abundant circumstantial evidence other i surrendered my client and i would never have done that without filing a state i've been toiling and he's been used for fifteen years i would never do such a thing we have three declarations of counsel he was not serve order now i believe once you take that as a given we have to turn to the same case that's the one case that says even where there is physical that's the point so the government did nothing wrong in executing the order of removal well you mean the deportation off ok but in absolute to our way we're talking about the court failing to provide me with one number two and this is key as well violation the right to counsel certainly presumes you're going to receive all relevant orders from the court that didn't happen here and again thing is very key in this think it's luckily the council was able to get a the fact that was requested from the court by the government attorney and the deportation office suggesting in my mind that that order wasn't even mailed to the government attorneys it was only in the court file you'll  again because of two things the failure to provide counsel with notice and to what i consider an absolute notice that the deportation office received that a stay was in place what's the nature of his claim that he's been titled to stay here when ashcroft's representative has to say good morning your honor i wasn't on behalf of the attorney general just trying to rationally correct there was no prohibition on removing mr korea when he was removed and in the reason there were in there was no prohibition but if there was no opportunity to ask for a stay of deportation you know then it goes off on its own so it's kind of a catch twenty two is met with back to the notice problem i don't mind catch twenty two your honor as long as we're not going to discuss on the waterfront the yes i agree with the court i mean it is an issue however there is nothing in the regulations or the law that requires the immigration and  the stay was denied he gone anyway right he would have been gone anyway and i respectfully have to disagree with counsel's conclusion that he has a likelihood of success on the merits absentia order removal was entered because he failed to appear on a timely basis for his hearing there is one standard and one standard only for reopening filings following an abstention order of removal and that is exceptional circumstances beyond the control of the alien prevented his presence he has made no showing and no attempt to show that exceptional circumstances prevented his timely presence at his hearing what might be an exceptional circumstances that a car wreck  and if you know the court remembers i don't know if you were present when there was an antiwar protest here in san francisco and bicycles were certainly in the intersection and preventing traffic from getting anywhere in the city i had to cancel a deposition that day because i couldn't get from one side of the city to the other that might be in exceptional circumstances normal traffic however is a different story you leave early enough nowhere anywhere is there any allegation of some kind of a circumstance like this that explain none in fact all the alien does is shift to the court the fault for having entered in abstention order without having waited long enough all he does is say that it was the immigration court that aired because i was only fifteen minutes late that is not the standard your honor the standard is whether or not exceptional circumstances prevented him from being there at the time he was supposed to have been there what else would you like to tell us somewhere in your i think it was in your read brief you said that the record indicates that the order was served on september twenty fourth and when i looked at the page that you referred to it just includes a photocopy the problems well secondly just very briefly in terms of the failure to appear issue number one gerri's on all the ins one sixty nine thirty six thirteen so if you don't have to show exceptional circumstances being late is not absent that's the law in terms of the respondent the alien he was in our office on time the tourney has some problems ran a little late that was the basis of the motion he opened his heart ninth circuit case once as it would have been reopened again