with regard to the issues raised in the twenty eight j letter and the whole issue of prejudice well first of all the board of immigration appeals did find that petitioner met undermined and that was the prejudice that was discussed and which the the board the not appear to have any problems with in my writing hearing you that in front of the board the   problems is that the the petitioners counsel before the board of immigration appeals originally didn't even submit anything and that was part of the whole discussion there although the the board did make a finding in its original i think it's from two thousand and two its original decision finding that in looking at the records that they have held the judge but the fact of the matter is that the respondents for the petition is counsel at that time didn't even submit a brief on appeal so some of the board in affirming the credibility determination of the immigration judge did not have the benefit of any argument from the petition at that time because the because this doesn't sing require some showing that there is a plausible basis for relief in other words you have to put not not convince anybody you could prevail on the merits but at least you'd have a reasonable chance of attacking  reopen a case that it had previously decided and this is really to be seen i think in the context of the of the time a number of limitations that have been imposed on motions to reopen in this attempt to override it so th once you get by that initial gatekeeper time a number issue then the board has to go find that it has the authority to consider motion and i think that in a kenyan what happened was  sponsor consideration authority and then goes on to do a whole discussion as one would do for any motion reopened in this case for adjustment under the latif a chunk of etc and the language and  restrictions of that section and that's in contrast to the initial request to even invoke the sewage sponsor youth already and and when it refers to is within the discretion of the board subject to the restrictions of the section will that whole section is be running here and i'll just give you a little heads up when they close to the end and i thank you your honor may it please the court my name is jennifer lightbody and i represent the respondent the court la there was ineffective assistance of counsel the petitioner still has a requirement that he act with due diligence and he found out in the end of may about the board's decision the fact that his prior tourney didn't  file a brief and that it was denied because of that he was given his file by i believe it was mr pilot an associate of some sort with his original attorney's office and so at that point  tolling period had ended and he didn't file a motion to reopen until december the eleventh that was well outside the ninety day period and all of that had been sort of some influence on he was given the  no he was given the file he said it sometime at the end of may of two thousand and two at the time he talked with mr pilot and the board had issued a decision i believe it was in april the fourth at the beginning of april more than thirty days after that he was given his file he was told at the board had dismissed his appeal because no briefs had been filed and more and then so sometime at the end of may look the same at the last day and may he still didn't file his motion to reopen until december the eleventh and so under any circumstances his motion to reopen was untimely and that's what the board said your motion to reopen is untimely and we recognize that you complied with the requirements of matter of lizotte us but and we're going to exercise or steward spontaneously already but we decline to reopen your or your proceedings and the court doesn't have jurisdiction then to review the decision itself to not asked to reopen his proceedings and the board said that that was untimely and we have to repeat fiction over that but you're saying it's correct that's right you're owners of the the board implicitly ime period for filing the motion to reopen and and it did recognize that the petitioner complied with the requirements of matter thought of that it didn't actually make a finding that he received ineffective assistance of counsel and so implicitly in finding that the motion to reopen was untimely and implicit in that is the fact that the board did not accept any of those arguments and then went on to say ok we recognized that you complied with matter of was oughta we're going to exercise our steward sponte authority to reopen but we declined to reopen because we found that you didn't comply with the statutory requirements is some possibility of an effective assistance of counsel when the requirements of was on a are not something you can take care of over the weekend quite well i think that would be up to the board to decide initially but i believe that there's he's got that ninety day window in which to file his motion to reopen but by the time you get to some of that period is already gone right and saying that no matter when he gets up so long as he gets to file within the ninety days he has only to the end of that ninety day period to file a motion even if it's a motion premised upon an effective assistance of coun john i believe and i'd have to look at the record more carefully but i believe that he didn't file anything with the california state bar until sometime in september or at least send a letter to his initial counsel until some time in december so we're looking at the end of may june july august you know he still outside of that ninety day window before he even attempted to comply with the requirements  was which would have been in may of two thousand and two and the motion isn't found until december is that essentially what you're saying not that there's a per se rule but just that he would make no sense richard ninety days would run right be no longer than ninety so he hasn't shown that he acted with due diligence and in fact in the motion to reopen he becomes very it's you know they set forth the specific date about when you know the decision was issued when and then it becomes more and more of a with respect to what transpired between sort of the end of may middle or end of may and then to december the eleventh and when exactly current coun that was the petitioner it other than it was outside of the ninety day window and he wasn't referred to him until after that time but we don't know what the petitioner was doing during that time and he claims well i didn't know what i was supposed to do but the board doesn't have any obligation to advise him that he needs to do something he's given a file he's told that is his appeal has been dismissed that's enough to put him on notice that he needs to do something this is that the client is willing to do that there are other means which the petitioner could return to the united states and that is that she would have to leave the united states and file for a visa to return to the united states present himself to the consulate and and seek admission to the united states and it's the government's position that that's what needs to be done in these cases  that in other words it's not the particular facts in this case but when and when petitioner is ordered removed and then marries four years later and never leaves the country and then all of a sudden four years later resurfaces saying i'm married and now i want to adjust my status the government's position is that that that final order of removal required the alien to leave the country and then seek or use other means by which to return to the country to then become a lawful permanent resident and that would be the government's position in in this case as well and in particular in this case  because under it to me kimmy and because there's no jurisdiction to review the board's decision itself that is to deny adjustment of status that we would not be amenable to to dismissal and it did so because he failed to file a brief and then sort of did a second statement saying that you know we've reviewed this case and we find that there's we agree with the immigration judge decision and and so it really didn't decide that case on the merits and that is set forth in this thing case that i twenty eight i believe judge fletcher that you authored that opinion and summary  dismissal under in two thousand and two wasn't permitted on the merits i'm not sure if i'm explaining that but if you take a look at the thing case it talks about the summary dismissal issue and i just wanted to clarify that for the court so there's not a misunderstanding it wasn't decided on the merits could use it one more time to make sure that the clarification works clarifies for me i understand what what we wrote and thousand and two and the regulations in effect at the time or apply couple to this case and i believe mr davis had suggested that this court that the case that that the original board decision was decided on the merits so we are talking  might have thought you were doing it but but you weren't because you couldn't ok first of all there were as far as that somehow the board implicitly decline know still on ninety day window for filing a motion to reopen and in this case giving your client the benefit of the doubt he learned in may some time of the an effective assistance and so he would get three months from then so maybe till the end of august when you didn't do anything before the end of august what's your response to that that that all the equitable telling us ninety days from a new date but not given more than ninety days and probably be some time you know in the u so you know that's the thing there but you know that so that so i think that when you're when you're talking about due diligence that's the question is that you know it takes time to find  learns he gets a trial and finds out that his appeal has been dismissed and when he when he sees an attorney so are we arbitrarily to say four months is reasonable but a year wouldn't have been or or eight months wouldn't have been i mean that i the you know i don't think that you have to make that i think the issue is is when you when the person has knowledge it's when the person has knowledge  but but then there are other but then there are other steps the attorney mr pilot has no indication that he had told them ok now you have to do something within thirty days that's something that's not only because you didn't use reason i'm struggling with didn't know what that meant he didn't know what rights he had lost and so forth and that's he couldn't have been expected was certain and in happened in this case to take in four months to get that information when he when he saw you what could have taken him a year  in the control of the of the petitioner to say well i actually found out what was what it at this particular point in time and that the whole point about level limitations period is to say once you are once you are objectively on notice something of the facts would be a predicate for a claim you have to do something within that limitations period so what i'm hearing from you maybe and i want to be unfairly and what i'm hearing from you is it's if he had come to you two months later if you had come to you a year later and that and then he said in an affidavit said well the first time i realized that i could make a motion to reopen was when i talked to mr davidson in january of two thousand and five i mean you still have the same equitable conan argument and if the answer finally here's what troubles me well there's this is a complicated case that falls in between if you can this is even metaphorically possible false and when several crashed one of the one of the things that bothers me about and there were other there were other bases in which to go on this was that there were a number of different possibilities in the fort and hung on to one but again i would also think even if it's applying it to me and i think the question is how long is the holding period in iraq that ninety days and your i think our young and well should be interrupted from the time he learned and tell the tower filing in december because it's not unreasonable for him to have taken four months to come to you decision it's a report that was funny and has fallen and finally most reopened i mean that kind of takes a quote it's true i mean just when you're looking from defining from the point of view of the date of the final decision yes it was untimely but then there's a whole slew of case law on which ari and leaves the united states to do consular processing there's a ten year bar and he's going to have to show at the at the embassy in a smart whichever country that that it would be an extreme hardship to his