good morning runners may please the court my name is michael tucker and i represent mr maya ramos i'd like to reserve three minutes for rebuttal mr meyer ramos is a forty seven year old salvadoran national she's been in the united states for the last twenty six years during which time she's had no criminal history she's the mother of three young the united states is in the daughters and no time has she had ever had the benefit of having any schooling and she's illiterate in both english and spanish this case presents two main questions before the court whether or not the court can hear the case and whether she can bring a claim and whether or not her case represents a gross miscarriage of justice well the first issue i'm having trouble because it seems to me that there is but within untimely a number barred and to the extent that equitable tolling could have been an issue it was never raised so where what's left what can we do it seems to me that we can't hear this case well before the board of immigration appeals we did raise the matter of the gross miscarriage of justice so that we could come to an equitable tolling we we don't get to gross miscarriage of justice until you get through the first hurdles and that right i believe is actually the opposite your honor because in order for section twelve fifty two a to d to apply there has to be a gross miscarriage of justice first and then at that point in the way that the court explained in garcia wa concerned with your restriction it seems to me that you haven't maybe you can persuade me but seems to me that this is untimely and that it is number bar so both of those are correct your honor what we were then based on the ineffective assistance of counsel we were arguing that the equitable tolling should apply for the under same underlying reason i'm having the same concerns judge of scanlan has on the time and number bar issue because there's no discussion of any due diligence or efforts that were made over what is it about a twelve year period it's quite a so time and within my statement she actually details everything every step that she's gone through and as does the brief in terms of her reliance on mr salazar in the initial proceedings and then relying on this community i guess so your argument is that that's sufficient showing that over diligence and it based on the contents of her affidavit yes and based on the fact that her given her situation of not having any schooling not knowing the system in any way she's relied heavily on her paid comes off to navigate her through the out i guess the question is whether that's and you know i'm looking at the facts that the supreme court had before it in holland versus florida where a pro se inmate you know who apparently was literate and seemed to be a pretty good jailhouse lawyer was quite persistent in his efforts to contact counsel and find out what the status was of his pending he was corpus petitions and the supreme court found that that was due diligence and i think today's question is has she shown enough to be to holland standard i think she would your honor because she details how after well during her proceedings she made the effort student maintain contact with counsel after that she was she tried to maintain contact with him counsel mr salazar was unsuccessful so she turned to mrs comeon who told her there's no other options for you but you can go speak to another attorney so she went to go speak with two other attorneys who gave her the same advice relying on that and after that believing that mrs commute was giving competent counsel she continued checking in with her every six months saying you know what can i do is there anything that's going on and throughout that time miss is going to get told or every time just wait there's nothing you can do  and then it kind of gets a little convoluted in the in she was advised in two thousand and four of eligibility for t p s benefits which was late filed she was not eligible for late filing and because of that well on on that issue in order to establish the constitutional violation in a gross miscarriage of justice doesn't she have to show that she would not have been ordered removed absent the ineffective assistance of counsel i believe in which case the fact that she is ineligible for t p s relief and is the subject of an outstanding removal order seems a pretty hard bar for her to overcome she she so t p s relief is just one of the two options available before her she also is talking about the asylum case that was not properly presented which would be another problem with the asylum case was that it wasn't timely raised or that there was no issue and there was no bar at that on her and her representatives to guide her and she had no idea what was going on and that she still had i mean to show just how much gross miscarriage she still has to show that she would have been granted relief and the board denied the petition over twenty one years of relying on ineffective assistance of counsel through no fault of her own she's tried to maintain contact tried to do the best that she could in presenting her claim the fact that the poor coun l is the reason why that she was never able to adequately present anything can i go back to the very first i i throughly recognize mr salazar's name but he as i understood it he had sent an associate from his office so she was represented at the merits hearing she was in the one nine hundred ninety s wasn't she she was but first of all that attorney never entered an appearance before the court person that would have signed that and while he does try and enumerate all of the different people in his firm there was never any other notice of appearance and before the aggression towards every attorney that enters you can come in as primary and secondary i mean i would assume that in a multi layer firm it would be fairly frequent for lawyers to cover for one another when they have multiple court appearance and in the times often times you will do an appearance on behalf of so and so but there was a story are you saying that he didn't do nobody entered his appearance himself but the other attorney never entered anything else that's what's confusing me so would an immigration judge permit the second lawyer to just stand up in the middle of the merits hearing and represent or without maybe i'm confused by the fact i thought she had a lawyer who represented her at the original merits hearing and when she was ordered removed she did ok and that was somebody from mr salazar's office yes so i guess what i'm so sorry you legit ineffective assistance from that lawyer as well i thought your theory was that she hired mr salazar mr salazar never did anything for her personally that straight away or from his firm did appear on her behalf at the merits here was that lawyer barboza yes yes and in that rebuts wrong with that that's that's what's confusing so all of the deficiencies that we know are her underlying proceeding in fact even in the motion to reopen the miss devens brought the immigration judge noted that it was very conspicuous that there was no ineffective assistance counsel claim brought in that motion to reopen because i'm assuming in his in his review it seemed inadequate petitioner did contact various people during that period but there's also periods of time worst where she just laid low she understood she'd been ordered removed that was done they could that could be done about that remove a lawyer from one thousand nine hundred seven so she chose to stay under the radar despite issuance of the order i too was part of the was one of the lawyers told her will there's nothing more i can do for you but just keep your nose clean in essence don't get arrested or come to the residence in a life and so she followed that i know but that's not diligently pursuing any claims you might have against the counsel who represented you at the room at the deportation proceeding back in ninety seven how was she supposed to know that she had a claim of ineffective assistance against mr salazar or any of his associates well she she found out from her current counsel she has one i understand you i soon your point your honor is which is well taken is that she's not sophisticated in the ways of the and it's not clear to me that i understand what's the basis for your assumption on that from that she's she has she has located counsel who advised her that she made this is that you think she needed to do to be more diligent in that intervening period to go track down a competent lawyer i guess as counsel she has now who could properly present an ineffective assistance claim what i'm saying your honour's not i'm not going that far i'm saying that there were periods of time in the relevant filing period where she understood she'd been ordered removed was told there was nothing more she could do and she did not pursue it that matter further my suggestion to the court is that that period where she's not doing anything further knowing she's been already moved is not due diligence for ethical tolling or are you arguing that the only time she actually started doing anything was when she kept coming back to the attention of ice well that certainly was the case  th the counsel that filed the first motion to reopen the she was ice did catch up with her so to speak at that point she contacted amanda stevens an attorney and that's when the first most to reopen that led to that that's what motivated her return to ms stevens based on the record but my only point to the court is that she's got to show a couple tolling for a substantial approximately fifteen year period i don't think that's shown here on this record and i believe this was addressed in the breeze but there's no showing that that she complied with matter of lozada in filing bar complaints against stevens and mr solver i believe she  is that we don't know what transpired at the merits hearing where she was ordered deported back in one thousand nine hundred seven that's kind of the key here because if she had a full and fair opportunity at that hearing to present her claim through  then there's no due process violation i would know that's what i was trying to explore with your opposing counsel because she was represented in ms barboza did introduce some evidence but it looked like it was pretty paltry well i'm i'm not sure we can draw the conclusion respectfully your honor there's no information in the motion about what transpired at that hearing the first motion to reopen which was denied by the judge who handled that hearing made reference to a full evidentiary hearing but i think in order to assess gross miscarriage of justice based on a claim of ineffective assistance you have to look at the merits of her claim did she even have a passable asylum claim and if so she affirmatively file for asylum be with ins and the notice of intent to deny that claims states that she failed her claim basically arose out of out of the salvadoran civil war situation so there was a from ins which is not binding on the immigration judge that she didn't have a valid claim because it was not a kind of protected ground and she had no past harm but be that as it may in order to show i a c that might qualify as gross miscarriage we at least have thought that maybe what i the immigration court order here ordering her deportation from ninety seven is a fill in the blank form which there is unless this is the form indicating what the immigration judge did if you appeal then the then there would be a full decision issued so and there was no appeal right that's correct on so don't don't our cases say that unless you know whether the alien in question had a had even had a plausible claim a colorable claim and we just don't know that here and we can speculate that the mere failure to take an appeal in that circumstance even qualifies appearance form but also typed in under his signature of the names of four or five associates including ms barboza and that's at page three thirty four of the record but be that as it may it's according to her own affidavit did provide representation at the merits hearing and i think that's a single biggest element that's missing here that precludes the court from finding either ineffective assistance or gross miscarriage i would basis of that order we don't have a transcript of the hearing or any record of what exhibits were in it's not in this record obviously your honor i don't know if one is available or not it's a pretty old hearing i don't know what the record retention policies are but i thought everything when we got filed under the aliens registration number maintained by dujail i think certainly all the documents that are generated i've seen several a files in and what they're what they're what they have are are you know documents issued by the government relative to to the the alien from the beginning to the end but i don't believe transcripts of of hearings before the immigration court are appear they're even if they're prepared in normal course perhaps there might be audiotapes available at some know in the for prior administration we would sometimes see cases like this and we would we would inquire of you all you know hey isn't there something that you guys can do because this seems like an incredibly sympathetic case i i'm sort of at a loss to understand why you not you but why the government has prioritized this particular individual for removal then is there no prospect now that there are might be some relief outside the channels of this notion of reopen she can i wouldn't say that you're on i think can't this case went back on the front burner because she reentered after being and that was reinstated i wouldn't say she's on the front burner for removal which is you know i'm being very literal here but yeah i think i  still have discretion that that's all so yes there is an avenue i don't that's all i can tell you i hope they do look at that all the surrounding circumstances here there's no question she's been here for sensing a period of time well the fact well yes that's that's exactly right she might have gone undetected for a period of time after but she didn't i think i think she was she was found or came to detention within a year or so after returning she became aware that there was a avenue for her she took immediate action with both and then also with miss stevens as is the court roughly brought up as well regarding a transcript  there doesn't seem to be some confusion about the i believe there are audio records but i don't think that i'm going unsure if petitioner could submit a self serving record  was the lawyer who represented him or represented your client at the merits hearing and then you have to allege ineffective assistance of counsel as to what she did as well do you know knowing that she was the attorney of record available for that case everything but if it were errors made at the hearing they would be attributable to her would wouldn't they i mean maybe if there's some sort of responding out superior liability i don't know for  the washington rules of professional conduct for that would be attributable to salazar but you do still have to complain against barbosa when you get i can understand the court's position