churchill andrews this court's twenty seven thousand decision in the united states made clear that mr andrews permanent resident of three decades never had a conviction four and a portable offense and on top of that committed reversible error in denying his prompt motion for relief based on hartmann it is consistently found to be granted when a petitioner promptly seeks reconsideration after a court ruling makes clear the applicant was case law that is probably a more accurate way of referring to it your honor and yes there are as we've said in our briefs there are we've cited about two dozen cases in showing instances where either they granted equitable tolling usually in a situation where after the relevant case law the petitioner acted much less promptly than did my client mr andrews waiting sometimes months or years after that development to ask the board for further relief or converse only equitable tolling on the motion to reconsider the motion to reopen because of the very long delay indicating that it would have granted it had that particular applicant done what mr andrews did here which was filed within twenty eight days of the pardon decision and of those cases that you mentioned how many involve somebody who's already been deported or been a it least twelve which are about half of them and i would know that given the nature of the record which are usually one to be a decision in some of them it's frankly not exactly clear but half of fully half of them either specifically say that the been removed from the country  itself your new york he paid his taxes he got married to his high school sweetheart he worked in the construction trades for the city of new york is u s citizen wife is still here in new york as are his children and his grandchildren also citizens in two thousand and nine he was more so than many of the other individuals that the board has granted relief for he took every step on this particular argument that you could reasonably have taken remarkably no one disputes that after harben mr andrews is and your conviction was not a proper groun removal it was not an aggravated felony that was the direct holding of harmony and it was also for the same reasons not a controlled substance offense which was the other grounds with which he was charging the government has not that anywhere or here and for the same reason there is no question that there was no obstacle to cancellation of removal because it was not an aggravated felony which was the reason it was was thought to be earlier on in the proceedings so the vacate with instructions to grant the motion to reopen and terminate proceedings on the basis that he was not removable in the st place or that cancellation should have been granted well i mean i thought you were saying that the board didn't give an adequate explanation as to why at all tolling wouldn't be appropriate don't don't we have to ask them to make that finding we don't your honor because as i'm sure  the court knows it doesn't remain for futile decision making and we submit that on the basis of its track record in all of these cases that even were it to attempt to provide an explanation and engage in the analysis it would nonetheless be arbitrary and capricious to deny him equitable we know that they're similarly situated so the board has consistently looked at two questions when in these equitable tolling cases that it's looked at has there been an intervening case law which would completely change the landscape making the person either not removable at all or open up a possibility of discovery discretion or relief such as cancellation and is looked at then was the person diligent either during the time they asked to be told before the decision and how promptly did they ask afterwards those are pretty simple straightforward factual considerations are which are not disputed on this record and in the vast majority of the other cases the individual we did much much longer and was still granted in light of the factual record here which is not disputed that there is no value in asking the board to go through an exercise that can only have one legally correct and political outcome thank thank you i mean shorter it please the court rachel browning for the u s attorney general this case ended in two thousand and thirteen when this court upheld the agency's determination that petitioner was removable is charged and not entitled to relieve her protection from removal given position or subsequent and lawful removal from the united states in the interest of finale the board's denial of his motion filed four years later was not an abuse of broad of its broad discretion and the court there forced deny the petition for review doesn't have to has some explanation as to why other people in the exact same situation were treated differently first your honor i would say that those people were not in the exact same situation why not first of all in several of the cases that petitioners cite all of which are on published the departure bar was not in effect in many of the cases might or doesn't address equitable tolling at all mr snitzer said is that twelve people had already been removed they were already gone to the departure of our would apply for them some of those aren't nd circuit cases your so the impediment i mean this court still applies does not apply the departure bar to statutory motions that are untimely or statutory motions it does continue to apply it to regulatory motions there sullivan is asking what i think my point will be which is it appears from what the argued from the arguments that the b i used to signing some cases one way and some cases another under similar circumstances following harman and why should it not open up and treat everybody the same and i would say that even regardless of what the different circuits are saying happened we should have a national policy in this should we not that's why we turn to the circumstances other than ineffective assistance of counsel as it is shouldn't matter of osaka so i would say if the court once further analysis from the board on that issue it could remain for the limited purpose of allowing the board for i mean i four years later i mean that was a with an alien who's already been deported from the united states based on receiving all the process he was due there wasn't an the kind of extraordinary impediment completing a timely act and what we submit is that to broaden that to saying that any time there's a change in law the board has to re open the case involving its discretion traditionally the board considers motions  discretion to do so so again the board has to look at these cases on a case by case basis and there may be some inconsistency is but the question is as arbitrary to say that after someone had received the process they were lawfully removed from the united states and then waited for four years until the law changed in their favor is that the same change i think was we were told what the law always had bandages we were all applying it incorrectly right through including including your client this quarter but that's different than a formative like misconduct or something that an invaded the proceedings themselves that kept somebody from doing something timely with you there might be really good reasons not to apply a quibble tolling in situations like this i think there are strong arguments for it when other bond types but it seems to me that it would be arbitrary if you are tolling and sometimes not with no explanation when the facts are the same that i think would be arbitrary so i guess all we're saying is shouldn't we kick this back and an opportunity to articulate a reason and then we can perhaps assess whether or not it was arbitrary or whether there is ever to be equable tolling in a situation like this i think responder would be comfortable with allowing the board to make that decision in the st instance but i think  that actually the framework adopted denied tolling for someone or said told you should be denied for somebody who did what my client did we've cited twenty four as i'm sure you know there are many cases many of them are hard to find they have across areas of law and it's not usually the case that an intervening change of law or change an intervening change of case law allows you to revive an appeal for example on a point you didn't even make that was then ultimately adopted by this court hartmann and were the board or this court reviewing the board as some policy set by the board in a more formal manner one of a possible consideration could be and it would be reasonable to make that a criteria on the diligence process that they actually argued this point and preserved it during the earlier proceedings that they have not required that date but that would potentially be a way of doing that that might address some of their concerns  some of your concerns additionally the th circuit and the th circuit have explicitly adopted this policy of doing this in fact encouraged suggested that it needs to take this approach we have cited some of those cases in our briefs and in fact  that what would be an untimely motion that the court should go back or that the petitioner should go back and apply for cancellation of removal that it now become available even though it would be on time if the court has no further questions we would ask that the court grant the petition reversed and remanded with instructions to reopen the proceedings and terminate thank you