moto who's representing the army as granted by this court and we will be sharing argument and mr i want to will be discussing the issues of the post departure bar as well as the equitable tolling issues i anticipate a maximum of five minutes of your time to discuss the factual record in this case and we would like to reserve an additional five minutes for rebuttal the petitioner in this case mr logo to send this is a fifty five year old man has a father to three u s citizen children has five united states citizen siblings his parents are both united states citizens and currently has five united states citizen grandchildren he became a permanent resident of the united states at the age of twelve in one nine hundred seventy three and he lived in the rio grande valley of texas for approximately thirty years until such time as he was deported in two thousand and three he has worked as an x ray technician in the united states and he presently works as an x ray technician in mexico and his removal hearing in two thousand and three he was under represented and charged with deport ability as an aggravated felony for a conviction that was based on a texas simple possession conviction from two thousand and two the immigration judge sustained a charge of remove ability as an aggravated felony and ordered him removed at that time the time of the order  removal that is united states versus heaven on the salvos was precedent and controlling on the aggravated felony issue in this case however in december of two thousand and six the supreme court affectively vacated us the court held that possession of a controlled substance would only be considered an aggravated felony for immigration purposes if it was also considered a felony under the federal scheme basically this meant that mr lugo to send this is conviction was never an aggravated felony and he should not have been deported as an aggravated felon in may of two thousand and fourteen mr low go to send us learned of what he termed a new law that may allow him to come back to the united states legally and he asked his daughter to find an immigration attorney to see if that indeed was the case at that point only lugo consulted with me and i explained the possibility of filing a motion to reopen and as soon as he learned upon upon learning of the ability to file a motion to reopen he immediately gathered the money to file the motion and soon thereafter and within ninety days of finding out about this new law and consulting with me i followed the statutory motion to reopen with the immigration court the motion set forth both the extraordinary circumstances that being the change in the law in lopez b gonzales as well as the diligence with which mr lugo to send his acted in filing the motion to reopen the agency below eroni asli treated my motion as a regulatory sewer spahn take motion to reopen which it could not review because of the departure bar and i see the remainder of my time to good morning please the court you know on behalf of the national migration project and the american immigration council at issue in this case is why their petition has notion is regulatory nature or statutory in nature under this court case law the departure of regulation can can be adjudication of a regulatory motion but not of a motion that is a statutory motion contrary to the agency's decision in this case equitable tolling standard that is consistent with the supreme court's equitable tolling standard which generally requires the existence of due diligence and some circumstance that prevented the timely filing we did the which is what happened here he found out in may of two thousand and fourteen about that the new law and the motion was filed within ninety days of his discovering that circumstance so our position and the supreme court's decision and eleven circuits position the rooster ceo's all of those say that that the deadline is told until that circumstances occurs we would ask the court however manage that create the equitable tolling standard but it to the agency to apply that test in the first instance because in this situation in this case the agency never abused any of the factors that would go into an equitable tolling analysis because the immigration judge simply sad which is what my post of counsel argues that well it's out of time and therefore it's governed by over ice i can't look at the merits of the motions or the merits of the motion have never been considered nor have the factors that go into an equitable tolling analysis  held that i would point out that the board of immigration appeals often grants reopening on timely motions where there's been a change in law that effects  the motion under lopez he would not be deportable and they could reopen and terminate proceedings decisions and whoniverse in florida the test about due diligence is reasonable diligence not maximum feasible diligence but in this situation we would we would our position is that the doctor of equitable  from the common law principles of equitable equity which requires the court to look at the particular circumstances faced by the litigant ok we believe that the board did not address that the agency did not dress his particular delusion actually it was because they decided the case on the postpartum part we believe that that's an analysis that should go first to the agency to me about what circumstances he face somebody who had been deported who had been living in mexico and what obligation he may or may not have had to to follow the law but in the in the in the  case right that's exactly what the board did they said we are going to remand this case to the immigration judge to look at the equitable tolling factors and i believe that petitioners counsel who in fact represents possible to file the motion trip and he did it now this concept of whether somebody has an obligation to follow the law well it's certainly something that the agency should get a chance to weigh in on the first instance and again i would note that the board  immigration appeals often reopens untimely motions based on a change of the law you know whether or not there's a showing that the person had that obligation but it's certainly something we would want the agency to to develop the record  on ok so with respect to the task that we're asking the court to adopt it's basically a version of the supreme court something that's consistent the supreme court's test new task you sent it to the agency to apply that test in the first instance if the court has no further questions at this time i will if possible talk this remaining dispositive petitioner filed an untimely motion to reopen as a result of that i'm timely motion to reopen and the fact that petitioner has been removed from united states that untimely motion to reopen is barring the agency is prohibited from reviewing that untimely motion to reopen at the premise that garcia carried this supports petitioners argument is simply false and that is what has transpired i think throughout this entire there is the secret deception on the part of where the alien can publish some to see the deception where there's some fraud over these ineffective assistance of counsel i think what's important here is here has never been a very clear understand on this point what are the other circuits saying about equitable tolling its content you say you are arguing here of a position but my question is that position is supportable by these other circuits are they taking a different viewpoint the motion to reopen their appeal to the board or whatnot make a single handedly work around that fact and say well we first found out about the law we went ahead and tried to seek counsel but there is not a due diligence argument that we in fact undertook this this last question to you if we say that that's not enough it would appear to be we are saying that this universe of people who are part of the united states who do not have counsel and have is there anything he could have done and what did you want to talk about the case at hand let's talk about the case at hand what could this man have done you want to basically what this man could have done is argue due diligence before the immigration judge which he did not argue due diligence so yet again change of law in and of itself is not enough for this court and could be tool emotional reopening that is my concern is that he really have an opportunity to argue this after i thought he regularly and in fact in the garcias korea's decision it's basically talks about over alice and specifically talks about navarro you know violence in the viral this court's decision this court's presidential decision say unequivocally s going to the more argued to the agency and then he argued he argued to the agency specifically confined to garcia's careers has basically been this petitioners position since day one in this particular argument makes no specific due diligence argument and what cannot entertain your motion reopened as a result of the departure of all and garcia currie is this not stand for the proposition that a change in law equals equitable told and continued in the petition of continues to manufacture this argument based upon garcia careerists and a clear reading of garcia career states unequivocally that it's it's a narrow procedural ruling with respect to the a place ability of statutory motions to reopen to the departure  statutory motions the year agree that we should remand so the d n a can address that question i think i think for this particular kate with this particular circumstances the agency stated unequivocally that the doctrine of equitable pole with respect to now a subsequent change in the law equals equitable tolling which equals my motion reopen is now statutory because i file within a reasonable time after his ninety days and i think of it with you and that i think that's tolling for a change in the law and i think that's why and that's really the concern here is where we are i am not right and i apologize if my argument gets in front of me with regard to equitable tolling saying in another itself equitable diligence that the law has changed and that he he was able to due to file within ninety days i think yes an argument could be made for all told ok and that's and that's what happened here bubble thank you very much with respect to the government's argument that mr lugo resendiz did not set forth equitable tolling arguments below i'd like to point out that  page five of their brief they state specifically the immigration judge should have equitably told the filing deadline for his motion to reopen the immigration judge's decision also says that he argued equitable tolling and also make a note in the record of on appeal at page seventy three to seventy four there's a declaration from him that documents his efforts and diligence in this case in addition to the motion to reopen which is the record of page fifty two fifty seven but i'd like to really talk about the bit in the room here which is the supreme court's decision and right is motta nearly a year ago that the supreme court gave this court struck to this court to do to the supreme court saying that the board of immigration support appeals has the authority to equitably told the statutory deadline the solicitor general said that that's logically undock trying to only distinct from the board so a spontaneous authority the supreme court with the board can equitably told cases in appropriate cases and that there is no reason to believe that congress wanted to prohibit up to the bell tolling of the deadline allow the board  should have asserted jurisdiction over models appeal and address the equitable tolling question this is exactly the situation we have here i think it's a disingenuous for the government to sort of to say basically  this is also an untimely motion but there is no obligation for the court to address equitable tolling principles when in fact that is the decision of the supreme court in ma to saying it's time to address the equitable tolling principles and furthermore the court said if if the court if the fifth they said we're not sure what the fifth circuit's position is on this issue but if the fifth circuit goes the way of the other circuits that's that's a thing that we typically think that we should review so before this court today  we're simply asking that you find the deadline is a claim process and roll subject to equitable tolling and you adopt that standard or remand to the agency we think that would preserve meaningful access to statutory motions story open which the supreme court in datta and in qana and even mocked up recognizes is an important procedural safeguard for the purpose of ensuring the lawful disposition of removal proceedings and this is now no longer regulatory motion this is codified a statutory motion the supreme court has three times addressed this statutory provision and each time they admonish courts from infringing upon a person's right to file spectrum motion because they're so integral they're so important to making sure that the result below is correct and so we also think that recognizing equitable tolling and sending this case adopting a standard like all the other circuits have done i mean they've basically adopted a standard that's consistent with supreme court's standard and in every other circuit i chose immigration judges on the board is duty bound to apply the circuits equitable told things standard and that didn't happen in this case because at the time of the immigration judge's decision there and even now to this date there is no actual tolling test and counts by this court and so we would ask that to the limit make this confusion about the post departure bar regulatory motions stature motions that the court announced that the deadline is subject to equitable tolling give basic guidelines for the test that's consistent with the supreme court's task and remand to the agency that lets the boards do that fact finding in the first instance i mean i i i i really urge the court in response to the government's argument to take a look at the record motion to reopen and he did you know argue that will tolling is appropriate as the government can see it's in their brief before this court that he argued for equitable it'll equitable tolling and so he was appearing in cases before the fifth circuit knew that if they asked for equitable tolling that would be treated as a sort of spontaneous discretionary request over which the court would not have jurisdiction and rosemont to is a big game changer on that front best if not i'd just like to conclude that this court has an important opportunity today to secure uniformity with the supreme court and circuit case law on the court should five the deadline is claim processing are equitable tolling adopt an equitable tolling standard consistent with supreme court case law and remain on this case to the agency with extra instructions to apply the test in the first instance to determine whether petitioners motion merits equitable to