he was then served on the record he was actually served by the ins attorney present counsel i think the language of the i j a was that for purposes of the issues that were to be brought up with a hearing this and he made sure that there was proper service in court but he didn't make a finding of nine hundred ninety four notice had not been that ut transcript i can't go into his mind and know exactly what he and what he meant by that but i do know in a case he basically only get served once and he asked the petitioner have you ever received notice said well actually he's already been served in this case and that that may have been a good thing for her to say because the well the law was well established at that point about you know there's a seven year continuous presen briefing before it went to the i j a in san francisco mention that and then when i went to the b i thought he had mentioned that in a brief but the rich bottom line is the record  reflect that one way or the other also think there's a second independent ground on the service issue here and that's that the only clean serviced by the government in this case is that petitioners wife was served and there's language in the child as case where this court indicated that we've read the service statute it looks like even with service by certificate certified mail service has to be given to the alien and there's also language in tight is where is where this court noted that the origin of the wrist responsible person and service requirement is unknown they just noted the court just noted that it's something that the board of immigration appeals  previously come up with and if you read the plain language of the service that you it indicates that the u s c has to be given to the alien the phrase responsible person appears nowhere within the service statute and i believe as a matter of just plain statutory construction that this court's initial analysis in china is that it has to be given to the alien was correct now as we noted in our briefing what what the court did was recognizing that there were several cases that followed the the board bridge all the opinion in this court went ahead and made the responsible person that the cat claim on the basis of a fingerprinting requirement as the entire board of immigration appeals recognized there is no fingerprinting requirement in cat and the fact the matter is before the hearing petition with me are printed anyway so he basically complied with the nonexistent requirement as to cat so we we believe that the claim was improperly  pre term unaided on the basis of the fingerprinting requirement that didn't exist the next round for reversal is that the board erred on the merits in rejecting the petitioners asylum and withholding claims petitioner testified at length despite his alleged lack of fingerprinting there was basically a merits hearing held he testified at length about his past persecution the i j a found him to be credible the government at that point had the rebut the last presumption that he had a well founded fear of future per there was no individualized evidence presented by the government the only thing they presented was a generalized state report and there's case law from the circuit that indicates that generalized state reports are insufficient finally the the board offered as a second reason for denying petitioners asylum claim was because again he wasn't fingerprinted i think the court's q e case is directly on point as you know it it's unclear to me that he ever really understood what he was supposed to do the respondent suggests that we ought to apply the two thousand thought or to go doesn't speak spanish or i'm sorry if i if i if that's what i said that's wrong you know he doesn't he he speaks spanish as i understand it from the record from the transcript of his immigration hearing he doesn't speak english we've had several cases where we have just remanded for the agency has to consider the effect of couey in this case is that what you think we should do you think we should find that he comply i think he should find that he didn't need to comply to the extent there was a requirement back then he did comply as a q you know it was quite common back in two thousand and three that immigration judges would hold hearings merits hearings and if they found that the alien had a meritorious case then afterwards they say well you need to get fingerprinted so we can you know make sure you are who you say you are in this case this is actually done before the heat for the hearing and there was no no dispute on the record that he was who he said he elections in a row where the pan party has won the national election they've been in power since the year two thousand when dissent the flux when it haven't conditions in mexico changed so that members of the party can live in peace that's that's a generalized statement a political to the entire country and the law requires individual i you know i don't know that one where the other the whole point is that that should have been examined at the hearing there was no finding made as to whether he was persecuted not persecuted is that right  i think that's right if you say there's no explicit words from the i j a in two thousand and three that say i find that you were subject to past persecution but the his testimony entirely consisted of the past persecution that he had including you know his his family's was burned down he was beat with shamed and the ideas response was i find you to be credible in this matter so i i  think it's strongly implicit in her credibility finding we're not allowed to ourselves make that determination if it wasn't pretty explicitly made so we would often send it back i think for explicit to find in but we can look at the record to see exactly what the i g said i think i'm out of time so if there's no other questions you are but we'll give you a minute for a bottle of  agency to essentially research him take take away the order to show cause and serve him with what is now called a notice to appear put him in remove all proceedings and if he has time officially eligible for something called cancellation of removal he could apply for that  yes would you suggestion be i think we go ahead your argument obviously but that we did perhaps defer submission to will work this out that would be fine for the government is the top of my head thirty sixty days but we don't want to lose track of the case right now if we do decide to to defer submission will be asking counsel to give us a status report of some reasonable time if you know it's going to take longer i don't want to set a time or a report's going to be futile but at some point in time we'll need to keep track so if you think sixty sixty days might be reasonable then i will keep that in mind when we issue our order do you want me to jump into  you know there's two two issues here two benefits that are being looked at one is the suspension of deportation issue which the court is looking at for abuse of discretion it's a motion to remain and that was filed with the i and the second is the application or it's actually the second application for the denial of the second application for asylum withholding of removal and really finding the cat which is looked at for substantial evidence and whether the record compel  could you speak to how the the the i j spoke to this minute one of the things hard about this case is that under current conditions which are generally aware of the claims being asserted at this  time may not rip does not reflect the conditions felt by petitioner at the time that the flood of mexico but twenty years of passed into law crossings are different now and so it's hard to take on some level seriously the claim that somebody who happened to have been a pan supporter at that time is going to face such persecution as to justify his his admission to this country as a refugee but we do have requirements in our case law with regard to individualized analysis and as i look through the immigration judge's decision i have trouble finding where he did that as opposed to gee everybody knows pans and power now so there can't be any problem anymore knowing that pan may be hold the presidency and has for the last substantial evidence and record evidence and if you look through the trance that the transcription of the hearing the judge took all of this evidence in very particular eyes evidence and it is true in her in her  fingerprinting issue was not here the government has presented sufficient evidence to show that country conditions have changed specifically the party that you say that you were a member of and that you were persecuted by this other party  past persecution the rebuttable presumption of future persecution got all the way there and said there's just no showing a future persecution and again she mentioned the specific party in the area and in the current conditions and i'm not sure how much more particularized she could be if you look at the hearing as a whole it's the government's position that she did make a specific enough of a determination as to the way the time has passed and you're absolutely right and appropriate way to bring that up to the b i and to the agency would be to file a motion to reopen there's no temporal or numerical limitations on a motion to reopen so we don't know really whether she made actual finding that there was or was not passed persecution you kind of the sumed she finds pants persecution because she goes on to look at country found yes i find because she did find him credible even if i found past persecution and you had the rebuttable presumption of future persecution and we make it all the way to that stage now we're looking at the way conditions are in had a translator there the whole time on the record the judge says to his attorney please make sure your client has fingerprints and i have the cites for that so i have it right here before me but cases there's been some how statements that they ought to let the individual know the consequence and there's nothing here about the consequences just as make sure your client gets those but she does she does rely i see that you should have provided fingerprints why didn't you provide fingerprints giving them a chance to show reasonable cause why why he failed to do so and he just said that my attorney didn't make it clear to me and then she went on to hear the entire  decided the agency needed more time she could have granted a continuance we're not sure why we should expect the petitioner at that point since he done what he was supposed to do i'll be right i'm not sure that he should be expected to ask for a continuance or that's a meaningful distinction is all about whether the judge should have provided a continuance and i just want to make clear that it was not requested here and it's not clear by the record whether the results had come in or not  presumably they think that do you have any other questions we've taken you over time i'm sure the government will reward you originally for the additional minutes but we have nothing further so we thank you for the argument thank you that invited in f thank you i was asked earlier about whether the petitioner argued to the board of appeals that there was service in june of ninety eight and i thought there was and i couldn't remember at the time but it's page sixteen but my real question is about whether you can test to the question of service it's just this this law of the case doctrine it seems to me peculiar in this context but if it's supposed to be raised the places should be raised in front of the i so i was unfair in my question my real question is whether this law the case argument was made to the d i m a fair enough it was not but i but i believe what what the titian are was arguing was that there was a finding of service on the record and it was ignored by the hi jane san francisco and then it was ignored by the board of appeals i mean they they never  yes there was a there was a finding of service and the way petitioner approached it to the board was the i g in san francisco never went back and looked at what happened in ninety eight and the idea a should have and what we did when we got the case and perhaps were being too clever of us just trying to figure out the label not my idea i understand the logic of the argument but i take a step back and say and there's a potential debate with regard to whether  should apply to administrative agencies but it seems to me of someone's going to decide that in the first instance it has to be that the i a e a and if this particular argument wasn't made to the i'm not sure how we can approach it and say that well by we know what kind of service was accomplished by certified mail and i understand the argument that has been made with regard to whether that was effective but we don't really need the first i j who didn't really seem to make a definitive ruling th a didn't need what the first i j said to decide for itself whether it thought service had been effective because it had in front of us the facts as we do mean you've art made the argument as to whether or not the certified mail was effective and that's that's really what we're talking about so i thought i'd come back to the this doctrine of law the case but i'm puzzled as to how it is we're supposed to be able to say that must apply to this agency when the agency itself hasn't had an opportunity agency in the form of th whether you call it up law the case or just you know the simple fact they should to consider prior orders i think they there was an error there after the transfer in ninety eight and not doing that and if i can mention one other thing it's in our briefing that you know there was also a hearing in ninety five where the judge rather than deporting petitioner just administratively closed the case and there's no tapes to be found in the record about what exactly happened that ninety five hearing i think it was mentioned in petitioners brief and something we didn't directly address but we did mention that we thought there was legal consequences  the fact that the there was just administrative closure in ninety five looking at petitioners brief and i think there's also the issue that you know we can go back to that ninety five hearing and hear exactly what was said and i see  of time so i will end it there thank you very much we thank you both counsel for the helpful arguments we will defer submission and issue an order i want to specifically on behalf of the court bank pro bono counsel for taking