who petitions here one of them is from the march two thousand and two we are among some of the denial of application for cancellation of removal and the other one is a petition for  by her prior has been if she was sent back to el salvador at least she would suffer severe harm if she were he has that would up the level of hardship to the children as well if you take the two cases as a home if you look at it in a holistic would happen well i understand that and you got seems to me a fairly good ineffective assistance of counsel claim the trouble with that one yes that's not raised and well tell the second petition and that quite some time after that and i think you need sort of a recent discovery of an effective assistance of counsel in order to excuse the other what would otherwise billion timeliness how do i get past that but i'm just i'm sympathetic with your client and i'm trying to figure out how to get there realize that your reason for the motion to reconsider filed when it was we filed it after the department of homeland security came out with their grief which defined the social group and found that actually are a should get a way when you filed the motion to reconsider in front of the b and i was the second mr goss to reconsider in front of a b i i did you at that time say here is why we are doing those late and here's why we claim of the things that have been done to her and the things that she's worried about but i'm concerned procedurally as to how i got there and i hope the second motion on the two thousand and four motion was filed late be extended to women who are living within a marital relationship although it's not actually a legal marriage because in various countries in central america especially i know from it we know you know we know all right tell us that we know the problem is that the government we were waiting for the government to issue because that would give us a real grounds for a motion to reopen a motion to reconsider we're waiting for these out of the country until i'm till they had decided already and you had an opportunity come in and argue that this is an extension of our right well we have argued that it's an extension and very well i understand i understand that's what you're arguing but you know you're telling me that you had to wait the lead case before the b i a on this question and since it's not on all fours with all right there was no reason that you had to wait but you sat on your rights now and now it's very difficult to come forward and say well now we should have a second opportunity here even though we sat on our hands for two years we did file a motion to reopen and there was a ninth circuit case file and this is a second motion to reopen and then a motion to reconsider based on a new law that d h it's not actually look i mean court my name is ferrier and i'll be representing the attorney general in this matter i think the court has recognized the procedural problems with the case and that is in fact what the government's position is is that there are procedural problems particular that information which was raised for the first time in the last motion to reopen reconsider the two thousand and four mission to reopen reconsider and in that particular motion they asserted ineffective assistance and at the end they mentioned in one paragraph that the daughter had been and are that petitioners daughter had been subject to the last station by the grandfather that was the only paragraph there was no further information about that there was a supplemental declaration for who it was who was representing the family that present counsel but just to make clear the supplemental declaration which actually details that would that have been a proper basis for the motion to reopen including excusing the prime minister because these are new facts that would have been a basis to reopen to go all the way back to reopen the cancellation doesn't have an attached any sort of documentation regarding the actual treatment that she's receiving whether the treatment is ongoing at this point in time that was filed in two thousand and four but assuming it that they had information such as that and that there is treatment like that that is in fact point on that might be a basis to reopen but again petitioners haven't asserted that before the board and they didn't file any sort of motion to reconsider asylum on domestic violence they didn't file the petition for review from that particular decision and they waited a year and a half before they filed the second motion and and so it is present council that that that and i know i do recognize that the idea was in a bit of a fix because at that early stage the law hadn't quite settle out as to what this level of hardship matley i j did use the word unconscionably which is not quite the standard what if we were to is there a shot at cancellation removal based on hardship based on this i don't believe that it's perfect for me to make that determination but certainly sometimes also sort of it's futile that hardship i mean hardship relating to the children think that would be something for the board to evaluate and determining what every up would you object to sending a back for reopening just on the question of hardship based on these facts well court has any further questions i mean well the two of the other question i think you probably are not in the position to ensure that i don't want you to put you in a position we have to go beyond your authority but the board reactionary differently from motions that are join that the department of homeland security the local office i have heard is quite backed up and request such as that but certainly if the petitioners counsel chose to do something like that we would be