the taking claim in the first place he was admitted in december of ninety seven and he took on this very complicated case in january of ninety eight that alone doesn't mean he committed malpractise but then he proceeded to file the i one thirty and i forty five five would never adjudicated and were eventually dismissed for the forty five was dismissed for lack of jurisdiction after i took over the case i took the i one thirty and i had it brought down to the second floor of three hundred no filed first i went thirty should been filed by one thirty units and if that was approved the case should have gone back to the judge well i guess the question it raises for me procedurally is were essential here in reviewing i believe an abuse of discretion standard the board's refusal to reopen and while certainly the conduct of counsel is relevant to that in the absence of compliance with the board's rules why should we rule as a matter of law that this constitutes an abus started with this point in the in the panel argument and i used to play second fiddle in junior high school orchestra basically that's my point why would they respond in apply if he was told he was ineligible it was clearly the prior tourney told him pick one hundred eighty dollars he paid the penalty because he entered illegally he received his work permit the record was on it's because christina price basically said you don't need to follow but complain if it's clear i'm not talking about her immigration long purposes you started your argument today by telling us what a terrible error this really attorney made it it may be at the end of the day that if there was an error of the proportion you describe the results are pretty catastrophic for your client right the results actually were cast faster from my clients why not file a complaint with the bar you know we have a terrible problem in the circuit with an adequately represented immigration fischer's all the way from the torrijos to lawyers who simply don't know what they're doing and you don't aid the process by not doing anything a lawyer the second lawyer tried to extremely hard to comply requesting over and over again with documents from the earlier lawyer and making complaint and so on he had not complied with all of the requirements but it was not for want of trying and under those circumstances we held that he did not have to comply with every detail of it what did you do to try to comply with laws are i submitted a declaration from the respondent i submitted my own arguments i wrote a letter to the respondents previous attorney and it was in response to the only thing i didn't do which is requirement of those i did not file of my complaint and i felt i didn't have to do that because the record was clear on its face that the previous attorney and could have remained the case before the be even made a decision in the first place and that was raised and that was argue question my my question is if you didn't say to the board of immigration appeals the reason that my client didn't leave was because of his reliance on his counsel's advice that he could apply for adjustment of status and how does that why should that influence our analysis of and i believe that should be sufficient as far as the board in considering why he didn't leave court even consider that question they knew he didn't leave and you wonder what they thought were the property rules that barred any relief is the reason it should go on the board should be expected to go on and entertain that question itself that is draw the inference as you say you put in front of them that might explain why he had had misfiled and why that why the tape was misfiled in the first place but with that necessarily tell the board this is also a reason why you should disregard the failure to depart well anything to stay the voluntary departure bar and can you point to me where in the record you say is that in front of the board  the board the non abuses discretion and second any consideration of the last of the five year bar even by way of every man would be circumventing the attorney general's regulations before going to these issues however i'd like to point out that from my point of view the issue of ineffective assistance is not properly before the court as an initial matter this court granted on bank review on only one question and that question was about voluntary departure and the consequences  her we operate differently from the supreme court so when he takes the case we take the entire case so our traditions everything's on the table ok and i wasn't happy and prepared to talk about that issue and i do any other reason why  would be rejected out of hand under andrews there's nothing to previous attorney could have gone mr dulcimer cannot show prejudice and well let me just make sure i understand your argument if we're looking at what the previous outset before we get to this five year question was there anything different that a knowledgeable smart immigration savvy lawyer could have done at that time to make the outcome different individual you know you're wrong there's nothing he could done again the one mistake he made was following the forty five with the district director instead of with your but that's of no consequence there's nothing he could have done requires filing at the service office having jurisdiction the head of the service office is the district director the district director does receive these filings as he did on in this case and page fifty six of the record there's nothing in the record there's nothing in the law saying that the i want thirty had to be filed with the i one thirty and instead of the district director so the previous counsel to the right thing again the only he's under an order of voluntary departure and you're saying there's nothing he can do there's nothing you can do to do what that is to say as soon as entitle to stay in this country at some point after some adjustment of status is that correct it's only partially correct just cannot do it in order for him to get the issue before he could have office move gratian review he has to get it by way of motion to reopen and in this case he was beyond the time in number bars that the  there's nothing the first council could have done and that's why the first motion to reopen was denied it didn't have the proper paperwork but it couldn't have the proper paperwork because the i went thirty is not yet approved there's a ninety day time period on the motion to reopen it takes time to get the paperwork processed so what do you know what happens in a situation where the guy's watching the ninety days run out it does run out the paperwork it's all been turned into the right place but it hasn't come back sound harsh but this is the original intent of the end of the law you have to leave the country and apply for an immigrant visa that's how it's normally done there's no right to stay here in the country and get relief while you're in the country this is a matter of grace t extended the original way of getting the relief it by leaving the country and then seeking the immigrant visa and that's usually done in this case once you cannot get the motions reopened right but if for example because the fourth and i understand  before she already case because now there's a stronger interest in the regulations the strong public interest in finale here saying that the cause of the reopening limitations which are the limitations on the authority of the file to ask the agency to do something that affects our ability to act in relationship to the ministry to the agency in the way the courts ordinarily react and with regard to the ministry of the agency i e i ask you to take another look at something quite not making a judgment about the propriety of wanting to perform that's correct your honor it limits the relief yelling can have it limits the circumstances in which you can present new evidence to the agency and for that reason also when this this court factual circumstances and the motion to reopen regulations squarely address that issue we're not dealing with a change of law a change of facts in the motion for the open wreck specified if you want to present those new facts you have to do so through the motion five years and that the traditions may have been different that was at least one reason although not the only reason given for why every man made sense because the agency could then look at additional facts so why does that only run in one direction i would say runs in one direction for example if it came to our attention that mr bill tomorrow got a force that's new factual if it came to our attention for example that mr goelz market force i'm not saying he did i just don't know but seem to be relevant time well the answer the question the board would have discretion dream into the eyes of the holder further evidence hearing on that that's not the circumstance you have here again and that's for a hypothetical we're talking about you have two court has to remain and for the board to have an opportunity to address that issue here the board addressed the issue and there's no question it addressed it correctly and the only issue is well there are new factual circumstances that arisen since then but the whole point of motions that issue because he didn't raise in his briefs now granted his opening brief the five years are not yet passed but he could have followed reply brief which he chose not to do so he only brief this issue when the panel ordered him to do so difficult for us to say you might you know you made some good points here but without having a record or anyone decided to pull oh i suppose we could decide on the first instance but we certainly have to go through a lot of hoops to get there mr bellmore of course has the in the service office having jurisdiction and that of the previous counsel if you file the service office having jurisdiction massy question about arthur do you read arthur as saying that there was no discretion at all for real you know it's not your honor because the first motion was properly denied the second motion was properly denied he actually didn't understand he can't reach that because he didn't follow the purview of the first motion ineffective for not finding it honestly i think this is the first time i've heard of that potential loophole and we can expect all previous counsel to be as bright as you are fact i take it you're not necessarily equate to ethical violations so it's the odd position of saying we want to make sure you're sure you're serious but we have to show you're serious run first to file what many bar associations view as a frivolous complaint  daughter he simply says he falls within the exceptions the points not the raised and third of all say that there is the ice the third prong because it actually shows the seriousness of the complaint if the current council is not willing to make a bar complaint i think that undercuts his clai in los angeles there's a special unit on the second floor of three hundred plus sandals and they handle all judge cases because of the high digital frog that i want thirty units that i want thirty unit handles all marriages that take place after the person is in proceedings how is that different from regular just interviews they get it personal interview they actually sequester the husband and sequester the by that i won thirty which was filed in this case it should have been father die one thirty and since it was probably just a director with i forty five that office cannot approve an adjustment because they don't have jurisdiction because the case is in court it's in front of the immigration judge that is the only person that can grant adjustment after the proceedings after i went to the i forty five unit and spoke to their supervisor saying hey you don't have jurisdiction for this can you take it down to the second floor it was reviews received he was scheduled for an interview and within four and a half months i believe you have an island thirty approval the thing i could think of as like you would be you would have to leave the united states and try to apply from there and be subject to ten year bar came ten years running from when i believe from the date he leaves which would be after the panel makes a