when he failed to investigate and present all of the legal and factual basis for ms arthur's asylum claims now in order for an alien to prevail on a nice c claim in the context of a motion to reopen the alien must show two things the alien must show that counsel failed to perform with sufficient competence and then at the end was prejudiced by counsel's performance here to be i e did not reach the question of prejudice or whether the time in numerica limitations on motions to reopen should be equitably told and denied miss arthur's motion to reopen soley on its finding that mr canfield did not fail to provide competent representation s decision contains two critical errors first the board's decision seems to suggest that miss arthur's statements are not credible when it states it declines to find that counsel was ineffective here particularly in the case where ms arthur was found not credible by the i j a now to the extent that the board did so that is clearly legal air because this court's case law has made clear that statements included in a declaration  companying a motion to reopen must be taken this true unless they are inherently unbelievable which they are not in this case now the b i a points to mr canfield statement in his response that it is his standard practice to ask every applicant what would happen to the applicant if she returned to her home country as support for its conclusion that ms arthur statements are not credible however this would be making a credibility determination which the board cannot do under this court's case law because it would be because he cannot do so in the june acadian a motion to reopen and bos'n this court held that a motion to reopen is decided without a factual hearing plus the board is unable to make credibility determinations at that stage of the proceedings so if the board believed that there was a factual dispute between mr canfield response and miss arthur's declaration then the proper thing to do would have been to remain the proceedings to the immigration judge to hold an evidentiary hearing on that purpose however even if we assume that mr canfield did as missis did ask miss arthur what would happen to her if she returned to her home country which based on political opinion thus it would have been rare indeed for ms arthur then start speaking about her history of domestic violence when simply that was not what was being presented to the court now counsel what do we how do we handle the fact canfield representation was competent and that is because well that is because the first step in this motion to reopen the alice's is to determine whether it meets whether his performance was competent and if it was not then was the alien prejudice then the court needs to determine that whether equitable tolling applies in that that they couldn't that the alien could not have applied  earlier filed a motion to reopen based on the ineffective assistance of his first attorney which was mr canfield and that could either include that there was i c by the second attorney which that is not also before this court because that only goes to whether the time in the americal limitations on motions to reopen should be equitably told so the only question is was mr camp did mr campfield fail to perform with sufficient competence and he did so you know let me let me tell you the problem that i have with the case here seventy seven straight ok if i take her her declaration is true she shows up at cannes field office with a written statement of a political opinion claim that contains a factual ressa take what the basis of the claim is she then goes back to his office several times in discusses that with canfield and never reveals to canfield anything else then they go to court and she's asked that open ended question is what would happen to you she never says anything about domestic violence she loses and gets another lawyer she never tells the other lawyer anything about domestic violence and i'm having a hard time finding where a lawyer is presented with a written statement saying this is the claim i want to present and then presents that claim and bring up anything else until after she loses how we find that that's ineffective assistance well your honor mr canfield there's no evidence in the record the mr campfield was told by miss arthur here mr canfield i would like to represent me in this is the claim that i would like to represent what happened here was that mrs arthur once her asylum application was referred to the immigration court she then hired mr canfield and presented him what had been filed which was filled out by a non attorney by not by simply asking her her political reasons for being for not wanting to return to camera now when the when your honor asks you know how was mr canfield in effect of will quite simply whenever when mr canfield  approached by a new client is applying for asylum particularly one where the found an application was filled out by a non attorney but regardless of whether it was or not mr campfield should review that application and ask every question on that application of the client ok let me ask you let me ask you we don't have a case what a b a guideline requires a lawyer to do that warrior your honor there's a there's an a b a rule and i cannot recall if it's one point one or one point two but specifically states that an attorney must act competently and that includes researching every possible legal and factual basis in order to succeed and whatever claim that they're presenting but here we're talking about an immigration attorney that's representing someone who had applied for asylum that was referred to the immigration court so here another package is that you have it you have any expert opinion from an immigration lawyer saying this is the standard of care required of immigration lawyers no we do not have an expert opinion however we're talking about what would a reasonable attorney in mr canfield place do and any reasonable attorney here would have reviewed every question on the asylum application to determine one if everything that every basis for which she feared to go back was in the application but also the claim that she did present was it correct and mr can i will not  so i'm not sure whether you're arguing that he didn't do legal research or that he simply didn't never interviewed the client properly yes he just he did not your honor and if we're at now what oh he did not interview the client properly and he should have done that by at them at a minimum asking the questions on the asylum application for example and page six sixty one of the administrative record the asylum application the very first question ask have you your family or close friends or colleagues ever experienced harm or mistreatments or threats in the past by anyone if you answer yes then ask them to describe what happened who committed it and why do you think that it or curt now mr counsel didn't do any of that when he described his pattern or practice in all cases all he said was that he asked one simple question now we would posit that that is simply not sufficient especially from a client who does not have any legal experience especially considering the complications of asylum law and here do not even think that the mystic violence would be something that would be relevant at all especially since in cameroon it's considered a personal family matter clearly here alternately the board either discredited mrs arthur statements by making a credibility determination which it is an authorized to do or it credited her statements and clearly erred by holding that all on the turning needs to do in order to be competent was ask what would happen if you would return to your home country we argue that that is simply not sufficient in order to be a competent attorney you at least have to ask the questions on the asylum application which he did not do thus this petition for review needs to be granted and re mandated for consideration of prejudice and whether equitable tolling will be applied thank you counsel majesty torsion one question is there any relevance to this point that her lack of credibility seems to be determined by reference to inconsistency as with her initial applications that were riddled with errors because they were prepared by lawyers is there anything to that and does it have any meaning in the case it does not your honor for the context of the motion to reopen were just based on what was presented in her declaration both about her domestic violence claim but also about the ineffective assistance of counsel claim her declaration previously is is irrelevant to what she's stating now and there's really no inconsistency but if we were to if we are putting wor granted then the credibility would be before the agency right yes of course your honor now once the case would be reminded of course an immigration judge would then make that determination this is just what laois arthur to present the claim back thank you former counsel the claim that she now wants to bring before the court she instead brought another claimant supposedly had this claim just sort of lying in her back pocket and when she lost her first claim that's the only time that she raised this new claim to her to her current attorney  i think it's probably worth noting that the claim that she's bringing now is inconsistent with the first claim that she brought if you look at the record of first claim that she brought mr canfield but the claim based on political opinion and if you look at home that she after that after that she went to prison and then escaped prison the never returned home and went into hiding and eventually left the united states now contrast that with what she has been raising in her current motion reopen which is based on domestic violence she claims that she left her house in two thousand want and never returned to her house so the claim essentially her ineffective assistance of counsel claim is this i told my attorney i was over here in two thousand and two he didn't draw a story out of me which i'm claiming something totally different so she had no reason to bring that claim it's not consistent with the claim that she brought to her attorney that she's trying to blame her attorney after the fact but this is an ineffective assistance of counsel her counsel doing exactly what it was he was supposed to do both her counsel did exactly what they were supposed to do they presented the claim that she told of a you know they didn't they took her at her word that she was in this certain places certain time and didn't ask the question hey if you've been somewhere else are you to are not telling the truth so i mean is particularly appropriate here where the alien wasn't credible so and for exactly the reasons i just stated her claim isn't consistent she's essentially saying that her attorney should have known that she had a completely different story that wasn't consistent with the claim that she was actually telling the attorney at the time and that only also gets into this this other problem that you know she's essentially saying my attorney didn't ask me the right question which would unlock this claim that i had hiding in my back pocket the whole time you didn't specifically asked me if i undergone domestic abuse but that's not how things work practically when the only goes into the counsel the counsel has a general question saying do you have any harm in your home country you know are you basing any problems they don't go through a checklist saying you know did you were never beaten by her husband do you ever undergo forced abortion did you ever undergo a g m i mean it would be on an unlimited list of specific questions to ask that's not a practical way of how it works what it what it what it would have competent attorney does is exactly what the attorneys in this case this recanting said look i asked her questions what's going to happen if you go back to the camera and she only mentioned a political asylum claim she never mentioned a domestic violence claim it was only after she lost that she raised it for the first time that is not ineffective of counsel what about the nature of the culture of that country where most of the violence possibly is something you just don't talk about she claiming that she didn't want to talk about it she's claiming th she desperately wanted to talk about it but that he didn't ask the right question to unlock that so she could tell him these things she wanted to tell him she says interacted a bit visibly she was trying to tell about it but at present she doesn't she's not clear and again this goes to the problem of meeting her burden of proof on should open she doesn't say exactly how she was trying to describe her life in cameroon and he somehow didn't get she tries to allege that maybe there was some sort of problem with the english translation except that doesn't really go anywhere because she testified they would just run the english speaking part of cameroon so that really didn't whole lot of water in the war noted that so in terms of meeting her burden of proof to demonstrate that her former counsels i'm confident that she doesn't come anywhere close that was sort of up in the air and looks like a matter of area it looked like the attorney general's was stopping as day of these cases because they were sort of figuring out what to do but think there was a proposed rule with respect to domestic violence cases so i don't think that it was something that they should automatic that the attorney should cameroon any questions about an immigration case they have to ask her have you ever been physically abused by her husband that just doesn't make a whole lot of sense at the attorneys did what reasonable attorneys do in this case they asked general questions including requires an attorney to do that what an attorney has to do is try to get jazz drummer questions try to focus in on what the claims are and if the and if the petitioner doesn't give them the claim that that is the basis that domestic violence and she is not asking natch he has never asked that all we're saying is that it is simply not sufficient to ask only what would happen to you if you returned and that is all that mr canfield stated that is this pattern of practice to  ask he should he needed to do more an attorney in order to be competent must do more than that and at the very least they must ask the question on the i five eighty nine which specifically asks have you ever been harmed in your home country at any time by anybody mr canfield never asked that question and we say that that constitutes ineffective assistance of counsel but what's made clear here is that even if miss are there would uphold mr canfield that she was a victim of domestic nine was overturned in two thousand and one at the time of miss arthur's application there was no guidance on the issue that would have required me to interrogate miss author on the family issue however the precise fact that the attorney general overturned matter of already in two no you're honor i my my argument was never that we do that we only look at her statement we're going to look at everything that was submitted in a motion to reopen all i was saying regarding her statement is that it has to be taken as true unless inherently unbelievable but here mr canfield's sponsor's critical is particularly because the b i a specifically used it in its decision and cited to it but here we have to say that any competent attorney like