voluntary departure rate which was actually perfected but then lost by virtue of the failure to file a timely petition for review those are the two essence of the due process was fifth amendment all you want is his voluntary departure that we're going to see this case again because you didn't ask for mediation to get voluntary departure but your honor what we really like to have is a remit back to the distro court to make the findings then that's not really what you're after voluntary departure yes but it's a loss that he has lost but if you've got advance you don't wonder if you've got voluntary departure you would not be satisfied right but as an alternative  timely petition for review which relates to what i call your number two mr ryan if that were the case and he  claims here and i think you know it's decided that he has relief as to the failure to file a timely petition for review and it's outside the scope of real idea then the vacuity of the lawyer number three as he's been designated your i believe excuse me or a number two rather probably would no longer be an issue it's very unclear with a curious trying to do the file successive motions to reopen the first time he seems to be trying to raise rise failure to file a timely petition for review which is clearly outside the scope of the jurisdiction of the b i a because the error on a mission occurred after the expiration and the excuse me after the protection of the final administrative order to failure to file a petition for review his second time around he attempts to in sort of an inadequate sort of way to raise the proceedings before the immigration judge it's well let me let me just stop it is you know there's a very confusing procedurally although i think we have it in mind the car lawyer number three mr mccurry your lawyer number four on my count of his lawyer it's ok if you are correct that ineffective assistance of counsel falls outside of the real i d act restriction is there anything to prevent lawyer number five from arriving on the scene and saying that you know a lawyer number four didn't do a good enough job or whatever and i'm not saying you didn't but i'm just saying well you number five comes in and says well really lawyer number four even though he compounded all these additional errors so now i would like to finally a b s because of what your number for you is there anything to preclude that with you know where it is that i am is there any time restriction on this if you take it out of the real i d act can you find all these ineffective assistance of counsel for each successive lawyers claimed ineffective assistance of my our position would be s applications in other words that they don't apply up to now i mean the way the written in the statute when they talk about a state court or a united states court we have said that the rules whether they have jurisdiction to hear it depends on whether the issue's been raised before and if there was any reason why that claim was blocked for in the previous c d s action so that would be essentially the break on don't believe so is it possible for the board to hear such emotion under the facts of this case i don't believe so i understood that the board had the power to provide equitable tolly this is true and under the case law in the circuit equitable tolling i believe would apply there is those now applied to counsel as well as legal representatives or so called notarial however it does not apply short of an absolute fraud as i understand the current precedent now unless you could show there was fraud on behalf of hearing and and bring in out of time us into the open and it is necessarily out of time because i am challenging the lawyers ineffective assistance with respect to filing a timely appeal i believe but fury was trying to do that lawyer number three and i believe that's what she was attempting to do but i still our position would be that the there is no jurisdiction whatsoever as to arise error mission i don't get your lack of jurisdiction argued you can always file a motion with the board they may say it's untimely you should about it earlier or for other reasons i'm just trying to find out it is nice and clean cut is going into the district court and saying give me to do it so i'm i'm just asking you to tell us why that isn't an appropriate avenue for you to get this claim that you're trying to raise to haiti has to last through the usual process and procedure review procedure and this to aspire to a rules i think would preclude any kind of review should the board say no we're not going to do this it's a matter of discretion in other words the right to review becomes discretionary not an adequate substitute for hay b s i think there's a there's a number of reasons one is it is in fact discretionary and there are numerical limitations and there are time limitations so has repeatedly said i just want to quote one thing this board cannot remedy ineffective assistance of counsel in a court of appeals whatever remedy the respondent has should be pursued in another form in the federal court system i think that makes sense because the ineffective assistance occurs after the board has issued its final autor but beyond that there are a number of other problems with it if the board says as a matter of discretion that we're not going to exercise jurisdiction and we're going to deny the motion to reopen it would come up to this court in a very different posture would come up as a discretionary determination that this court would not be able to review enough this court were going to say look we can review it if it came up strictly as a discretionary of an administrative body you would be asking them to raise an ineffective assistance of counsel claim that went to this court's jurisdiction and asked the board to make determinations the board could essentially seal off your jurisdiction by making their determination purely discretionary or finding facts in a way that would make it almost impossible to succeed on the ineffective assistance claim then i would stop you there i'd like to lay out to give for ineffective assistance claims and ask you if you think they would be analyzed differently if you have the titian or who goes through his hearing at the i j a level appeals to the be o situation two is the one we have here if we just stick for a moment to the fact that there was an untimely addition to  what in your view is the remedy or the avenue that the petitioner would take in each of those two difference and i mean that's that's an important point and i think it goes to the of our argument that those two situations in our mind are very different if i could take the second one first which i think is this case and untimely petition for review i think that's the situation that i was talking about and i think there has not been eliminated by real id act and i think that is the remedy because it's post final lot or ineffective assistance of counsel in the first scenario i would suggest that there were two problems and it would be a very different remedy first i would think that that would have to be raised before the board because you're complaining about ineffective assistance that occurred at the administrative level that they could have remedied and you could have raised there so you must raise it there we have no problem with saying you must raise it there and in your scenario where they went all the way through the petition for review and didn't raise it i would say they're probably precluded at this point unless they're going to say that the same a must the same counsel representing them all the way through but in statute because we're kind of jump if you look and i guess the question is whether the challenge to the lawyer filing a late edition or a review is a petition for review of an order of removal and that's question number one what is your position and we don't believe it is now what we would say is that this statute by its terms and its overall structure and purpose was designed to ensure that every claim that was raised before the agency or should have been raised by the agency is consolidated into one petition for review so the merits the merits of the removal author are challenged by petition for review what i think dear injure recognized and what we would h to review the ineffective assistance a claim by petition for review if that's the route you chose rather than continue during your hate yes i would i think that's an alternative i think you would do it by saying there's an exception to the thirty day limit for these types of claims to avoid the suspension cost that would be a fallback i only throw it in as a fallback i think the proper way is to have continuity with this court's decisions green post real id and continued to we see nothing in the statute that specifically talks section which stays you get you basically you consolidate your questions for review that existed before the real id correct exactly so then the real idea act just says that we don't want to have any put into an administrative proceeding but for the fact that there was deportation order issued then everything would relate to it but i think this court like every other court including the supreme court has said that the nine should interpret that broadly to me but for the fact that you are in deportation proceedings a claim when you rise if that were true there would know you would not behave this corpus review of even before that it would not behave this review of detention claims but there are still even post realize everyone c including the government you can bring a hate b s the purpose of the challenger detention well if you read being as broadly as as you were suggesting then that would be a lot for causation but for your ministry to proceeding but for the government attempting deport you you would not be in detention so i don't think you can be read that broadly i think would be denying he was trying to do based on the history of immigration law which say look if you haven't you must minister to proceedings you need to raise all your claims there and then all those claims need to be consolidated and brought in one petition for review challenging your removal water that it's claims that could have or were brought in the administrative proceeding because what people were doing is trying to parse their remov a good question and i think it goes to the two types of scenarios that were laid out before i think that that kind of ineffective assistance went to something that was occurring in the administrative proceeding it should have been raised by the second be you can't have the thirty second lawyer talking about the thirty first lawyer and so how do we go about that is when we get through with your package approach why would we have someone interpretation of twenty to forty one in the criminal context would not necessarily apply wholesale the immigration context but and i think this is a critical but there are ways prudential ways that the district courts can say look you know you can't come back here twenty years later i don't see any reason why the district courts and this court can't lay down prudential rules to stop that kind of thing the other thing about success of petitions is you would never be able to raise the same claim against the same lawyer and i think ultimately forgot to divorce from the administrative proceedings you would not be able to do it but we recognize that as an issue i think too long a delay in finding a new lawyer or a variety of other concerns that may arise this court can certainly laid out potential it does deal with someone who's being kicked out of the country so in that sense if you're with immigration but it also deals with something equally fundamental and that's this court's jurisdiction not just necessarily allowing an administrative body to control this court's jurisdiction having said that  said that there is nothing wrong if you were able to dictate and i don't think that you would be able to do it in this posture to dictate to the attorney general you must set up an administrative proceeding that is going to review on the merits ineffective assistan claims that occur after the the final orders that have to do with an untimely petition for review the board were going to rule on that on the merits and then you could bring it to petition for review that would not necessarily be the worst thing as long as the didn't strictly control your jurisdiction and you could review those to no avail but at the moment the regulations do not permit the government's conceded that it's the of whether the board will rule on it it's up to the board completely the board has said that they don't really think this is their board i think i guess you know let me just back up because i am getting a little bit confused let me just because it's scenario number one right i think just if i could just sort of talking sexually i wrapped up into one box and you would bring that going to administrative proceeding and you would have to bring that by the time the petition for review and then if that didn't happen a motion to reopen would be proper i am strictly limiting my argument so so i think there's nothing wrong with you raised which is where your number thirty that's why they pay you the big money right you know i actually think that i don't think i mean mr bennett can correct me if i'm wrong on rebuttal i actually think that what's important for this court i mean not just for this case but you know sort of looking broader because i'm seeing what's happening with a lot of confusion out there is for this court to announce where people bring it on timely petition for if you claim and where people bring in the fact of assistance that went to the board and maybe the proper thing is to henri mansur judge briar below to sort out the different ineffective assistance but to you to decide whether during your hey vs still exists post daughter and if he decides that some of it didn't go to post daughter was part of the administrative proceedings he can deal with that and maybe it's going to some of that's going to be dismissed or not but i think what mr bennett was saying all to me in response to your questions judge was is that ultimately what he's looking for is that the core of what's going on  petition for review to this court which the court rejected on the merits finding that there was no substantial question raised right but here is the problem i have with that  intervention doesn't solve the problem that we have  court could have done that and so my point is that i think the the the avenue of presenting the claim for the administrative agency and then on a petition to the to the to this court is a viable one i w to be concerned about the success of complaints against ineffective counsel however our point is if if there's a place that has to be heard and and we don't think it does because our brief sets out arguments why we think that you have thirty days the lawyer busts the down line and then they come back and they say well that was ineffective assistance of counsel the guy at least get to come to the court of appeals ones right now having been there's no other claims like these claims that are that are there's a catch there put out a category carved out still in hades only detention claims and so what congress clearly was intending to do was to treat these ok that's right but so there's my question is that you still have subsection being nine without the accept clause and if you are correct that this particular narrow issue arises from a proceeding right to remove an alien why then would there be any atheist on that point even before realizing if that's the interpretation of language because because congress referencing twenty eight you see twenty two forty one and so you know for that reason as well i think it's it would really be slicing part meet the bologna little thing to to say that these these claims are not challenging challenge you cannot we're not claiming that you want to work we're claiming well we went our brief is making a couple different arguments we are claiming in our brief your honor that there is no right to effect of systems of counsel under the fifth amendment that's a different that's a different issue that's that's an issue that we based on the supreme court's decision in coleman and we would just submit to the court that if if as opposing counsel been arguing that all of this well those cases don't do not address the common decision your honor in the supreme court decision we think it's clear especially in this circumstance where as we've been discussing the conduct of the allegedly  occurred outside after the removal proceedings traditionally the courts have found the due process right to ineffective assistance of counsel under the fifth amendment fundamental fundamentally fair hearing which we again we disagree with we we set that we were set up for their briefs and we think the court should look at that issue again but let me let me just come back to your question your honor about the government apart from that if the court war to say that were to can i just get a question in there was some issue raised as to whether or not the current rules and regulations of the board would forbid the board from looking at the post  action ineffective assistance of counsel claims could you clarify that for me if your argument is true is to win and certainly we have to have the cooperation of the board to look at these issues  to reach the merest which they did against against but under this new life exactly or the board could you can back me under the rules they have the discretion to reach them as they don't is it within their rules or denied the motion then in some circumstances that that would be an review on this court ok well that's to me maybe we're just reusing words in different ways but i want  if that's just by the motion and under some circumstances we wouldn't have jurisdiction and that's a major gap in the last year i think i think for in these ineffect court clearly has taken review and looked at me but that didn't really answer my question because maybe maybe we should i mean i don't i'm not sure if we have jurisdiction or not so i'm trying to understand this because we supposedly but i if i find obviously i will twenty ha that i don't recall there being case precisely on point on for this factual circumstance client secondly the construction that council would like to impose on the nine subsection would necessarily i think result in creating a real i d act a violation of the suspension clause because then an alien in the position of mr singh is not going to have any review whatsoever finally  and for the remedy again just to reiterate and just to go learn articulated as well a remedy used every man to the district court as i indicated earlier with any further appropriate orders made upon a finding by the by the court because i think it was if it's a sewer sponte decision because there's no final order for us to review or the court to review whether that's dance for the principal it's a different kind of procedural case doesn't involve the a v s action but it's  very quick points one is i just want to make a practical point when you follow a motion to reopen it's very difficult to get a stay we get calls ten times a week people being deported while the motion to reopen is pending so that's one very practical reason why i don't think it's a it's a real solution i think the government has mixed in their previous cases like you're pointing out where there's been ineffective assistance in the agency versus the post order i think they're very different and i think you know but at the end of the day i just want to say this one point if you were to say on petition for review for a motion to reopen assuming the person is not the porter they could have a stay while the motion to reopen is pending and you were going to review every case to know where they came up no matter how and i'm not sure you could do this but no matter how the motion to reopen was decided but it was discretionary whether they never ruled on eventually then you know we don't have any problem with that but i think for all the reasons you've been pointing out there are very serious practical problems and that it just can't be done that wouldn't you know i am not aware of cases sort of squarely making that point i think there are some cases where there's a grab bag of ineffective us distance and i'm not sure what it depends what the board decided so i'm not sure merits ruling and the alien was not deported during the motion to reopen the seating then you would be able to review that but it would be you know it would be a hodgepodge of situations every two or three the board might not maybe once a month they might review it and i don't think ultimately the suspension clause in hinge on that that would not be adequate it would depend strictly on what the board decided to do because they certainly in a suit was not the most you can deny it as a discretionary matter this court which sometimes find a way to review it sometimes not but i think right now there is no general rule and so you would have to be announcing the rule that the ford needs to reach the merits of every guy's he claimed and then you could review it thank you thank