bottle the agency erred when it's an i'd missed hard on those motion to reopen on the basis of an adverse credibility determination that the agency is prohibited from making credibility determinations when ruling on a motion to reopen so let's let's just assume for a moment that everything that your client said was true and that there was no credibility issue don't you still have to deal with the what the statute says about what what is an exceptional circumstance however we apply that i guess that's what i'm troubled with is it can everything she says is true how does what happened here fall into the same category as the other matters that we've previously concluded in our court and other circuit courts have concluded are in fact in quote exceptional circumstances in quotes yes your honor so the be a ultimately aired for three unanticipated occurred but it failed expressively decided not to make the determination whether it was an exceptional circumstance right correct and that's before this court today there's no matter what time she left home when we look at this record don't we done do we not i mean my colleague raises a very important point in terms of the facts but as i mentioned before even if we grant that she was credible and it was all of things we look at  you knew everything you just said so she left home at eleven thirty to be at a critical hearing critical that was scheduled start at one o'clock she had a problem with  true she knew how critical it was and she left home eleven thirty alarm instead of just almost exactly enough time to get there plus she had to get situated before she made an argument don't you see a problem and you're saying we're looking at this finding an exceptional one issue with this your honour's even if she had left for five hours before the hearing even after a vehicle broke down there's no indication it's pure speculation that she would be able to make it to the hearing that day she after her vehicle broke down she had to pull over and borrows phone numbers borrow a telephone from strangers and she called every single number she knew she made every step that she could to make it to the hearing that day after being unable to successfully obtain a ride she called the mechanic after after the mechanic told her vehicle she paid the mechanic and she finally got a hold of her husband who twenty nine eighty one let me just read this portion could i this is one for going with this it says the term exceptional circumstances refers to expect exceptional circumstances such as battery or extreme cruelty or through the alien or any child or parent of the alien serious illness of the alien or serious illness or death of a spouse child or parent of the alien and notes but not including less compelling circumstances beyond the control of the alien how how do you compare you know spousal battery death of a parent and so on to what happened in this case while you're right it's a telling me of the circumstances  i mean it's the totality of the circumstances we're construing a statute my question is how does this how is this anything less than a compelling circumstance when you compare it to death and serious illness so your honor in saying this court dealt with a petitioner who misunderstood the time of this hearing simply misunderstood the time here and that this court still found that exceptional circumstances were there and that's because of his statute didn't do it you saying that singh did so construe the statute and we should rely on seeing for the outcome in this case i think saying in fact that where are the relevant precedents before the court but did they construe completely ignored that case and it said relies on sharma and you combine it with the fact that we have a strong likelihood that success on the merits which the government conceded when it voluntarily remanded this case in two thousand and eight in the best case regarding chemical breakdowns para's case it right this court and not in that case stated that generally a car's mechanical failure is an unanticipated current which is beyond the control of the alien and that's exactly what the statute i quoted from paris versus new casey not happy couple here to find miss out on those circumstances were exceptional your honor th her tourney because maybe if she doesn't give him the five hundred dollars he won't talk on her behalf it's rather so she has five hundred dollars her car breaks down on the freeway the toll dollars left how did she get to the hearing well your honor i would disagree with your reading of the facts i think that she didn't pay the money until after she got to the repair shop and then after the they after they diagnosed  by the by very words of the statute it's within her control to get to the immigration court she has the money she has the opportunity because the tow truck driver said so she's a she's a woman who would limited english the man who has her car who accent or not and give it back to her or not tells her is four hundred ninety dollars now only the or else you know get your car but that's not in the record your honor saying you have to pay now is nowhere in the record your honor that is that's what count it was the position to remind the repairman of his obligation to the business professional code since i think what's important is it was within her control when she had the cash to get the immigration court and if you look at that if you look at the statute the very was that the basis of the finding  fine i think it's an alternative finding your honor there's an adverse credibility finding and then there's an alternative finding that the decision to prepay for the car repairs instead of to come to immigration corps was an alternative independent holding  three carries over to page four it's this independent holding that even if you were to take everything she says is true ignored you have first credibility finding the fact that she had the means and the opportunity to make an immigration court means it was an exceptional circumstance beyond her control because it was within her control to get to the immigration court and it's just a myth was saying earlier these very exceptional circumstances that they list in the statute including death a severe violent crime committed against you or a serious illness is not the same kind was a time it was a she had an hour to go twenty six miles i think is that this is in the record and she had the five hundred dollars and she had the whole council money what do we make of the thing if i understand the record correctly that the purpose of the her having the five assumption the lawyer would represent term without being pain well under he without being paid he did actually submit her documents to the court that day and they're in the records so i don't think there's any indication the record that he would have refused to represent her ok so he actually did submit the documents on  e so that's not what we should consider that i don't think so you're ok moving to the adverse credibility finding so it's actually interesting question those cases cited by petition demeanor of the declarer grecians as it is your so should be done as a general rule i think that might be true but where you have conflicting statements from the same petitioner and the immigration judge sees a conflict there then i statement she stated that her heart was not going to be ready until february fourteenth whereas the phone bill indicated a final date if there were thirteen and there's also an impossibility in that first submission to the board before to the immigration judge because she stated she was on the freeway in a place where the free that freeway doesn't run and so the immigration judge was within his discretion to require some clarification of those issues and then her second submission was handwritten submission she didn't provide any corroborating document terry evidence per second submission i'll drive you there for a hundred twenty five dollars and i would charge you the four hundred ninety until you can pay it as that evidence just as there is no evidence about that there's no one here so what are we to make of the issues over which a petition would have absolutely no control would you tell us why the term but not including less compelling circumstances included in section twelve twenty nine a e one should be construed or not construed as counsel for the petitioner would have us construe i mean i think it should not be construed to include car break right or they did the other way around i say that the petitioner's interpretation that is not consistent with the statute the petitioners current interpretation understand that what you were just talking about the fifth and the seven other people said that they both said that car  future date ok thank you very much but would you like  an opposing counsel are they to name first ryan fisher there are two opposing counsel notes things in the record such as the five hundred dollars that she had on there the hearing however this was improperly requested absent a finding of inherent unbelievability by the petitioner this request for the second round of corroboration was not allowed as this court recently and yang held or noted the factual hearing is you know at what stand good se in the scene which stand for the proposition that absent a finding of an harem believability facts must be accepted as true unless a finding is made but let's say that we do that let's say we have none of the information that came in the c circumstances akin to death of a spouse serious injury and separate separate yes right or so this court has long sided sharma the proposition that parking a traffic troubles do not constitute exceptional circumstance they do not correct however write it specifically said we're not deciding this right now and that right your honor it did leave open for it to be addressed one properly before this court ok so basically this is a fresh issue our court has never construed the statute in question in the context that you're talking about your honor it did expressly distinguish between sharma and and understand that but but you know that we have not construed this statute in connection with car troubles like in this case right the very language from states their cars mechanical failure maybe except not maybe generally is generally disputed director and you know you have to give