please the court my name is stacey tolson and i represent mr bonior i would like to reserve two minutes of my time for rebuttal mr gonyea with a long term resident who was deported for a single misdemeanor firearms offense as the last  today after the supreme court's decision in judah long he would be eligible for two twelve c mr bonior filed his two thousand and eleven motion to reopen based on two grounds ineffective assistance of counsel and the general on change in law as to the first grounds the board found that there was no ineffective assistance of counsel and denied based on due diligence and lack of prejudice now the argument was that mr rivera the first attorney failed to properly file a vsa petition before filing have been expedited by competent counsel and then most likely or certainly may possibly for the prejudiced standard have been approved before the board got to the adjudication of the motion to reopen i mean clearly competent counsel would have moved to expedite and filed as long as it was non frivolous and the person with otherwise eligible for adjustment of status mr boney as case was obviously non frivolous he had a child with his wife and he was immediately eligible for adjustment of status because while deportable for the misdemeanor firearms offense there was no comparable exclusion ground so he didn't even need a waiver for adjustment of status here because mr rivera failed to file the fisa petition at all he only submitted the motion to reopen with the marriage certificate and the birth certificate there was no possibility of the motion to reopen being granted what about first of all i would like you to go to the a comedian decision but before that issue because that's a review that although we can't tell it what to do otherwise but what's the legal mistake that we're supposed to be reviewing rights of the board says that it's not going to reopen for the change in law because the petitioner lost his permanent resident status when the board entered its order and so therefore essentially his he's posture has fundamentally altered so they're basically saying we can't reopen the case because he's not a permanent resident anymore but that is contradicted by contrary spoken i grant the tenth circuit there's a footnote in nick him from the supreme court that when a case is reopened you're restored back to the status that you had prior to that entry of the removal or the deportation order here so if the board reopen the case it would be restored back to being a permanent resident and then could apply for to twelve c technically if the case was reopened he wouldn't be deportable at all because of their firearms law that's changed but the fact that they cite matter of law in the board's decision at page or more the case law had said you could never get to see if you were deportable for firearms offense juline changed everything i mean this was a fundamental change in law by far and the fact that but fisher was deported that doesn't alter any of these schemes record at page thirty two addressing all of those issues i mean if the case were reopened he would be restored back to being a permanent resident and he's been here since one thousand nine hundred nine so there was no issue of the under relinquished domicile for purposes of two twelve c then i guess the other argument that the respondent is making a scientist and it is essentially well all of this is that the decisions were proper one made and you can't go back to actually like this so mad with regard to both  matter of g e recognizes that you can't do use or you can go back if there is a fundamental change in law that alters the scheme that was the sole basis for the removal or the deportation order you can go back i didn't want to address the due diligence issue well i have time  from two thousand and one and till two thousand and eight the petitioner did exercise due diligence after he came back in two thousand and two he went to a legal clinic where he met with somebody who advised him that he should wait a few years which he did and the scope of that just i mean that's kind of strange because for one thing it wasn't his lawyer and it was very vague and besides which was a few years you waited six well i mean he didn't understand what was going on what was going on i believe is that the the law and adjustment of status which was that if you had been deported and come back in illegally then there was there's a ten year bar to getting a waiver and the law was flip flopping on this issue on whether you could get the waiver if you spent the ten years here or did the ten years have yeah i mean i you know she didn't understand the feeling there are seems no way during that time period that somebody who was actually trying to deal with this one dealt with yeah i mean he didn't understand what was he having a case law where a period of six order can't be executed again in fact in its current what does that mean you know you can't be asking again he can't be removed on that one thousand nine hundred five order again in fact he's an on going to forty proceedings right now that will determine whether or not he this motion to reopen which i believe there are three reasons why he's pursuing this still first in attempts to terminate the deportation proceedings based on the change in on the firearms offense that was not exhausted second in order to pursue to well the board did not make the determination he says it made the board correctly determined that his l p r status was terminated well let me ask you let's go back a second do you agree or what is your position on whether we should follow the uncontested so that's that's the second issue we have to reopening for possibility of termination which is an exhausted reopening for twelve c which i don't think the board made the legal determination he wants the court to review and third is reopening for adjustment of but he does not address at all the fact that he retained mr a there on march eleventh he was scheduled to be deported on march thirteenth mr there could not have gotten an approved use of petition in that time to the extent she now vera should have done a better job he's now arguing and an exhausted issue about rivera's quality of representation before a different agency and under this court's decision and problem chuck that does not affect the fairness of the proceeding leading to the deportation order is not a basis for an ineffective assistance of counsel claim counsel if we assume that the lawyers prior to the ball call the pro bono lawyers that they were let's say we assume they're grossly incompetent i take it your position is that even if that were true that he still has the problem of overcoming what occurred between two thousand and two and two thousand and eight yes your honor now in fact i think mr abramovitz the second attorney did a bang up job for him he immediately had the white file a  denied the request to return before the period expired but that would have expired long ago if he had remained outside the united states he could have come to the consulate said here's my visa petition please and meet again there's no p r and he would have been here i guess what i'm asking is that if agree if we agree with you that the period of two thousand and two to two thousand and eight shows lack of diligence is this case over yes you know for the adjustment of status issue for reopening for adjustment of status i  rule without regard to your so for your honor for all the reasons why you might be pursuing this litigation even though there is the ongoing reopening we don't believe the board abused its discretion admissibility if you look at the statute at eleven thirteen c five i believe it lists when a permanent resident is seeking admission that is one of the grounds if they've entered without inspection and many could seek a waiver for a lawful permanent resident cancellation of removal it's a pretty easy waiver i think but on the due diligence i do want to point out the departure bar is really significant here the regulation of three point two d said and still says that you can't file a motion to reopen if you've been deported unlawfully the law is you know one that has been changing rapidly and it wasn't until the lynn case in two thousand and seven that the first case came out that said if you've been deported and then left then you can file a motion to reopen so in that period from when he was deported from  and all these cases that invalidate the departure bar but there was nothing he could do to reopen that order until then came down then there were no other steps that he could have taken that would have impacted his status between two thousand and two spontaneous i gather there's a disagreement between you as to whether in fact the brief for the board raised the relevant issue so what's your response to that right i mean obviously we think everything was raised looting context because it means that they didn't really make an erroneous legal decision in just made in iran is factual well they're right that's a factual decision but the legal decision about matter of locke and saying that he's his status was fundamentally altered when he was deported that all is  position you did i am not authorized transfer that question and justice rehnquist said quite pointedly your officer of this court if i ask you a question you have to answer it and you might tell your superiors