kidnapped ms but seeing how her for four days severely beaten her have disappeared her two sons and i threaten to eliminate the rest of her family made by scenes two daughters brother son in law were all in india and had not been harmed by the time the board denied her appeal however in april two thousand and three the situation in the family had changed dramatically in february of two thousand and one years but seems brother died and missed the scenes younger daughter moved to marut in  letters spotted in blood clothing soaked in blood left on their front front step stones wrapped in paper saying things like kashmiris and muslims don't leave any enemy in this world and then finally a phone call from someone who said quote your brothers are missing and very soon everyone in your family will disappear then in october of two thousand and two ms bustin lost all contact with her children for more than six months she unsuccessfully called india trying to reach your children until finally their phone was disconnected by the time she filed her motion to reopen in july of two thousand and three her children had been missing for some eight to nine months  unquote and had in fact disappeared her two sons the evidence presented with ms the scenes motion to reopen would convince any reasonable fact finder that the j k l f had located her daughters directly threatens to make them quote motion to reopen and they argued for the first time the missing had failed to appear in response to a valid order that she report for removal and they argue that her motion to reopen should therefore be denied in the exercise of discretion we never saw that request we didn't see that request until we're seen we will see the administrative record from this court and the reason for that are two i mean first although i had filed a notice of appearance with the board on july sixteenth two thousand and because they sent it to a wrong address this bustin testified repeatedly this is on page one thirty seven of the administrator record and again at page one forty six of the administrative record and this addresses also littered throughout the record didn't mail it to me they mailed to her but that's not to iran addressed we never even heard that the government is asking the board to dismiss our motion based on the fact that she failed to report for deportation now if we'd known that the government was making such request we've had an opportunity to respond we would have told the board that in this particular case a number of things first off we would have told the board that it can't dismiss or deny this but seems motion insofar as it's requesting withholding of deportation because the board has no discretion to deny withholding of deportation once a prima facia case is stablished secondly we would have told the board that in this particular case there is no valid deportation order that has been entered against mistrusting and this goes to the fact that ms but seems attorney manpreet garra entered an appearance at the board on his notice of appearance form he indicated and this is on page one sixteen of the administrative record he indicated that his address for purposes of this proceeding was twenty one thirty one blake street number nine in berkeley california and if you go through the record you will find no fewer than twenty references to that address in this record but when the board  period for healing to this court had passed now the government says well there's a valid order of deportation you know she should have appeared and you know taken her chances perhaps were taken into custody perhaps been removed but i submit that there can't be a val last were given a fair opportunity to bring that decision before this court and contest it but we weren't given that opportunity because the board nailed this decision to an incorrect address we didn't know about the boy's decision denying th until the thirty days for appealing to this court had passed we didn't have any after to need to seek judicial review the board's original decision you can't consider that a valid order of deportation now the government may come in and say well maybe there's some evidence somewhere it's not in this administrative record that one pretty guard moved to some other address but it's like i say it's not reflected in this record and if you go back and you look at the board's procedures manual which is posted on their website it makes clear that there's a process for street and as a result we would submit there is simply no valid order of the patient and you can't treat this woman as a fugitive from justice in it was inappropriate for the board to deny her motion in the exercise of discretion i reserve the balance of my time unless there are questions i this country after receiving a final order of removal motion to reopen did not show new facts that were material that could not have been presented at the prior hearing and therefore this petition did not meet her heavy burden raised regarding her daughter and her son happened after the nine hundred ninety nine immigration hearing but before the order from the board which dismissed the appeal of the immigration judge had the petitioner wanted to bring these facts and i'm not prepared to actually call them facts because i believe that it's there really rife with speculation for the petitioner to say for instance that the brother died in february  thousand and one of a heart attack caused by the stress of threats of the j k r left is pure speculation there's nothing in the record to support that it would be except that on the stand of the immigration hearing it would have been accepted as fact right believe is there a finding of lack of credibility that i missed here it's not a credibility issue it's a question of what you know i'm going to repeat my question and it's a hypothetical question related to this case sure if she had took the stand under oath and said my brother died on x they of a heart attack caused by the stress of these the vans in the absence of an adverse credibility finding that would be accepted absence of an express adverse credibility finding the petitioner's testimony is taken as true right the most that was changed since i walked in here this morning well what maybe you're trying to say to of speculation so that there's no proof that her daughters are dead just that she hasn't heard from them so she has continuing ongoing contact with their family and her daughters and she has made valiant attempts to find them the neighbors say thank you superior than a certain da her declaration are untested before the immigration judge she was not cross examined over those issues so to answer your honor's question we don't know whether or not she would have been kind considered credible with respect to these other here is to see whether or not the board's decision was arbitrary irrational or contrary to law yeah the board listened to the same facts and then they found that this wasn't enough this time to meet the heavy burd it basically says she hasn't heard that she first of all had regular contact with her daughters in there and has not been able to reach them for a period of time right in the board calls the speculation how can that possibly be like election you might say it's not true the government wants to cross examine there's some evidence that would contradict it but when the person says under oath i have a long history of contact with my daughters and i've lost contact with them just stop it right with those two things how can the board say that's pure speculation but i don't think the board used words pure speculation with respect to that but they just that you hadn't met the heavy burden with respect to reopening but it is pure speculation as if i may your honor for her to take that absence of contact after a long period of time and declare that the reason now for the absence of contact is related to this threat from years ago from the j k l f that part is pure speculation now you can certainly argue as mr joe did that there's there can be an inf given the fact that there were threats from the jake payless before but to absolutely connect the two is speculation and there's a heavy burden to meet with respect to motions to reopen and the board did not act arbitrarily did not act irrationally and did not act contrary to law when it determined that this particular petition did not meet that burden and in addition based on the discretionary finding particularly when it when it realized that here's this person who had a final order removal for a date certain and the day before she files and motion to reopen and ignores the removal water she became a fugitive from justice certainly in his release he made made the statements that things were mis mailed i don't believe his brief state that things were not received they were mis mailed to different different addresses today he's saying they were they weren't receive any would have taken all sorts of different measures and they're trying to and he's also suggesting for the first time this morning that that final order of removal is invalid for some reason because it wasn't received at a certain time that should be they should be able to challenge that that argument was never out there's a different issue between whether things were missed mailed and whether things were actually received and i don't see the argument in briefs and i need be corrected but i did see i didn't see the arguments in the briefs to suggest that these things were not lived i believe the address was different but there's no argument that it wasn't received by mr c and that that raises a big specter in my mind why wasn't that said doesn't the presumption under the law arise when there's a proper mailing to a proper address the presumption arises when there's a regulatory for something that if something was sent to the correct address was received but there's not a regulatory presumption that says if something was mounted in correct address that it was not received particularly that's rather interesting trial you have to show facts that would be proven if you if you got a new trial you'd have to show facts that would be proving he or she is only there enlarging your answer my question ok on and off it was cross examination was not credible there was no finding that this was not credible at her silent hearing but there's no finding there's no presumption that she's credible with respect to anything that's he brings up in in a motion to reopen i think it's not been tested understand your well over your time that's exactly the point is that we never had an opportunity to make these arguments because the government's invitation to have this case dismissed wasn't properly served on me and the government says well you know this is coming from falls church that's absolutely not true the government's motion was going to falls church and was supposed to be served i'm in the same building as the immigration and naturalization service the right upstairs for me i didn't they didn't serve me with the document and it didn't get to me because they