board to deny his motion to pre open when he put the board on notice that he did not have a complete record when he told them that he intended to comply with laws that are when the government did not oppose the motion to reopen and when the in effect of assistance was so clear on the record  affidavit requirement might be excused as a not the vera lopez if circumstances quote beyond the alien petitioners control prevented compliance that requirement cannot be excused where the petitioner fails even to explain why he was unable to comply either he didn't file a motion to reopen because he couldn't comply at that time or and basically foreclose any opportunity he had to litigate whether has largely been an ineffective or he filed the motion to reopen he notified the board that he didn't have a complete record he notified the board that he intended to comply with and in this case because the government didn't even oppose this motion for the open it was a clear abuse of discretion for the board to deny the motion just for lack of compliance with  case the regulations that section two ninety two point five b state that if an alien is the focus of a criminal investigation he has the right to counsel and in this case we know that's what was going on there were seven people in that car and they were all taken to secondary inspection they were split up mr lacker he was interrogated by two separate officers and it was night two thirteen issued which is that administrative records nineteen that stated that four of the people had been planes had been charged with clearly that the exclusionary rule is sufficient in criminal cases but when you begin to extend beyond that into the ins context don't make any sense so forget about it so why isn't that invisible if your ground is miranda violation  statement because because you have the right to counsel and we don't know what was going on because you had the right to counsel we know that he didn't that he didn't understand the consequences of his of his talking to the officers we know that he didn't have any protection about what he said i didn't have a lawyer there to help and advise him and i walk him through what what what was what he was being asked and we know that that's some of the questions that he was asked maybe they may have been leading and they may have been improper and he didn't using his son's birth certificate that's the document that was found that was what was alleged and the government wouldn't have been able to prove those circumstances regardless of the signed statements well that's the what you said he talked to the nephew about but they never put out any officers at all there was no testimony in this case at all no one has to fight i'd like to raise that the rest of my time for about a whole of this i think your motion to reopen where you make it clear that you records i believe what it says is that counts and it seems that there has been an effective assistance of counsel doesn't have a complete it doesn't have a complete file transcript of hearing the words to its exhibits to even to be well current counsel's record is complete it appears the former counsel asked the board for permission to have more time because you couldn't yet comply with was because you didn't yet have the full transcript right after the part judge strike that you just read if you turn the page  counsel withdrew his objections at the merits hearing on july twenty fourth two thousand if you turn the page the most open cites for that statement the very cage of the transcript that supposedly was missing at the time and so i don't understand what part of the record counsel didn't have the time counsel filed a motion to reopen even if counsel didn't actually have a copy why are you questioning confident enough about what page thirty if you know if you have a deposition and you got a page missing and it's obvious that the line of questioning started on the page before and you were trying to state something about that line of questioning you don't think you could cite excerpt a record in one can infer that whatever was going on started on the tape before perhaps just to show you could and perhaps it was not suggesting that it was inappropriate for the motion for open to cite page thirteen of the transcript even if that get lots of excerpts of record where i'm not sure what the colloquy was before the answer was the straw served up and that's why i always ask to find the missing plane so i can look and see what's the context are you suggesting we should just now reopen didn't know enough about what had happened at the removal hearings in order to be able to sustain an ineffective assistance claim then it was incumbent on counsel to explain that to the board and as as  reopen cites that page of the record well he says well current counsel's record is complete incomplete so that's just i don't know what you can derive from that other than that the record is incomplete and then they use the usual attorney language it record that counsel has been unable despite best efforts to get the full record because of circumstances beyond his control as an answer as lopez and counsel never even makes the connection between the missing page of the record and what that page is expected to show this morning at that a motion to reopen should be granted on the other hand there are many many many motions to reopen that are filed through which the government does not was fun and so the fact that the government did not ask the board to deny this motion on the ground of noncompliance with was not it does not reasonable and are important and also to be flexibly apply of course your honor i don't disagree with that at all but i think that in all the cases where this court has excused strict compliance or lack of strict compliance with was out and approved substantial beyond my control have made it impossible for me to comply here's what i'm continuing to try to do to comply and i'd like you to give me a little bit of extra time so that i can comply the motion and doesn't say that and so i think that it's inappropriate to fault the board for honor i think that there is no prejudice here for a number of reasons first there is no requirement to give a miranda warning there is no right to counsel this is a border inspection and with the argument is that because it was a violation of the rules plausible to believe that the documents might have been excluded for failing to give her miranda warning but because of the violation of rules so assuming that there was a  there's no plausible grounds to exclude that statement and it's correct that the government that the removal hearing didn't put on testimony from the inspector but the inspector was present and ready to testify and the reason the government didn't put on the inspector is because levy didn't present any evidence and there was no occasion to but the government would have been able to prove through that evidence that mr that they had attempted to smuggle his nephew into the country so even if all of  statements had been suppressed the result would have been the same and i think that is the ultimate reason why there couldn't be any prejudice your i disagree that there was any right to counsel or few miranda warning and in fact if you look at  the same page of the record page nineteen it does say as opposing counsel pointed out that a couple of the occupants of the car were charged with a federal crime for alien smuggling but mr lepel you'll notice was not one of those that was charged there never was any criminal investigation of mr levy he was referred from primary inspection of the border to secondary inspection he was never heard of a criminal investigation there never was any criminal proceeding instituted against him and so even under the i regulation that counsel relies on there was no right to counsel and there wouldn't be any exclusion of mr leavitt statements in any of that for the reasons that i just try to explain earlier but ultimately even if mr loveday statements have been excluded the result would have been the we understand there isn't any case that opposing counsel aside or that i'm aware of that has excused this kind of complete noncompliance with lazard it and beyond that without even any attempt to explain why counsel couldn't comply with w