scheme changes that had been made in the legislation since our decision and shar shar yes and i don't understand what the basis came to the conclusion that there was a new balance between the different rights the rights of the claimant and what was the process for appeal distinguishing factor here it was after the voluntary departure time and in the case that you're relying on judge reinhart so specifically points out that this was filed during his voluntary departure period so you say nevertheless this was during the departure automatic stay a little period of voluntary departure there are all sorts of things he could have done but didn't do that means that he was not in the same kind of catch twenty two  let's see if i'm slow so you have to help me on some of this let's see if you can simplify it for me as i read the record he never took a direct appeal from the original decision if you like he did he did shown exceptional circumstances exceptional circumstances and he was warned of the consequences for failing to voluntarily depart under in accordance with this court's decision in oregon the petitioner has conceded that the petitioners voluntary departure period was told because he filed within or because he filed this motion to reopen within a voluntary departure period and i would also point out to the court my apologies for not submitting a twenty chain letter on this file his motion to reopen within a voluntary departure period and also the equities do not weigh in his favor and that is because he learned about that his i won forty his recent petition for employment show that he knew about the granting of the vsa petition in two thousand and two when this case was still pending before the board before the board first issues that issued its decision on this first two thousand and two and then he filed a motion to reopen saying that he didn't get a copy of the board's decision we filed that on july seventeenth of two thousand and three at that point he knew that his visa petition had been granted he could have filed a motion to adjust status before the board at that time instead he his entire due process argument is without merit because he had that piece of titian approved at the time that his case was pending before the board also doesn't show exceptional circumstances for its failure to voluntarily depart under a matter  this was not in a situation beyond his control he could have filed the motion to reopen before the board and in fact it was a matter that was entirely within his control and he chose not to do it until after his fallen terry departure period had expired goes through the exceptional opening brief your honor but to the extent that it goes to his due process argument as well that he's being treated differently because he has an employment visa and he's being treated differently because he's in proceedings as opposed to somebody who's seeking to adjust  status he's not in proceedings yet his due process argument would have no merit because he hadn't previously a petition he wasn't waiting for the agency to approve it he had that while his case was pending before the board and he did nothing to essentially help himself he sat on his rights for more than a year before he brought it to the board's attention and when he did so he did it out of time i would point out to the court that it appeared that he did try to file some sort of adjustment of status before the agency but again he didn't do that properly before the board which is the only way he could do it pursuant to a motion to reopen so i would submit to the court that the board did not abuse its discretion in denying his mission to reopen because again it was filed outside of the thirty day period