the board of immigration bill decision had command and therefore put the appellant another was that one of two things that they could either voluntarily depart because the ballot hairy departure was reinstated for a period of thirty days or appeal to the ninth circuit so that one act took away a parent's rights to basically not be deported for a significant portion of the life of the appellant and because of that we're contending forth the fact was that the record shows that the attorney represented the client in the proceedings and it follows from that that even though it may not specifically be stated that upon conclusion of the decision of the as to what was going on and at that point the attorney had the opportunity to respond to try to rectify the situation to explain why he hadn't told them what had occurred and nothing like that happened basically what happened as the attorney s state that if the purpose of those are the requirements are met that strict compliance with the three elements are not necessary and in this particular case because it's clear exactly what was done wrong it's clear what the touch with opponents at this point so it's unclear to me whether they've actually been deported or not i know that in the opposing papers they do say that the deportation has occurred and in this particular case now they are prevented from coming back to the us for many years because of this this court were to grant this petition based upon what is put forward then there voluntary departure would be reinstated and they could come back any legal way that they want to there are several cases which are in the paper showing the relaxation policy goals which are to provide a framework within which to assess the bona fides of the staff stansell number of ineffective assistance claims asserted and so forth when these goals are met they have not made being the ninth circuit have not insisted upon strict compliance there was one case the full hard oh vs i an ass case it's basically says it is hard to believe that not being told to appear at a deportation hearing would not constitute an other major point of this case i'd like to bring out as the exhaust fan of the administrative remedies the housing side has basically said that a motion to reopen should have been brought forward and we are normal  order only the inability of your client to follow through that's correct your honor that's right and also if it wanted to appeal to the ninth circuit of course there was thirty days but at the time to be a decision was think when i said why wasn't there motion to reopen and you say it's not available because there wasn't anything wrong with the i order and if there wasn't anything wrong that i don't understand with a month i can you know i didn't mean to say that you know what i'm saying is that they could have done a motion to reopen if they wanted but they chose to go up to the ninth circuit there is nothing that specifically mandates that they do a motion to reopen versus going up to the ninth circuit well for to do a motion to reopen because there was nothing on the record to indicate that they were making a claim for ineffective assistance of counsel this would have been the first opportunity that they had to make a motion to reopen they would have never had the opportunity to bring it before that's why i'm saying that the motion to reopen would not have been the proper vehicle to go forward in this particular manner that's the be i a had said the motion to reopen or the ineffective assistance of counsel denied because of this and that and they had incorrectly stated  those facts then they could have made a motion to reopen we would have been able to put forward evidence showing that would be i was incorrect in denying the motion to reopen because of certain facts regarding the ineffective assistance of counsel but there was nothing on the ridge i'm a little confused by the arguments that the petitioners raising regarding to them the motion to reopen and i think he's making it more complicated than it really need be the way this process should normally work is ability because frank sproles had no interest in asserting his own ineffective assistance to the b i a but there's no allegation here there aren't perfect cases which hold that it's unreasonable to expect aliens and alien former attorney who is fraudulent to file a motion to reopen alleging his own ineffective assistance there's no allegation here is a former attorney with fraudulent be even it the garcias can say that it really wasn't reasonable but that's their story that's exactly why we have the second requirement of the data which is to ask the aliens to notify their former counsel of the alleged ineffectiveness and give former counsel an opportunity to respond the story may be that the third requirement to let saddam what further this purpose which i'm alluding to which is the possibility of collusion between a wing and an attorney by filing of a complaint with the state bar let me ask you this this is then i understand the other side is that there was a failure to notify them in time so that they could voluntarily depart any appeal to us was going to be hopeless and under the new rule we would not even of the extent of the time voluntarily  couldn't have made as of a showing of sufficient likelihood of success so their only choice realistically was going to be voluntarily depart nonetheless it turns out they don't get that choice i'm now believing for the moment they're affidavit because they can't bring a motion to reopen in the exact circumstance that you describe four years where you're not complaining of any error in the i j a decision regarding your application for asylum or the decision affirming that in your o claim is that my attorney messed up by not giving me the opportunity to voluntarily depart within the sixty days imposed by the me i see no reason and i am not aware of any statute or regulation that would prevent any alien from raising a motion to reopen  departure the consequences of not complying with a voluntary departure or are severe your created from applying for a certain kind of relief for ten years if you don't volunteer your part i don't i can't speak for the v reopen at the time they discovered from their counsel that they had not been notified they had approximately thirty days and in your argument is that within those thirty days they were supposed to get themselves a new lawyer it was not supposed to comply with the matter of la at least you got to show me something that gives me some indication that your former attorney was ineffective the aliens current attorney the attorney who is here today didn't present any affidavit or didn't present any letter saying i'm notified and former counsel you've gotta understand former counsel can't be expected to make a bunch of arguments alleging his ineffective assistance but current counsel hasn't provided the district court and today hasn't provided an explanation why he couldn't have notified frank swirls and said i'm filing behavior petition granted i don't have a lot of time but i'm filing a v s petition these are my allegations what's your response current counsel hasn't explained why he couldn't have filed a complaint with the state bar to give the district court something to go on and that's what the discord i have an affidavit from your client saying frank scrolls didn't provide you with a b i opinion but frank strolled hasn't been given the opportunity to respond and there's no indication that a complaint has been filed against frank strolled why haven't you complied with these requirements never mind frank's world or the aliens why haven't you and i raised these argument to my opposition behaviors patrician and at that point it would have been those obligation to say well i can do that if that's what it is if that's what's missing if that's your concern judge i can do that give me a little say he didn't ask for that and he has been asked he didn't ask for a stay of the district he can't get over the final hurdle that he himself has not provided information that i've briefly just addressed an argument that the district court did not rely on and that is the all of the cases that i've read where the ninth circuit has excused those requirements devolved and where the administrative record is clear that there was ineffective assistance for example during your the attorney admitted on the record  because the facts are in dispute it the question is you know that they established prejudice in this case that's exactly what's missing and we don't have the facts and the district court gave efficiency counsel an opportunity to give those facts at least let franks rolls have the opportunity to say no i gave them the b i's decision i always do that i fax in the decision and it was their decision to stay in the country as long as they could which is time i think one point i need to make here is in the immigration and nationality act it provides very specific provisions when the immigration judge denies the case when the b i e denies the case when judicial review first comes into effect there is nothing in the immigration and nationality act which says f b i a denies the case you must make a motion to reopen within ninety days then you have thirty days in which to do a petition for review it doesn't say that it says that there are thirty days to do a petition for review to the circuit court once the v i i denies the case the motion to reopen is voluntary it's a vehicle that can be used but it is not mandatory it is not require and there's nothing in there to give the to give the option to the alien and they can go either way so if they want to preserve their rights for their petition for review they get it filed within thirty days because if they don't that could be your honor but then what it does is instead of protecting the alien and this particular matter becomes basically a credibility shouting match between the alien and the attorney and then we are shifting  is ineffective assistance of counsel at what point do we ever get a fact finding as to whether or not there was an effect of assistance of counsel at the moment all we have the affidavit from one side and my question in a way is i think he is proceeding is it your responsibility to get the evidence that's contradictory to your client's story which it might be or is it the government's position responsibility to do that your honor i think either party could have done it but when the hague b s was filed at that point it had been too late there was an order that they were going to depart they being immigration was going to deport the aliens at that point you know i don't think it's reasonable to bring a b s and then ask for a stay in order to do the result at that point and the judge jenkins give you an opportunity t testimony from the earlier lawyer you're on and the judge had given an opportunity to submit the briefs and so forth and if you defamatory stay there was nothing specifically on the record was that mr lerner you go and you go comply with the lazaro requirements and come back to me in a month i mean obviously the judge said that i would have done it in a second ok that the evidence was already en it was already submitted to the court it was just a matter of briefing ok and one more quick point we would just respectfully request that the voluntary departure be reinstated so that because of this matter the illions are not out of the united states for a good question of their life unnecessarily thank you thank you