mister seeing the board in those cases refused to consider their equitable tolling powers to accept those motions and did not consider the declarations of counsel and the client concerning the dates that they received the board's decision dated twelve twenty three of two thousand and three for that reason it seems to me fairly straightforward that under the  in fact mailed to mister buckley the counsel of record time under due process requirements and more is required of the board than they did here in recent case jones versus flowers a string court case the notice case due process case involved a notice of property tax delinquency and the notice went out and it came back on claimed and the board in the supreme court there found that where it appeared where the entity had evidence that the document hadn't been received they had to do more as a matter of due process some alternative method to make sure that no this was done well how does that affect this case in this case we member the decision of the board was december twenty third two thousand and three on january second the petitioner mr singh signed a notice of change of address and sent it to the board as he's required to do under the law it according to the record in a r two sixty one to sixty two received by the board on the twelfth of january still within that thirty day timeframe nothing happened at the board with that notice until the twentieth when they looked at it and wrote out a form and mailed it on the twenty first of january to him by first class mail course didn't receive it until the twenty third one which was after the thirty days had run in my view the board had a duty to do more when they've got that address correction notice from the alien that demonstrated to them strong reason to believe that he was unaware of any his  the decision of december twenty third if they had acted promptly called counsel faxed counsel a copy of the decision make sure that it got in there we wouldn't be here today we would have had this whole round of motions and litigation instead what did they do they after waiting nine days they sent a first class letter copy of the decision to the alien but not to the attorney for those reasons we think the board had  duty to do more and under delhi saying the court recently found that in these cases where a notice went astray then and i suppose there's a question of whether it was even sent out at the from the board but there are of course many reasons where it could go from there well what have you asked me what's actually did counsel do in the call what's the next step if you are right if i'm right yeah if i'm right what would have happened would have been that council would have filed a timely what reopen would be timely and not denied he had moved to reopen to have his adjustment application considered based on his heritage yes right as to that would be a typical kind of story you know here's the date of the decision nobody even has to say what it was nailed it was a male who got it they didn't get it somebody dropped the ball is irrelevant there was no appeal in thirty days but for motions to reopen the board can know the other thing that i think needs to be addressed is the the frivolous application finding which is not directly before this court but the government has brought it before the court and there's no prejudice because he would lose the adjustment a issue i think so because they raised here and it seems to me there's a there's a process around quite a bit last night trying to think about the best way to approach it seems to me that the key thing is that under the frivolous application bar of the statute the statute says the applicant has to be told at the time of filing the application of the frivolous application bar he filed the key thing is that the application does not include the warning notice of the consequences of a frivolous finding it was too early in the process they had to revise their form it now includes that if you look at forms that are that are filled out subsequently includes that no so he didn't get the notice so he's got sort of like a catch twenty two on this one in other words he couldn't have done anything right because he didn't get notice and he was right on the border why we were would apply or not apply is that what you're saying because if if he fell before the date then he would have to worry you would have to worry about it all you can't determine that and even get notice he didn't have a realization that when he was finally he made me not be properly filing his petition is that what you're trying to say as a statutory requirement the frivolous application bar and further really thought only applies if the person was told at the time of filing the application that there was th problem this issue he wasn't told that so the bar doesn't apply so the narrowest ruling the court could make would be the bar doesn't apply because he wasn't told at the time of filing so we don't motions to reopen the board couldn't rely on the bar as a way of application bar and says the immigration judge must make a specific finding of a knowing and intentional fabrication of a material fact now that's were i got off and coming from right because the  did not adopt the i g f findings on three was this and they made their own cryptic finding we were reviewing that decision that's right and so that the finding that would be required under why hell isn't there you just have a the immigration judge specific reasoning in the portion of the decision addressing the issue of frivolous claim but on the ultimate conclusion that responded fabricated his claim now the only way to they could come up with that is the paragraph above the talked about how he contradicted himself and and also he seemed to be tying this conclusion fabricated his claim to the prior paragraph quite specific and i think this court's in fall of that reasoning there has to be a very specific details finding of knowing and intentional misrepresentation of a material fact and the person has to be clearly given informed that the second circuit actually thinks the y l requires the judge to inform the person listen i'm thinking about giving them a frivolous application finding in this case so you're thinking that i don't think any of that was there inconsistent and makes it quite clear that the circumstances that are presented here call upon the board to make a specific response to the twenty affidavits which they didn't do  shortly so this court in dollops singh said the board did not address the evidence you know on the motion when therefore it sends it back the board gave some discussion some information but the finding of that was that the board didn't address the affidavits that were submitted as part of a motion to reopen here the board did address the arguments that were present at the board identified that mr singh claimed that he didn't get it the board addressed each and every one of mr singh's points such as the subsequent mailing of the notice on or about january twentieth why the board may or may not have had the file they were addressed every point which means that the important part of what i was saying what are you reading from maybe i read the wrong thing what are you responding to those the aliens attorney according to the board's records then sent a person to us practice sent the record back to the immigration judge categorized it dated when the immigration judge received that it then give a further explanation that on january second mr sting's submitted a notice of change of address and the receive that on january sixth but the board hadn't then informed him on january twenty eighth by letter that it had previously sent the decision issue is your honor did the board mail it not to the aliens receive it now whether or not they received it is circumstantial evidence possibly that it wasn't mailed but that's right because there's a presumption from the cover letter which they re cited two times but then the presumption can be revised it and there is to act through declarations that were not discussed at all well the board it in any respect your own on the august eighteenth  identifies that yes to the council i don't claim that he did not get the then the mailing i mean if they're not there's not much more to the declaration than that your honor well it's a little more than that because the petitioner says i received it late i called my council he indicated any facts to go over to him so that's another corroboration and factor that they didn't consider at all well that's why we go to when we go to the august or the december seventh decision the board further addresses that i only said is that they sent the letter to the petitioner after they received his notice of change of address they did nothing more than send him a note and say here is a copy of courtesy copy but they did not discuss the fact that when petitioner said it was look what happened i called my counsel i didn't discuss that to consider that circumstantial evidence relative to the presumption well your honor insofar as the attorney of record to whom the yes where have they told us that well they didn't in this in this proceeding they didn't have the benefit of dollops saying that that is true your honor they did was to say they looked at their side of the equation they've never told us in this case what the  of non receiving it may well have concluded that the presumption of me when created by the cover letter was rebut it and would have required further evidence mailing before determining that the decision had indeed been assuming the affidavits were sufficient to rule out the presumption of mailing without the benefit of the b i's articulated reasoning on these issues we declined to decide in the first because it's the weight and consequences which is ok if this is the board's response is it going to be sufficient from this court's view of due process is that what you want us to do here your honor in this case the board has done what the court needs to analyze the board's factual determination right we do and i don't know what weight they gave to the affidavit if they don't give any weight to the affidavits we then have to decide whether or not that meets the burdens of due process the difficulty your honor is the ported consider those at your on it was our decision believe me this decision was carefully written to give the board the opportunity to explain to us what the process is and what it does and how it lets people know and what they can do to find out whether a decision has been mailed we're reminded to the board to give them that opportunity you want to preterm it here and make this case the vehicle for saying what they did in this case is enough do you really want that know you're o that you're out of the attorney general always prefers that he'll you have not only the attorney general but the secretary da just that's your client well actually no your honor my client is the attorney general united states was the proper respondent in this case the board of immigration appeals is under the attorney general united states not the department on what i understand that but d h s s is the one that wants to have this person deported you are correct you're doing that now i see that i have