service they made three separate visits to the immigration service in san francisco in san jose and each time the immigration service told them that their are unable to locate the petition during their last visit they told them that their petition quite possibly could be in another his case to seek adjustment of status therefore only if his motion was timely include clear and convincing evidence of the bona fides of his marriage and only f it was not opposed by the immigration service now in this case neither the immigration service nor the board ever questioned the bona fides of mr singh's marriage although the government opposed our motion to reopen they did not do so on the grounds that the marriage was not  the board denied the motion to reopen in this case on two grounds first found that the motion was untimely and further if found the motion must be denied because the immigration and naturalization service had opposed it although it discussion on the timeline counsel is plain on the face of the record and here the record plainly shows that mr singh's former counsel bruce burns i feel that carry through on his promise to file a motion to reopen and also the record clearly shows that we  a minimum substantially complied with matter of this arresting sworn declaration that mr burns failed to follow through on his promise to follow a motion to reopen as fully corroborated by the e mail correspondence that we presented with a motion to reopen on august ninth that quote it would be a waste of time he said to file a petition for review just burns this resign from the bar yes you're on he resign the place of your client's complaint with charges pending our client had filed a complaint but according to the state bar web page he burns indicated in that e mail however on august ninth quote there is another way we can help you and he said quote i will contact you over the weekend unquote to discuss and in his sworn declaration mr singh says that mr burns then quote promise did you get a chance to look at the stuff i gave you you mentioned when we last met and we have to file something with the be within ninety days of their decision on my political asylum appeals case what are you planning to file at some point mr burns responds to the questions about documents referring to a medical he says in an e mail i can't recall whether you're going to need a medical or not on september twenty sixth let's just think emails mr burns again quote if you need any other documents please let me know because it's almost three months since the b i denied my appeal on october first mr singh writes i didn't hear from you are we getting late in filing something with the i asked or the b s a one week later on october eighth two thousand and two ninety day deadline passed for filing a motion to reopen and nothing was filed and ironically according to the ins has only records three months later in january of two thousand and three mr burns was still promising to file a motion to date despite your client's detention and if you look at the state motion that mr burns filed with this court in january of two thousand and three he filed a state motion with this court without ever filing a petition for a view and in that state motion he again indicates an intention to file a motion to reopen it he just never got it together he never filed it that ineffective assistance of counsel in this case is patently clear on the face of this record now with regard to whether we substantially complied with the board's  procedural requirements the fourth a matter of law so i first want to describe the context in which we filed mr singh's motion to reopen because i think you need to understand when we when we found this motion to reopen mr singh had been in custody already for three for three weeks he'd missed the period for filing a petition for review with this court although he requested a stay of deportation from the immigration and naturalization service through mr burns that state request had already been denied and the only thing that was preventing his removal from the united states to india was the frivolous patently frivolous stay motion that mr burns had filed with this court without first bothering to file a petition for review so to have any prospect of success he needed to do is we didn't give him an opportunity to respond before we filed our motion but that's for obvious reasons if we'd waited we'd still be waiting obviously because he never did respond but we needed to get the motion filed as quickly as possible and we told him we were filing a motion of the board he could have a feed wanted to respond certainly forwarded a response directly to the board but he didn't do that he simply didn't respond and instead he chose to resign from the practice of law in the state of california with charges pending against him now the other thing about loss not of compliance here is that the immigration service now d h s although they oppose their motion they never argued to the board that we had failed in any way to comply with matter of law it simply didn't press discretion because mr singh mary during the course of deportation proceedings because the immigration judge found his asylum claim not credible and this is the main thing i want to stress here my last minute and twenty five seconds is the board never evaluated on its own it never brought its own independent judgment to bear on those reasons that the immigration service provided under matter of hilarity pitch a cult the board said look if the immigration service offers an opposition no matter how unfounded we deny the motion whereas priority and on timely more in the law to particular the motion was filed within ninety days and our position here is that our motion is is timely as well because under the doctrine of equable tolling it has to be treated as a time motion and if you treat it as a timely filed a motion you still have to deal with this issue of a large you could change though which says that no matter what the strength of our case the matter how strong the evidence about the bona fides of the marriage if the government offers any reason whatsoever any opposition whatsoever the board says we're going to deny it and our view that violates the board members duty under the regulations these board members have an obligation to bring their own independent judgment indiscretion to bear a motion to reopen they can simply morning i represent the united states department of justice in this case the problem with petitioners argument is that because you failed to comply with was not a requirement that you notify opposing counsel and give or notify prior counsel and give park counsel an opportunity to respond to the allegations or a response that he never made we don't know that we don't even know according to the board which they found they found that we don't even know if if the tissue are properly served mr burns with anything there's no evidence in the record that the complaint was actually mailed the bar complaint that was attached to it was actually incomplete and if you know although this court should not be looking at all the extra record material that petitioner submitted with his brief appear that you know that the state bar even asked for more information because they didn't know was mr burns ever even retained there's no evidence they asked for more information on how he was actually hired what kind of payments were made so the the state bar complaint was incomplete the board could not determine if it was even mailed to mr burns and petitioner has admitted that he did not give mr burns time to respond to those allegations and apartment excuse me with mr burns resigned from the bar and assuming it does you know you're going to get along a lot better with me i don't know about the rest of the panel if you wait until you hear my question before you answer ok i'll give you a full chance to answer you just listen to the question may we assume that if th opportunity to reply and let the board wait and let him sit in the tension for forever because obviously the guy's not going to reply you ended up resigning instead of reply very on top of deciding whether determining whether mr grant was going to file this he then waited until the most and late people don't like to well write the courts or boards or anything like that directly that's when they hire to know if he was on top of everything the way you suggest he would have filed his own petition then we wouldn't be in this position but of course then the lawyers would be out of business and so with the department of justice stay and then it wasn't until the end of january that he finally got a different attorney but by then we're already beyond the second ninety day period so the doctrine of equitable tolling requires that the petitioner act with diligence and here are the record clearly shows that he was aware at least by the date that the motion to reopen was due that none had been filed so at that point he should have started looking for another attorney what's the purpose of the law's out of notice re it's intended to ensure that there's an adequate factual record and that the complaint is legitimate and substantial i would have thought that its principal purpose then to give the attorney a chance to respond well that's how you ensure an adequate factual record so that you can allow the attorney to respond to the board in the court can take a look at first as one thing what is attorney burns response we don't even know here i mean according to the documents that petitioner filed with his brief it looks like him which is also what the california bar was asking was he even retained did you plan and according to petitioner there was no retainer agreement and he was mr bernstein even receive a check to long after the most interest in the five faces of what you barred it was untimely and there wasn't evidence that he had actually been defrauded by the attorney they also mentioned that he was married while i was in deportation proceedings which is the question whether the bona fide that's a legitimate question u a properly found most interesting can be granted if it's timely not numerically barred it's not barred by a matter of char which is the voluntary departure and the government doesn't oppose based on his inability his failure to voluntarily depart but there's a strong based on ineffective assistance of counsel claim but the answer is the government leaders in medicine was they did mention as i don't believe that it was their main point of view but they didn't believe that petitioner had established that he was ever defrauded thank