our final case for this morning is which are you south and caterina you save against the attorney general attorney general session you point to any authority that would allow a motion to reopen challenging a decision on a motion to reconsider rather than the underlying decision your honor i cannot but i think that what's happening here is a little more complicated the board's decision on the motion to reconsider involved to a spontaneous reopening for purposes of addressing voluntary departure and that is why we believe that this but that not what you're challenging right now you're not complaining about a voluntary departure you're trying to use the event of the voluntary departure decision on june seventeenth to reach back and allow you to attack the april seventh two thousand and fifteen decision and the government has a footnote in its brief that i think pretty conclusively shows that that's not the way the system works the ninety days to attack anything in the april seventeenth decision really counts is the extent of the sewer sponsored reopening by the board the most injury i mean i just don't see unless you're attacking something about what the board actually did on june seventeenth but you're not you're not saying he shouldn't have been granted voluntary departure you're not saying he really didn't post the bond you're saying other things that don't have anything to do with what happened in june correct your honor the issue is that into supposing of a motion to reconsider the board without authority to do so reopened the proceedings for the purpose of granting the voluntary departure why do you say to put since you are the one who's stressing the board sue is fine take ours under what theory did the board have no authority and why does it help your client if the board had no authority it helps because of the board so as spawn to reopen proceedings there is nothing in the statute or regulations that provides for limited purpose reopening if the board acted on its own initiative to reopen the proceedings  spontaneous reopens the entire proceedings and that's what separates this case from those cited by the government in that those cases involve the argument that the very fact of filing the motion to reconsider tolls the period for a motion to reopen and that's not what we're doing here this is not a case where the board simply denied or dismissed our motion to reconsider they took it upon themselves to reopen the proceedings to address issues there and i would say they would have said they fixed one technical glitch because they now had evidence that the bond had in fact been paid they fixed that and otherwise did not reopen except your honor that the regulations don't provide for that to happen the regular don't say they can't either actually your honor the regs are they'd see a far a to forty point two six a c three small to state that the board will not reinstate voluntary departure other than within thirty days of filing the appeal when evidences submitted and further the regulator in the twelve forty point two six age allows reinstatement if the proceedings are reopened for purposes other than voluntary departure so by the regulatory framework that's in place the board actually can only do what it did if it has reopened proceeding spontaneous and that is what distinguishes this case from the other case law we've reopened for purposes of fixing the voluntary departure that's what i i understand of this the government's position your honor we respectfully disagree with something that the only way in which the board could have done what it actually did under the regulations is to sue us plan to reopen proceedings and having done so that is where we sense the clo basis for failing to found that claim for four more months which of course was then well beyond the ninety the ninety day period well your honor in practice the way that the courts including the board have guided immigration attorneys to file motions under a matter of those ata creates the necessity for thorough investigation and some back and forth communication with the prior attorney in order to fully address of the full extent of any ineffective assistance the courts are very reluctant to grant these types of motions and as a result we really need to be very thorough before we can do this if we rushed a motion to reopen based on an effective assistance we may risk failing to uncover evidence which should have been presented as well as raising arguments they're then going to be deemed weighed in a subsequent motion to reopen for our own ineffective assistance and investigating these claims so persecution and future harm was handled by the board how they looked at whether the evidence sufficiently reflects that there exists a reasonable possibility of future harm and this sufficiency interjection is troubling because if we show that there is a chance that they will fight that that should suffice to show her a part prejudice in this case the bottom of the board not be entitled to look at the quality of the evidence you know that it seems like a strange argument to me or your they need to be satisfied to some degree of certainty whether you call it sufficient evidence we find sufficient evidence to support a finding at the future persecution whatever you know that would be why is that an objectionable way of putting it because in this particular context of reopening what they're supposed to be looking at is whether it could have affected the proceedings below and in this case they essentially they jump right to the ultimate question because actually if it it affected the proceedings below but it's very clear that the answer has to be no what's the point of going through that in the video step your honor because what is required here is for them to just look back and whether if this had been instead been presented by the prior attorney that could have affected the proceedings and they didn't think it could have by the way they thought it there was enough evidence on the same point before the immigration judge and the board that it couldn't have affected we actually don't know that your honor because of the energy action of the sports officially added to this reply don't they we do know what evidence was there and we do know what evidence is being proffered right we can't we take a look at it and see if it looks cumulative yes your honor but the board did not state that the evidence was merely cumulative they alluded to some purported sliding scale of when you have some evidence and when you have none and we need to know where that line is between the two if we present evidence that could have affected the proceedings the board should not be able to say well that could affect proceedings but not enough what what's your position about that i mean we've discussed this issue is fine take power do you think it's possible for the court of appeals to find that incident use of discretion not to exercise to sue a sponsor or is that something  misreading the regulations maybe you can remind me i have is that it's in the withholding statute that the board will also look to the question whether motion to reopen was not materially different from the evidence that had already been presented in the case or are you arguing that both they're both countrysides the same point that argument because what you have is a trying to establish that there was documented prior to any could have submitted it established their claim for persecution and we are stating or the agency found that evidence they're claiming should have been submitted was essentially already submitted nothing materially different they're presenting than the documents that were some of the immigration judge so that's sensible says mr abbott's reopening because it doesn't show any change country conditions for all these documents simply read it reiterate this idea that this is a limo and has never been allowed to register as a political party the spike joining me you the government you're still not allow them to register so i take it in both areas you couldn't have the celtic lawyers society which we have in chicago that have their big annual event perhaps not that you saw that in the city oh i believe they consider death ethnicity for sure we have many many ethnic marse in chicago on thank your honour's just very briefly a few things that came out of this was planting argument was actually in our opening brief for pages fifteen to sixteen i thought i would note that it's not new regarding relocation because of the you membership that is a factor to be considered by the immigration judge but also the question is whether it would be reasonable to do so for the individuals in light of things such as their age employment history community ties and things like that so it's a question that was sent back to the judge and finally regarding the change country conditions issue and the evidence that was submitted something else of the board missed and consideration as the argument was that these petitioners were never considered for asylum because of the one you're filing deadline to change country conditions the new evidence that was presented that the prior attorney should have presented pertains to the change between their arrival in the u s and when they filed the application that it was a relates to bulgaria's accession into the you and the fact that its full membership eliminated all the oversight from the european commission and i see that my time has expired so much for the questions i think you're all right thank you very much thanks to both counsel will take the case under advisement and the court will be