good morning your honour's my name is james todd bennett and i represent responded give me the petition or rather rafael mendez port and i'd like to reserve two minutes of my time right now given the ten minute two issues in front of the court would be the issue first of equitable polling and secondly the due process fly elation based on ineffective assistance of counsel they're independent of one another you in this instance clay i believe you can the hundred the to forty a to twenty to forty one a grounds for a b s if you have a constitutional violation and there which a lot of the ineffective assistance of counsel cases go you have two separate people involved stevenson under exactly and there is no can there's no collusion between the two there are two independent actors the problem with this case that makes it somewhat unique now when the district court addressed these issues essentially treated as simply as an equitable tolling issue did not address the ineffective assistance of counsel then we get thrown out the equitable calling claim goes to relief against the actions of the non a kearney and that what amounts to true or but it did but at the same time it also resonates and and this is where it does tails into an ineffective assistance of counsel claim in stevens's scuse me the attorney subsequent handling of the case in front of the immigration judge where he essentially says well whatever stevens did here we're presenting that is the grounds for this case make a decision judge we're withdrawing all applications and we're going to go up on appeal with the ice specific about it were going up on this same issue that was specially concocted by stevens in news fraudulent use of an asylum application to mel wou completely completely concocted by stevenson that it seems that your client basically said you know hey i want to i want to get into court and you know whatever you have to do to get me in the court and then he just left that to court treated this as though it's sort of a market relationship and sort of an adam smith analysis of something that was actually a could you share any relationship he goes to stevens for his legal expertise stevens is holding himself out as a legal representative now whether he's accredited by the board of immigration excuse me by the executive office of immigration review or not that's not in the record we don't now but he's holding himself out as such so he goes in and he gets this legal advice legal advice is well you want to he's going into court all he knows is he's asking i've heard about this to a form of relief can i get it steven says no problem give me some money i can ask you can ask you which claim you're arguing now we're pose as an attorney correct absolutely car you have i think you have cases to where that attorney to lie to the client about a client says well what's happening with my appeal or whatever on the client attorney says don't worry about it it's all handled and then the client finds out much later that they never get anything or you know things along those lines i mean where they're at their attorney actually law is to the client when the client makes then corey i think that's implicit lopez and this relationship when we're looking at the equitable tolling side of the issue  are you could you kind of never be entitled to anything more than that if the asylum claim were denied he'd be entitled to an alternative voluntary departure yes yes but you're pressing the inside of the last that ineffective assistance scout council and of the case because stevens withdrew that application you never could sued in fact one needs asylum applications withdrawn there's no translator in the court my clients never had an opportunity to speak up on that he's losing his right to a fair hearing on his application claim if he wins he's allowed to stay as a matter of right while he's not here and if he wins he can establish ten years of residence anyway persistent why is that pride why they have pride that's right if stevens is holding himself out as being a legal representative knowledgeable in the law he should at least be able to advise this person my client rather of the status  then is that always going to be friday they have to be two different things i mean not all ineffectiveness or incompetence can be tried and if the fact that he filed the wrong that he took the wrong avenue on the law  then this would not be the only only immigration lawyer that ever has or will make a mistake so that his memory if we hold what you want to hold then every time are we creating an avenue so that every time someone can show that their client was ineffective or made a the self i think think that strengthens your argument i mean since i'm not sure that i mean still in this particular area we have a lot of people that aren't weyers that are involved and so whether it's the notari o's or the legal the government to and since we have i mean we we obviously have a lot of questions on this issue allow you our play for two minutes for facts so i think you can probably best spend your time why you know addressing why you don't think that there's any fraud or or i think i sort of started out with the if if we give a policy what he wants to it's just a slippery slope that file a motion to reopen so that he could file a new asylum class application raising his alleged claims that he has a fear of returning to mexico and he says that he was prohibited from doing that because his attorney mr donald unger did not notify i and file a motion to reopen that would not be time barred right now it would be time barred because more than ninety days elapsed from the time that the i issued its decision and he didn't file a motion to reopen and i don't think the fact that he didn't know correct in that in that conclusion i think what the district court did your honor was to look at it in the alternative and assuming that there was fraud that there was no due diligence on the part of mr torres but the court and usually concluded that there was no fraud even if mr unger failed to notify his client of the decision and it's important to look at the case in the context as it existed at that time in two thousand and two that the i issued its decision prior to that date there is nothing in the record that shows refers the asylum application to an immigration judge the application as it existed at that time raised this boilerplate economic hardship argument that stevens concocted in order to get mr torres before an immigration judge  that time the record is devoid of anything that reveals what the conversation was but certainly at that time mr tourist could have said to the asylum officer wait a minute that's not my style and claim i genuinely fear returning to mexico and he never said that when he was that was never sat at that time correct it's unclear but the record doesn't show that it was said or wasn't said but it's clear that he had an opportunity at that time to to raise that claim and he could have asked for an opportunity to amend his asylum application  it's clear that there are several opportunities along sort of the continuum of this case where he could've raised his voice and said wait a minute my cousins were killed in one thousand nine hundred six in mexico and i do have a fear of returning there but he never did that and so this case was a suspension case from the get go he went into stevens and said i want to apply for suspension of deportation because at that point he did have seven years of lawful presence in the united unlawful rather unlawful presence in the united states and so there is no we there was nothing to trigger an interview on an asylum claim this is a mexican national who wanted to apply for suspension so there's no reason for stevens to can conduct a thorough deportation proceedings and under the current state of the law you have to be in removal proceedings and now i know you started saying that that that's a little bit of a bad light on mr gore is claiming that he has a valid asylum claim i don't i wouldn't go that so far as to say it puts it in a bad light but i think that he is now placing the burden on every other person in this case and he's in his there's nothing in the record that ever says that he if he had said i told stevens i had a fear of returning to mexico my two cousins were killed i want to apply for asylum then i think we would have a different story but that's not what happens here and again when he went to mr unger's to represent him in his immigration court proceedings he did not pursue the asylum claim he wanted to pursue the suspension claim and the fact that you know in that intervening period obviously the state of the law changed such that he was no longer eligible for suspension but record is devoid on another important fact in this case mr torres when he thought representation by mr bennett here he filed a complaint with the state bar california regarding mr unger's representation and in that letter to the bar she raised only two claims and those two claims were that mr unger withdrew his asylum application without his consent and that mr unger failed to seek voluntary departure on his behalf mr torres did not tell the state bar because there was no raise with the state in the letter to the state more correct your honor and mr unger responded that we filed a four page single spaced letter responding to the state bar complaint within days of their request that he do so and he was so it's  whatever i'll be at whether the court wants to be critical or not is irrelevant that what that really what we have to focus on is that failure to notify him after the at this time to even if mr unger's conduct was that i'm running out of time but i'll continue to answer the question you can answer questions even if it wasn't negligence at that point mr unger's understanding of his client's case was that he had filed an appeal to despite the change in the law to try to make an argument for him that he should be permitted to proceed under the old rules which were that he had to have seven years rather than ten years of presence in the united states and that argument that appeal whether it was meritorious or nodded arguably was not meritorious to take that appeal but mr torres remained in the united states for another three years while that appeal was pending and by two thousand and two the state of the law was pretty clear that you had to have ten years of unlawful presence and that the time to accrue that ten years stopped running as soon as the charging document was issued so there would have been absolutely no basis for an appeal from the decision in this case  petition for of you would have been a merit less appeal and at that point there was nothing in the record which would have suggested that a motion to reopen would have any any validity either there is nothing in the record about this purported asylum claim until  this highly significant on its face that's incompetence i don't see how you could say that an attorney who's been retained to represent how is that crime it's not fraud in effect of this is to counsel doesn't require a showing up fraud if he requires a showing that the form of the attorney was so inadequate so as to prejudice throughout your argument is that if the failure of quality timely motion to reopen could be two things under the tolling analysis they're capable tolling analysis you have to show crime under the in a fact of assistance of counsel the standard is much is different the standard is you've got to show that the performance of the attorney was so inadequate so as he was unfairly precluded under the fifth amendment from presenting his claim so there's two different standards and there's two different issues as to the ineffective assistance of counsel issue on  failure to tell the client look you're hearing what i'm getting at is this do you have to do you have to win on both issues in order to get relief i don't believe so there i think there are alternatives under the under the i think on the holding