back there over there his wife is home with their children so she couldn't make it all right but in our view the compelling issue in this case revolves around the way in which the immigration and the b i a value way to the corroborating evidence which was substantial enough to create a ten percent likelihood of future persecution which would meet the standard for granted asylum although it is not th job to do that evaluation now that should be done by the b i had a but were just i just missed reviewed the evidence here issues where it was very obvious to be i did not do a lawful evaluation of the corroborating evidence number one of course and most critical one is the original copy of the handwritten death threat from hamas let me just ask you if we would really get into that in connection with this appeal  motion had previously been presented in the new motion would be treated as a motion to reconsider but that motion was submitted to delay so at least that's the government's argument departure and then you had thirty days from the voluntary departure to file for judicial review which would have been an appeal here correct it would be my understanding that i would have had to go back to the b i a and then file from the i it was not my understanding that i could file directly to this court if you read the case law yes i read drawl though in fact that was i read here your specific case heraldo was the basis of which i relied and geraldo you  a chance to exercise its discretion because you didn't appeal of than thirty days well why doesn't that make are all just completely different in that respect because geraldo says in there that you can have the merits of term and in an appeal after the action on voluntary departure i i mean i guess you could read it that way i'm not sure it has to be read that way but i'm not seeing where that makes a difference because in geraldo there what the judge the  prejudice all right your theory seems to be that the court doesn't get to exercise that discretion you exercise it for them because you never go to them and ask them to exercise their discretion you just don't appeal it and then wait and then want to appeal later seems to me that's completely different i wonder a little how geraldo comes to the conclusion that they have the discretion that they say they have but we're bound by that i suppose but it's still a reserving to the core of the next of an ability to exercise their discretion but your theory doesn't give them that option at all it just says we're not going to appeal to you we're going to assume that you would exercise that discretion and i take it for us well ye looking at that that is true i really looked at their decision to and therefore leads to the conclusion that you didn't the people in time geraldo geraldo did not say that the first appeal which is going to be dismissed as a precondition to filing again i believe that the way what i'm suggesting to you say it wasn't pretty didn't say one way were it and i had a good logic of saying that it's final suggests can clearly that it was a precondition really they said it was final didn't they they could have said it was not final but well actually if you when they looked at it from the standpoint of if you read it from the if you read the substance of geraldo it says look if you did this you the reason we're doing this is because of the two thousand and nine change the definition of voluntary departure and if we allowed this we would be allowing you to get a bite at two bites at the apple you'd be allowed to preserve your voluntary departure option while you appeal that was their reason for exercising the discretion that they said they like and so i didn't they only get that discretion of the cases before them well if they've established a precedent for lawyers to read which is what happened here in i read th interpretation and i followed it i'm not sure you said you're not supposed to try to to preserve your voluntary departure while you appeal i did not try to preserve voluntary parcher while appealing i went back i finished the voluntary departure proceeding as the court indicated in her although and then i appealed i feel that certainly what i was doing was a good faith an understanding of it and i don't think my client should be paralyzed because apparently  your understanding of judicial review that a review is judicial review at that point decide whether to comply with the relevant departure provisions or else file a petition for judicial reviews so even under geraldo you don't go to the b you come once you decide you're not seeking once the voluntary departure decision is made and i think the government says is you have thirty days to decide under heraldo under your scenario where you don't have to seek it initially you have thirty days to decide whether to seek judicial review definition of final order in the regulations of the department homeland security they do not in any way define decisions of immigration judges final orders i have always thought you have to go to the b i which i did the explanation that if he took this voluntary departure he would have to surrender his appeal rights he said well look all in ok i won't even take them at that point you have a final determination on voluntary departure a because you can appeal you just waved didn't wave it he withdrew it ok so now you have thirty days to appeal even under your scenario to the b i and to the b i i know it says to seek judicial review her own a specific look at the last para on page six eighteen what does it say it says or else to decide to file a petition for review it does not say within thirty days that right but the law puts in place thirty days right and while puts in place thirty days from the that's why we filed to the beyond what i'm saying is even if you're right under your scenario you get thirty there's nothing to appeal to the b i a at the point you abandon the voluntary departure they've already made a determination in this case right that your client is not entitled to asylum that's what you want to appeal they made that determination so i took it back to them because why are we taking it back to them when you have because this decision does not minute there's two things going on here there's a final order of the b i a e a on your asylum then there's a separate proceeding where you go back and you deal with a voluntary departure right you're not dealing with the asylum claim anymore when you're dealing with voluntary departure are you well actually i am not geraldo case i don't think that's a place i want to yes knowing when you know where you're not right so you're completely your decision on asylum is completely in the b i a they're done with it right yes ok and holder says you can either go do the voluntary departure and when that time is up you can seek when you are done with a voluntary  ture you can file a petition for judicial review right but when you ask you the question who originally you said within thirty days and the corrado does not say within thirty days it's file a petition for review that you have unlimited time is what you're saying so w in the how came decision that was followed this this whole change in the departure regulations has created something of a quagmire that's not clear on how this all should operate there is they say there's no regulations explaining how this is all supposed to operate we made a good faith basis we filed we try to follow your decision i don't think my my client should be penalized for that what i've advanced is a color bull explanation i under her although i see i have the red light it please the court match on behalf of the attorney general there's three issues before the court today of course the the first and most important issue is whether or not the court stiction to decide whether or not the board of immigration appeals erred in denying petitioners requests for asylum the the government's position is that this court's jurisdiction is limited to the two thousand and fifteen board decision which denied or rejected his appeal as an untimely motion for reconsideration and why isn't he right that this is confusing it doesn't make any sense and why shouldn't we give him the benefit of the doubt under that scenario where the case of the sixth circuit hasn't been like he said crystal clear as to how you do it in the ordinary thing to do when you're at the i j a is go to the beach get a final order and then seek appeal well for a couple reasons it is a little bit confusing because drawled although i think suggested that there may be a possibility that they could see judicial review limited remain and solely for voluntary departure is a final removal order that even the government is committed and inconsistent right in her although you argued the opposite we did the government had a different position at that time were there was a can and we've lost that issue so it's confusing it definitely is confusing and probably comes up because it does you know it it does lead to a bit of confusion but the court clearly rejected the government's position in that case and held that its final at the time the board adjudicates the merits of the case and then he remained for voluntary departure does not render it non final and the statute requires so what do you want them to do they get reminded for a voluntary departure than what but they always file a protective appeal i think the best position would be they should always file a protective appeal and and then we haven't said that right i mean in error in those two cases herad on the case that followed it they in both cases the six circuit dismissed right but the court's jurisdiction had been invoked under the statute within thirty days of a final removal order but once we dismiss do we still have jurisdiction i think in as much as the court dismissed without prejudice with the right to vote the petition for review depending on how they want to handle the voluntary departure i mean and the supreme court's been pretty specific in an unrelated context for example in settlements that if the district court does not retain jurisdiction its jurisdiction evaporates so in either of these cases did the court retain that's a good question i don't think the court was clear on whether or not it did or not stated differently when they said without prejudice it wasn't clear without prejudice to what without prejudice maybe to reinstate the appeal if he is that i be it's without prejudice to bring  new petition for review or maybe it's without practice to go to the b i a i don't know what it's without prejudice to and and maybe we should have said what it was without prejudice to us that might have been helpful reading of geraldo he should have filed a petition for review once his voluntary departure proceedings were complete he withdrew his request for voluntary departure at the very latest if he'd filed a petition for review at that time he at least would have an arguable claim for jurors stiction for the underlying board this is all right he thought he had to follow in the be any went to the be a within thirty days and then they sat on it for two years right yes so i mean they could have told him right away and then he would have still had time now that your proper appeal you should file a petition produce the review i've had i doubt it would be likely that he c they sit on it for two years why isn't there some sort of equitable tolling during that time as the thirty day time limit is mandatory interest and there is no equitable towing i would point out i would like to go in to follow up on that contrary to her although there was a petition in her although that was within the thirty days it's true that we dismissed without prejudice but at least they brought not that hot here that's not the case here and he didn't bring it even under his reading of geraldo where if he had thirty days from the completion of voluntary departure proceedings he's still been filed within thirty days of that because he withdrew his request for voluntary departure i would like to point to two things first of all there's a regulation that deals with when the board can may summarily dismiss cases and that's in which the opponent was granted the relief requested and that is it eight c f r one thousand three point one d to see he was granted the request the relief that he has request requested to withdraw his bond her departure the board ever proper to goes straight from the i j a to the core yes when this there's there's several situations in which that is  possible for instance in reinstatement proceedings the alien has a right to appeal negative reasonable fear determination to an immigration judge but there is no appeal to the board from an immigration judge so when there's no appeal that's a final decision i'm sorry in iraq it isn't he going though if he goes back for voluntary departure that's his choice and if you chooses not to see it he really still appealing the decision since he's got a decision in this case does that make sense in other words he's got to be a decision he's not appealing just the i j a is decision he's actually appealing the b i l s decision he's bill in two thousand and fifteen decision right but if let's assume he had done it the way you wanted him to which is he decides to withdraw his voluntary departure application any immediately files an appeal in the six circuit of the b i a decision the previous decision would you argue that's on timely that would be unclear under geraldo i think the better rule would be that since drawled zero directly held that the initial board decision is a final removal order the time should should start from that decision at the end it's not really fair to say that if petitioners are granted voluntary departure they can at that point decide whether to comply with the relevant departure provision or else to file a petition for judicial review of their application for withholding of removal right and seems to me once the voluntary determination of a decision is made departure decision is made under this they have thirty days and i'm implanting like the petitioner said the thirty days they have thirty days to appeal to the sixth circuit and that may be that may be the case i think it drawled of the the the situation of court in drawled i was dealing with was unique because the voluntary departure regulations had changed recently and what they changed to was they made it so that if you filed a petition for judicial review it constituted a withdraw all of your requests for voluntary departure so you can't have both you can either take your voluntary departure or have judicial review and the court didn't want to put the petitioner in that case in a situation where he was not notified of that chang regulation because the immigration judge is required to notify them this is what happens if you do file for petition for judicial review it would constitute a withdrawal of your voluntary departure so the court i think in an in an abundance of caution suggested that we don't want to deprive the petitioner in that case of his eligibility for that type of relief and that's why they dismissed without prejudice and old that in all cases dismissals effectively require no they didn't they didn't hold that in and then fact if petitioner didn't want voluntary departure he could have filed a petition preview of the two thousand and thirteen board decision the merits decision on his asylum claim and disavowed any request for voluntary departure and i'm sure the court would have been happy to hear the case at that point because geraldo would help that would be a final removal order and i ask the merits question  that they considered any corroborating evidence all they did is consider the credibility determination does that pose a problem for the government here no not in this case because his entire claim rests on his own credibility or the credibility of his witnesses and his mother who was there is no indication the be considered anything beyond his own credibility although in the two thousand and fifteen decision they did drop a rehabilitated his credibility their argument and we consider the merits we should consider both the foot and the previous decision well i don't think you need to reach the footnote because they rejected the second appeal as an untimely motion reconsider and i'm saying if we get to the merits i'm sorry oh if so if we get to the merits you get to the merits you should you know the record he hasn't shown the record compels that he's eligible for asylum i would point the court there's one case that if you have an obligation to consider corroborating evidence i think the record here shows that the immigration judge and the board considered the whole record and the immigration judge gave it i agree that the immigration judge did but the b i it doesn't seem to me indicates they consider the whole record as to the whether or not to grant him asylum in the in the two thousand and thirteen decision they rested solely on the adverse credibility that's correct what case i'm sorry  six circuit court of appeal decision and in that case the court the government of course took a different position but our position was that they had to file a second appeal to the board to exhaust their administrative bram unease and the court rejected that and they said that a second administrative appeal would have been the functional equivalent of a motion to reconsider and that basically supports kind of what the board did here the board had every right under the regulation that cited earlier to dismiss this case summarily dismiss it and say look you you were granted the relief you're requested you withdrew your request for voluntary departure and so and that's what the immigration judge did for you what was he appealing i think the the board actually was kind of confused as to what the second appeal addressed and given him every benefit of the doubt they construed it as a motion reconsider its earlier decision and denied it as untime i don't think you need to reach the merits of the underlying decision i don't think the court has jurisdiction over the underlying decision and even if the court decided that it did the record doesn't compel the conclusion that he established his claim for asylum if there's no further questions i'd ask the court to dismiss or deny the petition for appeal thank you very much there's no question that you have to restriction over the last decision in that last decision the board did say they would reach the same conclusion that they were their previous decision was on the case was accurate so you would have before us well that but i filed a timely appeal from from their decision now they're saying the appeals and that this is the whole issue my appeal to them was timely i filed it in thirty days a sat on it for two years i filed the time we appealed to the b i a now there's nothing in the board's regulations which allows them to say well if you file an appeal they can summarily you file a time we appeal ok well i'm talking about the final decision in two thousand and thirteen by the i j to the b i file that within thirty thirty days so do the b yes it was a timely appeal to them and that's not question i mean i affirming the i j a then and you didn't appeal that we all agree i think everyone in this courtroom agrees i've got to admit i'm missing i don't have all that stuff in front of me here's what i'm trying to make the point and i don't know the dates ok when the case was sent back to the i j a for the voluntary departure we appealed from the b i from the i j i understand that you feel within thirty days years and it was finally right so so we deny it and here's what i have to say about that i i take it that i take the idea that geraldo was a little bit ambiguous as to what to do exactly right but you sort of take what what's an aggressive view of what you didn't have to do and that redounded to your client's benefit because there was an extra two years that he gets to stay in the united states well i understand why you would take that position but it's not the seems to me a stretch or a what you might call an aggressive interpretation of that that determination because it suggests that you can taken t yourself the discretion that this court exercised in her all the case and just say we're going to assume that in our case that discretion would be excise we're not even going to go and give them the chance to exercise that discretion we're just going to act like that discretion has been exercised in our favor that not a not so well it is in your favor if it if it dismisses without prejudice because it continues process in the united states rather than finalizing it removal you see what i'm saying  well it's not it's not it's a little bit sympathetic because it's a little bit ambiguous but you sort of take a chance when you take a pretty aggressive interpretation of something that's a little ambiguous and that aggressive interpretation is kind of in the tilts in favor of continual process for years well would have been better seems to me to take the more the more logical interpretation which is that that's an exercise of discretion that the court has to make not you by appealing to the court timely from the decision of the b i a and then from then asking them to take that step rather than just not doing it in and assuming that it in effect has been done by virtue of the precedent that you're  respond to that very simply as a practitioner first of all it wasn't just geraldo you have that second it's sua there are two cases in a row saying that that for us let in both they appealed yes but it and they didn't have the geraldo decision in front of them so but we as lawyers we see your case we read that we read what you say we didn't have the overall decision rado did when he didn't have that decision when he appealed but neither did mr swan the yarra they didn't have the board exercise discretion it looked at these various things and said we're going to dismiss we're going to dismiss without prejudice kind of a strange thing to do but that's what they did it exalts to me it was impossible but it's a pretty big step to say that means that you don't even have to appeal and give them the discretion to make that determination you just assume that it's happened and go forward for two years to me as a lawyer sitting out there reading your decisions is it when you said two decisions a row the whole the same thing to me would know what i don't hold they don't hold that you don't need to be able to hold that if you appeal they are going to exercise their discretion and under certain circumstances and that you can then appeal so i'm looking out there as a lawyer reading your what you have and in particular reading the rationale which is we're not going to allow you to have two bites at the apple so i complied with that r did not attempt to have the two bites at there at the apple i kept it in in a manner consistent with the rationale of the decision which is you don't get two bites and i do think you have to remember one other thing that that gets here and i think it's sometimes  overlooked to file an appeal it is is there's a five hundred dollars filing fee which is not insignificant to people who are working minimal wage jobs who have no work authorization that they're not exactly and so we did but beyond everything else there is a time we appeal from this most recent decision which was based upon a timely appeal from the i j a to the the b i did