says by somehow having broader review now that this case has to be treated as a petition for review because when it was a hay vs the only issue that we raised was ineffective assistance of counsel and whether the decision should be reissued obviously the reason we framed the hague yes like that is direct appeal and under volkova then the only issue that we could raise in our hay vs was whether or not the board's decision can be enforced or whether it cannot be enforced until it's reissued and were allot some additional period of time in which to appeal but because we've so we framed our case the way we did because it was being treated at that time in the hague b s but now obviously the courts being ordered to treat it as a timely petition for review and it doesn't make any sense to me to say that well we're going to treat it as a timely protection for of you but we're going to limit the scope of our review to that that you would have had in hey vs again that's not treating it as a petition for review that's treating it as a hideous appeal agreed with us i guess the deer and you didn't require it and they were entering into stipulations that we had you know at least a half a dozen stipulations to grant he gave us petitions where we didn't file a motion to reopen pursuant to derringer and the reason we weren't filing a motion to reopen this court from hearing the claim and pursuant to that we were filing hades petitions and the government was oftentimes stipulating to the granite behavior petition without us filing a motion to reopen and then they changed their position and then they started saying well you need to file a motion to reopen and our position is that now a motion to reopen was inappropriate because the the ineffective assistance of counsel that we're talking about here it didn't occur during the course of the administrative proceedings it occurred in federal court when somebody fails to u s attorney's office because they're part of this federal court system and our position has been it's not right for the u s attorney's office to slough off its responsibilities and try to put the burden on the board of immigration appeals and on this issue about whether the even provide this relief the board has spoken on this question when the government changed its position we started filing motions to reopen at the board well we got our very first decision on that motion to reopen in the young case and then the yacht's case the boy said quote that  motion to reopen regulations if you look at one thousand and three point to see which is the is the provision that governs motions to reopen it says to get a motion to reopen granted you have to set forth new facts to be proven at a hearing  to be conducted if the motion is granted now this is that we're not seeking a new hearing when we ask the board to simply reissue a decision so that we can have another period of time in which to appeal we're simply asking them to do that exactly that think case that we can have a hearing on the adjustment of status that's a proper motion to reopen but to go back to the board and say we don't actually want a hearing we actually don't want to present any new evidence to you in the administrative proceeding we just want you to reissue decision so we can appeal to the pick it up with the ninth circuit it would be patently unfair in this case you know some two years or whatever after we filed i hate this petition to say well now you should go back and take it up with the board make a motion to reopen well it's too late to do that we well i'm wondering you know or doesn't entertain your claims at all how do we get record yeah i don't have a clear solution to this but it seems to me that the the best solution the one that's most in keeping with the plain language of the real act is to treat it as a timely filed petition for review on the merits of the underlying removal or i understand that it gives us what we what we wanted in the hague b s but it's what have gone to district court they should have come here right the real idea access imagine the district court never had jurisdiction move this stuff over it's all one stream doesn't that in effect do that yeah i think the  got this captured that it would be one thing if the if council had moved the vi either to reissue its order or to reopen and that had been denied for whatever reason and then they had come here come to the ninth circuit that's the way every like the access it should or should happen maybe maybe i'm missing something where he was looking for was to get the whole record the administrative record in front of th and i agree that they feel should be construed under the real i d act as times that are different though is the claim that this court the only claim that has been raised in this proceeding is ineffective the real i d act should not give him the opportunity to win fall to raise an entirely new plane which is essentially he's raising the ineffective assistance of counsel argument and if you succeed then he'll be able to attack the underlying removal presented to a district court and to this court and now that suddenly give him the opportunity to file a new brief so what about the last case you argued that we were stuck with the administrative record and we couldn't go in to the district court said this i level what i'm saying is what the panel is stuck with and what i'm stuck with is the only claim not the record the claim the argument all along has been ineffective assistance of counsel my only my only proposal is that he's bound by that that's the claim he's radio all along he shouldn't be given the opportunity to file a new brief raising entirely new argument my position in both cases is consistent though in saying that this court is confined to the administrative record of the b i not the district court if i can just say briefly something about the twenty eight jail letters that mr jope is presented so he's presented some recent decisions by the b i a which in his view say that the b i powerless to reissue  decision and if you look carefully at the at the decisions that he's attached that's not what the i think what the b i is saying is you filed a motion to reopen alleging some ineffective assistance of counsel by your former attorney but now that we look at it the allege ineffective assistance of counsel occurred after you filed the petition for review with the ninth circuit and those cases the alien had filed a petition for the review with this court and then for one reason or another didn't file a brief and so the ninth circuit dismissed the case for failure to prosecute that understandably the b r is going to say the alleged ineffective assistance of counsel occurred at the ninth circuit you didn't file a nicer theory that understandably to be eyes going to say we can't really do anything about this this case is not that case this case that the i s u this decision there's some allegation that the attorney didn't get it or got it and didn't let the alien know the b i is in the position to do something about that  in exactly the circumstances so the twenty eight day letter doesn't really address the facts of this case and in any event if the alien is upset with those just asian paling can appeal to the ninth circuit remedy isn't to come into district court and bring the haziest addition finally let me just briefly run through my arguments about what happened in this case you know in this case the former attorney i said no our position is you should have appealed that to the ninth circuit because the ninth circuit was in the position to say i don't know whose fault it was but it may not have been the aliens fall so you should have reassured your decision didn't do asking the district court to find some other attorney ineffective which is the object of very serious charge based on an affidavit that is putting the district court in a very difficult situation to make a very serious determination without any evidence aside from an affidavit so i just to sum up but i think the approach in this case should be to review the case of the p f bar and deny the p f far because doing something failed to do something deceive the quiet about doing something apparently he moved in apparently his failure was to not notif complaint if you're alleging ineffective assistance the allegation is that the attorney should have notified the b i a you know that i've moved and so please send future correspondence to my new suite i think that you know that that's an ineffective assistance of counsel claim because it can lead if it occurred to this kind of situation where the alien is allegedly deprived of an opportunity or the ninth circuit's i think it's i think it's bar stuff if you fail to notify the d a of a change of address and as a result you don't get the order you can't notify your client client can't go to the ninth circuit and i think could be i could have made determination such as well when did you move and did you file a change of address and if so why did you do it notified the post office and then was that even if you know effective at this and to counsel because the b i n g decision before he moved so he could have conceivably said well i didn't file a notice a change of address but i move before our move after the decision was issued so you shouldn't certainly find me an effective because it's just a quirk in the timing of what happened nobody's fault but i think that's why he had the opportunity if it's nobody's fault to appeal the  circuit and the government is suggesting the present a lot in a case like that it would be appropriate to follow a motion to reopen at the board that's just seems crazy to me the in effect this instance of counsel occurred before the ninth circuit obviously which you would want to do in a case like that is make a motion to reinstate in the ninth circuit i think what counsel was doing was just explaining the law to is in this case and he was distinguishing it because he thought that you were relying on a larger statement to prove that they wouldn't entertain your but it seems to me that the the thrust of this case the ultimate question in this case is not whether we're going to treat this case a petition for a view we agree on that not whether we're going to treat it as timely we agree on that the real question is what's the scope of the court's review and it seems to me the government saying well although we're going to treat this is a petition for review you're limited to the issues that you could have and you did raise and abs and our position is now if you're going to treat it as a petition for review you really have to treat it as a petition for review a timely one and we shouldn't be limited to the issues that we could have raised and we did raise in haiti as corpus now that it's a petition for a view it's a different animal and you have to allow us briefing to brief the issues that we can raise in a petition for review and we couldn't have raised the hay vs and the problem i think you may be facing us and i don't know what the answer to his but you said you had duration here yes well that's because there was a split and you had to do some things by petition  ineffective assistance of counsel and that is preserved i mean i think that's what they're saying right but now under the real i d act congress is saying that that a b s has to be treated as a timely filed the time for it it doesn't have to be created as the first petition for review that wasn't filed as what that's the question am and i don't know a really good way to resolve that except like i say by resorting to those basic principles of statutory construction that would give the benefit of the doubt and resolve any ambiguity is in our favor but you're you're saying that well the reason we're attorney and so based on that based on the fact that the former attorney essentially admitted to the board that he failed to file a change of address with the board and based on the board's characterization of the cases really wanted valving in effect this is the counsel we brought  rather than appeal the denial of former counsel's motion to reopen because in our view the board was right in that insofar as mr khosla me failed to change that that's what the board he screwed up and his screw up eventually ca recess and we'll come back and complete the remainder of the calendar when we come back we'll start with bush and would you were pretty busy