goddard bothered to tell their client lopez's that he could no longer represent them and that it to consequences you're on the first is that the locus is never knew that they needed to go look and find you counsel second is that they were there for unwittingly conscripted into representing themselves the fifth amendments provisions of due process your honor choir that in order for an alien to represent themselves in removal proceedings there absolutely must be a knowing voluntary waiver of the right to counsel there was no such waiver they are there voluntarily without counsel sorry sorry i didn't hear the beginning part of you know which case where an alien appears in immigration proceedings before and i j or in front of the b i without counsel just know they had e of an alien on the record after they've elected to choose the right to counsel is a not enough for knowing and wait and voluntary waiver so there must be some kind of speech from the i j a informing them of what the and this is i actually got it wrong your honor it's to watch and the cite for that is three six four f thirty nine t nine the court has said we have also explained that when the record indicates the petitioners desire to be represented the i j a should not assume that silence or failure to affirmatively request counsel is the de facto waiver i i was invited there are i apologise well thank you your honor the other point that i would like to make is that despite what the government says there is real prejudice here and there is an argument as in our brief that this court not need not reach that decision because the court can assume whenever there is a deaf or evasion of the right to counsel under the fifth amendment but just turning to actually whether there was real prejudice the standard is whether it's not whether the evidence would have ikea for the trial as this court knows that it's may have affected whether the outcome of the hearing may have been affected by the constitutional violation and i think it's clear in this case that had the lopez's had the right at had actual competent counsel sorry if they'd known the lopez's had known that they were not being represented by competent counsel it would have gone out it would have got themselves a new competent counsel in fact the record reflects that in this case lopez's were informed actually by this court in two thousand and four that they were no longer being represented by it was that their council had been suspended and subsequently disbarred one month later they hired new counsel mr bruce won in so they would have gone out and they would have hired a new counsel and happened if the b i had for example taken the steps that this court took when this court disbarred mr god the court in its order required mr got to take actually five steps but any one of those steps would have been sufficient to give the lopez knowledge that they were no longer being represented by counsel specifically the court required him to file notices of withdraw all in all pending cases before the court to require him to inform his clients that he could no longer represent the three required him to inform them that they should seek new counsel and if they couldn't hire a new county they should either  pro se or they should ask the court for appointed counsel and if the be i had done any of that i would not be here today  before we can even look to the merits and i have an argument that that's just we shouldn't even address the merits here because the board did not with regard to the effect of assistance or failure to inform i want to point to one thing and that is the the argument in the briefs was whether the court would even have jurisdiction to raise this claim but in the reply i believe in a reply in a reply brief excuse me on page nine the petitioners say but the b s a feel to either tell the lopez or to disingenuous to suggest that to be i didn't take any steps here and in fact think that they're for seizure in this case complied supreme court law that says you have to make notice publicly available when you take action and they have a right to rectify now if there was a statutory right or regulatory right for the board to act we're talking about a constitutional right yeah you know i know reluctant to bring in old chestnuts like mine versus central hanover trust but if we're talking about due process notification the formulaic phrase out of mr justice jackson's opinion of mine is reasonably known as reasonably calculated under the circumstances to reach the intended recipient direction to someone who has been disbarred from practice this comment is directed at the ninth circuit as well as at the b i a e a i'm not sure how reasonably calculated  is when the premise of the order is that this guy doesn't fulfill his responsibilities now i'm not sure whether i'm elaine is the political standard i'm just making this up but it occurs to me that if you're trying to figure out how if you're sitting there in the b i and you've entered this order and you're just predicting how many of his clients are going to find this out maybe maybe not hard to know i'm worried about it if a lot of money depende upon it with my own fate depended upon it i confess i wouldn't put a lot of money on that proposition and on your honor i just would like to point out that this is the same procedure that the state of california foll in mind fifty five with a direct their attorney to do that and disappointed proceedings and just to anticipate the state of california in a different position from the be and from us this is to say the cases aren't filed and pending in front of the state of california they individually notify hey we're we are suspending your attorney now that's a that's an issue for the board to decide but they also a due process to the attorney as well as to the clients of that attorney and that may be that they get their consideration is that this is the best procedure  we've got regardless of that of that concern the board has never decided the merits of the three to one form or the ineffective assistance so so we have a problem there's a problem in this case for the court to take it up for the in the first instance there was a motion to reopen filed by new counsel or decided we're going to toll it will even toll it from the point where the ninth circuit provided notice to you two thousand and dressed in the brief might maybe have a petition or so for for the court to address the board's decision this case if they were going to even address the april fifteenth two thousand and four order of the board because  filed upon the merits in this case which was an exceptional extremely unusual hardship which is on reviewable because it was discretionary if the board was going to reach back and somehow have jurisdiction to address the claims made in that motion reopen well it seems that the petitioners have waived any argument that they're emotionally open was somehow timely or that the board didn't toll it far enough or abused its discretion some other way and there's this really the record is pretty the board was a seven months between the fact that between briefing and the decision of the board with a board had it had all the evidence presented just for a licensed attorney that side of the case even when he filed a first petition for review before the ninth circuit he was licensed before this court even when he filed the brief he was license the ninth circuit in this case didn't it stayed the disciplinary proceedings until the california supreme court issued its final decision which was in january twenty you know and there's no there has been no showing even if even if there was an error where is the prejudice they used to suggest in their brief that well maybe we could have filed a motion to reopen well three years after they did it there was no additional evidence presented view on that order we have a petition for review filed on the october twenty eighth two thousand and five order on the merits which is a merit based decision and we have these claims a sticky situation notwithstanding those facts even to address the merits whereas the showing of prejudice if the reason is if we were to follow the motion to reopen we see it in the form in which it appears i'm not sure whether we can take cognizance of it but let me just to be safe address a couple things he's done his representation of it first is your call as your honor noted it was publication notice this court did much more first of all they required mr goddard to withdraw from all pending cases that would have made a difference second the court also required mr goddard to file what essentially was a notice of compliance meaning that i've done what the court ordered me to do and that also makes a difference because the use of u s marshal service is something that should not be trifled with third this court requires the provision of all the names and addresses of mr goddess clients to it when he filed that no motion without notice of compliance and that also would have mattered because this court took a much more proactive role than merely as you say providing publication notice the second thing as far as the motion to reopen the government has made this jurisdictional argument but it's unclear exactly why the lopez need to needed to appeal the motion to reopen which the government admits was denied purely on procedural grounds on the fact that it was a timely the lopez gave the board the chance to right the wrong they brought the the waiver claim they brought the ineffective assistance of counsel claim they brought that to the board's attention the board chose not to act on that and chose to find that it was untimely there was no obligation for the lopez's to appeal that discretionary motion one one zero five a c c provides that an alien must exhaust only those administrative remedies that are available to him as a matter of right and then when you look at the motion to reopen is not a is not a matter of ri honor in fact the case the timing of this was that the focus has been realized they'd always been represent all represented by suspended and decide to quickly disbarred counsel until they were in front of the ninth circuit and so there was no opportunity to bring this to the attention while they were rightfully before the b i a they filed a motion to reopen to give them a chance to hear it and then if the i had actually stepped up you get the point your honor thank you very much for your time for the question well thank you for your useful argument of lopez resolvers as comes alice is now submitted for decision the last case on the