there are two independent and just positive grounds on which this court should grant the petition st with respect to the denial of equitable tolling of the deadline to file the motion to reopen the board imposed a heightened evidentiary standard that was contrary to law and a violation of petitioners due process the board denied equitable tolling because the titian or did not present one specific piece of evidence in medical evaluation indicating that the bullet shards that had been lodge wide variety of observations and evidence including affidavits or testimony from friends or family demonstrating the disability which is precisely the evidence presented by petitioner here earlier this court has decided your argument that this yes your honor the way that we read the board's decision is the board found that there were no cognitive deficiencies demonstrated because of the absence of the medical evaluation of the court or the board also disregarded the affidavit that petitioner presented so not only did the board require a piece of evidence that that was not required under its own rules but it also disregarded affidavit submitted with the petition demonstrating  was based on one the lack of a medical evaluation and then as your honor knows there is one last sentence that says the record reflects that the respondent understood the import of the board's decision and subsequently consulted with attorneys there's represented him and then following that in the appeal to the th circuit he did find another appeal and that's because he just wasn't in contact with anybody at his at the previous law firm nobody reached out to him to even let him know that he had lost but if i think i can i mean what is there anything that's required to show don't tell yes you are so the problem it all comes back to the cognitive deficiencies issue because the assessment of diligence the diligence analysis asked to be undertak in light of the cognitive deficiencies and life of the petitioners a specific circumstances that's another young case that holds that so it's not it is not objective diligence standard i understand what you're saying and there is evidence here affidavits that petitioner presented from himself and his wife and his mother and his son all the testing to the severe cognitive deficiencies that he suffers from so that that evidence is just simply not reflected in the ruling below that it was never considered that in and of itself is cause to remand if it's the board simply disregard material evidence favorable to the petitioners position ok the material that's the key word there do these declarations at any point say he wasn't capable of understanding the proceedings he wasn't capable of assisting in his reputation or anything like that i would call them think things along the things and things have to be explained to him over and over before we understand so specific to your honor's question about whether he can actively participate in this representation that site is that a r five represent him before this court in two thousand and thirteen so show me that he recognized that there was at least some problem with representation that he had at the board appeal and at the merits and then he proceeded to hire his or low cost or pro bono representation and fortunately have that just doesn't amount to diligence i mean there's additional or had not retained another attorney he had it relied on the  the the board says the respondent has proper to additional evidence regarding the head injury but again the specific evidence cited by the board following that that sentence is just the medical records not the affidavits attesting to the kinds of deficiencies associated with that injury and those affidavits established contrary to the government suggestion that there's far more than just dizziness that issue here talking about severe hearing problems comprehension problems confusion memory a whole host of