i will reserve five minutes for a bottle mr while this was wrongfully denied his right to apply for two twelve c relief over twenty years ago and now this court has the opportunity to finally rectify that error mr wild guess a lot of permanent resident even at a time when the agency's governing interpretation would have precluded that relief prior to mcdaniel and st cyr the court recently reaffirmed that holding in the united states versus money barra's and held similarly and lay on a air and not advising mr well this is even more striking because at the time of his final deportation hearing there was no administrative decision in effect interpreting at those changes to t this is that the statute was well i wasn't clearly available it just might have been available and i understood their argument is because it was not clearly available there's no where but that's exactly what the court decided and the dominant and also united states vs good money borrows explains that idea actually did have a duty under this regulation and i think it's in part because ten eighteen at no six that explains that because the agency doesn't have the ability to or the authority to rule on issues of statutory retroactivity that i j is still even when matter of soriano was the governing law j still knew or should have known that two twelve c was potentially available to somebody else can i ask a practical question in the us i've been sort of scratching my head about your clients and kind of a unique situation is ninety nine percent of people removed who are told they have to wait twenty years to reapply don't wait twenty years earlier your case we heard was an example right your client inadmissible so he could try it so he would have a heightened standard on the waiver for discretion under the regulations and likely to be determined to be a violent or dangerous crime and he would have no right to a hearing on that waiver made aware that he has a right to seek relief necessarily has no meaningful opportunity to appeal the fact that he was not advised of that right and so that principle applies equally in motions to reopen as a matter of law mr while this was not required to file an appeal and he cannot have been expected to file a timely motion to reopen worlds seems to me the government admits has is saying there is no diligence there was no reasonable explanation for that holding so it doesn't seem to me that the diligence argument is really in front of us the government would send it back if it was diligence even the government says there's no reasonable explanation for that i think government argues and that's you to it is that it's not clearly available that subsequent change in the law doesn't alter the right of the of the petitioner at the time of the hearing that's what the government argues they're not suggesting that diligence is a problem in my book maybe he'll get up and tell me i'm out to lunch but that seems to me what he's saying even the government admits the b i did not explain why the i here did not prejudice the petitioner they've been saving about that but they concentrate on is it wasn't clearly available and the subsequent change in the law doesn't alter the rights their brief  and i'll harangue those cases did not involve a due process violation in the underlying proceedings so those cases were not raising a claim that the i g had failed to advise as to to twelve c eligibility those individuals were simply so they never made a claim that they didn't know about to try to see relief at all so i think in those cases don't govern even though that was the government's main argument as to diligence your honor the board did reach diligence and we think that the record is clear on spontaneous if the court holds that mr while this is entitled to equitable tolling which we think it should and can on this record then no the court does not need to reach this one to issue i'd like to reserve the remainder of my  sanchez the court found that the two twelve c issued on the two twelve c issue that science here does not apply that it was issued years later does not apply retroactively in this this the the b i can only consider the reasons they gave and i appreciate your argument fact it may even be the right argument i've thought about it i've tried to detail it out and think about it but to be i never talked about that we would be i only said they were denying this because it was a collateral attack correct and that's that's a fact has nothing to do with your argument i think it does i think does your honor because the supreme court juris prudence and the circuit your experience has made a distinction between applying new decisions retroactively for cases that in direct appeal and those cases that are on collateral attack in this this case is a collateral challenge in helmeted seems to me that what they're saying it's collateral rather than fraud deception or  but if i look at the other cases the council is sided plus j f pham versus lynch it seems to me what they're telling me is it's either it is there it's fair for the president applies retroactively and that that's i think the board did not say that very clearly island knowledge i would say this that this is a purely legal issue this court can interpret its own precedent and but it seems to me that you're admitting in your brief you can tell me if i'm wrong that the b i did not explain why the i g f failure did not prejudice the petitioner you also admit the b the b i was saying it was no diligence there was no reason the explanation so it seems to me that in these kind of situations high battery man if the court disagrees with our principal argument i think i don't know that i disagree i'm just saying i don't have anything in the that backs you up right and and i appreciate that i think that because this is a purely legal question i think that there is case law that says you know that under the futility exception to chattery that the court can go ahead and address the the issue given that the case law is clear we are not defending the board decision on the prejudice issue or on the due diligence issue but we would strongly encourage if the court were to get to those and reject the government's charges that it should remain on those one of the real questions here is how that the board's in touch on is how can the petitioner establish due diligence if he waited fourteen years to even seek counsel sincere wish it was issued just a few years later in two thousand and one they have not adequately explained that they've denied so that needs to be explained also they did not address the argument that the position makes that he could not follow a motion to reopen after being removed based on the voluntary  departure park case law however the petitioner in their brief cites to a line of cases notable most notably the waiters per case that actually indicates that the petitioner could have filed a motion to reopen at the time of the removal hearing after they were removed that case says that even someone has been removed as a broad can challenge the order as not being legally executed these are questions that i think need to be addressed by the board but i don't think we need to get there because i don't think that the petitioner has satisfactorily distinguish the civil case law in the context they argue that there is a distinction between the duty to advise and the issues that were present  incorrectly adjudicating that application and so we don't see a distinction between the byes and the error that was made at the supposed error that was made by the immigration judge  in al bring a furthermore we would contest the fact that that there was a parent eligibility that's the phrase in the regulation i don't think we're arguing that the law has to be clear the regulation says that the g has a duty to advise of any relief for which there is apparent eligibility and if we go back and look at the sequence of events in the case law congress passed the anti terrorism effects and death penalty act a few months before the few months later before the immigration judge's decision that the board came down with a decision in the matter of soriano that said basically that somebody in her situation would be ineligible now that decision was vacated and later the attorney general after the petitioners rule hearing issued a issued a superseding decision but under the board's decision or the decision it didn't matter position or would have been in eligible in fact the argument between the board and the did not really have to do with petitioners specific situation he was placed into proceedings into removal proceedings after the effective day after the i'm sorry the nachman event and so there was no dispute between the board of the a g well as to whether the bar applied to him what with the dispute was and the end the a g ended up taking a more broader reading of the scope of the bar and holding that it applies not only to application pending he was it was a purely prospective application and if the court looks at the land at the soriano matter soriano opinion by the attorney general it references case law that existed among the circuits  regarding of a prior to twelve bar that was very similar for individuals who've been incarcerated for five years or ineligible for trial c relief and they also did a very similar analysis where they found that the application of that bar to individuals who can petition or situation or not it was not in impermissibly retroactive so we would argue that fact the immigration judge given all of that context i was looking at the question of whether there was a parent eligibility and reasonably concluded that he would individually petition was not eligible apparently eligible for twelve c really so we would ask the court to  rm i'm sorry i'm sorry my apologies to deny the petition for you on that ground if the court has no more questions then thank you very much never made an allegation that they were deprived of the opportunity to apply for to see through the violation of the regulations as to the issue the government raises regarding the fact that our briefer lied primarily on roa they rely on a case moran and rico is when they're talking about the government's excuse me the immigration judges duty to advise and moran and rick as is an immigration case there's also an immigration also briefly discussed the delay in this case and urge the court to reach the diligence issue because i think the record is complete and as judge hawkins had mentioned earlier this is a unique set of circumstances that doesn't come up very often going to say ok counselor tell me where i go to go read to say they made it because i don't think they ever did ok i agree with the government and i frankly believe that if the b o i were saying no diligence they should have given a better explanation of what they were doing and that's my view so that now i'm trying to figure out where do i go to read what you're saying george so the way i read the government's accountable told me the board's equitable tolling analysis is they have one paragraph at the bottom of a r t not shown that he acted with the do or reasonable diligence in discovering any deception fraud or error and then it goes on to say he has not persuasively explained why he waited until two thousand and fifteen to file his motion to reopen so you're saying that is intents i don't think that's very reason but gloria you made your argument as to why on this record he was reasonably diligent under the circumstances he believed at the deportation hearing is set forth in mr wild guesses declaration and a r three seventeen the i j a said that those in his circumstance needed to wait outside of the united states for twenty years and indeed that's what the statute said so mr well that's reasonably relied on not mis advice he was completely in the dark about the fact that the immigration judge had erred and had not put him on notice that he was eligible for relief and so he was in mexico under the reasonable belief that he had no way to emigrate to the united states for twenty years and it was only that he happened to fall in love with his u s citizen fiance that he started to investigate how he might be able to eventually return to the united states which led him to ultimately discover discover the immigration judges error and it was that discovery that gave him grounds to reopen so we believe you have to say it's been good for the b to have been able to do a job that well that record the evidence was in the record we know where it was i just didn't see where the b i evaluated or gave a reasoned explanation why they