record the second page the d a s opinion it's about halfway down the page the record of proceedings does not contain the respondents sworn declaration as the last vote was that mean have me that the beyond a so there's no sworn declaration i look at page forty one it's not a sworn declaration so i don't know what your point is well you're out of the language i think the case like that is a let me ask you do you think page forty one is a sworn declaration well from i'm not i'm really not into the substance of your argument but you've come in and tried to say look this document demonstrates the i didn't know what i was talking about and what the beyond a says is the respondent clearly submitted a motion to reopen but it is not a sworn declaration it's not turning the evidence or sufficiency of page one that typed a motion to reopen which is of course not an it's not a declaration it's a motion but did not make any mention of the other document which is the handwritten letter at page forty one so the on the  disparity that i am alluding to is the fact that there are some of the documents in the record here one of them is the typewritten motion which is not evidence and not an affidavit not a sworn declaration by any standard the other one is a page forty one and it is something anything about the evidence or that document so the question of whether or not under twenty eight u s c seven hundred forty six should be treated as an affidavit yes an interesting question and one that i pursued it like in the brief but it is not one that this court needs to reach because that would first have to say something about this document at forty one let's let's assume that this handwritten document which she writes on the third line from the bottom i swear that i'm telling the truth let's assume the v o a consider this are you really trying to argue that there can't be an adequate explanation for refusing to accept her appearance as a her actual appearance on august fifth the original date set for the hearing as being a good date demonstration that she never knew the date of then changed the day to venture ange and she knew it there's no reason for her to show up on august fifth yes that is certainly an argument that's one alternative argument and i think it is open to this court to reach that result as i argued however the necessity of remand does not rest on this course accepting that argument this court can remand without reaching that argument it can remand simply in order that say something about  i would want to turn briefly to the question the substantive argument that i made in the brief about the twenty eight u s c seven hundred forty six argument that is treating this as an affidavit substitute before i do that however i would like to turn briefly to another issue which is in the government's brief and i take it the government will probably address and that is the meaning of the term initiate proceedings in the salta case it would be an argument that the government could make and i think has made that the salt a remedy that this court set out for you know claims of lack of notice when they notice the clear was sent by regular mail is not even open to my client at all because she did not initiate proceedings and i would argue really has no it is precedent because most clients are most aliens in fact every other ailing and i'm aware is not in that procedural past and for software to have forces present i think it needs to apply to the full range of asylum applicants who to have that initial hearing on the merits of first case and that's all she's asking for his case is the hearing that she showed up for initially on august eighth and ingenuity what you really want to say let's go back to the position we were in that as of august fifth or said there's been no factual determination that she didn't show up there's been no factual determination that she actually received notice from the conduct doesn't make any sense if you take a step back what you're talking about is the failure to do it in the form specified by the regulation i certainly have made clear i don't think the letter that she submitted is a sworn declaration but are we talking about anything other than a matter of form i think we are i mean  sense for her to appear on august fifth if she had received notification that the hearing and been moved from that date july thirtieth i believe based on the record that her testimony or her claim that she appeared on august that regular delivery and i'm sorry i'm asking a different question you're now saying you don't know whether she showed up on august fifth even though you have a signed letter i was there even though you have a typewritten motion to reopen  was there and you know no country evidence that says she didn't show up correct that is correct that it's her burden to prove that to prove that she was there and that she didn't receive notice of the changes here but her to those are two separate questions honestly i'm not sure where if there's evidence in the record about that or not well you know maybe i've dealt with the government i've dealt with the court to deal with this court it happens more often than i would like to admit that we send our rescheduling orders or we think we've sent our rescheduling orders the lawyer show up at the wrong time or they don't show up and we go back in investigating oh my goodness we didn't send it out so i'd like a little evidence that suggests  alien to rebut that presumption the system is that you submit an affidavit stating and explaining why she didn't get the letter what regulation are you referring to i believe that's the regulation i want to go three point two three b three immigration judge says she filed a motion to reopen the immigration judges denies that she then files a notice of appeal with the board and apparently a day later filed a motion to reconsider with the immigration judge and with it and then says in her later appeal brief to the board reconsider before the immigration judge she did not attach it to her initial motion to reopen for the immigration judge which is what she appealed to the board so this handwritten letter without any date which is what the dispute is about the record indicates she filed before the immigration judge initially was this typewritten motion at a r e eighty one which is what the board was reviewing on appeal it wasn't reviewing the mo sitter which she later filed before the immigration judge and i mean i think when reading of the of the board's decision a day or three when it talks about how there's no  declaration is that it didn't have any of this none of this information was included because it wasn't part of her motion to reopen before the immigration judge and i think that's the fairest reading of the board's decision august fifth are questions that are best answered by the immigration judge not by me and not by this court you know the immigration judge had originally answered already well but it's clear that this document they are forty one it's clear from the record and i  if if it's the government's interest to ever remove from the country as promptly as possible wouldn't it be to the government has been urged to stipulate that she gets her asylum hearing instead of spending another three or four years argue about whether she got the letter to show up on motion to get her proceedings reopened the regulations that deal with it she didn't comply with the regulations she had a she had a duty to set up on the rescheduled date and she has been shown in the regulation you're referring to is the one the judge told it is read ten and and sort of common sense that if you're going to say you didn't receive notice all that it has to be under penalty of perjury but i say i'm not i don't see a whole lot of common sense being applied here because basically what we're hearing is an argument that says because this woman operating at that time and responding very quickly there's no doubt that she didn't wait years to show up when we see those cases within a few days contacting the court in some form to say i didn't know about the change in date it seems to me the thing to do is address what she you know what the changing date it doesn't make a lot of sense for her to show up in august that that she didn't think that's when the hearing was so i have to tell the argument that purports to be based on common sense i haven't seen a whole lot of common sense like in this case i would point out that she was represented by to you been particular i don't see the us in particular but it's an embarrassment our system that are sort of taken so long that it's sort of taken so much money and so much effort over what appears to be a simple case of rescheduling