the finishing point for determining equitable tolling the nd issue with the is at stake somebody has thirty years in prison is a stake we have said change in the laws not an external circumstance we said that in a death penalty case so if we say that in that case then why would that be an extraordinary circumstance in an immigration case the discretionary part of this to a spontaneous action is the whether they have to apply equitable tolling but in these situations and that's where the question of law of extraordinary circumstances comes in because it i agree with you there is a lot of discretion in the executive branch in the area of immigration i'm not saying unfettered and i'm not getting into all of that i'm just saying there's more discretion there than there is perhaps in the criminal arena  you know there's a pardon ability and so forth in executive branch to but when we're but still when we're talking about what is an extraordinary circumstance that would force to look at then i think we're in a little different cases where there is a fundamental change in law and this court in all of these cases for secessionist will go to send this versus lynch and even dominga skun to vs sessions the court treated fundamental change in law as an extraordinary circumstance now having i want to touch one more point did any of this case involve anything other than assuming argument or hold back i don't recall seeing anybody holding it  was it was not an express holding your honor ok but they were all remembered for the disregard the b s a to consider whether the change in law suffice to establish extraordinary circumstances just one last point i want to make war they gave declarations in support of the certificate of of citizenship the question is whether they raise the genuine issue of fact it is for the district court because congress has mandated that day determine that the district courts out that whatever you the u s c artist is decided it's not binding on this court and it's not binding on the district court thank you so much thank you mr molder your case is under submission and the court will take a brief recess before