represented by anna tardio who was subsequently convicted and an attorney who was subsequently disbarred the penny to should be afforded the basic right to have their immigration matter heard on the merits the board of immigration appeals committed to main errors in the present the saw in early of general two thousand now that's still not within the exact one year because he didn't file until june of two thousand and one however there are two exceptions to the one year time bar the first is there is extraordinary circumstances file for asylum because he was authorized to remain in the united states as a pending soft applicant i would argue that not a wave a ball issue i would argue that it would it would be waived we would make that argument however because we do need to tell president we do need to show that the applicant that asylum application might have been granted voice so i'm still trying to figure out how the exception excuse is the time because without really without regard to the question of whether the government waived the issue if he went back to an i j and you don't dispute that if you file more than a year after the last date of entry then how can you show that he was prejudiced by the ineffective assistance well under section eight u s c section eleven fifty eight there's an exception to the one you're filing requirement if there is changed circumstances justifying their failure to file we know he was done status because the convicted notarial told him oh don't you don't don't don't need to worry about that there's prejudice in this case because mr mcguire withdrew his applications for asylum withholding and relief under the cat  act when everything was planned the life that they were given two separate alien numbers and the other one is protected under the confidentiality however there we can tell you that it was denied on april twelfth of two thousand and one confidentiality what are you talking about we could proceedings or deportation proceedings they couldn't bring anything any information use that was filed as part of their software any legalization application to to remove you you could use it for purposes of like fraud or criminal cases but not in removal proceedings and there was a confidential provisions in place so in this case there were two million numbers he has another appealing number and as we know that it was pending at the time and it was denied at the time mr mcguire withdrew the application for asylum at the time of the zero one master hearing in march three merits hearing the pay to family the data his family had had a son who had been kidnapped and thankfully they were able to pay his release but despite the kidnapping when he told mr mcguire about it his response was that does not matter to your case mr mr putin has said he is he feels he is the victim of his own inability to understand what was happening he has acknowledged that but if they would have proceeded on the asylum application they could have presented evidence prejudice there's change country conditions now that justify his about what's different that my question what what happened that was different from the argument that was made about you about country conditions or the jubilee or which could  at the time he was to they owned a small parcel of land and they were had this young son had been kidnapped because there was a belief that if you own land you pay the ransom now that at the time and therefore he qualify for asylum there's a there's a basis  particular social group and there was persecution on account of that social group and honestly we don't have to decide today whether or not he would have won just that the alchemy might have been different and it might have but the board looked at that and said this is the same argument ruling on i guess the same social group formulation that was originally argued and that's not a change for you you're just reading what is board said yes but there was several different things have happened in the record from two thousand and eight to two thousand and fourteen submission they had bought several other land property businesses the pinay the family had become well known in guerrero and so and there was a two thousand head more land than they had before and business it is and argument was before that they were landowners and that was the basis for this one edition the two thousand and thirteen and two thousand and forty kidnappings beatings and  family there are two other pinay to happen before two thousand and thirteen and two thousand and fourteen yes the one having to not before but now there are three more frequent we even had to submit a supplement to the motion to reopen showing that in fourteen the brother another brother been kidnapped extortion fees have gone up and the circumstances have changed sufficiently they had changed sufficiently at this time of the actors or my remaining time for a battle understood now the middle bit of ok it's all we can address and we can address it now it is an issue that the board did not address however at most the response position would be that this is harmless er where petitioners would bear the burden of proof and showing that they were prima fashion eligibility at the time they sought to reopen their asylum application and that without demonstrating that they could meet that statutory requirement that it be filed within one year or that they meet some circumstances to justify the untimely filing they couldn't show they didn't meet their burden to show prejudice so while perhaps the board could have addressed that issue instead the board found that they failed to demonstrate prejudice on other issues are rather the government is not really relying on the when your time are right now we were doing it under application that was withdrawn failed to allege any kidnappings failed to assert that the family had own land or that there was any basis upon which to that they had suffered or would suffer persecution based on a protected ground and with that being said they couldn't demonstrate the requisite proof ashie eligibility to show prejudice based on any and effective assistance of counsel to show that had the application not been withdrawn they could possibly have prevailed on their claim as necessary to demonstrate prejudice in examining the question of prejudice do we look to the claims  the original asylum application that was withdrawn or did we look to the facts that could also have been alleged if it had been withdrawn so in other words if incompetent counsel prepares a deficient asylum application then we don't look to the deficient application in determining prejudice do we know your honor but you would look to the motion to reopen that petitioners file before the agency to what was before the agency when the agency issued this decision and the motion to itself does not assert that of the mcquire erred by family need to amend the application that doesn't come forward until petitioners opening brief before this court so that wasn't an ar it was not an error from acquired to withdraw on an application it seems to me that the petitioners have a valid claim an asylum application and we don't have to decide whether they w that is just whether they may have prevailed on that brought relevant facts of their silent claim to the i j s attention i understood your honor that the standard would not be that they necessarily would have prevailed but that they could have prevailed and what the board found is that what was submitted to them on the motion to reopen was not sufficient to show in light of the asylum application that was withdrawn and the testimony that was presented to the agency that they could have prevailed so can you explain to me under these facts and our case law why their claim would have been sold deficient that they could not have prevailed that they had no chance of prevailing i can only we can  but as the board i add i apologize if i'm not answering your honour's questions by the board looked at what they came forward with and said ok you're coming forward in this motion to reopen and you're saying that you were a landowner and that your brother was kidnapped however your asylum application never mentioned that you were a landowner or that your brother was kidnapped and moreover you testified before this it in c and you're not addressing that testimony at all that testimony never asserted any kidnappings that testimony never started any landownership so how is it that given what we have in the record here you could possibly prevail and  found they could not demonstrate prima fascia eligibility to demonstrate prejudice but let me see if i can work and summarize your position you're saying that on the motion to reopen file by a different turn even mr mcguire the board looked at the motion to reopen and it didn't say anything about the facts that are now hours before us on appeal so the agency did not abuse its discretion and then additionally mia is separate and independent grounds of reopening the board looked at change country can so separately from an effective assistance of counsel petitioner sought petitioner sought reopening based on changed country conditions and here again the board looked at the motion to reopen that was filed which attached a number of documents at exhibit h but didn't explain those documents or assert how those documents supported a conclusion of change country conditions in the motion to reopen and found that petitioners failed to demonstrate that they that their situation had significantly changed since they last appeared before the agency and therefore could not demonstrate the requisite change circumstances justify reopening their removal proceedings and given again i don't i apologize if i haven't said this earlier their motion to reopen was both time and numerically barred so petitioners bore the burden of proof here across the board or all of those bars are subject to equitable tollway doesn't that correct yes your honor once petitioners demonstrate that quotable tolling so they had the burden of proof to show an effective assistance of counsel or change country conditions to equitably toll or waive those bars if your honour's have no further questions respondent will rest on none of the arguments that you're making before us now were set before the bill yes yes and in fact they did argue that they were changed and can't change country conditions we did present of thirty pages of evidence of land and business ownership we or how can we say the board abused its discretion if a coherent argument was made to the agency as to what these exhibits purported to show were in the motion to reopen we did in fact argue that there was change conditions and we said th and explaining that the business is own the kidnappings how long his brother was beaten and held for ransom how much money they're paying an extortion fees and none of this will get ever going to be presented what do we do with the fact that he testified and never said anything about  earlier merits here again he said he's there in victim of his own inability to understand what was happening mr mcguire told him it doesn't matter to your case ok i suppose i'm just irrelevant right yes some advice he didn't raise those issues exactly your honour's and there's no i mean the term particular social group is such a confusing term that even us immigration attorneys are constantly seeking this court's helping us tell because shape that definition because it is so confusing how