good morning and may it please the court my name is jessica casey and along with the law firm of jones day i have the privilege of representing the petitioner appellants in this case at its core this case is about protecting the fundamental right to effective assistance of counsel my clients sought asylum and withholding of removal with the assistance of an attorney they hired named brad alexander but mr alexander's performance in that case was so deficient that he ultimately pled guilty to violating multiple rules of professional conduct and was sanctioned by the florida bar the southern district of florida the immigration courts the department of homeland security and most notably the board of immigration appeals and in the year since my clients have navigated the appellate system mostly pro se seeking their fair day in court this morning i will present two arguments to the court first that the b i a erred in denying my client's motion for reconsideration because my client correctly pointed out errors of fact and law in the b i s order second alternatively if this court were to believe that my client's second motion is more properly viewed as a motion to reopen that the be i am in denying that relief this is my client's third appearance before this court in two thousand and ten when he was originally denied asylum in withholding of removal he appealed that decision to the board of immigration appeals the b i a consider many but not all of my clients arguments and so he sought relief from this court this court reviewed my client's case and what i'll refer to as the first appeal p s u cohn one and found that the b i a had wholly ignored my client's request for relief based on his ineffective assistance of this court noted in that order that the exact types of issues that the immigration judge noted were the things that this court would expect to see if my client's claim of ineffective assistance of counsel were true that case went back to the  n n twenty thirteen the b i a finally considered the ineffective assistance of counsel claim the b i a found twofold first that my client had not complied with the matter of lozada requirements and second that he had not shown he was prejudiced by mr alexander's actions my client again appealed to this court in what i refer to as p s to come to and simultaneously filed a complaint with the florida bar it's notable that that two thousand and thirteen decision by the b s a still has not received substantive review from this court that's because this court may recall just before the oral argument m p s to come to mr alexander pled guilty to violating multiple rules of professional conduct in mr p s u cohn's case he signed a guilty plea he submitted himself to sanctions and starting with the florida bar he was suspended and then a number of courts followed suit thereafter that is she was extensively discussed by this court and the second oral argument and this court expressed interest in remaining to the b i i for consideration of the new evidence so that there would be a full time record before this court but the government urged and that appeal that this court was powerless to do so and that instead mr p s u cohen was required to dismiss his appeal and go back to the that's exactly what my client did twice in fact he filed two motions asking the b i a to consider this new evidence and they have refused to do so he seeks the relief from this court now in this procedural quagmire where we're here again on another procedural appeal still not actually reaching the substance of it's ineffective assistance claim well his original motion for asylum and for c a t relief was on time or it was eight if his original motion was untimely why would it even if he was denied the effective assistance of counsel why would it make a difference if his motion originally was on time or and his motion to reopen was one term two fold your honor so first to the original relief that my client requested first there are exceptions to the one year rule for asylum and second my client also sought withholding of removal which is not subject to a one year time bar but because of mr alexander's ineffectiveness in that case my client was not able to persuasively present that information to the immigration judge because mr alexander admitted that he failed to communicate with my client he failed to properly prepare him for the hearing he failed to file the evidence by the call that date and failed to i make a motion to accept that evidence out of time all of which led to the immigration findings the immigration judges finding of on timeliness and adverse credibility and then as to your honor second question of the motion to reopen this court has recognized the concept of equitable tolling on a motion to reopen and my client would submit that the first motion should have been actively told even though it was filed more than two and a half years after the tw decision equitable tolling principles are commonly applied in cases like this where my client for eight years now has been diligently pursuing the relief throughout this whole in two thousand and ten mr alexander no longer after the oral argument in two thousand and fifteen did for the eleventh circuit dismissed that motion and so should we start there your honor first of all my client did not hire m my understanding is just that he fired that counsel and hired off the counsel you're just referring to i'm not aware of the the counsel in the middle that was appointed by the court your honor and i will concede that if on march nineteenth twenty fourteen and then i'm assuming that your client fired him and hired his own counsel on april in april twenty four  joint motions to dismiss with prejudice after the oral argument and i've listened to the oral argument tape as you probably have two and i would imagine that they filed a motion to dismiss  client is barred now from raising the ineffective assistance claim due to the voluntary dismissal with prejudice this court should not give any weight to that argument it would be grossly inaccurate able for my client to now have proof that his e deficient and to try and put that evidence before this court in multiple ways his attorney in this court disgusted at length in the last oral argument and the government's position was  couldn't help my client in terms of remaining for express reconsideration of the evidence that instead my client had to dismiss the appeal that he had to give up the pursuit of that second appeal and go back to the b i am presented to the b i a and that's exactly what he did and as i mentioned it would be grossly an equitable for this court to say essentially a gotcha that the government said he was required to dismiss his appeal and give up his rights there in order to put even stronger evidence of his  versus ashcroft and said that this court was powerless to do so so at that point my client was in the position of having this incredibly extraordinary evidence of ineffective assistance and really having no way to put it before the court so he and his attorney made the decision at the government's urging that this was the correct procedural way to go about presenting this evidence to the court and that's exactly what he did that in the record i'm sorry is what in the record your honor the government's arranging while the government's position in the oral argument that the only way to pursue this information was to give up or excuse me just go back to the b i am put it before the b i a because it wasn't properly before this court at that time and so th wasn't in your favor and so that's a decision that we're reviewing for an abuse of discretion the motion to reconsider we're reviewing we're reviewing pursuant to the standard of review is abuse of discretion reviewing for abuse of discretion or the being said we've already considered those issues before that's right we're not going to reconsider them again that's right and so i mean in order to find  not done any new review of his claims in light of the new evidence but my client also put forward a new case law from this court that he may be entitled to a rebuttable presumption of prejudice my client specifically cited to white vs attorney general which was a case that was decided by and fourteen after the b i a first looked at the issue but before he was coming back to the court in seeking the motion to reopen and the court completely ignored my client's suggestion that he was entitled to the rebuttable presumption that issue was certainly not raised in the first motion but was raised in the second motion and that alone is a valid basis for the court to have reconsider its earlier decision in addition to that your honor would we believe that the court in its first motion in its first order did not actually review the evidence that my client was putting forward it's clear that they relied on their earlier analysis from two thousand and thirteen which was a completely different facts at than what my client was presenting in two thousand and fifteen and so for these reasons we would request this court remain on to  may please the court my name is linda chang on behalf of the u s attorney general this case has a long history of many agency decisions as well as decisions from this court however the only issue before the court today is whether the board abused its its discretion in denying petitioners motion to reconsider when he merely repeated the same arguments as your honor pointed out there are a few points that i want to make in response to petitioners argument first with or respect to the case of white in that case i believe they're trying to did not file a brief in which case it was clearly that there was a fundamental fairness of petitioners right to fund mental fairness a fair fundamentally fair hearing whereas here the fact of the case is that documents were presented to the i j a and they were considered they were summarized in his decision even if they were untimely submitted the immigration judge nonetheless considered them so there is nothing here that was not presented before the agency that petitioner can point to but with respect to the other arguments that seem ma that this petitioner are to be entitled to equitable tolling because it's clear he didn't get good representation he has been developed or at least from the from the time that he first filed so with respect to ethical tolling the board in its october twenty fifteen decision denying the motion to reopen which was untimely specifically looked at that and denied it it looked through the record and found that there was n due diligence because petitioner already was aware and raised the claim of ineffective assistance of counsel in his may two thousand and ten brief in which case this court did and for analysis on that and the board did that in a twenty thirteen decision  in that decision just as a side track the board found that there was no compliance with the saga but nonetheless went on to analyze it for prejudice and did not find it now moving forward in the october tw decision again it completed its analysis of equable tolling and found that the suspension of mr alexander by the board was not new evidence it was something that had been ongoing it cited two dates earlier where he had been suspended by the florida state bar the supreme court of florida as well this as the southern district court of florida and there's no reason that he could show why he did not file that motion sooner than the idea of his ineffective assis counsel claim being the extraordinary circumstance is not something new and that hindered him from bringing this this untimely motion to reopen as stated he was aware of this in may of two thousand and ten already so it could not be used again as an excuse for acquittal tolling at this point nonetheless the court that further analyze his claim for prejudice and still found not and therefore with respect to a set a successful performance here the standard for prejudice that this court announced is that the performance was so inadequate that there's a reasonable probability that but for that error the outcome of the proceedings would have been different and here mr alexander have anything to do with  issues that the i j a found in this case that the testimony wasn't credible that the newspaper articles my client said that he authored hadn't been shown to the court that he hadn't proven the byline hadn't proven the distribution hadn't discussed sufficiently the radio program from sa thomas hadn't connected the dots for the core between the time that he was followed the time that he was kidnapped and beaten the condolence card that was sent to his place of work and the other incidents that happened to him in colombia those are all things that this court recognized you would expect to see if mr alexander as he admits he did refuse to prepare prepare my client for the hearing that he didn't reasonably communicate that my client speaks a different language and wasn't trans scuse me the hearing the first hearing with the i j a wasn't translated for him and counsel you would agree from twenty march twenty fourth teen on your client had competent counsel yes your honor we do agree that he had competent counsel we didn't know in our brief that for purposes if this court were to look at the second motion and determine that it was more better viewed as a motion to reopen as opposed to a motion to reconsider that's that's really the heart of your argument that the  which you referred to is the second motion which is the i need to get a date some house which is the motion that's before us right now should be considered as a motion to  not a motion for reconsideration there are alternative arguments your honor we believe that under either standard if the court treats it as it says on its face its a motion to reconsider or if the court looks at the content believes that it better comport with a motion to reopen as other court done that under either standard to be i e erred in denying my client's relief he's not only presented probative evidence of his ineffective assistance claim that was not available before these motions were filed but he's also shown that he raise new arguments in the second motion that the i a e a expressly refused to consider just as it did in the first instance when this court said the v i i had wholly ignored my client's claim of ineffective assistance of counsel they continued to do so in two additional motions now so i would request this court remain