because he was beaten and tortured in his native india despite his testimony family station judge denied his application for asylum and even though mr ray provided the reasons for his appeal and hinz notice of appeal the board of immigration appeal dismissed it as there are two separate but related questions before this court each of which presents a question of fairness and equity the first question is whether mr right has been denied his fifth amendment procedural due process rights because the amendment procedural due process rights as the court properly considered the merits of mr ray's timely filed appeal of the judge's deportation order the board would have had no choice but to reverse the judge's decision because it was not adequate review of the appeal at that time on its merits that box being tracked was the beginning of many problems for mr right mr ray was a victim of ineffective assistance of counsel and he should not be penalized what turned distressing and it was many much of the reason that mr right has now been denied his first amendment procedural due process rights rests with those attorneys are corkins been struggling with this problem for some time we find consider exactly your honor that the ineffective assistance issues are intertwined with the fact that from the very beginning the board has not considered the merits of the appeal because of the an effective assistance of counsel the issue has been compounded decision that the ineffective assistance of counsel was sufficiently pervasive as to send it back to the board for a decision on the merits but you don't need to do that you can send it back as you and judge lecture have pointed out and send it back for either second issue before this court is whether the board of use its discretion by holding that mystery's motion and to reopen were untimely and number a part and as this court has held on several occasions the number and time restrictions may be equitably told under certain circumstances this is absolutely one of those circumstances mr ray has acted with due diligence throughout these proceedings whenever something happens he went out he found a new attorney he hired them he paid them thousands of dollars at this point and he a number but the timing was rather only so how would you explain the timing i assume that your furring correct me if i'm wrong to the fact that denial of the first motion occurred in september of two thousand and two forward how fast that time from the time he hired a new lawyer from the time that he hired that new lawyer that lawyer has done nothing to this point mr ray took the matter into his own hands the motion that we are here on is a motion filed pro se one looks on page one seventeen of the record at the board's very first decision the board made an additional holding finding and i read the second to last sentence on that first order more over upon in essence i thought he or his son meant that it was wrong excuse me did he not argue with someone that it was wrong mr no no he never argued that in either notice of appeal the arguments are presented on behalf of but this individual i mean it's easy to review the record but unless unless you know what the arguments are in here there was no brief to make the argument so prejudice unlike the other ineffective assistance of counsel equitable tolling cases that this court has decided like or to bury rodriguez liveries where are the attorneys or the non attorneys didn't  even get a chance to see that those aliens had their applications for release considered that this is a case where the petitioner had a full and fair hearing on the merits that had a full record reviewed by the board of immigration appeals so at the end of the day i still question where is the prejudice that would have resulted in a violation of due process   you know once they you know find that the motion does not meet those regulations and the position of do not you know again come anywhere close to meeting don't know they didn't mention ok but that's because the motions didn't even come close to beating that th of the agreement we had there's no proof that counsel was ever informed of the complaints made against california bar the first motion there's no bar complaint ever filed against the first attorney who's a loop volley  weeks before the sec and the board came down with a second decision which denied the first motion to reopen and there's no indication that with any of the thirty days of hiring the support argo or ninety days jurisprudence that's clear from the case law it was not a meaningful or you know this court cannot look at what the board did and say whether the board conducted an adequate review or not the board needs to put that into writing so that this court can look at whether the board adequately reviewed the circumstances before it was in counsel also claims that mr ray had a full and fair hearing on the merits from the transcript that's clear that it was not the case the immigration judge lacks substantial evidence to did have a prayer to use your language your honor mr ray did testify that he had been beaten and tortured and that his family had been threatened that if you returned they will take the police will take him back into custody and he will be beaten and tortured again the credibility intermission that the immigration judge me black substantial evidence because it doesn't show a reasonable basis for her just action for example her discussion of the stitchers that at one point he talked to fired that he woke up and he had stitches and later in his testimony he testified that he had left the police station and had gone and gotten stitches but you are not irreconcilable there's it's clear from the testimony and from the transcript that mr ray and the interpreter were having difficulty conveying did wake up and he got stitches that there was a lag in between when he was released from prison because his family had posted the ransom that was requested and that he then went to a doctor who gave him stitches makes sense to me and i think that a  on a reasonable basis could reverse that and that the board should have because there was a lack of reasonable evidence that's just one example i'd be happy to go into more here on and let's i thank you very much