knew that that evidence was there but they simply couldn't afford to get it and tell the later stage of the proceeding and why is that an abuse of discretion for the board to refuse to reopen when the evidence was available under th my office represented them before the immigration judge was it occurred to anyone to try to make a case of hardship before monorail was published or yes at the time no one really had any idea what the extent of the it wasn't clear as to how much preparation or how much evidence you did to go into any case of course i guess argument can be made that you can always do more you can always do more you can always do more but in this case you do not have to have any guidance from the  explain what was sufficient so therefore two months before that hearing the decision came out and it was it was made clear both through the majority opinion and that is that they needed to elevate their burden or their showing greatly however that a timely report but because of their financial circumstances they just couldn't because of the shortened time for preparation yes john o'quinn had twenty nine ok so it really boils down to two financial inability as opposed to not regulations and as i recall the language it's pretty tough so the question i have for you is how do we find an abuse of discretion where it appears the board acted in conformity with the regulation said that this was part of the record and that they had stated the evidence the judge's decision did not specifically come out and say that they had failed to state this evidence the reason in front of her she just said i find  reviewing the judge unavailable in the two years that were pending before the the the case of pending before the immigration court just first chose not to file any psychological evaluation relating to their united states citizen children but that routine for the two snares to do that motion to reopen it was simply a recognition of the fact that they had additional evidence to present and they could do so by presenting a motion to reopen with their additional evidence but would that be filed with the when mine really all came down they said it looks like we may need or should present additional information went to the i j a the i g says i'm not going to give you a continuance but if you get new evidence anything they found after mom read all they made a judgment the council somebody made a judgment that they needed to be for the record they thought the opportunity from the i g to get time to do that i g said no if you  get new or additional evidence whatever the terminology was is not in the record but you can always move to reopen they got the information they came to reopen and the judge i'm sorry the singh has been pending for two years so to previously unavailable we don't know into what term what time frame it was available to them there's testimony or evidence here that they didn't have the money to get it so it was financially available in that sense but it wasn't unavailable in the sense that they could not have prevented it how do we know that in the sense that they think they chose not just to be presented but it wasn't unavailable in the sense that for example  montral has no impact on on litigation posture of parties that's the way the law gets evolved you would find out from experience as litigants what the quality of proof is the nature of proof there's nothing in the record that's been brought to my attention yet that indicates these people were not diligent to the extent that they could be once they felt were advised that they needed to get additional information if they went to the fact that they were unwilling to make the point that you have to take into consideration that they have to save up the money to pay the psychologist and get an appointment in the psychologist schedule they've always acted diligently and in this in essence the judge and the idea