governor right yeah just mr just mr ok just mister the first of all the board's two thousand and sixteen decision erred in calling the challenge to the two thousand and thirteen in an untimely motion to reconsider so as the government points out in its brief the issue boils down to the issue to the issue of finality was the two thousand and thirteen decision a final decision and in this case it's a little it's little different than the cases that stand for the proposition that if if all that the board has remained for is voluntary that's final enough all the substantive issues have been resolved so in particular case like custer her own pinto is the difference that he was consolidated with his wife's case one that's one of the differences but another difference and like to discuss a little bit more is st of all nothing was said with regard to him there was he wasn't specifically sent down for voluntary departure unlike in those other cases nothing was said about him so therefore when the board remained did the board did remain you know remaining for the wife's case but it did not use did not exclusively say that it was for the wife's case so that leaves open the possibility of the other possibilities even though that's one of the different if he doesn't specifically saying what it doesn't apply to and that it may apply to oh yeah i mean if there isn't that language of exclusivity that it wasn't exclusively case what case you rely on well i relied on patel but what i think what i i mean and also i think in pinto when the court talked about that area i just looking at the two thousand and thirteen decision i don't really understand your basis for saying that if this is the respondent did not meet its burden of establishing that he did not assist persecution xander and then it talks about the female respondent but isn't it very clear that they're saying he's barred from cancellation of removal and special rules cancellation removal under no car but thing is is that their words where there was the possibility of of unresolved issues because one thing is what was the youngest she st just wanted and i know i'm not directly exact answer your question but there is a certain confusion here about this because if you turn to page one hundred and nineteen of the of the record and this is this is when the case was down and remained back before the judge in san francisco and so the judge says counsel you've heard my decision since this matter is already going to  it's my understanding the department can appeal by phone to departure order if they want and that counsel and this is the key line you are free at this point to proceed to the circuit court of appeal for review the order dated april th two thousand and thirteen so the judge herself was thinking that that that order the board's actually given before arcing decision and these other cases that resolve this issue right this that was in two thousand and fourteen  wasn't thing more recent i mean since then we've had more decisions things in two thousand and sixteen correct it is more but at that time i mean one can only act on what was going on how the law at that time the law in that sense was was not clear so at that time there is and there's the argument there that you know that that was final as of that take but then might that might be a reason for some sort of equitable tolling it seems unfair but i think singh says there's no all tolling in this context it's a jurisdictional issue right well so i think i'd like to go back to my st question about whether he was joined with the wife's case in some way that makes a difference so procedur lly after the two thousand and thirteen decision could he have appealed it without his wife i don't quite know the procedure is when you have a consolidated case or did he need to ask to have the case severed so he could appeal so it i mean and that was my understanding is that his case was consolidated i mean that's also another difference with the other cases they were not consolidated with something when you have a consolidated case can you appeal with just one petitioner and have the other one i have to say your honor i don't have an answer for that if we could have supplemental briefing on that that could i would be glad to do that but i fear it doesn't help your client anyway because even once the cases were severed he didn't appeal within thirty days but i do wonder did actually he did he did go to the board so in that sense yes he didn't go to the th circuit on that it and within thirty days but he did file a timely notice of appeal to the board so that could and the board that interpreted that as not a direct appeal but is a motion to reconsider and so but you just call the done timely but the other thing that one of the things and this one of the point i was making i early part of the brief is that the judge all that the judge in sand in the immigration judge did was to find that the department homeland security did not meet its initial burden prim judge's decision what it should have done i think procedurally was then to remain true to the judge because the burden was never shifted to the respect to the to mr complera at the trial level to show by a preponderance of the evidence that he didn't fit with this is the problem whatever what's wrong with the two thousand and thirteen decision needed to be appealed within thirty days of two thousand but as a matter of law there was an unresolved issue as even though it's not in that sense it's not like the cases where let's say it was a one year issue on the asylum withholding was granted and then the judge then they then the board affirms the denial of the asylum based on one year and then it's and back for background checks at the mean there but still that as a as a factual matter there may not have been a sort of an issue to be resolved but as a matter of law the should have been it should have been remanded to the judge whether that's an objection you have to what the b i a did in two thousand and thirteen right that would have been an issue on definitely would have been an issue on appeal and of course actually played that's what i wrote about but but at the same time there could have been other issues  application but it could've gone with a motion to reopen before the judge and change country conditions as it relates to cap deferral for which he would have been eligible that would have been a possible relief even though in the end he did not but that would have been true in some of these other cases thing and resign over to that someone might have brought a new claim right and that didn't at that didn't mean we didn't say it wasn't fine well but but in those cases the the court held that it was sent only back for voluntary departure right but someone could have argued there but they could every ask the reopen right but they but they didn't and i see that i'm under my two minutes here  his motion to reconsider approximately eighteen months after that two thousand and thirteen v i i decision issued under the circumstances the board acted well within its discretion in denying his motion to reconsider which is how it was properly construed  based on the fact that he was on time there is of course to the issue i think count and i both agree as to whether the two thousand and thirteen decision was the final order but the issue in the government's perspective is rather clear that it was in fact a final order of remov approximately two years pinto makes clear that that there is an exception for a voluntary departure remained that in such a case there are the let me back up for a moment position but so the wife has still ongoing proceedings so like it was you know it's summary judgment or some other thing we might have a situation we are not a final decision but our case law says it was finalized to him but it wasn't finalized or the like and they're all in one case so did he need to ask to sever like what was supposed to happen so that he could appeal to us at that point one of the two thousand and thirteen issue order from the board issued it was under pinto his responsibility if you so chose to file a petition for review decision and eliminated any impediment to the execution of that removal order so what he said as to him but i don't think any of those cases dealt with a single proceeding that has more than one petitioner yes that's correct so so the wife certainly at the time of tw decision did not have a final removal order asked her if she had subsequent proceedings she was statutory eligible at that time for cancellation of removal of color for like a better term regular cancellation of removal sort of sort of mexico is not eligible for  two things one is she granted the male responded or the male petitioner voluntary departure and she sever the case so proceedings would continue as to the female petition the wife so it is for this question is what do you think is the better rule i mean would it be better to say that until it was severed he really had an impediment to appealing so the time started running once the case was severed there was no impediment as for the responde in there was no i mean i appreciate the point that the record tends to follow the case and there was a new record at that point as to the female as to the wife the male's case the petition here everything was concluded as to him as of february th there is no reason that the agency executive officer immigration review could not have sent their administrative record as to the mail up to this court at that time and the court would have a full some review of the entire record as to so are there any cases you can point us to where a consolidated case had an appeal to our court and remained at the same time i'm not aware of any no your honor i'd have to look did follow you know it was still before the agency for any type of voluntary order departure order that issued he was still obligated to appeal within thirty days of the board's order so i don't think there's a principle distinction here between pintos requirements are file voluntary departure remained and do i remember correctly that the government's position used to be that you didn't like our rule in this area so i think the government you think this is a bad way to go about this right is that no longer the government's disagreed as it's court sense to do it yeah it is an awkward situation that i think he would get i'm really was confused and the government even thought he had a right to be confused and now we have to say well that's just too bad because there's no telling is that where we are that that is where we are i mean to to the extent it's viewed as awkward i come back to pinto your honor where it was clear voluntary departure re ma position it was but what constitutes a final order pinto has not changed it remains good law it was the law at the time it remains the law today so there is only you know that he had that obligation  before the in the immigration court before he the immigration judge even issued her decision in the st instance and you know following every means that even a further argument for why the time should have run from that two thousand and fourteen decision i mean it is sort of interesting that there were there were actually further proceedings in his case that there were further proceedings can only has to voluntary departure all the sort of thing to sue a sponsor it sounds like i mean are you going without it being instructed to do that i mean it's a little odd right usually it's a contemplated prior to that so he so he gets a great benefit and really the fact that he gets this great benefit does not change pinto i mean had to be i articulated it had to be i articulate voluntary departure so i'm i misspoke there that is my interpretation of what's in there i didn't read but the judges seeing that obviously the judge implied that that february two thousand and four date th it was a final it was a final decision but the thing is is that you know the board could have at least and i know in general the court doesn't have jurisdiction over this but you know the court the court could have taken it exercise a sewer sponte jurisdiction and just looked at the motion it didn't even do that didn't even mention it so anyway in the end of the day he hasn't had his originally his case was granted he got voluntary departure which is a benefit not really a