first of which being the fact that it is determined that there was no prejudice that petitioner suffered as a result of the ineffective assistance that his previous counsel had made in his case particularly the court first found that there was no prejudice and finding that there was no suggests that petitioner could have pursued when he was in his immigration for seedings his prior coun court he was it is true even into the care of his grandmother but specifically says that it's the parents and there is absolutely all the information that is in the record suggests that he was abandoned by the parents in this situation i understand that opposing counsel mentions the motion to change venue how it his grandmother since entering so even if assuming he was put into parents house that doesn't mean necessarily that his parents were with him so that is the first error of the board the second was the fact that the board found that it was not prejudicial that appellate counsel filed an appeal they are a team that came to me a law firm a notice of appeal however and also they indicated they checked the box saying that they were going to write a subsequent a public plea which they never did that in and of itself creates a presumption go back to your first point church as i read the b i's decision to be i did not really address the argument that you're raising now the idea that maybe he could have qualified for the status but his lawyer never told him to pursue it never looked into it right and the b i a in our the government is brief at page one thousand and i can tell government counsel on the asking about that seems to agree that that specific argument was were to if you were to send it back for that reason an error was created that has led you to petition and granted he's no longer a minor now but the truth of the matter is he's entitled to due process and because he's entitled to due process he shouldn't have if there is an error it should be that and that was my next question so your client now is i think almost thirty years old correct yes so he's no longer a kid now of a man right if we were to send this back to the i a e a and they would look at this issue again would it be correct if they say they found the way you want them to find that yes in fact he could have qualified for the status is that still possible to do now that he's twenty eight twenty nine years old we the court was dumb to figure out when he was seventeen whether or not that were possible and if it were possible that he would get to remain in the country based on his was ok now is there any other way he can remain here and i he made a longer than then so is there any other way he can gain status now that he's been married for four years absolutely absolutely his wife actually we are office is actually submitted and i won thirty petition on his behalf granted you know there a lawful entry however there are waivers possible for him to apply to and he can potentially change status based on these waivers so he does have means of relief if this  sent down back to the immigration court or the board because there's you know the possibility of a pit there is a petition it's currently pending and hasn't been approved yet but has been submitted and then also you know there's always  administrative closure now i had a brief conversation with opposing counsel before i came on the scene for you about you know deferred action in this case and we have tried a number of times to try to get this case back down in order to try to close the case to agree that they would agree to administratively close or not seek to remove respondent from the country those attempts had fail he has you know no issues really he's a he's a very good good person and somebody who works hard and he has a united states citizen grandmother and he has a united states citizen wife and he has here i would say he's very qualified if this were to be in the immigration court to receive prosecutorial discretion and if there are no other questions regarding that issue all go on to the next issue that i was discussing which was the issue of the presumption of prejudice from the failure to file an appellate brief on the petitioner's b half which as i was saying w creates a presumption of prejudice because you know prior counsel indicated that he would file a brief he never did and that i would say severely prejudiced petitioner because you waived issues that could have been you know maintained for subsequent review and let me see one of the biggest issues and is that i know that he indicated prior counsel wrote at least in the notice of appeal a detailed list however you know there were things that prior counsel indicated in the notice suggesting yes he was meaning to file an appeal he said he reserves issues on the record the fact that they agreed that they stipulated to the testimony he indicated that you know he reserves the issue of discussing particular  particular social group so there are very clear indications in this case that counsel intended to file a separate brief and by failing to that automatically in my opinion creates a presumption of prejudice regardless of whether the board summarily dismisses the case or not so the final point of prejudice is with regard to subsequent counsel which basically failed to file a motion to reopen for petitioner once he received the case he should have known that part counsel should have filed an appeal of an appellate brief and he should have also don't think that is correct that all to say because tolling and lizotte are two completely distinct legal concepts and you know baria says that you know equitable tolling is for a case when there is deception broader error and it does not mention anything about those oughta and for that reason i think the board erred in that regard and good morning may please the court else unfair for the attorney general in this case the board did not abuse its broad discretion in denying mr flores is untimely motion to reopen for failure to meet the most out of requirements while these requirements are not said he likes to get educated and these cases i want to get educated correct but he has no criminal record here he has american born children yes no children but he also in he has no criminal record he get we didn't get anywhere also last week i asked my clients if they were interested in offering deferred action and they declined security the enforcement and removal operations makes the decisions about deferred action and there they see themselves as a represented party so we don't speak directly to them we speak to the office of the chief counsel to connect had not addressed a particular issue about the prejudice argument they're making right with that in mind how did we get to where you want to go in the case if the b i did not address the issue that they're raising well any remained on that issue would be futile because there's nothing in the record to support mr flores as claimed eligibility for s i j s to be eligible for s a g s he needs a state court order adjudicating him eligible for long term foster care because he can't be reunited with one or both of his parents as a result of abandonment abuse or neglect he's saying he doesn't have that court order because mr contending i never told him to go get it but there's nothing in the record to suggest that he would have been eligible for such a court order he indicated in the change of venue motion which he and his grandmother both signed that he was going to live with his parents his father came down to el salvador picked him up there and traveled with him through central america and mexico the father left him at the border but there's no indication if they ever saw each other again they may have met up in texas we don't know and that's why compliance with us a lot of would have been so helpful it's entirely possible that the reason mr clinton ian did not seek as a j s is because assume that if there's an error and we send it back that we can assume that the same judgments will be made in many cases i think that's true but here i would disagree i think it can  opportunity to present an affidavit explaining anything and everything that he thought was relevant to his claims and he didn't include any allegation that his parents ever abandon or abused him or neglected him that was his moment that was his time when he could've proved his claim he could have supported his motion reopen he was represented by counsel at the time and he chose not to do so we don't know why it doesn't really matter why he didn't do so and so on this record there'd be no way for the board to find any eligibility do you have any authority that would have to make that jump and what i mean by that is not specific to the fact of this case but the idea that we can say even though the b i didn't say what you just said we can  and these are the gaps in the record are exactly why compliance with us out of would have been so helpful if mr flores had alerted his prior attorneys to his claims and if they'd responded they could have explained why they didn't see g s perhaps by explaining that the parents were at all the meetings or that they were supporting him or with any other information and gaps in the record could have been filled in with those out of compliance the board created lo part so that this wouldn't happen so that we wouldn't be stuck trying to guess what happened or didn't happen in an attorney's office years ago we would have more information to evaluate these claims and so the process exists and mr flora's should have used it this these discussions also demonstrate that the ineffectiveness of prior counsel is not clear on the face of the record there's nothing in the record about us i g s mr flores says that demonstrates the ineffectiveness but it doesn't demonstrate the ineffectiveness of there's nothing to suggest eligibility for that form of relief in the record mr perez has also never explained how he would get into state court either at the age of seventeen or now to get the order he needs the board alone is not empowered to  needed at the time and still would need an order from a california family court with the proper adjudications and he never said how he would get in the door to state court he can't simply walk into state court and ask for an order he needs to be there for a reason it's and i don't know i'm not that familiar with the state law but i can't believe that happens to other it happens it's unfortunate but it happens to other people as well mr flores his parents were never married so they can't seek divorce in state court they can't seek custody arrangements in state court it's possible they could have sought some kind of child support arrangement but mr flores has never explained how that would work and so without a way to get you have your time if you want to use it not council or petitioner could be eligible for this relief in his declaration i understand opposing counsel is indicating that he did not make his case however there is a declaration in the motion to reopen stating that he spoke with mr king to mia and that the only relief that was just off the option was asylum that was provided to petitioner and seduced was not discussed i'm not sure you know why that was but it was clear air for a pope prior counsel to do that in this in this case when he was when there are facts showing that position or could have been eligible at the time as i indicated he was a minor and that's completely correct in state court the state court would be the one that would review the case and determine whether petitioner could have been a ward of the court whether  he required a guardian ad of it that was never pursued that was never even discussed on the record so i think there is a clear error and the fact that the board is indicating that petitioner is somehow at fault for not obtaining this certificate is is completely unfair and for that reason it should be remanded granted you know whether petitioner can pursue that particular form of relief now that is not that is a question because he is older now however there is there are other forms of relief available to petition or if it is remanded to the board and the board is to review don't agree you know that could potentially create an avenue for petitioner to seek another form of relief he is he still has an asylum claim that he can pursue he still has other means of staying in the united states because can it's an avenue that he can seek to obtain and i would i would say that he should be he should receive it because he does qualify for that given that he has no crimes he has you know connections he has strong connections here through his family through the community he's actively involved he does work and and all those reasons so there is an error in this case and it should not be le