i will move to the next case which i guess we can do more seamlessly because nobody has to get up and move papers around that tests on versus bar council on the line good morning or honest ok serious health concerns he has worked in the financial industry for decades and is finally retired and the only blight on his record is a non criminal marijuana which currently today he is no longer being convicted of under new york state law such minor offenses have all been expunged there is no longer a record of this offense unfortunately his health issues were compounded by ineffective assistance of counsel i think it's overwhelmingly clear from the record that his trial counsel just clearly did not know what he was doing immigration law is incredibly complex and he failed to fulfill the most basic requirements of being an immigration lawyer the issue before the court today is the board of immigration appeals denied his motion to reopen and the reason why deny that motion to reopen was they said that the evidence emitted with the motion to reopen was not new however i believe that this opinion from the board of immigration appeals is a is logically impossible if every immigrant who was the victim of ineffective assistance of counsel could not file a motion to reopen because that evidence existed and the prior counsel was just too ineffective to submit it then no immigrant would ever based one where the new event has occurred excuse me you have one minute last thank you now opposing counsel in their brief equivocally said that this court has no jurisdiction to consider the instant issue that is jurisdictiona consider next questions of fact of law and we would posit to the court that this case should be remitted for additional briefing or this court should hold that they do have jurisdiction and that and that they responded is indeed eligible for the proper application had not been filed and yes there never was a  filing your honor i i think that is the nub of the issue and although the applicant is not here to testify i believe you could say that you relied on counsel that the judge told in this information and it in front of the immigration judge the immigration god was instructing him to help his own counsel pay a fine links to which counsel just could not do could not dressing on the local sign a  professional committee within the state are within the state court system with regard to his concerns about that and then and then he goes on and then there's that then there's another  contusion i think runs runs through this whole thing when he makes his motion to reopen in february of two thousand and seventeen he wants to raise an ineffective assistance of counsel claim right curricular but he had already previously had in effect of assistance claim with regard to his prior lawyer rejected by the by the i j and by lawyer he basically moved from a trial lawyer who should not have been in a courtroom to his son who was technically a lawyer but had new experience with immigration  to an actual immigration lawyer who made a good shout go ahead i'm sorry i don't sorry no no finish your thought because  information about his son's inadequacies is bad you know the new information with specifically the bar complaint against the trial lawyer and the application for relief which the judge which the trial judge twelve your client had been aware that he needed to file the appropriate application forms and supporting evidence and they concluded that hasan had yet to proffer a coherent and persuasive explanation for waiting until the filing of the present request for reopening and others appeared of years goes by and so you seem to be chalking that up to ineffective assistance of counsel but the be found that the client knew and there's no explanation for why the amount of time or am i wrong about that i think i think that is a close characterization of the record but it's slightly different i think  chose to represent himself despite the fact that the court has told the numerous plans that this is the steps to follow a someone with not an attorney despite the matter of crimes that they hear something may be fully on able to comply with the court's request because counsel but in an immigration court it is very very difficult i think the supreme court is that is the nd most complex area of law and next attack all right you reserve to m office suburban maryland representing responded to attorney general your honour's at the outset i would submit to the court that the government stands on all of the arguments presented in our proof including the applicability of the criminal alien bar to this petition but with my initial two to three minutes i would like to emphasize something that i think the previous line of questioning you know got to the heart of and that is that the institution for standard for reopening and it also repeated under the standard for reconsideration in the simplest analysis as to two judges and i apologize i haven't matched the voices to the names two judges  suggested petitioner presented evidence with a motion that's under review here that was clearly not new or previously unavailable that in evidence included the waiver applications that is your hono mentioned he was alerted two years ago documents in support of those waivers which included his green card which he's had for decades which included letters of support from friends who is known for decades and then included some clarification on the steps taken by petitioners prior counsel his son toward the lozada compliance but none of that evidence was new or previously undiscoverable and as such that the board you know is this is simply an abuse of discretion review feel a bit convoluted lurking here is the fact that mr hassan son when he represented him he represented him on the appeal from the eyes a decision you of compliance now has not happened there was no petition for review of that or decision so you know we we can't really take a peek back through there because that ship sailed and also as difficult as it might be for petitioners for petitioner to say what he really needed to do was actually file a ineffective assistance of counsel against his son for obvious is obvious reasons why he would didn't want necessarily to do that so what we have is basically a straightforward denial of a motion to reopen the evidence was not wesley i guess my question is which respect to the right so in other words if if if mr hasan had ineffective assistance not once but twice once from child counsel that she had been clear pretty early on because it seems like the another petition to reopen based on the ineffective assistance of his son well i would say that if we if we were if we could back the clock up a year or two he could have filed such a motion but i would say now that he failed to exhaust that before the agency and has waived any such claim now that is frankly what should have happened as uncomfortable as it would have been and if i might address l compliance by the sun i would say i would i would like to point to one point in this contradict in contravention of petitioners counsel's point to that in effect this was obvious on the on the record again i said we don't get there but even if we professional credentials he didn't send return receipt letter or u s postal service u p s next day nothing to be signed we've also e mails and transposed letters or underscores or it goes to junk mail so it's not even certain whether the st council received the received the allegation and i would also say the record shows that made several one hundred thousand dollars in your career maybe a couple one million and you haven't paid your taxes as a legal permanent resident this is going to go down on a discretionary parents and file so there's quite a bit of delay before the immigration judge and we just don't know perhaps that was strategy so anyway out there perhaps but if there is an effective assistance by the nd lawyer on the lozano portion of this what what's the remedy saying there's and in the motion you know the motion to reopen that he files that we're looking at here the most recent one you know he could have done that and he chose not to and said he wants to look back to something performance of counsel that happened you and seventy six years ago and as you said we've already dealt we know we've already dealt with i don't know that he would get well i'm sorry i'm not sure what you know i would i would open that where it was if the petitioner was before an immigration court currently if his case was remanded he wouldn't be prosecuted for deportation is is about marijuana violation no longer exists as a violation of new york state law juries can some might be true of a lot of people who are already been deported but but with respect to the failure to raise an ineffective assistance claim  timely i mean what are we to do with this i mean is you're really it seems to me you're really asserting that there's two instances of ineffective assistance once by the original wire and once again via the sun is  and say specifically what what if any response was there to to to these allegations and i think opposing counsel is assertions that a five year delay or years long delay or filing an application for relief one would surely would have been granted i mean if at the heart of this is your marijuana and only alternative there tremendous equity that the court would weigh in to say that it wouldn't be granted or that the failure to file an application for relief which had a very good chance of success with the point of strategy is absurd nelson thank you we'll reserve decision but it was well argued thank you very much