in this matter in the instant case it is clear that you really have what you called one of the notarial cases you have an individual who was represented by a person who held himself out as a lawyer told him he was going to represent him in a deportation proceeding and proceeded not only to not represent him but caused him to miss a hearing which subsequently culminated  even in the event that the court finds that there should be some sort of issue with regard to exceptional circumstance the case should be remanded for further inquiry by the board let me address that issue and also the issue as to whether or not the start a bakery and was arrested that is exactly the case the issue is whether the motion to reopen the period of time between the time he thought everything was taken care of and the time to move to reopen should be told for equitable considerations where do you get the exceptional circumstance the requirement is that what you think is necessary for equitable for a total no no i'm just saying that those are the issues that were raised by the it's a it's textural thing  m inquiring about exceptional circumstances we raised invokes and in our minds a cancellation of removal that's not in this case now so that if you're talking about is whether there are equitable grounds upon which to toll what would be considered to be ineffective assistance of counsel but it's much more egregious than ineffective assistance of counsel it's total fraud he thought he was represented by an attorney not only did he think he was represented by an attorney but he was told that certain things would be done representations were made to him including that the hearing since he did not want to go forward with a phony application that the hearing would be terminated and there would be no application and that is the government takes the position that at the nine twenty six one thousand nine hundred ninety seven hearing he was represented by counsel and that counsel should have notified him of the effect of the hearing and that he didn't exercise due diligence  finding out what happened at the hearing how do you answer that first of all he was not represented by counsel there is no signed document in the file and in any case in which representation is suggested or stated there has to be an attorney we don't even know it was an attorney we know that somebody appeared on his behalf allegedly and the i j a circle represented exactly and the i g doesn't even know who the representative is the record is not clear as to who actually appeared that day the record does not reflect who appeared and the government concedes that they don't know who actually appeared on his behalf that day he never signed anything he never delegated authority to any individual to represent him all he knew was he thought he was being represented by a gentleman by the name of mr r s who who he thought was a lawyer and who told him the case will be cancelled it will be finished and you don't have to worry anymore so therefore he never really had representation perceval to the point that rose to the level where he had to file for example a bar complain because he didn't even know who it was that he'd have to file against he did file against mr  it's almost like where you have an argument where you say does a court have jurisdiction and you have to get to the merits of the case to determine if there's jurisdiction it's the same thing here in order to get to the merits of the equitable tolling you have to actually look to the facts of the underlying cause which in this case is exceptional circumstances don't in response to your question the answer is yes b i ache by not finding equitable tolling in effect rule that there were not exceptional circumstances that is correct w comply with the law as a requirement what he did with regard to mr r s and but he didn't know who appeared in the hearing because there's no record in the hearing as to who was the actual lawyer so you can file a effect in effect of li found that they were not exceptional circumstances are second and which would be of course that it be remanded back to the board for further consideration of reka and allow equitable is you could you could argue could certainly conclude that the board didn't consider certain information i would have to go back and look at the record but effectively if you send it back to the board what you're really saying is that there is equitable he applied for adjustment of status with the immigration service who fingerprinted him who examined his records and concluded that he was eligible for adjustment and gave him a green card it wasn't until several years later that because the order of rescission was just is not a final order removal this court has no jurisdiction no why because there are two cases that came after the not the grounds for the deportation order came after i think it is but if you read these two cases you'll see that the court really doesn't distinguish between that what the court really says in these two cases the specially and actually a the court says was there were resurgent it was rescission because there was an order based on the fact that he had not appeared and the recession was based on that order saying that he wasn't entitle to residency because he was under the jurisdiction of the immigration court so those are intertwined and if you read those two cases they pretty much take was eerie one step further and say that if we  in the context of trying to remove an alien from the country there's review ability by the court i think the counsel for the government raised an interesting issue and i did take time to look at it and  much you know you're overdrawn that is  court has required a separate and independent analysis of equable tolling on one hand and ineffective assistance of counsel on the other however the separate analysis does not relieve the petitioner from developing an adequate factual record to show that the deadline should be fraud for example if if there is an attorney failed to notify the the alien of the date he needed to appear well that would be fraud it would be ineffective at this depth so i'm confused ninety seven hearing is a statement by a government attorney that's a rescission hearing five years later i know it's not the most perfect evidence that we could ask for not under oath not subject cross examination and without any foundation that that clement was present at the hearing five years the fourth and can state based on personal observation that it was she you know who was there go yes so the fact that she no appears on the first pretrial hearing how well does that prove that he or she you know she was a man or woman appears on the second here these out of what happened in this case we don't know that he didn't contact mr minister and just isn't enough evidence on the record with regard to me you know to find that his and that he was ineffective and that the deadline should be told well immigration court he does have two names and she numbers so when he did adjust to status and under the name misty and with a different a number there was no way for them to know this was the same person who filed the asylum application and had the removal order which in  motion my twenty a j letter to the court the government believes that the court is without her stiction to review that order however i would suggest that if they court does find jurisdiction that the mr minist as permanent resident status was proper as a matter of law because the moment he was served with him a notice to appear under the other name any any adjudication of his adjustment application had to be done before the immigration judge so it was the district directors a lack of jurisdiction over mr ministry an application for adjustment of status that required the rescission and this was merely a procedural way to clean up the problem created by the two names and to a numbers if the are under twelve fifty two that would prevent us from reaching back decision i don't believe so if you if you define it to be so connected however as i said it was not then every his status was not responded because you had an order of mnason believe that the case was terminated and then immigration cases terminated jurisdiction and then returns back to the immigration service not the judge but even assuming the court decides that ultimately this case should be reopened mnason is entitle to just we knew his residency in front of the immigration judge in other words the judge could have granted him residency and could have done it even one proton so that is that is certainly an option in this case