consider the merits of petitioners arguments regarding equitable tolling regarding vbn as i see based on the board's legally eroni us reliance on this court's and the opposite bottom chuck decision competent a political leader would have appealed when it was an open question in this circuit in october of one thousand nine hundred ninety eight no ninth circuit precedent existed which held that felony dui with priors which can be committed through mere negligence was an aggravated felony crime of violence and ran to the lawyer at the time an appeal would be fruitless or that he could not but an appeal available he told understand the distinction yes and he told him that an appeal was not available your honor as well as that it would be fruitless on that basis well it seemed to me like what he said was that he stood little chance on appeal in the b i a or in that he immigration and that he couldn't appeal to the ninth circuit it seemed to be what he said right that is correct ron paul he could appeal to the ninth circuit co  he could your honor well he could if he went to the b i first but that's what he was that's why i said he couldn't come up here he said the whole of this was to get him out of jail and he couldn't go directly to the ninth circuit he couldn't go directly to the ninth circuit your honor but so therefore he couldn't go directly to the ninth circuit he couldn't appeal directly but he had to go to the be i a e a and he stood a little chance there so why is he wrong when he was wrong your honor because if the b to affirm the i j s decision then he can appeal to this circuit well i understand that but that isn't what he was being asked about he wanted to get out of jail dinny wasn't the question all in the air was the all in the way and the circumstance that he was going to jail he did not want to be in jail he want to get out as quickly as he could and so he asked counsel what he could do in the first thing counsel said was well he got a little chance in the b i a because that's just not going to happen and you can't go to the ninth circuit at this point that seems obvious he can't go to the ninth circuit at this point you're you're on a first to the point of whether he wanted to get out of jail there's nothing in the record that supports that he preferred to get out of jail at over appealing his case his main priority was to appeal to remain in the united states because he had been here since he was one as i understand your argument councilor and i'm not trying to take away the argument but i have to put it in the circumstance in which it was given he was going to jail he did not want to go to jail and yes he would like to appeal but he wanted to get out of jail and the bottom line was that at that point counsel says we got a little chance in the b i and you can't go the ninth circuit right now he didn't say right now i added that but he could not appeal directly the ninth circuit at that point so i'm trying to find a  y appeal to the ninth circuit are there for your reading into the situation i'm just trying to figure out if in fact really this is a problem and if it is how are you going to get there the only way i know maybe i'll give you a little help here only way i know to get around what i have suggested to you is that the b i never reached that issue today no they did not reach that is to your honor so i'm giving you a little out but honest truth he told him exactly the truth is just to be i didn't get there we would we would disagree with the phrasing of your honor regarding what mr cardenas advised mr i you wouldn't disagree would you that counsel was correct that he would have little chance with the b i absolutely you're on hand and the b and frankly that was addressed and addressed as it would have been addressed in that time period then we come with a different time period and we have more law on the books and now you could go up so all you're suggesting is based on what was said about the ninth circuit at the time he really had to go the b i first i should find that wrong that is bad counsel that's what you're telling me yes yes well your honor we're we're saying that that an appeal would have been fruitless it was ineffective assistance of counsel because whether his condition was an aggravated felony was an open question before this court now the court is trying to make a dis trying to distinguish whether he can appeal directly to the ninth earner or not and that if mr cardenas would have counsel that he would have been correct but that's not what mr cardenas counseled nowhere in the petitioners declaration does the state that i'm here he said that long as we're talking about practicalities my understanding is that new counsel may well have been you obtained the vacant tour of the two existing removal or is correct that is correct your honor was that you correct it was the big picture of the first one but it was the second one to be vacated so the first one that was vacated was the second reinstatement from two thousand and twelve and then after that in september of two thousand and twelve they bake it in the original two files a motion to reopen before the board with a ninety days why isn't that time it is time to your honor that with equitable to all no no consideration of equitable t just it gets removed and ninety days later the petitioner it's what will your honor the the court stated that deposition or soon already outside of the country he would have had to have entered allegedly illegally  couldn't have filed it previous prior to that and also in this particular case q you've answered the question thank you no migranal repeated to your own if i agree with you on the first issue you have to reach the ired in the denying the plaintiffs motion to reopen as untimely and then it doesn't seem to me i have to get to the second well your honor the court would have to get to the second one because here only the only issue before the court to the first issue is mr cardenas as i see in that the court would remain and the court still has to determine whether equitable tolling applies in until which date and if the m t r was a timely so thus it could still be significant we would agree with that your honor yes and exceptional circumstances need to exist right yes your honor so why is holding that exceptional circumstances do not exist a constitutional or legal air that argument was not made before the board so it's waived under the statutory exhaustion provision of the immigration nationality act which is jurisdictional that arguments wait but number two that motion to reopen could have been filed earlier because the fact that he was out of the country does not necessarily preclude him from filing a motion to reopen he had illegally entered the country at that time and did try to file a motion to reopen in fact earlier by prior counsel and that was denied because of the reinstatement but at the time but then his new lawyer obtained they could tour of the two removal orders correct correct your honor so at the time he moved to people most petitioners we find in this circumstance he remained in his home country correct he did not he came back immediately the petition came back within one week own set of problems that that point is there any order of removal pending at this time no he's in removal proceedings and those proceedings have been administrative you closed and pending this litigation continue to review the to now of the motion to reopen which is independent from the removal proceedings and in fact petitioners counsel is the one who asked the immigration court to hold the case pending the current litigation d h actually opposed that motion so the petitioner has asked the current removal proceedings to be held pending this litigation and i would say that your honor that this argument about the of the first  counsel's ineffectualness i think is clearly unpersuasive in light of the fact that that what was happening here was he was clearly looking to get out of the immigration detention that is clear from the record that he does not say that directly but he said i mean he says he says that he wants to get out and he says that numerous times he in fact took his own appeal on his own he has bonded germination to the board  he also has requested bond several times for the immigration judge i would point the court to ministre to record it for ninety nine where he decided to appeal but the bond i'll quote on his own is his own words  the ministry record at one twenty nine on two separate occasions he requested bond ministry of record of five sixty three shows the letter requesting the second bond reduction and he admits on page one twenty nine of the administrati record that about a week after i was removed he rianna so from this i think the board and the board reached did reach this issue your honor when it found that this was a tactical decision let me see if i understand the government's position your position is that the first lawyer was not incompetent and that's because it was not in effect of the not not ineffective in anyway that's correct john by advising the petitioner in this case not to pursue really correct his own declaration says that there was very little that he could he could read was on its appeal is that correct yes there was very little that all you had to do was say yes or no if the answer is no tell me why it's no well but the answer is yes isn't that there was very little that he could help him with its appeal and i basically peeled to the board that's right then he hires this gentleman who not only gives him correct advice he convinces immigration authorities to vacate the two prior orders of removal was that competent advice now we're talking about current counsel yes was his advice competent it wasn't it was not i would who gave the opposite advice was not incompetence not in effect we're arguing not understand your position yes that's right we're arguing that the conduct and not rise to the level of greed just us which is the which is  required standard for an effective system so in a criminal setting if i get convicted of first degree murder and sentenced to death and my lawyer says don't raise the question of d n a on appeal and i fire the lawyer and hire a new lawyer and on appeal the lawyer gets a new trial in d n a it proves that i could not have committed the crime the first advice is not in effect now that's not what i'm saying that's a whole different set of facts this decision this advice has to be considered in the entire context of the situation i brief sets out that not only was the petitioner seemingly wanting to get out of detention this seemed to be if i was acting on the advice of coun advice was you have no opportunity or avenue of relief your honor i think you need to also consider the case law at that time that that led into this decision but i guess but i guess i mean if we get past the questions the judge hawkins is asking it does seem to me that the b i concentrates on how much success there would have been either at the b i  or on the ninth circuit but it doesn't seem to me that that's your argument your argument is that it's jurisdictional and they're for it wouldn't be something c twelve fifty two d one statute exhaustion that's not for this court so the argument that was made well was that because he said that there was a very little that he could help with with the that that was essentially that was in effect assistant counsel and i want to remind the court of the case law at that time not only was leno with the great flow was at that time well but the problem that i have with your argument is it seems to me that the arguments pretty good about there's little chance in front of that be ira but it doesn't the b i doesn't address the argument i thought you made in your brief about jurisdiction is the reason the ninth circuit shouldn't have got it i don't think the b i ever dress that so i said again to myself my questions to counsel i don't think the b i ever considered i don't think they considered your positions trying to argue that vbn rendered ineffective assistance by not making an argument that has been clearly foreclosed by the circuit and the board cites to that footnote three the to my case we argued as we made