nido on behalf of amicus national migration project of the national lawyers guild i'm here with linda gray counsel for petitioner this case involves two consolidated petitions for review the first challenge is the two thousand and fourteen reinstatement order filed a motion to reopen pursuant to the regulation are one of three point five with evidence that there was no prior order of removal to reinstate well counsel does it i think the other side is trying to argue a waiver argument here they're trying to say i think by signing b i do not wish to make a statement contesting that that your client either agreed to or waived any any right to object to that i exhaust if if this court were to find that that would be a dramatic departure from the last twenty years of reinstatement laws from from this court for example if you know the score in very honest sanchez the person didn't tick the box and the the box ok but that doesn't change the first the claim on the first petition for review over the reinstatement order which is that the record did not contain evidence of a prior removal order now i'm here arguing about information that petitioner gave to the government five days after the it statement order issued he filed a motion to reopen under the regulation at one of three point five providing evidence that there was no prior order and  point here your honor it only becomes an alternate order from move all if there is not proof in the record that he time i think if used i think it becomes an order removal right well that way back there in the first time was an alternate order of removal alternate correct and alternate order of removal correct it only becomes an order of removal if he if that conditions are violated so to speak we put this in front of him we gave an interpreter and we said your subject we said you've been removed we said there is an order you said i don't know that the person said i don't wish to make a statement all this was before the person at the time of reinstatement the five allows him to put in evidence to reopen a reinstatement order that's what this court held in escrow t o his stay oh that that is an administrative remedy he took advantage of that remedy he got that evidence in the record that's citizen children and as united states citizen and mother in law i will now address the merits of the second petition for review in this case which challenges i suppose denial of the motion to reopen the reinstatement order under the plain language of the reinstatement order was issued in this case mr perez garcia provided ice with a mexican government entry document otherwise known as an f m e as well as the declaration as proof that he timely departed under a grant of voluntary hundred ninety nine both parties agree that someone who timely departed under a grant of voluntary departure is not subject to reinstatement ice denied mr perez garcia's motion for three reason departed or a g one forty six significantly however such documentation is not required to prove that you timely departed neither mr perez garcia's voluntary departure order nor any regulation governing voluntary departure requires proof in the form of that particular documentation for any reason other than to return of voluntary departure bond second i was denied mr pres garcia's motion because the actual proof you provided the f seven point six the document that mr prescott provided is self authenticating mexico is a signatory to the convention abolishing the requirement of legislation before in public documents and for signatories to this convention  no certification is needed from an officer in the foreign service the public documents now i've communicated this need for additional authentication to counsel via an informal telephone call mr president has filed a motion for judicial notice requesting that this court consider evidence of these informal telephone calls and the fact that additional authentication is not possible respondent has a post saying that this evidence is not in the record likewise however there nothing in the record except for a blanket assertion in the decision stating that mr perez garcia was ever notified as to the need for this additional authentication respondent can't have it both ways either the court can consider evidence of the informal telephone calls that are not on the record or it can't and if the court can consider such evidence then the court must also consider the evidence provided by mr perez garcia that efforts were made exhaustive efforts were made to obtain this additional authentication and the court should consider the f m e a under the best evidence rule if the court cannot consider the information provided in the informal telephone calls then the issue is not under an exhausted because there was no proof that mr was provided any notice of this and therefore the issue is properly raised at this time respondent can't simply use the informal telephone calls electively whenever it benefits them third i was denied m affidavits or other documentary evidence just completely disregarded mr perez garcia's affidavit in this case and it was in contrast to its own regulations additionally you think that's what they're referring to the s and says that there should be new evidence to be provided in the reopened proceedings but affidavits or other documentary evidence should be provided and reopen proceedings and he provided an affidavit which they completely disregarded and an f m e which was a voluntarily departed prior to the issuance of the reinstatement order having furnished a self authenticating document from the mexican government mr press garcia conclusively establishes that he did voluntary to terribly depart in a timely matter and so he muito the grant of voluntary departure to grant a voluntary departure and not an order of removal unless the person overstays and they didn't prove that he overstayed in fact everything in the record points to the fact that he left well council  everything because he says i've been deported twice and because he makes no statement when it's put in front of him and he says it's interpreted do it with the facts that are that are on the page you know what i'm referring to one hundred six of the record yet your honor and  point out for his statement he says that he's been deported twice but if you actually take ice on what they say he had only been deported once in two thousand and he had overstayed so this goes to show that he didn't understand the difference because he had left twice not understanding that the first was under has never established that he complied a voluntary departure the fact is that at this point what opposing counsel says nothing in the records except for for his self serving affidavit and the photocopy of this alleged mexican government document shows that he complied he breach he should have shown compliance back then after that he was found inside united states in april of two thousand and ice assume back then as they should have that he would then he did not comply and executed the removal order at that time he again did is claim that he complied voluntary departure which now there's a record reflect anything you just said something about the i think two thousand but his record really have anything on that except it happened well it has the he has the  thirteen with the notes from the immigration officer stating that he there finding that he did not comply voluntary departure what year is that from that would have been from april around of states until january two thousand and fourteen when he was again picked up by ice and again made no claim of having complied voluntary departure now counsel states that he doesn't know what he's they didn't that he was ignorant during this time he had no idea that he had to a sort of voluntary departure but i think that the very important point here is that when he was before the immigration judge back in one thousand nine hundred eighty eight he had counsel he was before the immigration judge he had counsel and he accepted the order a voluntary departure with an alternate order  to mexico so now we don't have those transcribed in the record but that's because he waived appeal the the only time that we have transcription in the record is when there is an appeal to the board of immigration appeals but during that hearing the immigration judge probably would have would have assumed would have explained to him is wildly voluntary departure or at the very least would have assured that his counsel would have would have explained to him his obligation voluntary departure so his claim that he was ignorant for  all of these years i don't think the court should just simply accept that as fact even though obviously the record all we can do is show that he had counsel before the immigration judge now all of this evidence points supports that both of the decisions of the of the immigration and customs enforcement first the only reinstatement itself where he didn't and he did not ever claim compliance voluntary departure and never sought to contest any of the findings of ice that want to counsel he the statement he signs of the sentence he signed says it doesn't say i don't contest the determinations it says i don't make a statement contesting this determination in their difference i don't believe any court has ever found there's been a we believe that the fact that he'd signed the box saying that he did not provide a statement a contest is evidence to support the reinstatement water and also evidence to support the the how the motion to reopen  wouldn't say that that's a waiver we would if we were dealing with the reinstatement water aside from the motion to reopen and he had any he had not checked the box we would have argued exhaustion but here  he did file his motion to reopen and it was clearly considered by ice so those issues are before the court not however under the the regulations that is not something that the agency has ever has ha on stating that there is a reopening mechanism a regulatory reopening mechanism for reinstatement matters before the secretary of homeland security is able to make that determination as as the court knows congress delegated to the to the secretary the authority to reinstatement it should be the secretary of the attorney general and those regulations would be under two forty one point eight which is where the rest of the reinstatement regulations are found not at one of three point five which deals exclusively with immigration benefits wouldn't then have jurisdiction to review and so that was one way to to to to handle that decision but it's cold it was the side it on the cusp of regulatory changes and specifically in august two thousand and eleven u s c s and this is not in the some of the changes regulations and what it did is an apartment of three under which this one a three point five regulation is found it changed the title work before it was powers and duties and that was powers and duties of immigration officers generally it then became  immigration benefits and it became a pressure benefits semi colon biometric semi colons something else they had nothing to do with it that was one thing and they also created three additional sub parts to these one to three point this part one hundred three regulations and so part a was again tied to immigration benefits and the one of three point five regulation is found within a part of part of part one hundred three and when you read that it just clearly faults clearly shows that it belongs solely to immigration benefits before changes with the with the change in the title so  what about the this document from this reentry document to mexico was is the problem here trying to understand exactly what what the problem that was noted is the problem that that it was not had no certification or that it was a photocopy i think both your honor it's absent the certification all we have is a photocopy if this was a certified copy we would have a completely different think understanding of it but this is just a photocopy  incorrect reading of those regulations the regulations actually requires two sort of occasions one would be to obtain a certified copy the second regular the second part is to obtain a certification from the foreign officer of the united states  what happens for public documents which we don't concede is a public back of what happens for public documents you don't need that second certification by the foreign officer of the united states but you still need to show that this is a certified copy and absent that all there is a photocopy of this mexican government document i should have given it to ice fifteen years ago but instead i snuck back into the country and i stayed in hiding for fifteen years now here it is but i can't i can no longer authenticate it because it's too old and that simply does not sort it was a photocopy right at the photocopy did not bear a seal or any kind of certification exactly and the question i'm getting to is if if it had been a photocopy of a document that had trying to think of an analogy for this and what i could come up with something you know when i was applying for colleges out for college for a form or for law school or even for jobs after law school when i had to supply my transcripts i couldn't simply just supply my copies of my transcript i had to obtain a certified copy of my transcript obtained at the registrar's office when you look at this copy council isn't that of some kind of certification the lower right hand corner well that's but it's some sort of certification but it has been certified it this is what it purports to be i mean if you look at document it can't be self certify it cannot be self certified no and you say the regulations are very clear on that i believe so you know regulation is very clear you're on but i think that there is a lot of history behind those regulations that that explains that how the regulations work that there is that we do need to certifications one for the copy sort of been getting a certified copy the second from the officer of the foreign service and then when we're dealing with public documents which again we don't concede this is you don't need that second certification from the from the from the foreign officer and this is in line with the hague treaty for for acceptance of foreign documents so there is out there is a ton of legislative history on it and is it the case that it could no longer is no possible way original order certified copy and then she never did so up for four months frankly i assume this case was going to go away that she was going to provide the copy or the i'm sorry the original or the sort of file copy and then and then that was never provided so at that point i said look where you made  made the risk presentation but you never in that verse supported it and given all the immigration history behind this particular alien everything that nothing supports this claim that he voluntarily departed and we don't accept this is sufficient the claim that she made that she can't now certify that she can now certify because to all that was never made before the agency that was that was only made in the motion before this court that's not shouldn't even be considered the voice you provided me that those statements and then provided i believe a statement by the by the petitioners wife and also a statement by counsel that she cannot certify that was never presented to the agency so to reverse the the agency on something that they never had a chance to consider in the first instance really would certified again by an interested party that had been considered by if that be something but standing alone his statement right there that he that he says that he got this document really has very little of that story value has by itself it cannot be sufficient  that's the position of the district director in wrong and yet in fact just make up one really quick point i see my time expired as you may and then i'm going to ask you one final time to explain in words that i can understand what the government's position is on the one with three five b ok i'll go first with your additional point yes council says that she engaged local council local the local ice council on the back and forth regarding occasion of this matter i just want to point  district director was out of chicago and so she didn't submit anything else on that my honor back to your question i'm sorry on the wall three point five basically your honor it's not before this court i more complicated or more importantly ahead of the agency on such an important mechanism that you know regulatory mechanism for reopen reinstatement of removal given that those are streamlined procedures those to those simply do not and they are contradictory r several times to the motion which again was filed under one of three point five and in the decision the agency likewise does not say that it's deciding this pursuant to his general authority which all goes to the fact that this motion was filed under one of three point five now respondent just said that the decision drafted by ice was drafted by someone other than the person whom myself mr pres garcia's counsel engaged in these informal telephone calls with however as the court will no there's reference to the informal telephone calls in the decision because it talks about the need for authentication and how that was conveyed to myself additionally this information is not on the record but mr solidarity the person who i was speaking with told me that he helped draft this decision you know it's just another example of saying well we're going to use these conversations when it benefits us because we had the benefit of writing the decision but then we're not going to we're going to say well that evidence isn't in the record any time that  pres garcia brings that up additionally i do want to point out and actually judge woman you had were thinking the same exact thing as i was when we were talking i believe it was judge shepard regarding the additional authentic f m e there is in fact a signature and a stamp by an officer in the foreign service on that document and as was brought up by this court it's impossible to authenticate the document at this point and actually contained in the record i believe starting on page one fifty five is an administrative publication by the mexican government as to why the f m e was done away with and as to why they put additional procedures in place and there's discussion in those documents  the fact that it it was a mess because we had all of these paper documents and there was no way to look back and have official records judge woman you asked me right before i finished my first time as to what i was that is one of them that the authentication was not required because the document authenticating the other is the complete disregard of the affidavit even though affidavits are specifically are provided for in the regulations and the last one was the requirement of the g one forty six which additionally despite counsel's assertion that it was required under his voluntary departure order it wasn't and there's nothing in the regulations that proport married he didn't have any children and he has quite an established life here and a family has no criminal history i mean and i suppose it could be argued that it strains credulity that he did not know the consequences of his departure without complying with the regulations he did not