a the board of immigration appeals iranian's lee denied the petitioners attempts to seek redress for the fundamental ineffective assistance of his former counsel from the years one thousand nine hundred nine to two thousand and two and then again after discovering teach the petitioners matter yet the be i wrong asleep denied motions despite the government failing to file a single opposition or argument in all three matters first the board did not address any of show that the council was deficient in his performance in his one thousand nine hundred ninety proceeding as well as his appellate work in two thousand and two he was able to show that he had plausible grounds at the time and that the deficiency in the performance by the coun fact did affect the outcome of this proceeding we're here in the ninth circuit you only need to show that it may have affected the proceeding and the board erred hiatt holding him to a higher standard showing that he had to show that he would be able to prove his claim later or that in the third he did act diligently after he did not really learn of the ineffective assistance really truly until he showed up at his home in two thousand and two and removed him from the united states immediately there upon he sought not one not two but three different consultations from three different lawyers in with and in after those consultations each one of those attorneys told him quote nothing could be done not one advised him that there may have been ineffective assistance of counsel not one advised him about the ability to pass the the avenue of reopening his matter not one of them advise them of anything just that quote nothing could be done and i think that that's extremely important here because in this circumstance for this petitioner you have to look at his circumstances his level of education his experience etc and you're not looking at somebody who may have the judge mr rove they hardly elicited any testimony and to react in the proceeding and he didn't ask a single question and reach a rat however the judge did inquire about the circumstances of the son and asked the petitioner why is it that you want on the son's birth certificate and he gave some explanation but it was very obvious from the transcript that the judge and even government counsel seem to be confused they seem to not have a lot of clarification still even after the petitioners answers but afterwards you know that the fact that the petitioner did not necessarily understand that the judge didn't understand clearly what the serious seriousness of that issue was i don't think that the petitioner necessarily knew that that rises to the level of ineffective assistance of counsel to jump ahead to two thousand reasonable person would think there's nothing i can do he really entered the united states illegally and in two thousand and twelve he was reinstated and removed back outside the united states at that moment you saw again counsel from another attorney and she also told him there was nothing that could be done so here you now have four licensed attorneys telling him there's nothing he can he can do fast forward two thousand of they tell him there's nothing i could do i  would call for speculation your honor but it's my understanding and my experience that there are a lot of practitioners that if they see a complicated case or they don't necessarily themselves are not knowledgeable about the situations office well actually he didn't he remained outside the united states and his still in mexico has not returned to the united states since it was actually at a community event that his wife who's here in the united states met me in too late two thousand thirteen and around august two thousand and thirteen and it was a very casual sort of conversation we said oh it let's you know i explained to her well if something sounds a little off but again it's speculation we don't have any of the records we don't have any of the documents we know nothing about the case so we started to investigate and look into the situation it took some time these are you know decades old records requiring requests for the records the proceedings are on tapes not digital audi recordings tapes that don't play on regular percent audio players and it took some time and so if what ended up happening was that we went in and we went to we looked at the situation it took some time given the circumstances of him being outside the country his son was not available for a majority of the period just some serious issues with juvenile situation and so we had to take as our unfortunately took a little bit longer than we had wanted to however this court has held that even though there may be it's lay the time bar can be waived or excuse me numerical and time limitations can be waived and that really the court needs to look at the intent and which is to is no circumstances that excuses but it doesn't necessarily mean that you have to excuse it doesn't know the board does not have to excuse it however the board w whether he had demonstrated why there was this lack of diligence between two thousand show in two thousand and twelve i believe what  immigration judge when there's cancellation of october to get present a motion to not file until july of two thousand and twelve no due diligence was shown and taking everything that was in the petitioners brief and even without conceding every event that transpired prior to the petitioner meeting with attorney i saw in two thousand and thirteen even if even if we assume and go with the petition on this journey and say march fifteenth the date that he draft he signed his fourteen that's one hundred and twelve days your honor so even if we accept all of things being true we have a hard for hard and fast rule on the number yes your honor by statute it's ninety days yes your honor ninety days to reopen and and again just show equitable tolling shit there needed to be some showing of prejudice in the original hearing there's all this argument as to whether he had the qualifying relative but the immigration judge said made the analysis of the child at that time to determine that there was no exceptional or unusual hardship the child was with with the petitioner one weekend a month i believe there was actually testimony that stated that of the who would have been able to present to to the various agencies the impact upon his his child and that was petitioner is the only biological parent as of the the record that was presented there was no biological parent as he was not on the problem well your honor no because the immigration judge still didn't alan an analysis even if he had a qualifying relative he did an exceptional in an extremely unusual hardship and with all due respect the one nine hundred ninety nine decision is not the decision that's under review if we look at what  what she vows to in his motion to reopen his all of the hardship that he's claiming is his his hardship that he's trying to seek and obtain custody it doesn't actually speak to what the hardship that the child will suffer and this court has held that an extremely unusual hardship is serious and pressing to include health issues and extreme academic special needs neither of those were presented to the board so even if there is an assumption of diligence which the government does not concede at all there's still no prejudice simply because your attorney is ineffective does not make you eligible and that one will just threw up you know play devil's advocate  frankly your honor it would be futile because in conjunction with the tall equatable tolling which i believe is what you're getting to there's the second part that's the exceptional extremely unusual hardship which is not deserves to be here this is been stressful for the family this court has and i believe everybody has recognized that family separation is hard i believe april is military child appreciation month i mean family separation is hard and the boarding knowledge is that but that's not the standard here that standard is exceptional and extremely unusual hardship and he needed to demonstrate that and the fact of the matter is there was there were none of these compelling issues in the original case which i represented  by counsel when this needed to be when he could have demonstrated this was your fact if we represented by counsel your honor frankly the government position has been that that is not an issue this court needs to address we did not  of assistance of counsel and the board considered that and said notwithstanding the new allegations there remains no satisfy or factory explanation with the respondents delay from two thousand and two to two thousand and fourteen so the board did take that into to go and accept that he found out that on march fifteenth two thousand and fourteen that he was the victim of an effect of a census a council there there's been a motion to take the arguments as judicial notice if if the court's going to take it as judicial notice it needs to take the entire document under judicial notice which said that although he signed the march fifteenth two thousand and fourteen letter he didn't come he did not mail it to the do diligence does not mean expedited processing and it doesn't mean maximum diligence either in this particular case i need to be candid with the court this was my first experience bringing ineffective assistance of  short delay from the moment that i spoke with mr pres the petitioner in march to be able to file by july first was actually july first that we filed it that delay should not be attributed to the unbelievable about it should be taken on its face and hear the fraud that was conducted upon mr ramirez press both then and now is relevant and it's probative  ineffective assistance of counsel and it shows first of all prejudice was already demonstrated because it's very clear from the judge's decision that the lack of presentation of any type of documentation presentation of witnesses any type of presentation in the hearing at fair and ineffective assistance of counsel claim you only need to show that the deficiency in the parm performance by the council may have affected the outcome of the proceeding you do not need to show or prove that you would of it it was not properly presented before the courts and there was definitely evidence of it within the context of the petitioners affidavit that was submitted to the board of immigration appeals in his affidavit and then later again in motion three there were significant documentation as well that was also submitted but again if the petitioner is not required to actually prove his case in the motion to reopen only that he is such totally eligible to seek the grounds that there was ineffective yes a viable claim and the fact that this petition or this child that the fact that there was a custody issue a paternity issue involved and that there was a lack of presentation over that you know that goes to extreme an exceptional hardship to the child well with all due respect your honor i think that a child's inability to be with a biological parent after the death of the other definitely raises concerns on it that is definitely not  hardship that happens in every separation of child and parent right i think that also i think they use in the statute of the term you know exception or extreme has to be something more than separations of between parent and the parent maybe but still that's not extreme an exceptional sometimes it happens everybody would separate yes there are separation issues in every case however the