years later almost four years later makes a motion to reopen the case and the motion to reopen it is set forth in the record and among the important aspects of the motion to reopen are the facts that she has married an american citizen she also has a child who is also an american citizen and attached to that motion to reopen is also an affidavit over husband kevin yoder which state she asked the court to the board of immigration appeals to reopen the case take this additional evidence through or remanded back to the immigration judge to take the additional evidence because the facts of things have changed in the meantime  she also specifically alleges severe hardship on april twenty seventh two thousand and three the board of immigration appeals denies the motion to reopen then this court on july twenty fifth two thousand and three issues its order to remain and the case to the board of immigration appeals pursu sell handle case and that he specifically dealt with extreme hardship in that i think it was judge thomas who talked about factors under the immigration law that the board is supposed  to look at when it decides issues of extreme hardship therefore at least it's our position that it's subsumed within the remit and the board of immigration appeals was required to look at the extreme hardship the extent that you know if they take twenty years to execute someone the person that you execute this is the same person that you connected in the meantime they've you know they had an opportunity to write a book to do a lot of good things and they're not the same person it was convicted of the crime a on your motion to reopen not on remand your honor from our perspective at least it was based upon the motion in other words they could summarily denied the motion to reopen without an examination of the facts the case for the court said that it was a due process that due process violation for the board of immigration appeals not to consider that additional evidence submitted additional evidence which would have been more fully developed at a hearing to board deny that it was not one mention not one word about the issue of extreme hardship just simply wasn't considered in the start position and that's a violation of the court's order or at least the court's order with respect to rumors all huddle was not followed the board of immigration appeals should have examined the new evidence that we would have or that was in the motion to reopen that would have been developed before the immigration judge and all that relates to extreme harsh which goes to the very heart of the remembers all one hundred case now i suspect that the government is going to argue well that was kind of going to write about way addressed in the j submitted we submitted it once in two thousand we submitted it again in two thousand and two and as we sit here today that g one waiver is still pending and if it's granted we've received first and it's not part of the it's located in the excerpt of record seventy six i think there's another one there's another citation as well in the certified records so those are in the board's records those are in a part of this record  the fact that it hasn't been granted yet is i think an issue that the board of immigration appeals should have examined when deciding whether or not to grant or deny her motion to reopen and it just wasn't talked about nothing was talked about with respect to extreme hardship like a measure of the remaining two minutes o in that case the board of immigration appeals had stated that it would never consider new evidence on appeal and this court said that that might not be proper i mean that that would not necessarily proper that in addition to the opportunity presented case with immigration judge she's had her case reviewed by the board on three separate occasions the first on the peel from the immigration judges decision the second time on the motion to reconsider to reopen in which he had the opportunity submit additional evidence and a third opportunity after the case was remanded to the court is made clear to step back even when addressing the motion to reopen i think it's and also talk about changed circumstances and then post nine eleven that there were serious issues and that she might suffer and that was the crux of the motion to reopen and now those issues have been abandoned the way the most area has been characterized that it was so issue of hardship was never addressed by the board of immigration appeals it falls squarely within the holding of from years andro due process was not given to her and scorches rivers thank