underlying case when his appeal of the actually is decision was dismissed by the b a a he was again granted voluntary departure in order to leave by october stakes of two thousand and two his departure date which gave him a mere thirty days to leave this country drastically cut short his time to file a motion to reopen eight u s c twelve twenty nine a guarantees to all aliens the right to file in motion to reopen and this actually also guarantees that the motion within ninety eight u s d was limiting the voluntary departure or use of sixty days effectively cut short the motion to reopen period by an arbitrary thirty days just one second we're getting a little feedback here you're kind of you're doing such a good job you're repeating yourself well everyone wants to hear so that all italy ins are granted their ninety day period in which to file a motion to reopen by effectively cutting short the motion to reopen period when an alien is granted voluntary departure there's a violation of the aliens equal protection right and while you do not have let me ask you a question about doubt that you obviously have to you if i were to take the position that you have not demonstrated that  legislative classification that deprives democrats granted voluntary departure full use of the ninety day period to file a motion to open to reopen it is wholly irrational you can prevail right you have to you have to show that because there are two different class of their classify differently and did you consider de martina's versus ashcraft in your analysis you don't consider all right well how do you distinguish that the marks you know as looks at voluntary departure as a whole to say that on the whole voluntary departure puts certain aliens in a subclass against other aliens that position that is being taken here is not that on the whole voluntary departure create a class but as it relates to the motion to reopen which is guaranteed to all illions regardless of whether they agree to voluntary departure or whether they are forcibly removed that creates a subclass in that case are you are you going to cover these aliens thank you for your time all right thank you for your argument standard to look at in situations where there is ineffective assistance lie under stand down but we don't have a record here in terms that we don't even really know if your client had a lawyer at that time i mean we don't really know any of those things and there is a way that your client could go back on a hideous petition in front of the district court then develop a record and then we would be able to review it that when you raise things for the first time on appeal essentially the reason the rule exists is because it sandbags the other side you know how there's no know you they wouldn't have any opportunity to respond or do any of that do you have any cases i know the case that you cited allows for some excuse from a start up but they did raise that before you how many cases that say that you can just you know do it the first time on appeal we do not your honor but i would suggest that the record is a clear then you would suggest that in fact if you look idea that she could not refile it ninety days she thought it was the statutory period as discussed by my my counsel the other counsel so if you look at the whole corpus of information in the whole body of what was going on at that time is up we have the two minutes for rebuttal ok now ok and if you want to if you want to take another minute or two thoughts fine and i'll allow you to minutes very data i just wanted to quickly touch upon the prejudicial element of the fact that the motion was not followed timely in that because of the fact that it was filed in ninety days the b i made a decision on procedural grounds rather than on substantive grounds and what we're asking is that the be either given another opportunity my greatest concern was that it wasn't raised in front of the p r i this this coming up for the first time but you know what is your response in terms of i think counsel for the up has argued that we can just look at it and this record and make a decision here well i mean two things one there's a lot of warning that to the law that says you cannot look at that is statutory and three actually the record is not clear in this case what happened the motion reopened wasn't filed because there was no basis for it cancel had nothing to file and he filed applications for labor certification absolutely in line with ventura i mean it's there is no clear anything on the record here and for the court to sue to rule on this issue without having to give in the board  whether there was incompetence or not at most we would send it back to the b i a to make any consideration of that i think looked at the record and co in my view was incompetent from the word get go the day of the hearing and she said that she had something else she had to do in state court and she'd gotten around her calendar and she was forced to proceed to th have a situation where counsel will not raise you know her own incompetence that somehow we have an obligation to allow the petition or at least we have is even if maybe he did we don't know that there's no records that as to whether or not counsel was clearly incompetent you know your honor it's hard to say based on this record you know the council  concerned that there is no liberty interest in the relief that he was seeking we have briefed this issue and basically the law is clear that the relief he was seeking with adjusting the status which the discretionary formerly and in this circuit this court is held that there is no liberty interest for substantive due process claims to through to receive that kind of protection and to say that there's some kind of liberty interest was implicated here that just hasn't been done and also even assuming there is some kind of every interest this court has already issued the d martinez case where he has held that under almost exactly the same circumstances where the alias father and jaime motion to reopen post and the the ending of the volunteer departure period and set has held that there is no equal protection violation there based on you know the the available well based on how the so the court saw the conseil basis for distinguishing the the reasons the congress may have given which was that was less costly that there was additional conny it was more humane and obviously the reason why we have a voluntary departure  cuts down on further what addition the alien gets the benefit of knowing when few weaves and how he leaves and also the union gets to avoid the bar for the discretion relief that would follow if the alien risk removal later on so they're going to pay the additional questions thank you for your argument good morning good morning they assume an attorney will know how to comply with the procedural details that make immigration proceedings so complicated up until ninety that is i mean sixty days after he was supposed to leave this country petitioner was relying upon his counsel understanding o guaranteed his form ninety days there is an additional cost associated with extending his allowing him to file his motion to reopen sixty extra days doesn't create more opportunities for him to kind of how do we if you think that your client is to serv will mean if everyone you know it's extra time but the rules guarantee that if you had those full ninety days the rules say everyone has the ninety days to file a motion to reopen if he wasn't given that opportunity so in effect