are several issues that are arising out of this case i from what i heard this morning i think the core is focused on whether two hundred and forty five c two of the act is impermissibly narrow where congress did not define what circumstances fall within that exception and whether congress intended for the fall exception to be broad i do think that no fall exception is clear however i think that it is meant to be broad and what happens with a t f far is that it impermissibly narrows that exception particularly in this case where our argument is that the petitioner suffered ineffective assistance of counsel as it is evidenced by the fact that she did in fact file is not a motion as to her prior counsel for failing to file her or failing to and you said she was still instead as we actually don't know precisely when she heard the person doing it doesn't say in the record your honor but she holds that she did hire him while she was still in status and that's supported by a declaration that she filed as reopen she indicates that she had informed him short i believe she indicated that she made contact with him shortly after her arrival to the united states he was an individual that was commonly used in the armenian community for immigration services so she believed him to be a trusted person and he just by her indicating that she had extraordinary abilities and her talents as a musician i believe and also an advanced degree he didn't advise her to file the i won forty i'm sorry i won forty petition and i know that raises issues of ineffective assistance of counsel because this individual to milly was not an attorney but she believed him to be an attorney and in her brief she refers to him as a counselor on several occasions but even if we don't reach the agreement that she believed him to be an attorney there's regulations that specify what kind of a person can represent an individual immigration court and one of the  i agree your honor however if we go back to her motion to reopen it she did refer to him several times count as a counsellor and in our brief we do state that the word counselor in armenian does translate to attorney so this is what she believed  the issue with that is that at the trial at the immigration court the judge failed to allow the petitioner to be heard on her two hundred and twelve dollars waiver and so we never even reached whether or not she was eligible for the two hundred and twelve dollars waiver with her argument that she'd received ineffective assistance by a person she believed to be an attorney the immigration judge at that level didn't give her the opportunity to make her argument despite the declaration that had been filed in support of that so there was never even the opportunity to present this argument and this is where you know that was what led to the determination that she wasn't eligible to adjust do you know in other contexts i'm thinking maybe in particular equitable tolling we often get arguments by petitions that well i relied on my lawyer and my lawyer rendered ineffective assistance and so therefore the the misstep mind should be told as a result do you know if in that context or any others we allow petitioners to rely in that case was not an attorney on the individual's name mendez i believe he was not an attorney and however in that court part of the decision did say that it's established in the circuit that ineffective assistance of coun where a non attorney engaged in project activity causes in effect essential action in his or her client's case to be undertaken and effectively may equitably told the statute of limitations so that case is on point with our position and misled her that can be viewed the house so he told her that he would take care of her case and that he was competent to handle all types of immigration matters he said he would handle every part of it and not to worry this in fact was not true had he been competent and had he properly represented her he would have filed an i won forty for her because she had expressly told him about her extraordinary abilities and an in fact a asylum application shouldn't have been the st form of relief did it is a form of fraud when you file an application that's inappropriate in a case where you know there's adequate relief and appropriate relief and of course we don't we don't know and we this is this this is that this would be an issue of fact normal but for my reading of the papers if i remember correctly this this counselor is no longer in the united states he's now back in armenia and for all intents and purposes there can't be the kind of fact finding that would normally take place in order to resolve at least that issue yes that's correct but if we look moving forward to the thailand timeline shelter meant we did file and i one hundred and forty for her extraordinary ability and it was granted in two thousand and five by u s c i s so that tells us that that would have been the appropriate action in two thousand but for the failings of this individual who fraudulent me represented himself to be a immigration professional or a competent immigration matters because any attorney that's competent and practicing immigration law would have identified this as the appropriate and proper relief right away once the individual shared her history with the attorney that would have been the proper avenue to take and in that case and so our position is that that was fraud misrepresenting the client was fraud and case law supports that project an activity even by a non attorney could result in equitable tolling and in this case that would be the appropriate relief or in the alternative  different analysis of the no fault statute to encompass ineffective assistance of counsel and this even meets the requirement of a law is not a motion not towards mr bobbitt dying because he was an attorney but torts the attorney that represented her at the next step he again failed to file the i one hundred and forty dollars so this individual was a victim of ineffective assistance by both an attorney and a non attorney fault exception was meant to be brought to congress meant for that exception to be broad and but if in fact i were suggest that one has no fault if they rely on their attorney i would that would be where we would go if we were in a peter's case for instance which was just here and we have under the statute on of the regulations and the same  of if you will rulings where we have included the attorney i can see the peters argument pretty clearly where they're going what i need to send back this case to the b i to determine even if i were to suggest no fault could be had on an attorney to determine if one were relying on a non attorney for doing an attorney's work that they would get the same kind of help well your honor i think that would depend on st determining if the petitioner responded knew that the person representing them was a non attorney and i think it goes back to the fact that i mean wouldn't that be something given the statutes and given the interpretations thereof in other instances which motions  reopen and other instances when that be something that i would then allow the b i need to take the st crack at to make that determination rather than me make it here possibly your honor i see issues with that point well i don't i'm trying to now determine what i can really do with this interpretation and what i can't and i'm trying to get your input into it well because i realized b i have a st shot if i'm going to the fact that this is a regulation or that this is the interpretation of a statute and i'm saying that they have too narrowly construed the statute sachin sam big you know it's a narrow construction it ought to be wide enough to use for an attorney who who they don't have any idea then i'm saying to myself how far can i go do i need to send that back and let them suggest that a person who is acting is an attorney who really isn't an attorney should get the same kind of or that should be no fault i mean it's easier to say it's of your fault if you don't get if you don't get an attorney i mean that's the problem i understand your honor and i think my input to the court would be that at this level the court would make the determination that ineffective assistance of counsel does fall within the exception and then when we're referring to whether or not the petitioner respondent knew that the person was or wasn't an attorney that should go back to the b i a because i think and that is directly connected with the proceedings in immigration court it would still present an issue in our case because the judge never made a determination whether or not she knew that the person was an attorney but nonetheless i think that that portion of it would be better decided at the be a for them to remind it to the immigration court but at this level i think your honour's are suited or in the best position to decide whether or not ineffective assistance of counsel falls within that exception ok johnny if there's no furthe questions i'd like i have one more card yes your honor on page fifteen of your claim if you make argument about an exception dealing with an action of an individual organization reputable individual of good moral character or believed to be by the petitioner however judge waterford indicated that this person because he was paid money does not qualify as a person of good reputable character and a yes sir but to begin with i'd just like to clarify a few things before i launch into my to my argument petitioners never made the argument least that's my interpretation that the regulation is bad that the that the agency acted outside the statute or did something improper with petitioners argument seems to be is that the board interpreted the regulation unreasonably and that's the crux of of of her argument  i don't want to belabor that point in talk to me talking about the whether or not the regulation is overbroad but i would like to stay that i st agreed that the that the statute was unclear i also want to i didn't want to i didn't want to i wanted to address the i know what i'm trying to do your honor is i don't think it is certainly not clear it's certainly not clear and that's why he's not clear then why doesn't the government make the same determination and you don't need an interpretation so why do you need one here i have seems to me as clear under one thousand two hundred and twenty nine a as it is here you're out of through no fault of your own could could mean lots of things why do you but why is that any different than no fault of the alien no fault of your own the only difference between the two is your own or the alien the no fault doesn't change and there's no ambiguity in twelve t eight the government has argued that they don't have a regulation so why is it that i need to find that this regulator that this statute does them big us when you do when we have similar stuff and you don't say it is you are the term no fault of your own if when they were in the red when the when the agency promulgated the regulation that this is been on the books for thirty years now once how long it's been on the books address the issue of why one is ambiguous and one isn't what no fault of your own could mean lots of things it could mean why is a name any different than no fault of the alien no fault of the alien could mean lots of things is that what you're saying can mean a lot of things but your own k n i that's the one part of this that bothers me the most and you think we get past that then we've got to suggest that your interpretation is all reasonable and then knew your own can only enter print to what you wanted to interpret which is the four steps you put together and why it can include your counsel who did stuff you didn't know about i don't understand why that is so obvious but the government would argue that and i understand your point i'm just trying to  give me the reason why it is and that's why i went after that's why i ask your counsel the opposite you or your co counsel in the other case the same questions because if we get down to that point i'm trying to figure out why it is we get to where we are and why it is then we shouldn't say either we can interpret this as an ineffective assistance of counsel law to be there or we should say what you've interpreted to me is not reasonable even though congress hasn't done anything about it not can't be reasonable that your counsel would do something that is wrong without knowledge of you and that be your fault than the the other case in this case no matter how the court interprets the regulation petitioner was out of status for respect to her attorney was out of status for more than a year before she what you did in this particular case you came down to the fact that no fault of your own can even be the attorney so there's no question it can't be this notarial know it can't be the notarial because so then i say to myself if i suggest it can be your attorney should i remember and this have you think about that again and see if in this instance that particular person can meet this exception no be no because as they're notorious and it wouldn't mean we've never that they're not subject to a c claims there though it's a different entity and the regulation itself even if you if you look at the regulation someone like mr bob is on the notorious he's not authorized by statute to represent anybody and fax the regulation the petitioner cites hurts them because if you go down you see that they're not it's not supposed to be an question to be slightly different i think he was saying let's say we're prepared contrary to the agency to to determine that the regulation is invalid to the extent that it's trying to to say that conduct of lawyers doesn't count right because that is the position i think that the agency took below the lawyers even though that is the position that was the right so let's say we said doesn't want that's not correct i think what he was asking is should we then ourselves decide whether notarial should count as well or should we give the agency a chance to make that call in the st instance it wasn't made below  in this in this skin this particular case there's no factual there's nothing in the record that shows that her notaro yo was representing her in the critical time period she never states it in her if she does it she says soon thereafter  in reference to the date that she entered and so i agree with you there would be a factual issue maybe we could remand that but what if we were to decide ourselves that the phrase through no fault of your own is not ambiguous at least not in a sense that's relevant i forgot what i was in say now so you should consider i think i know it if you get the course going to make a legal determination obviously can make a legal determination but i don't believe it's necessary or even the terminations we're talking about is whether reasonable reliance president on whether they relied on an attorney when they were allotted in good faith and someone who held themselves out to be an expert in this area and her argument is that you relied on the attorney and is it is clear that aliens should not rely on that they're not they're not someone who who are but it's all true but we're dealing with a specific context here and a statute that says through no fault is that her fault someone who is an alien who from not from the united kingdom but from armenia may or may not have sufficient familiarity with  language to rely on someone who held himself out to be some sort of an expert in handling immigration cases if the court were to scratch the the agency interpretation altogether fill that out then that would be a factual determination will kind of see this let's say that she did hire this new tardio within while she was still in staff and let's say that we were to determine that are you having trouble hearing me as i just want to ok i'll talk i can talk further in the microphone if you have trouble let's say that we were to determine as a legal matter that the  sort of relieve you of fault in this context would she then be able to prevail i'm just trying to track through is there still some problem that she would run into or you know within a one hundred and eighty dollars days and if the court said that tara oh i would count that and then potentially but that's again that's on the record and that's but but but again there's a there's case law upon case law where the court provide in some circumstances on the conduct of no more years if it caused them to miss a deadline is she incorrect about that there are some cases i'm not familiar with the case she's talking about it ok but just as a general principle is that correct that in the equable tolling context at my my time is short and but i'd like to if the court does have any more questions i'd just like to conclude what what my argument is and i know a judge smith disagreed with the government on this i'm not sure i disagreed i've just  telling you my thought process so you could respond and say well i was out to lunch so i did and this is what the government does believe that through no fault of your own that that opens up an entire can of worms for a lot of things that's the government's position  the agency promulgated this regulation that's been on the books for thirty years no one and no and the i and he's been amended several times no one's sought to to amend that or change that regulations for a week or said that the agency to nowra we construe term fault and government never appealed and essential we at least as far as i could see acquiesced so it's  else this district court case is a believe i read those believe what the argument is that the the board is interpret in the regulation too narrowly that's not faulting from my reading the regulation itself regulation for regulations there there's none not any one of them that would help them know that especially that the one that they that they referenced the one that they're relying on well the only one they referenced is the st dr who wrecked and if that's if if if the court gets gets to that to that part where they where they find that the regulation is is good and the no matter what interrupt no matter what deference they give the board there's no way that petitioner can win because if you look at the three different you know subsets of that particular regulation where you know that it's an action by someone what it does for ins what difference would i give to make that suggesting then that i would have to give the governments get more differences to this regulation you could give it several deference or skidmore deference and the government would still when still when basic has it's reasonable and it's certainly not outside the statute there's no mention of attorneys and even if there were even if you get to to the st thing if the st element that were in action of someone designated by regulation there's a question of whether or not and it's again that's up in the air who if if if but there's no concrete control those actions and finally if the action is acknowledged by that individual which we don't have so no matter how you look at that regulation she loses that she had those people that she retained them or talk to them and one last point it doesn't matter whether or not the notarial would would would file a viz on her behalf that there's nothing for her status if she wanted to continue her status legally she'd have to go to the agency and asked for that her visa be extended by another six months so a fine of a of it of a visa doesn't help her right i don't but presumably a competent representative in those circumstances would do both right presumably but she's never made that argument it's she's never said that she's she's never it's not on the record why didn't you why didn't you you knew you knew your status ended in february of two thousand you here for six months you came over here you accomplished musician who i was why did you i mean she's obviously why she didn't file because you didn't get competent representation a competent lawyer representing her realizing that she's about to fall out of status would have done just what you said filed both a request to extend her status while her i one hundred and forty dollars was being processed right and i agree on but that's an assumption but she's never said that at all in here she said he didn't file of these on my behalf she did he didn't f course thank you for your argument do you have a little bit of time left for  honor we hold that that the through no fault limitation is broad it's a term that it should be open to interpretation based on the way that congress wrote it and there's been at least one court within the  circuit that recognized ineffective assistance of counsel as a valid basis for finding no fault specifically i'm referencing more diverse u s c i s a two thousand and nine california district court case where the court found their reliance on to be sufficient establish a man ability to the no fall exception the petitioner concurs with the argument presented by the district court and contends that the exceptions are unreasonable and perhaps impermissibly narrow petitioner argues that ineffective assistance of counsel should be grounds for concluded that the petitioner was not at fault for falling out of lawful status thank you honor thank you very much the case just argued t