our position in this case is reflected i think in the pleadings that we filed in the next case on the docket our position is identical to the position we've taken in motion to restart the briefing schedule in that case i guess addressing the things that you're quite right complains are in the best the district court of jurisdiction so were we well the real i d act requires that this case be treated as a petition for review and i think the parties agree on that reopen right which is based simply on in effect of this which means counsel right and i understand you're to be saying everything's open well certainly the removal order itself it seems to me is is open because the overall idea that seems to be granting review in every other case of the merits of the removal order but you're right that question i mean there's an ambiguity and i don't know how to resolve that except by resorting to you know your basic  the hideous petition with a new caption right and the subject matters can find money right and i think that's the government's position but the problem with that it seems to me is that then you're not would not be before the court is that what you're saying i'm saying what i'm saying yes is that if we treat this as a petition for review i think what is before the court is whether the board should have reopened well  is that the record in haiti s that we compiled with regard to ineffective assistance of counsel and the lapsing of the thirty day period on filing a petition for review it's not part of the administrative record  it's all part of the record that was compiled in hay b s and obviously we're going to treat it as a petition for a viewer limited to the administrative record so if we construe it in that fashion all the claims that we raised in the district court relating to treated as a timely filed petition for a view and i understand that the purpose of the real id act is to streamline judicial review in that respect i think my construction our construction here of the is perfectly consistent with that purpose because i think you have to keep in mind that up until the date that the real i d act was enacted aliens and other circuits who were denied the right of direct review because of the in effect counsel they could go into district court in haiti s and challenge the merits of a final or removal in the second circuit third circuit and in the tenth circuit and what congress did here it seems to me is they eliminated that problem and second circuit third circuit tenser going to mebane other circuits but those three it seems to me were clear aliens who had been denied the right of director of you had two tiers they could they could go to hate us and if they lost they could appeal so this actually had two tiers of review and congress eliminated that but it seems to me the price that congress paid for eliminating that is that there's a small group of aliens  over petitioners who were denied director of you who are going to get someone abroad and review they're going to actually get what they were asking for in their hay b s that is they're going to get review on the merits of the removal or so it seems to me it's a it's sort of a compromise that congress struck in order to achieve the overall streamlining of judicial review there's a small subset of cases this these two cases included where these aliens are going to get slightly broader slightly bro review so i think it makes i think it makes perfect sense to construe it that way and certainly it's playing it's consistent with the plain language of the statute which requires that we treat it as a petition for review and i think that any other construction would mean essentially that is the heinous petitions that are filed in a vocal would have to be dismissed and essentially i'm concerned that those individuals will not have any any access at least delves no statutory right to judicial access to to raise to be able to entertain the ineffective assistance of counsel claims that we're raising then there's no judicial forum in which we can raise them at this point because congress has a limited hey b s and that would implicate the suspension closet seems to me because we have a constitutional issue that there has have to entertain our constitutional claim because there has to be a form someplace ok you have a few minutes for rebuttal this also district courts no longer have jurisdiction behaviors or otherwise to review removal orders and there's a provision in the act called the transfer provision which provides that for cases pending in district court on the date of an acme challenging the removal order the court shall transfer the case to the court of appeal and the court of appeal shall treat the case this is a quote as if it had been filed pursuant to a petition for review and it further that the normal thirty day time period within which to file a petition for you shall not apply and although by his terms that transfer provision doesn't address explicitly that situation in which an appeal is pending on the date of enactment the department of justice is taking the position that for cases in which the appeal is pending on the effective date this court should treat the case as a petition for abuse i think the petitioners council and the department of justice are in agreement that this court should treat the case as a potential for review if the court didn't the other option the court would have would be to say that well congress has a limited hevia through stiction therefore the only recourse for this court if you treat the case as a petition for review you're confined to the administrative record but i think in this case not an injustice to the alien because the alien had a remedy at the outset and that was to file a motion to reopen alleging ineffective assistance of counsel now the alien did that but that motion to reopen was confined to the alleged ineffective assistance of counsel by former attorney bruce byrne and not filing a motion to reopen to pursue adjustment of sta that motion didn't say anything in terms of bruce berndt alleged ineffective assistance of counsel and not filing a petition for if you had that opportunity could raise that claim there is no explanation that i've heard why he didn't raise that claim i not because of what they did but because of what the government did in saying that it's all going to be a petition for review now right so what's the stop us from sending it back to the board of immigration appeals and say you guys make a complete and full record here yet i think if you had followed the proper procedure and filed a motion to reopen and given the board an opportunity to look at this claim he could have at the be a you know whether it's my fault or whether it was bruce bern case you would i get three man the case to the board of immigration appeals to look at the mo she to reopen that it's her job it's filed in that motion to reopen and he's backing for the opportunity to apply for a just and that that wouldn't really affect the opportunity to attack underlying removal order that's not what he's seeking in the first in the first case he sank assuming the validity of the underlying removal order what i want you to do board of immigration appeals is to give me a green card just like that so i ignore all of the record there's been made here because basically we're deciding the first case again it sounds like you want to do an awful lot of ignoring you know one of the things that the department of you know a week or two before he's being removed before he tried to do anything about it and even at that date he still had the opportunity to raise this claim and we'd be here and we wouldn't be saying that he's wa for review on my behalf i had therefore lost my ability to come to this court we'd be here with a proper administrative record the problem is he didn't do that and so this court is being asked to review an undeveloped record with nothing but his affidavit we don't ball or whatever the expression is we see our position from the outset is that he should file a motion to reopen that position it's the same with gardasil the passage of the real id act and if i could receive briefly addressed one thing about the real idea is that although i think it's it's fair to construe this case of the petition for review and say at the time when petition for review on the plain language that doesn't mean that he's able to raise an entirely new claim the only claim that's been raised in this case is ineffective assistance of counsel is speaking as an opportunity to file a brief addressing the merits of the immigration judges asylum order that's an entirely new claim so although we agree that should be treated as a p d f are entirely d p f are the court should only review the claims that have been raised from the outset it's not it's not it shouldn't be viewed as a windfall to the aliens or raise an entirely new claim not a threat dorie the excuse me it's not a trap door either i would to dress apparently what do we do how do we point a special master to determine whether there was ineffective assistance in failing to petition this court on time or want i think what i would suggest to the court in that situation is that the alien file another motion to reopen with the board of immigration feel and although generally the board of immigration appeals says you only get one motion to reopen and you've squandered that and it's late to be a under this court's case law is required to apply the doctrine of equitable tolling and say if you can establish that the reason you're filing another motion to reopen asking us essentially to reissue our decision so that then you can go to the ninth circuit if you're saying that the reason you're filing this late motion to reopen in a second motion to reopen is because your attorney was ineffective the board is required to assume you've established that consider that motion to reopen the board could then say well we could not your motion to reopen earlier tourney didn't tell you about it or put it in a shredder but therefore you've lost your ability to come to this court will reissue our decision and therefore now you can come to the court i think that's where i the grant the motion to reopen because the problem is that in our positions the board didn't bring its independent judgment bear on that on the issues that were raised by the immigration service so i think the court would have to find that the motion to reopen timely reverse that part thank you the case just argued will be submitted for decision things both counsel for there are give us before we let mr joe go will argue