in denying the motions to reopen on ineffective assistance grounds and i ask you a question which is irrelevant well sure hocking about what is that if your legal status now petitioners he does not have any is as quoted as follows the government's argument that the information was previously available because it became available during the pendency of the appeal to the board does not comport with the statute or the regulations under eight c if i went thousand three point to see one of the previously available evidence clearly states and based on the court highlighted at the former hearing not during the rect appeal so in this case correct i may have done it differently and done all those out of factors on direct appeal however in this case it was previously unavailable evidence because the evidence became available when mr yes i am consulted with new counsel and realized what ms my that's in had done who has been reprimanded repeatedly by the state bar incidentally and in this case your honor the second issue is whether there was prejudice and when you take his declaration assuming to be true which this court has said unless there's an inherent unreliability or unbelievability in the statement that we must  judge nor his own attorney which i always do in court and nobody asks him sir g you wish to withdraw your application we have no idea whether it's a knowing or voluntary withdrawal of his asylum application so if i guess my biggest got to be on something that is new newly discovered change of circumstances if the material submitted was not available could not have been discovered before the prior hearing and i guess they had one decision in front of them he did not submit the documents that he could have submitted and so now he comes back with a motion to reopen and submits documents he could have submitted previously yes here to me where over locomotion could have been summits previously and i don't know how i can get there you got it because the previously available evidence pertains to whether there was evidence whether the became available nearly available when he consulted with you counsel which was during the direct appeal to the v i i and i understand what your honor is saying in terms of merely available but under vase and if newly available evidence becomes available during the direct appeal and then it's files a brief says he's a victim of the use of ineffective assistance of counsel but i guessed here we are the idea he says i'm looking at the declaration  in court well put into motion to reopen in front of the v i i that's crap about what happened in front of the i j a and you had a motion in front or an appeal in front of me and so you're presenting these documents th cia said that they failed to comply with minor that's correct because counsel probably realized that they had not complied with the laws out of factors and they were in the process of doing so the motion to reopen as long as it's timely filed your honor within ninety days of the yeas final order on field all it needs to show is that there was evidence previously unavailable and the evidence was unavailable during the court hearing under base and government's argument that the evidence became available on the record appeal while it is concerning reopen since it was timely filed and a lot of factors were it here to the question then becomes was the evidence previously available and was he prejudice and in both cases the evidence was not previously available your honor for the same reason heavy burden to reopen the case there needs to be new and previously unavailable happens there needs to be some reason for the board to reopen the case after it's decided there's a motion to opens or highly yes i i i believe so i mean a beginning that frankly the most the hearing was over on june the fourth two thousand and four for june first two thousand and four when he had all this stuff in front of him he said hey i'd like to give comply with the matter to love god so are we really suggesting in this particular instance when he says i want more time to comply with manner of was ata and the b s a doesn't say whether he gets it or whether he doesn't that they're going to wait till the time of their decision to decide whether he submitted that acquit information yet but that's statement one should look at this than the new evidence that he finally smith on the motion trip and all that evidence could have been submitted on that day june first two thousand and four we have a bar dissatisfied with the representation and i didn't do that until after the hearing are is were more of saying if they had submitted that letter to ma that they would have done something about it with the language i re thousand and three so all of that evidence was previously available and or discoverable probably even prior to that june first two thousand and four i understand evidence sufficient to change the result of the prior decision i say they're out to lunch i mean the bottom line there was an affidavit explaining the agreement there was evidence about prior counsel him formally allegations now there was a complaint and therefore i don't know how they got to that position frankly on the alternative conclusion self i'm going to get them there i've got to talk about the first conclusion which is when i talk to counsel about right and so it says to me you know with perhaps one phrase which i kind of tried to really make it think about i was saying to myself boy why isn't the government doing something to try to do a mediation here because you could very easily get it back in your face saying no you are there are a few things i would have no objection if if counsel wanted to put this back in mediation to seek a joint motion to reopen before d h asked if there needs to be there needs to be efforts on both sides to get that accomplished i understand this of that nature of this case and i think with respect i don't my time is almost up but with respect to the the board's alternative conclusion about it not changing the fact in the administrative record here all that is known is that the son was granted asylum there's honor i agree that that's not the standard the standard is whether the evidence was previously unavailable at the time of the hearing not at the time of the final v i i decision whether there was an appeal filed  have done but had there not even been a direct appeal filed the law is within ninety days if you file a motion to reopen and there's previously unavailable evidence that the i a e a has to consider that evidence and when he consulted with you counsel after previous counsel as your honor indicated the counsel had gone in withdrawn this counsel has been reprimanded repeatedly never in court asked by the individuals on declaration never asked him if you wanted to withdraw the judge who the ineffective assistance based on the new facts in the motion to reopen and should they have reminded reviewing all the evidence taking into everything into account and reviewing whether or not the declaration was inherently unreliable which it clearly  thank you very much anderson q i would suggest to your counsel her to your client as well that at least as to one person you faced that person was giving you the business on the interest as well to give some mediation ok thank your honour's thank you